Mickie B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 23, 20180120171509 (E.E.O.C. Oct. 23, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mickie B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120171509 Agency No. 4G-760-0075-16 DECISION On March 16, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 23, 2017, final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Data Technician, 07 at the Agency’s Forth Worth Processing and Distribution Center in Fort Worth, Texas. On September 2, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on national origin (Hispanic), sex (female), disability (multiple unspecified), and in reprisal for prior protected EEO activity when: 1. on April 27, 2016, she received a Notice of Removal, effective May 26, 2016; and 2. on an unspecified date, her request for accommodation was denied. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 0120171509 The record indicates that Complainant had been employed with the Agency for more than twenty- five years at the time the relevant events occurred. During her tenure with the Agency, Complainant served as a steward in the American Postal Workers Union (APWU). The record further establishes that on an unspecified date in November of 2012, Complainant knowingly submitted a false writing indicating that during the course of her duties as a Union steward, she traveled to three post offices, when in fact she did not do so. According to the record, the APWU initiated a charge against Complainant after discovering that she submitted a PS Form 3971 for union steward time that she did not serve. The record further discloses that in March of 2016, the Agency was informed that on November 25, 2016, Complainant entered into an agreement with the United States’ Attorney’s Office pleading guilty to one felony count of using a false statement. As a result, the Agency issued a Notice of Removal effective May 26, 2016. Complainant further contends that the Agency failed to accommodate her disability. Specifically, Complainant alleges that she requested an accommodation for her disability which required her to take time off for treatment and hospitalization. The Agency contends however, that Complainant never requested an accommodation. Agency officials testified that there is no record of any response from management regarding an accommodation request from Complainant, nor is there any record that Complainant’s request was referred to the District Reasonable Accommodation Committee (DRAC), for review. The record does however, contain a copy of Complainant’s Request for Temporary Light Duty following heart surgery, along with a copy of a physician’s certification restricting Complainant to lifting ten to twenty-five pounds for two to eight hours per day. The record further indicates that Complainant’s Request for Temporary Light Duty was approved by Agency officials from January 19, 2015 through February 18, 2015. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. This appeal followed. ANALYSIS AND FINDINGS Notice of Removal – Claim 1 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802: Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden. 3 0120171509 Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28. 1990): Peterson v. Dep't. of Health and Human Sen., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31. 1990). Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6. 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency: and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340(Sept. 25, 2000). Assuming arguendo, that Complainant established a prima facie case of discrimination based on national origin, sex, disability and in reprisal for prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for its alleged discriminatory conduct. Specifically, with respect to claim 1 regarding the removal, the Agency issued Complainant a Notice of Removal for unacceptable conduct related to her felony conviction for making a false statement regarding her service as a Union steward. We also determine that Complainant failed to demonstrate that any conduct on the part of the Agency concerning Complainant’s removal was based on discriminatory animus toward Complainant’s protected classes. In reaching this conclusion, we note that Complainant failed to demonstrate that she was treated less favorably than named comparators. The record discloses that Complainant and the comparators she named were not similarly situated because they worked for different supervisors. Moreover, there is no evidence of record that the comparators named by Complainant were convicted of any crime at the time they worked for the Agency. Other than Complainant’s bare assertion, she does not provide the Commission with any evidence to support her assertion that named employees were not removed after being found guilty of felony charges. Without more, we find that Complainant has failed to demonstrate that the Agency’s issuance of a Notice of Removal was discriminatory. 4 0120171509 Finally, the record is devoid of evidence that Agency officials knew of any previous protected activity for Complainant or that there was a nexus between protected activity by Complainant and her removal and alleged denial of accommodation. Even assuming that Complainant established a prima facie case of reprisal, she did not demonstrate that the Agency’s reason for removing her was a pretext for unlawful reprisal. Failure to Provide Reasonable Accommodation - Claim 2 Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. To establish the denial of a reasonable accommodation, a complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified†individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). An individual with a disability is “qualified†if the individual satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of the position. 29 C.F.R. § 1630.2(m). An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. § 1630.2(i). They also include dunking, concentrating, interacting with others, and sleeping. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997). Regarding claim 2, we assume for the purpose of analysis only that Complainant is a qualified individual with a disability. Based on a review of the record, we find that Complainant failed to provide any evidence that she requested a reasonable accommodation. There is no record evidence of any written or verbal request for an accommodation by Complainant nor is there a record of Complainant’s accommodation request being referred to the DRAC for review. Nothing in the instant record supports a finding that Complainant made a request to accommodate her disability. In that regard, we find that the Agency did not fail to provide Complainant with a reasonable accommodation because she did not establish that she requested an accommodation. Consequently, we find that the Agency properly determined that Complainant failed to demonstrate with respect to claim 2, that she was subjected to discrimination as alleged. 5 0120171509 CONCLUSION We AFFIRM the Agency’s final decision finding that Complainant was not discriminated against as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. 6 0120171509 Failure to do so may result in the dismissal of your case in court. “Agency†or “department†means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 23, 2018 Date Copy with citationCopy as parenthetical citation