Selene M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jul 27, 2016

0120141897 (E.E.O.C. Jul. 27, 2016)

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

Selene M.,1
Complainant,

v.

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

Appeal No. 0120141897

Hearing No. 410-2013-00275X

Agency No. 1K301004012

DECISION

Complainant filed an appeal from the Agency’s March 24, 2014, final decision concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk, PS 6, at the Agency’s Atlanta Processing and Distribution Center in Atlanta, Georgia.
On June 25, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of disability and in reprisal for prior protected EEO activity when:

1. she was forced to work outside her medical restrictions;
2. her supervisor divulged her confidential medical information to other
employees;

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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3. she notified upper management about her supervisor’s actions and management
failed to respond;
4. she was forced to go home and subjected to a constructive suspension;
5. management questioned her coworkers about her and her work assignments
causing them to treat her indifferently;
6. management stated on the workroom floor that all limited duty employees
should be sent home and continually voiced negative comments about employees
on limited duty; and
7. she was subjected to increased surveillance and her coworkers were told not to
talk to her.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) 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 pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

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 prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
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preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

In order to establish a claim of harassment, Complainant must show that: (1) she belongs to
statutorily protected classes or engaged in prior EEO activity; (2) she was subjected to
unwelcome conduct related to her membership in those classes and her prior EEO activity; (3)
the harassment complained of was based on her protected classes; (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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Claims #1 (Instructed to Work Outside Medical Restrictions) and #4 (Constructive Suspension)

Complainant’s medical conditions limited her ability to lift, push, or pull heavy objects. This
restricted her ability to work on mail sorting machines. Complainant alleges that her
supervisor (S1) instructed her to work on mail sorting machines in violation of her medical
restrictions. According to Complainant, she refused to comply with those instructions and, as
a result, was sent home without work. Complainant characterizes this action as a constructive
suspension. Other than Complainant’s uncorroborated allegations, there is no evidentiary
support for these claims. In the course of the investigation, Complainant provided no details
about when these events occurred. She told the investigator to “see TACS reports for dates”
but produced no documentation to support her claim. Significantly, S1 flatly denies ever
asking Complainant to work on any “automatic or manual machines.” ROI at 186, 195. We
find that the preponderance of the evidence does not establish that the allegedly discriminatory
acts occurred. Therefore, Complainant’s claims that she was ordered to violate her medical
restrictions and was thereby constructively suspended necessarily fail.

Claim #2 (Improper Disclosure of Confidential Medical Information)

Complainant alleges that S1 disclosed confidential medical information relating to her medical
restrictions to several of her coworkers during a meeting on February 29, 2012. S1 denied
revealing any confidential medical information concerning Complainant and testified that
Complainant herself revealed that information to her coworkers at a meeting on March 4,
2011. ROI at 189. Several of Complainant’s coworkers confirm that she revealed information
about her medical restrictions at the March 4, 2011 meeting. None of those coworkers support
Complainant’s claim that S1 disclosed confidential medical information about Complainant.
We find that the weight of the evidence does not support Complainant with respect to this
claim.

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Claim #3 (Upper Management Failed to Respond to Complaints about S1)

Complainant contends that she complained to upper management about S1’s alleged disclosure
of her medical information and that upper management took no action. The record shows that
upon inquiry by management, S1 denied the allegation. The investigation went no further
because Complainant failed to provide the names of coworkers who may have received the
improperly disclosed information.

Harassment - Claims #5 (Management Questioned Coworkers about Complainant), #6
(Negative Comments About Employees on Limited Duty) and #7 (Subjected to Surveillance
and Ostracized)

Complainant summarized the alleged harassing behavior about which she complained as
follows: Supervisors “are always voicing their opinions about injured workers, particularly
those on limited and light duty. Their comments are unprofessional and negative.” ROI at 105.
As result Complainant “felt that [she] was being treated with indifference” because of her
lifting restrictions. ROI at 106. Several other coworker witnesses disputed Complainant’s
contention that such opinions were voiced by supervisors. See, Supplemental Affidavits,
Responses to Question 8.

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is
actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's
employment. Thus, not all claims of harassment are actionable. 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.’” Here, Complainant has come to feel
that she is being treated “indifferently” because her supervisors have expressed negative
opinions. Record evidence suggests that those expressions of opinion occurred irregularly, if
at all. We find that the allegedly harassing behavior was neither severe nor pervasive enough
to establish a claim of hostile workplace harassment.

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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:
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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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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.

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
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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

July 27, 2016
Date