Raylene S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Aug 9, 2018

0120162680 (E.E.O.C. Aug. 9, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Raylene S.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120162680

Hearing No. 551-2015-00027X

Agency No. 4E-980-0054-14

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the Agency’s July 20, 2016 final order concerning her equal
employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission MODIFIES the Agency’s final order on
remedies.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier, G-01,
at the Agency’s Carrier Annex in Seattle, Washington. Complainant entered duty with the
Agency in December 2006. Complainant stated that she experiences complications from severe
asthma and situational stress. Complainant explained that her asthma symptoms are often
triggered by exposure to smoke, gas fumes, perfumes, warm temperatures, humidity, and stress.
Additionally, Complainant claimed that she has difficulty standing and walking for more than
eight hours.

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.
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In January 2014, Complainant received a letter from the Station Manager stating that her route
was being abolished or reposted and that Complainant would become an unassigned regular
Carrier. Thereafter, Complainant became an unassigned regular and bid on a new route.
Complainant alleged that on numerous occasions she requested assistance from the Station
Manager regarding her medical condition and applying for other positions, but he refused to help
her. Complainant claimed that when she attempted to bid on a position, the Agency’s electronic
bidding system would not allow her to do so and the Station Manager would not check to see
why she was blocked from bidding.

On or around May 1, 2014, Complainant received notice that she was the successful bidder for a
City Carrier position, but that the assignment was postponed and may be canceled due to
Complainant’s medical restrictions. The Customer Services Support Supervisor requested that
Complainant provide medical documentation stating that she could perform the full duties of the
position within six months pursuant to a Memorandum of Understanding (MOU) pertaining to
the bidding rights of light or limited duty employees. On May 7, 2014, Complainant’s doctor
submitted a “Final Report” stating that Complainant had some restrictions that limited the
“degree of physical demands placed on her” and that Complainant would have difficulty meeting
the heavy lifting and carrying requirements of the position for which she successfully bid.
Complainant’s doctor added that Complainant’s limitations were unlikely to change in the next
six months. Following the Agency’s receipt of Complainant’s doctor’s report, Agency
management canceled Complainant’s bid. As a result, Complainant became an unassigned
regular and was ineligible to bid on assignments.

Management subsequently requested medical documentation detailing her medical restrictions.
In July 2014, Complainant submitted the requested documentation. In October 2014,
Complainant was referred to the District Reasonable Accommodation Committee (DRAC).
Complainant met with the DRAC twice in December 2014 and January 2015. The DRAC closed
Complainant’s case after concluding that Complainant was being accommodated. Complainant,
however, was often sent home early prior to completing her full eight-hour shift. Complainant
claimed that management told her to go home because there was no work available for her or
there were no vehicles available. Complainant believed that there was often work that she could
have performed on days she was told to go home. Complainant later transferred to the Riverton
Heights Station and effectively performed her duties.

On July 7, 2014, Complainant filed a formal complaint alleging that the Agency discriminated
against her on the bases of sex (female) and disability when:

1. On May 2, 2014, management informed Complainant that her new bid assignment
would be postponed or canceled due to her medical restrictions; and

2. On various dates, management did not provide Complainant with assistance
regarding the bidding process.

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Following an investigation, the Agency provided Complainant with a copy of the report of
investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. The AJ held a four-day hearing in
February and March 2016, and issued a decision on June 7, 2016.

In the decision, the AJ initially determined that Complainant had established a prima facie case
of disability discrimination, but not sex discrimination. Next, the AJ found that the Agency had
articulated legitimate, nondiscriminatory reasons for its actions. More specifically, management
stated that because Complainant had restrictions due to her condition and required an
accommodation, she was considered to be on light duty. Based on the Memorandum of
Understanding, an employee on light duty must provide documentation from their physician
stating that they would be able to perform the full functions of their bid assignment within six
months. The documentation provided by Complainant’s doctor stated that Complainant would
not be able to perform the full duties of her bid assignment within six months. As a result,
Complainant’s bid assignment was canceled because she could not perform the full duties of the
bid within six months.

