[Redacted], Kerrie F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Aug 5, 2021

Appeal No. 2020003397 (E.E.O.C. Aug. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kerrie F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020003397 Agency No. 4J530006618 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 18, 2020, final decision 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 AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues are whether Complainant established that the Agency discriminated against her when it failed to provide a reasonable accommodation or when it terminated her employment during her probationary period based on disability or sex. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant at the Agency’s Burlington Post Office in Burlington, Wisconsin. Complainant began her employment on November 11, 2017, and she was subject to a 90-day probationary period. 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. 2020003397 2 Report of Investigation (ROI) at 57, 240. Complainant stated that she was pregnant when she began her employment. ROI at 91. On December 12, 2017, Complainant sustained a work-related injury of a contusion on her left knee. Complainant provided a medical document noting that she could return to work on December 14, 2017, with restrictions, including limited standing and walking. ROI at 174. On December 29, 2017, Complainant obtained medical documentation stating that she could return to work with updated restrictions, including a limitation to work four hours per day. ROI at 176. Complainant stated that she requested light duty as an accommodation from the Postmaster (PM) (male), and that she was never offered an accommodation. ROI at 102. Complainant stated that PM threatened her on January 4, 2018, that if she did not return without restrictions, she would be fired. ROI at 99. PM stated that he provided Complainant’s 60-day performance evaluation by telephone on January 5, 2018. ROI at 123. Complainant noted that she was out from December 14, 2017, through January 12, 2018, on worker’s compensation. ROI at 43. On or about January 12, and 26, 2018, Complainant provided updated medical documentation stating that she could return to work with no restrictions. ROI at 183-4. Complainant stated that on February 9, 2018, PM terminated her employment over the telephone for taking too much time off due to her disability and pregnancy. ROI at 93. On June 20, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female/pregnancy) and disability (worker’s compensation injury of contusion of left knee and Iliotibial Band Syndrome) when she was denied a reasonable accommodation;2 and on February 9, 2018, she was separated during her probationary period. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant did not show that she could perform the essential functions of the position with or without reasonable accommodation. The Agency further found that Complainant did not identify an effective accommodation that would have allowed her to perform her job functions. The Agency also found that Complainant failed to present similarly situated comparators, or show that the Agency’s legitimate, nondiscriminatory reasons for its actions were pretextual. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant appealed the Agency’s final decision. 2 Complainant initially only alleged discrimination when the Agency terminated her employment during her probationary period, and she raised a claim of a failure to accommodate in her EEO affidavit. We note that Complainant alleged that the Agency failed to accommodate her disability, but she did not allege a failure to accommodate her pregnancy. 2020003397 3 The Commission vacated the Agency’s final decision, finding that the record was insufficiently developed to determine whether Complainant sustained her burden of proof on the questions of disparate treatment based on sex or disability, or a denial of a reasonable accommodation in violation of the Rehabilitation Act. The Commission remanded the complaint back to the Agency to conduct a supplemental investigation to include additional information, such as information probative of the specific reason(s) the Agency removed Complainant from employment in February 2018. The Agency was also ordered to issue a new final decision, based upon the information included in the original and supplemental investigations. Kerrie F. v. U.S. Postal Serv., EEOC Appeal No. 2019002236 (Nov. 26, 2019). On March 18, 2020, the Agency issued a new final decision. The Agency found that Complainant was an individual with a disability, but that she was not qualified because she was unable to perform the essential functions of her position. However, the Agency assumed that Complainant was a qualified individual with a disability and found that there were no plausible reasonable accommodations that would have enabled Complainant to perform the essential functions of her position. Regarding Complainant’s removal, the Agency found that, while Complainant belongs to protected classes based on sex and disability, and that she was subjected to an adverse action, Complainant did not identify a similarly situated comparator. For example, Complainant identified another pregnant employee, but this employee worked at a different Post Office, and PM stated that he did not have a say in the employee’s work. As such, the Agency found that Complainant failed to establish a prima facie case of discrimination for her termination. However, the Agency assumed a prima facie case and found that management officials articulated a legitimate, nondiscriminatory reason that Complainant’s performance was not satisfactory. The Agency then determined that Complainant did not establish that the reasons were pretexts for discrimination. