[Redacted], Neta P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2019004226 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Neta P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019004226 Agency No. 1G-731-0017-17 DECISION On May 25, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 10, 2019 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq BACKGROUND During the relevant time, Complainant worked as a Mail Processing Clerk at the Agency’s Oklahoma City Processing and Distribution Center in Oklahoma City, Oklahoma. On August 7, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her based on race (Asian), national origin (Vietnamese/Chinese), sex (female), age (over 40), color, disability, and in reprisal for prior EEO activity (numerous prior complaints) when 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. 2019004226 2 she was subjected to harassment/a hostile work environment, including since on or about March 25, 2017, she has been provided with a four-hour per day limited duty job offer. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge.2 Complainant, however, withdrew the hearing request. On April 10, 2019, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no unlawful discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. See 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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, as here, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2 The record reflects that the complaint was initially processed as a mixed case with appeal rights to the Merit Systems Protection Board (MSPB), which Complainant filed. However, on May 3, 2018, the MSPB appeal was withdrawn after the parties agreed that the MSPB did not have jurisdiction over the appeal and agreed it should be processed as a non-mixed complaint. It was after this that Complainant initially filed a hearing request before the EEOC. 2019004226 3 Based on the evidence developed during the investigation of the complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Complainant stated that on January 1, 2017, she applied for a work assignment within her medical restrictions after submitting a workers’ compensation claim for an on-the-job injury. The Manager, Maintenance Operations, granted her a temporary light duty assignment working four hours on the Delivery Bar Card Sorter (DBCS). On March 25, 2017, the Supervisor, Distribution Operations, extended the modified assignment working four hours per day on the DBCS. Complainant, however, believed that her physician had stated that she could perform most of her work-related duties and could work on the DBCS for five hours and another three hours casing mail in the 030 unit. The Supervisor, Distribution Operations (African-American, American, female, light skinned, over 40), also Complainant’s supervisor, acknowledged that on or around March 25, 2017, she offered Complainant a limited duty position based on Complainant’s restrictions. In late 2016 or early 2017, Complainant requested an assignment based on an injury on duty and management accommodated her. The supervisor noted that Complainant wanted to work in the 030 manual unit, but this assignment was outside of her assigned modified job offer at the DBCS, which Complainant had accepted. She stated although Complainant worked four hours, she was also paid by Office of Workers’ Compensation Programs (OWCP) for the remaining hours to complete an eight-hour workday. Moreover, the supervisor said she advised Complainant to take an updated CA-17, Duty Status Report, to her physician to see if her previous restriction of simply grasping for no more than 4 hours could be increased. The Manager, Maintenance Operations (African-American, American, female, light-skinned, over 40) stated that on or about March 25, 2017, she offered Complainant a four-hour per day limited duty job based on her work restrictions and Complainant accepted the offer. The undisputed facts fully support the Agency’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. There is no evidence that anything other than Complainant’s medical restrictions, as provided to Agency management, was the reason for her assignment of four hours to the DBCS unit. Moreover, she was told that if she wanted to work more hours, she needed to provide updated medical documentation from her doctor indicating what she could do and for how long. There is no evidence of any other similarly situated employee who was treated more favorably. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. Similarly, to the extent Complainant claimed she was only provided four hours of work as a form of discriminatory harassment, Complainant, as indicated above, simply has provided no evidence to support her claim that her treatment was the result of her race, national origin, sex, age, disability, and/or prior EEO activity. Her claim of harassment/hostile work environment is precluded based on our findings that Complainant failed to establish that any of the actions taken 2019004226 4 by the agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodations 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. The Commission will assume without deciding that Complainant is a qualified individual with a disability. Here, Complainant claimed that she was denied reasonable accommodation during the relevant period. We have discussed this matter above, but reiteration in the context of a purported reasonable accommodation denial is appropriate. Substantial record evidence supports the Agency’s finding that Agency management accommodated Complainant’s need to work four hours on the DBCS, but lacked medical documentation that she could perform the other functions of her position (i.e. to be allowed to work on the DBCS and casing in the 030 unit). In addition, the supervisor gave Complainant an updated CA-17, Duty Status Report, and advised her to speak to her doctor to see if her hours could be increased. Complainant did not provide a response from her doctor. There is no evidence of record to dispute this assertion. Here, the evidence supports the Agency’s conclusion that Complainant was provided an effective accommodation within the medical restrictions provided by Complainant’s doctor to management. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 2019004226 5 (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). 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. 2019004226 6 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 May 24, 2021 Date