[Redacted], Sherrie M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jun 22, 2021

Appeal No. 2020000796 (E.E.O.C. Jun. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherrie M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020000796 Hearing No. 510-2018-00239X Agency No. 4B006004417 DECISION On October 17, 2019, 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 20, 2019, 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., 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 At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-1 at the Agency’s Post Office facility in Ponce, Puerto Rico. On August 5, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (multiple physical and emotional conditions),2 and age (42/43 years old at times of alleged incidents) 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. 2020000796 2 1. On May 15, 2017, Complainant was followed on the street and given verbal instructions about wearing a Bluetooth (hands-free cell phone); 2. On May 18, 2017, Complainant’s supervisor (S1: male, no claimed disability, 40 years old) issued her a Letter of Warning (LOW); 3. On an unspecified date or dates, Complainant was given several investigative interviews; 4. On an unspecified date or dates, Complainant was not allowed to take lunch and was required to work overtime; and 5. On an unspecified date or dates, Complainant’s request for a reasonable accommodation was not granted. At the conclusion of the 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). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, that FAD found that Agency officials articulated legitimate nondiscriminatory reasons for their actions and Complainant failed to show that such articulated reasons were a pretext. With regard to claim 2, the FAD found that S1 issued Complainant the LOW for leaving mail visible and unattended in her vehicle, compromising the security of the mail. With regard to claim 4, the FAD found that S1 denied that Complainant was not allowed to take lunch or that she was required to work overtime. With regard to claim 5, the FAD found that Agency officials granted Complainant’s request for an accommodation. With regard to the remaining claims, the Agency analyzed them together under a harassment theory and found that the actions alleged did not involve Complainant’s age, disability, or sex. Nor were they sufficiently severe and/or pervasive to constitute harassment. The instant appeal 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”). 2 For purposes of this decision the Commission assumes without finding that complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 2020000796 3 Denial of Reasonable Accommodation 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. See 29 C.F.R. §§ 1630.2(o), (p); Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). A request for modification or change at work because of a medical condition is a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation (Guidance) at Question 1. After receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. pt. app. § 1630.9. Thus, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability...[to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. pt. 1630 app. § 1630.9; Guidance at Question 5. To establish a denial of reasonable accommodation, 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. § 16302(m); and (3) the Agency failed to provide a reasonable accommodation. A “qualified individual with a disability” is one who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental duties of a job, that is, the outcomes that must be achieved by someone in that position. Gwendolyn G. v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). When the disability and/or the need for accommodation is not obvious, the agency may ask the employee for reasonable documentation about her disability and functional limitations. Guidance, at Question 6. As noted above, for purpose of this decision the Commission assumes without finding that Complainant is an individual with a disability. We further assume, without finding, that Complainant is a qualified individual with a disability. We next need to determine whether or not the Agency failed to provide an accommodation. Complainant averred that she made numerous requests for a reasonable accommodation and that they were all ignored by management. Complainant, however, did not provide the dates of any of her requests. S1 averred that following the receipt of Complainant’s medical information and restrictions, he granted Complainant’s request on July 28, 2017 and Complainant now works just three hours a day, in accordance with her medical restrictions. Despite denying in her affidavit that she was offered any accommodation, we note that in her appeal brief Complainant admits that her “hourly rates were reduced at some time” but argues that “The agency did not try to accommodate the appellant is [sic] a different position at the Post Office, should [sic] as placing her at the counter receiving customers.” 2020000796 4 We note in this regard that, although individuals protected under the Rehabilitation Act are entitled to reasonable accommodation, they are not necessarily entitled to their accommodation of choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Complainant has not shown that the accommodations she was granted are not effective. Furthermore, since Complainant has not provided any dates of those occasions when she requested accommodations, she has not shown that the Agency unreasonably delayed the granting of any accommodation for so long as to constitute a denial of the request. Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination. We next find that the Agency articulated legitimate nondiscriminatory reasons for its actions. With regard to the LOW, another supervisor (S2: male, no claimed disability, 48 years old) averred that he issued the LOW because Complainant “failed to perform her duties in a satisfactory manner. She left mail unattended and unsecured in the front cab.” The LOW itself states that: On 15 May 2017 at approximately 1:00pm your assigned vehicle LLV #2205561 was observed by [another supervisor] and I [sic], . . . parked at [address omitted] with the mail in the front cab, visible and not secured in the back of the LLV. You failed to take the necessary precautions to protect the mail entrusted to you by leaving it in the front of the LLV while parked and out of your visibility. Also, when you parked your vehicle . . . you did not curb the wheels of the LLV, you 2020000796 5 left the wheels in a straight position not following proper Postal Security Procedures. This action could have caused a rollaway serious accident With regard to Complainant being denied lunch and made to work overtime, all management officials questioned denied any knowledge of Complainant’s allegation. With regard to overtime, S1 averred that “if [Complainant] was require [sic] to work OT on her own route was before she provided [medical limitations for her reasonable accommodation request].” The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. With regard Complainant being denied lunch and made to work overtime, Complainant has not addressed the Agency’s articulated reason for its action. With regard to the LOW, Complainant maintains that she parked her vehicle correctly and that “I was watching the car all the time during my lunch period.” On appeal, Complainant maintains management officials followed her on her route in an attempt to harass her and that: When the alleged persons that followed Appellant and [sic] found no wrong doing, they complain [sic] about her parking and/or her leaving mail in plain site within the vehicle. Appellant denied theses [sic] allegations but the agency did not believe her. No evidence was presented that indicated that mail was lost, or that some one enter [sic] the Postal Office vehicle. No evidence was presented to establish that the Appellant left her vehicle open or that the windows were down without supervision. We note that the burden of proof does not rest on the Agency to prove its actions were justified, the burden of proof rests with Complainant to show, by a preponderance of the evidence, that the Agency’s actions were motivated by discriminatory animus towards her protected bases. See Hicks; Burdine; McDonnell Douglas. This, Complainant has failed to do. Hostile Work Environment We note initially that, to the extent that Complainant is alleging that she was subjected to a hostile work environment when she was denied a reasonable accommodation, issued a LOW, and denied lunch and forced to work overtime, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes such claims must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded based on our finding that complainant failed to establish that any of the actions taken by the agency with regard to such claims were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). 2020000796 6 Complainant alleges the following acts of harassment: on May 15, 2017, she was followed on the street and given verbal instructions about wearing a Bluetooth; and on an unspecified date or dates, she was given several investigative interviews. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record we find that Complainant has not shown that the actions alleged either involved or were based on her protected bases. Nor has she shown that the actions were sufficiently severe and/or pervasive as to alter the terms and conditions of her employment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discriminations occurred, and we AFFIRM the FAD. 2020000796 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). 2020000796 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 June 22, 2021 Date