In addition, Agency management stated that it provided Complainant with assistance with the
bidding process. In particular, the Station Manager testified that when Complainant came to him
for help because she was not able to bid, he walked her over to the Union Steward for help. The
Union Steward, however, stated that he did not recall the Station Manager ever walking
Complainant over for help with bidding. Furthermore, the Union Steward stated that he would
not have been able to help Complainant even if the Station Manager had walked her over to his
office.

The AJ found that the record evidence demonstrated that Complainant was subjected to disability
discrimination when the Agency canceled her bid without engaging in an effective interactive
process to determine whether she would be able to perform the essential duties of a Letter Carrier
position on a new bid assignment with or without an accommodation. Complainant was
previously performing the full functions of her bid assignment. The portion of her route which
was beyond her medical restrictions was removed and assigned to another carrier. Complainant
testified that she believed this was a reasonable accommodation because she was able to perform
the full functions of her job, she maintained her own route, and she was entitled to the bidding
process. For the new bid assignment, Complainant was never given an opportunity to deliver the
route. Further, Complainant’s doctor’s letter did not say that she was unable able to perform the
required functions of a Letter Carrier position; rather, her doctor merely stated that Complainant
required an accommodation in the past and would have difficulty when exposed to certain
factors. In fact, the Station Manager testified that Complainant was able to perform the functions
of her job.

Finally, the AJ determined that the Agency discriminated against Complainant based on her
disability when it continuously disallowed her to bid on a new route. The Labor Relations
Manager testified that an employee with an accommodation could receive her bidding rights
back; however, Complainant’s DRAC case was closed when management informed Human
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Resources that she was being accommodated. Thus, Complainant was stuck in limbo due to the
cancelation of her bid which was based on her disability. As a result, the AJ concluded that the
record evidence showed that the Agency discriminated against Complainant based on her
disability when her bid assignment was canceled and when management did not provide her
assistance regarding the bidding process.

To remedy the discrimination, the AJ ordered the Agency to, among other things, provide
Complainant reasonable accommodation and restore all of her rights (including bidding rights);
pay Complainant $35,000.00 in non-pecuniary compensatory damages; pay attorney’s fees and
costs Complainant may have incurred; conduct EEO training for all managers, supervisors, and
employees at the Seattle Carrier Annex; and to post a notice. The AJ determined, however, that
Complainant had not established an entitlement to pecuniary damages or restoration of leave.
The Agency subsequently issued a final action fully implementing the AJ’s decision and the
relief ordered.

CONTENTIONS ON APPEAL

On appeal, Complainant does not challenge the AJ’s finding of liability, but contends that the AJ
erred in her analysis and formulation of damages. Complainant argues that the AJ erred in
applying a “more likely than not” standard in denying her restoration of leave. Complainant
claims that the record evidence shows that management was sending her home when there was
no work available within her medical restrictions. Complainant contends that if the Agency had
accommodated her, she likely would not have experienced any symptoms that might have
compelled her to request leave without pay. In addition, Complainant argues that the AJ did not
discount or discredit her claim for pecuniary compensatory damages; therefore, the presumption
of entitlement should be weighed in her favor. Complainant contends that she was forced to
withdraw $15,358.00 from her husband’s 401(k) retirement account, and that she incurred
$375.00 in out-of-pocket counseling costs, and between $250.00 and $300.00 for postage and
copying costs. Accordingly, Complainant requests that the Commission grant her restoration of
leave and instruct the Agency to pay the full amount of her requested damages.

In response, the Agency argues that the AJ properly found that Complainant failed to
demonstrate an entitlement to back pay. The Agency notes that Complainant testified that the
conditions at the Seattle Carrier Annex exacerbated her condition and that she took leave to cope
with her condition. Thus, the Agency contends that the AJ properly determined that
Complainant was unable to prove that she was entitled to restoration of leave. Further, the
Agency notes that Complainant and her representative failed to timely submit a verified
statement of costs and the record was devoid of any documentation of any costs incurred.
Finally, the Agency contends that the AJ did not award Complainant pecuniary compensatory
damages; therefore, she is not entitled to any additional damages. The Agency notes that
reimbursement for her withdrawal from her husband’s 401(k) is not compensable under the
Commission’s regulations nor are Complainant’s counseling fees. Accordingly, the Agency
requests that the Commission affirm its final action.

