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

Equal Employment Opportunity Commission

Feb 3, 2022

Appeal No. 2021000497 (E.E.O.C. Feb. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rita F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2021000497 Agency No. 4E-680-0057-19 DECISION On October 26, 2020, 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 September 25, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency’s Sterling Post Office in Sterling, Kansas. Complainant originally worked at the Nickerson Post Office in Kansas. On October 11, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to disparate treatment and hostile work environment harassment on the bases of disability (Developmental - Neurological Disorder, including Anxiety Disorder and Sensory Processing Disorder) and reprisal for prior EEO 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. 2021000497 2 1. since July 2019, coworkers and management repeatedly challenged Complainant’s disorder and requests for reasonable accommodation; 2. on July 2, 2019, Complainant learned that her route was put up for bid; 3. on July 7, 2019, Complainant was informed of a route inspection the next day and was not informed who would conduct the inspection; 4. on July 12, 2019, management withheld an entire tray of mail from Complainant until she had almost completed her route; 5. on July 15, 2019, management informed Complainant that her route would not be adjusted, would not be returned to the Nickerson Post Office, and would remain as is; 6. on July 17, 2019, management subjected Complainant to an investigative interview; 7. management posted Complainant’s bid as a 44K, but the day after bidding ended, it changed the bid to a 43K; 8. on August 27, 2019, management gave Complainant a second route inspection; 9. on September 5, 2019, management called Sheriff’s Deputies to Complainant’s route; 10. on September 12, 2019, two unknown females were in Complainant’s workstation and she was told they were there for a special count; 11. on September 13, 2019, management subjected Complainant to an investigative interview; 12. since August 27, 2019, management has allowed a coworker to close, lock, and deadbolt the inside foyer door to make the workplace inaccessible and inhospitable; 13. on January 3, 2020, management placed Complainant on administrative leave pending an investigation and then extended the leave to determine how to accommodate her; and 14. on January 8, 2020, management referred Complainant to the District Reasonable Accommodation Committee (DRAC) although she did not ask them to do so and had refused to participate in the past. The Agency accepted Complainant’s complaint, as amended, for EEO investigation. During the EEO investigation, Complainant stated that she does not have a medical condition or disability, but has “an Inherited Neurological Condition, that requires accommodation, due to a disabling work environ[ment].” She was offended by the use of “medical condition” and “disability” during the investigation, stating that she is not “diseased.” Complainant explained that she cannot tolerate loud noises and alleged that coworkers lodge “sensory targeting” against her. She stated that she can perform her work duties, but she rushes to do her route before others arrive or does her work in her postal vehicle to avoid the targeting. Complainant stated the result is she sometimes makes mistakes on her route. Complainant stated that she wears noise canceling headphones, but also has to wear earplugs to prevent internal ear pain from headphone pressure. She stated that she also wears a noise cancelling loop. 2021000497 3 Complainant stated that others are able to reduce their noise, but there are specific coworkers who make loud noises on purpose. She is impacted by noises such as banging mail trays, walking, unnecessary talking, and cell phone usage. During the investigation, for allegation (1), management stated that Complainant was in the DRAC process in 2015 and they are aware that Complainant has sensitivity to noise and sounds that can impact her ability to perform her work. Management stated that Complainant has not requested accommodation since 2015 and management has asked her to work with DRAC to better understand her needs but she refuses to do so. As to allegation (2), management stated that it put the postal route up for bid due to retirement of the Regular Rural Carrier. Complainant was awarded the bid. Management stated route evaluation is done by the number of boxes and miles on a route. Regarding allegation (3), management stated that it can inspect any route at anytime, but this was an annual inspection and a neighboring Postmaster conducted the inspection because the Sterling Postmaster was too busy. With regard to allegation (5), management stated that Complainant’s request was considered but not effectuated because it would violate the collective bargaining agreement. Management stated that it would impact other carriers’ route evaluations. As to claim allegation (6), management stated that it conducted an investigative interview due to Complainant yelling as loud as possible across the workroom floor at one of her coworkers. For allegation (7), management stated that for all employees the box numbers and miles determine route evaluations. Regarding allegation (8), management stated that a grievance settlement required a second route review to address Complainant’s concerns about box and mile counts. Management stated that route inspections are part of the collective bargaining agreement and are different from employee supervision. As to allegation (9), management stated that an employee at the Nickerson Post Office called the Sheriff about an incident between she and Complainant. The coworker stated that Complainant was acting erratically, and she felt threatened by Complainant. Management stated that it did not contact the Sheriff. For allegation (10), management stated that special counts occur for different reasons, such as growth, grievances, or overburdened status. With regard to allegation (11), the Sterling Postmaster thought an investigative interview was warranted regarding the September 5 incident with the coworker at the Nickerson Post Office. 2021000497 4 Regarding allegation (12), management stated that the entry lock is a security lock and follows building codes. It noted that only one employee was usually at this particular postal facility, so she kept the entry door locked for safety, but Complainant had a key to access the building. As to allegations (13) and (14), management stated that it put Complainant on administrative leave due to an injury accident where medical assistance was needed. Management stated that it conferred with Safety, Labor, and Legal. It stated, during review, it was determined that it needed to look further at reasonable accommodations for Complainant. Complainant was invited to engage in the interactive process through DRAC, but she did not want to go to DRAC, saying it was a waste of time. In pertinent part, the investigative record contains the following documents: • A December 22, 2015 Approval of Accommodation letter to Complainant, providing a guaranteed start time of 7:00 a.m. on her guaranteed day of Saturday or when she covers a regular carrier on Route 201 Monday through Friday, noise (erroneous talking and unnecessary equipment movement) would be kept to a minimum between 7:00 a.m. and 7:30 a.m. when Complainant is on duty, management