Sade M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Dec 19, 2018

0120171806 (E.E.O.C. Dec. 19, 2018)

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

Sade M.,1
Complainant,

v.

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

Appeal No. 0120171806

Hearing No. 460-2016-00180X

Agency No. 4G770008516

DECISION

On April 25, 2017, 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
April 5, 2017, 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01,
at the Agency’s Windmill Station in Houston, Texas.

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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On February 17, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of national origin (Hispanic)2 and disability (bilateral
lumbar, thoracic, cervical sprain/strain) when:

1. On December 23, 2015, and other dates not specified, her supervisor spoke to her in an
aggressive manner, yelled at her in front of other employees and forced her to scan
parcels that she did not deliver;

2. On dates to be specified, management tried to force her to violate her medical
restrictions, and she was the only employee who was required to bring in medical
documentation; and

3. On December 23, 2015, her supervisor required her to scan an item as “delivered,” and
withheld her time card until she performed the scan.

Complainant also alleged that she was subjected to discrimination on the bases of national origin,
disability, and reprisal (instant EEO complaint) when:

4. On January 28, 2016, she was issued a 14-day no time off suspension.

The Agency accepted the claims for investigation on March 1, 2016. On March 28, 2016,
Complainant amended her complaint, to include a claim of discriminatory harassment on the bases
of sex, national origin, disability, and reprisal when:

5. On March 3, 2016, management denied her 3971 (leave) request and charged her with
being absent without leave (AWOL).

Thereafter, Complainant amended her complaint again on May 3, 2016, to include a claim of
discriminatory harassment on the bases of sex, national origin, disability, and reprisal when:

6. On April 5, 2016 and April 11, 2016, she was denied light duty, sent home, and told no
work was available.

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 requested a hearing.

2 The Commission views “Hispanic” as a national origin designation and not as a racial
designation. Banco v. Department of Justice, EEOC Appeal No. 01A03601 (December 12, 2002);
Morales v. Department of the Navy, EEOC Petition No. 03930096 (December 10, 1993).

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On February 7, 2017, the AJ assigned to the case dismissed Complainant’s request for a hearing
due to her failure to comply with the AJ’s orders. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). Complainant is not challenging the AJ’s cancellation of the
hearing request.

On April 5, 2017, the Agency issued a final decision, finding no discrimination. In so finding, the
Agency determined that the allegations in claims (1) to (3) were insufficiently severe or pervasive
to constitute harassing behavior because such matters occupy the normal scope and course of
industrial relations and partake of daily interactions between a supervisor/manager and his or her
employees. Regarding claim (4), the Agency explained that Complainant was issued a suspension
because of her disrespectful behavior on December 23, 2015. For claim (5), the Agency averred
that a lower level supervisor initially granted Complainant’s request for leave. However, the
Operations Manager revoked this decision and charged Complainant as AWOL because
Complainant was using leave to avoid a meeting with her supervisor and was not sick, just mad.
As for claim (6), the Agency noted that Complainant submitted a request for light duty on Tuesday,
April 5, 2016, along with medical documentation. The Agency averred that the process for
providing light duty to an employee in accordance with the collective bargaining agreement takes
approximately three days and that other employees usually take leave during this process. The
Agency noted that management allowed Complainant to commence light duty work on Tuesday,
April 12, 2016. The Agency concluded that Complainant failed to demonstrate pretext with regard
to management’s articulated reasons or show that she was subjected to discrimination.

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”).

To establish a claim of hostile work environment, 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 at 6 (Mar. 8, 1994).
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Further, the incidents must have been “sufficiently severe and pervasive to alter the conditions of
Complainant's employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services, Inc., 23
U.S. 75 (1998).

With regard to Complainant’s allegations in claims (1) and (3), concerning the events of December
23, 2015, we will assume arguendo that the events occurred as Complainant described and were
unwanted. The record indicates that Complainant and her supervisor got into an argument as to
whether Complainant had to scan packages into the system. Instead of scanning the packages into
the system, Complainant asked for her time card, but her supervisor refused to give Complainant
her time card until she scanned the packages. The preponderance of the evidence does not show
that the alleged instances of harassment, even if true, had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating, hostile, or offensive work
environment. Moreover, Complainant has also not shown that the alleged instances of harassment
were related to her protected bases.

As for Complainant’s allegations in claim (2), we find that the Agency did not force Complainant
to work in excess of her medical restrictions or make inappropriate requests for medical
documentation. In so finding, we note that Complainant’s physician limited her to no more than
1 hour of overtime per day. There is no persuasive evidence that Complainant ever worked beyond
her medical restrictions. We also find that Complainant has not shown that she was treated less
favorably than other similarly situated employees regarding management’s request for medical
documentation, as Agency policies require all employees to substantiate work restrictions with
current documentation. Also, as Complainant was on temporary light duty, it was reasonable for
the Agency to periodically request medical updates.

Even if we treat claims (4) to (6) as discrete acts, we still find no discrimination. We find that the
Agency articulated legitimate, nondiscriminatory reasons for its actions in these claims.
Complainant has not rebutted the Agency’s articulated reasons for issuing her a 14-day suspension
and for denying her 3971 (leave) request. Moreover, with regard to claim (6), we note that an
employer is not required to create a job for a disabled employee or provide “make do” work.
Complainant has not shown that there was light duty work within her medical restrictions with
which the Agency could provide her when she was not provided work. The record also does not
support a claim that any difference in providing work was based on her protected characteristics.
See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122755 (Sept. 11, 2014).
Consequently, we agree with the Agency that Complainant has failed to show by a preponderance
of the evidence that she was subjected to discrimination as alleged. Also, we find that to the extent
that this complaint somehow encompasses a denial of a reasonable accommodation, no
accommodation was denied.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

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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).
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.
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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

December 19, 2018
Date