0120111687
01-27-2012
Susan A. Sands-Wedeward,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120111687
Hearing No. 443-2010-00089X
Agency No. 1J-536-0009-09
DECISION
On January 25, 2011, Complainant filed an appeal from the Agency’s
January 20, 2011, 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. The Commission deems the
appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
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 Handler at the Agency’s Processing and Distribution Center in
Madison, Wisconsin. On July 26, 2009, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of
her disability (back condition) and reprisal for prior protected EEO
activity when:
1. on an ongoing basis since May 2007, management has subjected her to
hostile work environment harassment, including but not limited to: not
being accommodated with a change of schedule, having her badge taken away
and being sent home, being ordered out of the break area during her break,
being given a ‘day in court’ and issued a Letter of Warning, and
her supervisor entering her work area every 15 minutes with a clip board;
2. on September 30, 2009, management issued her a Notice of 7-Day
Suspension; and
3. on October 18, 2009, management issued her a Notice of 14-Day
Suspension for failure to follow instructions.
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 EEOC Administrative Judge (AJ). Complainant
timely requested a hearing but subsequently withdrew her request,
by letter dated November 29, 2010. 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. On appeal, Complainant reiterates
her contention that she was subjected to unlawful discrimination and a
hostile work environment.
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. (November 9, 1999) (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”).
Initially, with respect to Complainant’s contention that she was denied
the reasonable accommodation of a change in schedule, the Rehabilitation
Act prohibits discrimination against qualified disabled individuals. See
29 C.F.R. § 1630. In order to establish that Complainant was denied
a 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. § 1630.2(m); and (3) the Agency failed to provide a reasonable
accommodation. See Enforcement Guidance: Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002
(Oct. 17, 2002) (“Enforcement Guidance”). 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. See 29 C.F.R. §§ 1630.2 (o) and (p).
Here, we find that assuming, without finding, that Complainant is
an individual with a disability, she has not shown that the Agency
failed to provide her with a reasonable accommodation. The record
shows that Complainant submitted medical documentation to management
outlining her restrictions and was provided with a light-duty position
commensurate with those restrictions. Report of Investigation (R.O.I.),
page 143-153. The record further shows that Complainant subsequently
requested that she be rescheduled from the night shift to the day shift
because “her sleep disturbance [was] exacerbating her symptoms” and
she needed to “care for her diabetic son during the day.” Id. 147,
242. The record shows that management approved a temporary reassignment
to the day shift but denied Complainant’s request for a permanent
reassignment as there was no light duty work available on that shift
commensurate with her medical restrictions. Id. at 250-252. We find
that Complainant has presented no evidence to show that the provided
accommodation of light duty work on the night shift was ineffective and
we note that although protected individuals are entitled to reasonable
accommodation under the Rehabilitation Act, they are not necessarily
entitled to their accommodation of choice. See Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act (Reasonable Accommodation Guidance) EEOC Notice
No. 915.002 at Question 9 (October 17, 2002).
Further, to the extent that Complainant was requesting a schedule change
in connection with her son’s disability, we find that the Agency
did not have to accommodate Complainant. The Commission has held that
individuals with a relationship or association with a person with a
disability are not entitled to receive reasonable accommodation. See
EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act at n. 5 (October 17,
2002); Brooks v. Dept. of Veterans Affairs, EEOC Appeal No. 01A32247
(August 7, 2003). Further, the record shows that Complainant requested
Family and Medical Leave Act leave in order to care for her son and that
these requests were approved. R.O.I. at 310-317. Accordingly, we find
that Complainant has not demonstrated that she was denied reasonable
accommodation.
As to claims (2) and (3), 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 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).
Here, the record shows that assuming, arguendo, Complainant established
a prima facie case of disability and reprisal discrimination, the Agency
nonetheless articulated legitimate, nondiscriminatory reasons for its
actions. The record shows that Complainant was issued a Notice of 7-Day
Suspension, dated September 24, 2009, for unacceptable conduct and
failure to follow instructions. R.O.I. at 172, 199. The record shows
that on September 7, 2009, Complainant was involved in an altercation
with a supervisor during which Complainant “spoke loudly” while
the supervisor was speaking to her in an effort to drown out the
supervisor’s instructions. Id. The record also shows that on September
8, 2009, Complainant submitted a request to be allowed not to take a
lunch break and that although the request was denied by management,
Complainant failed to take her required lunch break. Id. Complainant
was also issued a Notice of 14-Day Suspension, dated October 18, 2009,
for failure to follow instructions after being directed “repeatedly
not to write in [her] notebook while on the clock.” Id. at 174,
199. We note that Complainant had previously been issued a Letter of
Warning (LOW), dated July 27, 2009, for being absent from her work area
without authorization and failure to follow instructions. Id. at 90. The
record shows that on July 6, 2009, Complainant was found by a management
official sitting in the break room reading a book while on duty. Id. at
90, 168. The management official states that she had been informed that
Complainant had been in the break room for hours and that she refused to
return to her work station when instructed to do so. Id. at 198. We find
that Complainant has not shown that the Agency’s articulated reasons
for issuing her the discipline at issue were a pretext for unlawful
discrimination or were motivated by discriminatory or retaliatory animus.
Further, to the extent that Complainant is alleging that these actions
were part of a hostile work environment, we find that under the standards
set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993),
Complainant’s claim of harassment must fail. See Enforcement Guidance
on Harris v. Forklift Systems, Inc. at 3, 6 (March 8, 1994). Proof of a
prima facie case of harassment is precluded based on our finding that
Complainant failed to establish that any of the actions taken by the
Agency were motivated by her disability or prior protected activity. See
Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(September 21, 2000).
Finally, with respect to the remaining incidents alleged, we find that
even if true and considered together, they do not rise to the level
of actionable hostile work environment harassment. Moreover, we find
that Complainant has failed to proffer any evidence beyond her mere
assertions, that the Agency’s actions were motivated by discriminatory
or retaliatory animus.
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 (M0610)
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 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 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 27, 2012
__________________
Date
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0120111687
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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