will arrange with customers to obtain postal equipment fare weights when Complainant is not in the office, and the radio will not be on during Complainant’s morning office time. • An undated Revised Accommodation Statement providing a 7:00 a.m. start time for Complainant and 7:30 a.m. start time for other employees and prohibiting chatting and talking in the building vestibule and break area before 7:30 a.m.; restricting noise such as chatting, unnecessary equipment moving, banging, dropping, honking, between 7:00 a.m. and 7:30 a.m. while Complainant is at work; rescheduling weighing of postal equipment to when Complainant is not in the office; prohibiting radio music, singing, humming, and whistling while Complainant is on duty; requiring cell phone usage to be consistent with Agency policy; instructing management to notify Complainant as soon as possible when he needs to cover a route or there are schedule changes; prohibiting smoking, strong fragrances, deodorants, bug sprays, etc. while Complainant is entering, loading or exiting the building; instructing management to use written communication with Complainant as much as practicably possible; and instructing management to promptly address and remedy targeting of Complainant as a personnel issue. • A January 8, 2020 letter from the DRAC inviting Complainant to a meeting to engage in the interactive process on January 17, 2020. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge or an immediate final agency decision. 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). 2021000497 5 The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS 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 Chapter 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”). Reasonable Accommodation Under the Commission's regulations, 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. 29 C.F.R. §§ 1630.2(o) and (p). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (October 17, 2002); see also, Abeijon v. Dep’t of Homeland Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). Complainant stated that she has a Neurological Disorder including an Anxiety Disorder and Sensory Processing Disorder. Complainant stated that she has difficulty with loud noises and sounds and wears noise cancelling headphones, earbuds to prevent ear pain, and a noise cancelling loop in the workplace. The record shows, in December 2015, the Agency’s DRAC provided Complainant with a guaranteed start time of 7:00 a.m. on her guaranteed workday of Saturday or when she covers a regular carrier on Route 201 Monday through Friday, minimal noise (no unnecessary talking and equipment movement) between 7:00 a.m. and 7:30 a.m. when Complainant is on duty, rescheduling of customers who need to obtain postal equipment fare weights to when Complainant is not in the office, and no radio use during Complainant’s morning office time. There were additional provisions to limit noise and other sensory irritants. Complainant stated that coworkers and management lodged “sensory targeting” against her with unnecessary talking and equipment movement, cell phone usage, banging of mail trays and the like intentionally. 2021000497 6 The Agency stated that it asked Complainant to return to the DRAC process so that it could get a better understanding of her needs, but Complainant refused. Also, the record contains a January 9, 2020 from DRAC inviting Complainant to the interactive process. Here, we find that the Agency substantially complied with the reasonable accommodation measures it agreed to undertake and that the demands placed by Complainant were to some extent unreasonable, outside the scope of the accommodation agreement, and would have placed an undue hardship on the Agency's operations. As previously stated, while Complainant is entitled to an effective reasonable accommodation, she is not entitled to the accommodation of her choice. Castaneda, supra. Complainant has not established that the provided accommodations were ineffective. Further, Complainant has not shown that she tried to work with the Agency to find effective accommodations to address her concerns. We note that she was resistant to participating in the DRAC interactive process. We find that Complainant has presented no evidence that the Agency was unwilling to reasonably accommodate her or otherwise denied her reasonable accommodation in violation of the Rehabilitation Act. Harassment To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her disability or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Management stated that it attempted to work with Complainant to understand her needs but Complainant refused to work with its mechanism for accommodation, DRAC. Management stated route evaluation is done by the number of boxes and miles on a route. Management stated that it conducted an annual inspection of Complainant’s route and a neighboring Postmaster conducted the inspection because the Sterling Postmaster was too busy. It stated that special counts are conducted for a variety of reasons such as overburdening status, growth, or grievances. Management stated that Complainant’s route request was considered but not effectuated because it would violate the collective bargaining agreement and impact other carriers’ route evaluations. 2021000497 7 Management stated that it conducted investigative interviews due to Complainant yelling as loud as possible across the workroom floor at one of her coworkers and based on an incident when a coworker called the Sheriff when she felt Complainant was acting erratically and she felt threatened. Management conducted a second route review to address Complainant’s concerns about box and mile counts. Management stated that route inspections are part of the collective bargaining agreement and are different from employee supervision. Management stated that an entry lock was used for security at a postal location with one consistent employee, but Complainant had an access key. Management added that it put Complainant on administrative leave due to an accident where medical assistance was needed. Management stated that it conferred with Safety, Labor, and Legal, and during its review, it determined that it needed to look further at reasonable accommodations for Complainant. It noted that Complainant was invited to engage in the interactive process through DRAC, but she felt it was a waste of time. Based on the information of record, we find that Complainant failed to establish that the Agency’s actions were based on discriminatory or retaliatory motives. As such, Complainant’s harassment claim is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 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 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. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. 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, non-discriminatory 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). 2021000497 8 Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination, Complainant failed to show, by a preponderance of the evidence, that the articulated reasons are a pretext for discrimination. For the same reasons already discussed, we conclude Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory motives. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. 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). 2021000497 9 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. 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 February 3, 2022 Date