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted a statement in support of her appeal. The Agency did not respond to Complainant’s appeal. CONTENTIONS ON APPEAL On appeal, Complainant argues that she was wrongfully terminated due to discrimination. Complainant states that, after the Commission overturned the Agency’s prior decision and requested additional information, the Agency issued a slightly different final decision in March 2020, and the Commission “followed their decision,” after only reviewing the documentation for a few weeks. Complainant argues that she was denied a reasonable accommodation when she requested light duty from PM, and that the evidence shows that he did not even search for light duty work. 2020003397 4 Complainant states that she provided attached examples of discrepancies and “perjury.” Specifically, Complainant asserts that PM stated that he conducted a telephone evaluation with Complainant on January 5, 2018, but that the telephone call log evidence shows that PM never placed a call to Complainant on that day. Complainant also states that, while PM stated that he did not recall any specific discussion with Complainant while she was out while injured, the call log shows the January 4th phone call when PM made a “threat.” Complainant asserts that PM “created colorful stories,” such as she was unable to do the job, but he did not provide any supporting evidence, other than hearsay. Complainant also argues that the supervisors could not provide a date or time when she allegedly refused to help a coworker and left the building. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p). Assuming, for the purpose of analysis and without so finding, that Complainant is an individual with a disability, we find that the record does not establish that she was qualified for her position. While Complainant had noted absences, there is no evidence that Complainant showed that she was qualified during the times when she performed the essential functions of her position. 2020003397 5 PM stated that Complainant’s duties included sorting and delivering mail, and that Complainant was not getting her route done in a satisfactory time. PM noted that Complainant sustained her injury on her first day of carrying mail alone. ROI at 120-1. On appeal, Complainant argued that PM “created colorful stories” that she was unable to do the job, but he did not provide any supporting evidence, other than hearsay. However, Complainant did not provide any evidence showing that PM’s assertion that she could not perform the essential functions of her position was untrue, and she did not establish that she was qualified for her position. See Shelley v. U.S. Postal Serv., EEOC Appeal No. 0720070076 (June 14, 2012) (finding that the complainant, a probationary employee, was unable to establish that he was qualified because he could not show that he could perform the essential functions of his position for which he was hired after he was hospitalized due to a medical condition after working for the agency for several days). See also Enforcement Guidance at Q. 25. As such, we find that Complainant did not establish that the Agency violated the Rehabilitation Act when it failed to provide a reasonable accommodation for her disability. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show 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); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex and disability when the Agency terminated her employment during her probationary period, we find that the Agency proffered legitimate, nondiscriminatory reasons for its action. PM stated that he decided to separate Complainant during her probationary period because he did not have enough of her work sample to show that she could do the job, and that Complainant was not performing up to standards. PM stated that they were not allowed to extend the probationary period. Supplemental ROI at 29, 32. PM noted that Complainant was rated unsatisfactory in the areas of Work Quantity, Work Quality, Dependability, and Work Methods. ROI at 123, 189. 2020003397 6 We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant argued that she provided evidence of call logs to show that PM called and threatened her on January 4, 2018, and that he did not call her on January 5, 2018. However, Complainant did not attach any evidence with her appeal, and even reviewing the call logs submitted with her prior appeal, we find that they do not prove her assertions. The call logs only show the dates, times, origination, destination, and length of the telephone calls, and we note that the call logs include information for multiple telephone numbers, and Complainant did not identify which number belonged to her. We also find that there is no evidence that PM threatened Complainant on January 4, 2018, which PM denied. ROI at 122. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep’t of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Complainant also argued that the supervisors could not provide a date or time when she allegedly refused to help a coworker and left the building. However, PM did not state that he factored this allegation into his decision to terminate Complainant’s employment. Complainant only makes bare assertions that the Agency discriminated against her, which are insufficient to show that the reasons were pretexts for discrimination. As such, we find that Complainant did not establish that the Agency discriminated against her based on her sex or disability when it terminated her employment during her probationary period. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that the Agency failed to accommodate her disability or discriminated against her based on her sex or disability when it terminated her employment during her probationary period. 2020003397 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020003397 8 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. 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 August 5, 2021 Date