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STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held. See 29 C.F.R. § 1614.405(a).

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), Ch. 9, at § VI.B. (Aug. 5, 2015).

As a preliminary matter, the Commission notes that neither party challenges the AJ’s finding of
disability discrimination. Accordingly, this decision will only address the contested remedies
ordered.

ANALYSIS AND FINDINGS

Restoration of Leave

Complainant contends that the AJ erred in finding that she failed to establish an entitlement to
restoration of leave. Complainant claims that she was frequently sent home prior to the end of
her eight-hour shift even when there was work available within her restrictions. The AJ
determined that Complainant was not able to show which days she was sent home for
discriminatory reasons and which days she requested to go home early for other reasons. The
Agency presented substantial evidence demonstrating that Complainant had a history of
significant leave usage prior to the cancellation of her bid.

To be entitled to leave restoration, a complainant must demonstrate a causal nexus between the
discrimination and the need to take leave. Evans v. Dep’t of Justice, EEOC Appeal No.
0120080335 (June 22, 2012) (ordering agency to restore two weeks of sick leave to complainant
where complainant’s psychiatrist wrote letter to agency stating that complainant experienced
emotional stress because of supervisor’s actions, that having to draft a memorandum describing
supervisor’s actions exacerbated the stress, and that complainant should be excused from work
for a reasonable period), req. for recon. denied, EEOC Request No. 0520120522 (Dec. 11, 2012).
The complainant has the burden of proof on this issue. Velez v. U.S. Postal Serv., EEOC Appeal
No. 01902746 (Nov. 16, 1990) (therapist’s testimony that retaliatory interview exacerbated
complainant’s stress was sufficient to establish that discrimination caused complainant to take
leave immediately after interview, but evidence did not establish that all of the subsequent
absences were directly caused by discrimination).
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To meet that burden, the complainant must present evidence identifying the specific leave that he
or she took because of the discrimination. Henley v. Dep't of Justice, EEOC Appeal No.
01A22186 (Nov. 7, 2002) (complainant not entitled to additional restoration of leave where
evidence did not identify specific amount of leave complainant took as direct result of
discrimination), request for recon. denied, EEOC Request No 05A30364 (Mar. 10, 2003); see
also Ellis v. Dep't of Def., EEOC Appeal No. 01A13314 (Apr. 29, 2003) (complainant not
entitled to restoration for leave claimed where, although harassment exacerbated complainant’s
fibromyalgia and required her to take leave, complainant did not demonstrate how agency’s
discrimination caused specific use of leave by, for example, providing medical documentation
indicating which precise acts by supervisor caused her to take which precise hours of leave).

Here, Complainant claims that she incurred 493.17 hours of leave without pay in 2014 and
124.82 hours of leave without pay in 2015. In support, Complainant simply submitted copies of
her annual leave statements. Hr’g Exs., at G-2. The AJ noted that the Agency demonstrated that
Complainant had an extensive history of leave usage prior to the Agency’s bid cancellation and
failure to engage in the interactive process. Complainant failed to show what amount of leave
was proximately caused by the Agency’s discriminatory acts and what leave may have been used
for other reasons. Consequently, the Commission finds that substantial record evidence supports
the AJ’s finding that Complainant presented insufficient evidence to support awarding her
restoration of leave.

Pecuniary Compensatory Damages

Pecuniary losses are out-of-pocket expenses incurred as a result of the agency’s unlawful action,
including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses,
physical therapy expenses, and other quantifiable out-of-pocket expenses. Past pecuniary losses
are losses incurred prior to the resolution of a complaint through a finding of discrimination, or a
voluntary settlement. Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 11 § VII.B.2 (Aug. 5, 2015) (internal citations omitted). “In a
claim for pecuniary compensatory damages, complainant must demonstrate, through appropriate
evidence and documentation, the harm suffered as a result of the agency’s discriminatory action.
Objective evidence in support of a claim for pecuniary damages includes documentation showing
actual out-of-pocket expenses with an explanation of the expenditure. The agency is only
responsible for those damages that are clearly shown to be caused by the agency’s discriminatory
conduct. Id. To recover damages, the complainant must prove that the employer’s discriminatory
actions were the cause of the pecuniary loss.” Id. (internal citations omitted).

Here, the AJ specifically denied Complainant’s request for reimbursement for $375.00 for
counseling sessions she needed due to workplace stress and $16,358.00 for withdrawals from her
husband’s 401(k) retirement account. The Commission finds that the AJ properly denied
Complainant’s request for reimbursement for withdrawals from her husband’s 401(k) retirement
account. However, the Commission finds that the AJ erred in denying Complainant’s out-of-
pocket costs related to the counseling sessions.
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Substantial record evidence demonstrates that Complainant attended counseling sessions in
August 2014, soon after her bid was canceled and when management failed to engage in the
interactive process. Hr’g Exs., G-5. The record shows that these sessions continued through
September 2015. Id. Complainant’s clinical psychologist stated that Complainant’s stressors
were not due to the nature of her work, but rather due to her work environment. Hr’g Exs., G-4.
Accordingly, the Commission finds that Complainant has established an entitlement to the
requested $375.00 in co-pays she incurred for counseling visits with her psychologist.

Finally, the Commission finds that the record evidence supports the Agency’s decision to deny
reimbursement of Complainant’s requested costs of “between $250.00 and $300.00 on postage
and copying.” There is no evidence in the record or claim by Complainant that she submitted a
verified request for these costs as required under 29 C.F.R. § 1614.501(e)(2)(i). Accordingly,
Complainant has not established an entitlement to reimbursement for these costs.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, the Commission MODIFIES the Agency’s final order on remedies
and REMANDS the matter for further action in accordance with this decision and the ORDER
below.

ORDER

To the extent that it has not already done so, the Agency is ORDERED to undertake the
following remedial action:

1. The Agency shall reasonably accommodate Complainant’s disability. The duty to
reasonably accommodate Complainant is ongoing. In addition, the Agency shall
restore all of Complainant’s rights, including her right to bid on a regular route.

2. Within 60 calendar days of the date this decision is issued, the Agency shall pay
Complainant $35,000.00 in non-pecuniary compensatory damages.

3. Within 60 calendar days of the date this decision is issued, the Agency shall pay
Complainant $375.00 in pecuniary compensatory damages.

4. Within 90 calendar days of the date this decision is issued, the Agency shall provide a
minimum of four hours of in-person or interactive training to all management
officials, supervisors, and employees at its Seattle Carrier Annex regarding their
responsibilities with respect to the Rehabilitation Act, with a special emphasis on
reasonable accommodation.
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5. Within 60 calendar days of the date this decision is issued, the Agency shall consider
taking appropriate disciplinary action against the Station Manager. The Commission
does not consider training to be disciplinary action. The Agency shall report its
decision to the compliance officer. If the Agency decides to take disciplinary action,
it shall identify the action taken. If the Agency decides not to take disciplinary action,
it shall set forth the reason(s) for its decision not to impose discipline. If any of the
responsible management officials have left the Agency’s employ, the Agency shall
furnish documentation of their departure date(s).

6. Within 30 calendar days of the date this decision is issued, the Agency shall post the
attached notice of discrimination, as described below.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission’s Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include evidence that the corrective action has been implemented.
POSTING ORDER (G0617)

The Agency is ordered to post at its Seattle Carrier Annex in Seattle, Washington copies of the
attached notice. Copies of the notice, after being signed by the Agency's duly authorized
representative, shall be posted both in hard copy and electronic format by the Agency within
30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive
days, in conspicuous places, including all places where notices to employees are customarily
posted. The Agency shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice is to be submitted to the
Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's
Decision," within 10 calendar days of the expiration of the posting period. The report must be in
digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29
C.F.R. § 1614.403(g).

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)

Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.

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If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

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).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. 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. 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

August 9, 2018
Date