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

Equal Employment Opportunity Commission

Aug 8, 2019

0120182079 (E.E.O.C. Aug. 8, 2019)

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

Tammy S.,1
Complainant,

v.

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

Appeal No. 0120182079

Agency No. 4K290007717

DECISION

On April 5, 2018, 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
March 21, 2018, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

Whether the final decision (FAD) correctly determined that Complainant did not establish that she
was subjected to discrimination based on retaliation when:

1. On July 19, 2017, through September 6, 2017, she was sent home, and not permitted to
work;
2. On various dates in June and July 2017, she has been required to perform duties which she
believe exceeded her medical restrictions; and
3. She has been sent to work at other installations.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant
2 (CCA) at the Agency’s Main Office in Columbia, South Carolina. On October 23, 2017,
Complainant filed an EEO complaint alleging that the Agency discriminated against her based-on
reprisal for prior protected EEO activity as set forth above. Complainant alleged that two
Customer Services Managers, MCS1 and MCS2, intentionally discriminated against her based on
retaliation. The record indicates that she filed an EEO complaint against MCS2, which was settled,
more than a year before in Agency Case No. 4K-290-0067-16.

Issue 1:

Complainant alleged that she was told by MCS1 to get medical documentation completed and that
she could not return to work until she had been “cleared by a doctor.” She asserted that there was
nothing wrong with her; and that she did not receive an explanation for the decision. Complainant
maintained that management violated a rule, regulation or policy when she was not provided with
a shop steward.

MCS1 explained that Complainant was unable to work with MCS2; but this [restriction] pre-dated
her arrival at the Columbia Main Office. She asserted that, on July 19, 2017, Complainant became
sick, and could not complete her route, and went home. She stated that the following day, July 20,
2017, Complainant provided her with a Certificate of Absence (CA-1) but it was dated June 15;
and she told Complainant she could not accept it because it contained the wrong date.

MCS1 asserted that she asked Complainant to return with a description of her restrictions from her
physician, adding that she was unable to provide Complainant with the reason why she was
requesting additional documentation because Complainant became upset and responded with
outbursts and “carrying on,” and became belligerent. Complainant returned to work, on August 8,
2017, with a doctor’s note stating she had stress-related medical issues that were being addressed.

MCS1 stated that she told Complainant she needed something from her doctor stating what she
could and could not do. She explained that Complainant experienced heat exhaustion, shortness
of breath, etc., on prior occasions and she needed to know her restrictions, adding that she was
concerned that Complainant was being treated by a psychiatrist and wanted to make sure she was
not a danger to herself or others before she returned to work. MCS1 stated that Complainant
returned with documentation stating she did not pose a risk to herself or others and could return
without restrictions.

MCS1 explained that when she asked Complainant for clarification concerning her restrictions,
Complainant had an outburst on the floor, and she asked the Manager, Injury Compensation (MIC)
to escort Complainant out of the building. She added that when Complainant was later cleared by
the nurse to return to work, on September 6, she called Complainant to notify her she was being
sent to Forest Acres to work.

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The Postmaster asserted that Complainant was sent home because she never brought in any
documentation that stated that she could deliver mail. He stated that Complainant had been found
on the bathroom floor at the Forest Acres facility, adding that she stated she was overwhelmed and
felt ill due to the pressure she put on herself. He explained that at Complainant’s request, her
mother picked her up from work; and they had not heard from Complainant since. The Postmaster
asserted that they sent Complainant a “where are you letter” but she had not responded. He
maintained that the Employee and Labor Relations Manual was applicable, which provided a
process for submitting a request for limited or light duty.

Issue 2:

Complainant alleged that the only restriction she had was not to work with MCS2. She explained
that she was selected by MCS1 on several occasions to work at the Forest Acres Installation, which
was where MCS2 worked. She asserted that she received her first restriction on July 6, 2016, and
it was updated on August 8, 2017. Complainant maintained that she provided medical
documentation to MCS1 in the presence of her union representative; and that MCS1 disregarded
her documentation.

Complainant explained that as a CCA, she was responsible for casing and delivering mail, along
with packages, certified mail, restricted mail, etc. She asserted that she could perform her duties
and did not have any physical restrictions. She stated that she objected when she was sent to work
with MCS2; and that she was never given any reason for that. Complainant maintained that MCS2
and MCS1 made the decision to make Forest Acres her permanent installation.

MCS1 testified that Complainant provided medical documentation that stated she could not work
with MCS2 shortly after MCS1 began working at the Columbia Main Post Office. She explained
that Complainant did not directly report to MCS2; and that Complainant’s medical restricting
stating that she could not work with MCS2 did not affect the manager’s ability to locate
assignments for her.

She further explained that she sent Complainant to Forest Acres because she was too slow in
working the routes she had at the Main Office. MCS1 asserted that routes were evaluated on a
time scale and Complainant could not case or deliver the Main Office routes in a timely manner.
She added that Complainant’s inability to perform the duties of her position had nothing to do with
her medical issues or restrictions. She stated that she sent Complainant to Forest Acres but knew
MCS2 was no longer there so her medical restrictions were not violated.

MCS2 asserted that she was not aware of Complainant’s restrictions or any conversations she had
with management regarding her restrictions.

The Postmaster testified that as a result of a mediation agreement, Complainant was not supposed
to work with MCS2. He asserted that generally, CCAs were moved around the city based on the
needs of the service; and it was highly unlikely that any CCA would be assigned to one building.
He added that because of an August 11, 2016 mediation agreement, he agreed that Complainant
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would be assigned to Dutch Fork; however, Complainant subsequently had problems with the
managers at Dutch Fork and was reassigned to Leesburg. He explained that Complainant was
unhappy with the hours she received at Leesburg, and received permission to go to Forest Acres,
where her performance was deemed inadequate. He explained that in June 2017, MCS2 was the
Manager, Customer Services at the Forest Acres Branch.

Although Complainant occasionally worked at Forest Acres, the record indicated that she reported
to a supervisor not MCS2. In September 2017, when Complainant was permanently assigned to
Forest Acres, MCS2 was no longer there.

Issue 3:

Complainant alleged that she was assigned to the Columbia Main Office but was sent to other
stations about one half of the time in the almost two years she had been with the Agency. She
explained that she was sent to Forest Acres, Leesburg, Dutch Square, Northeast, and Camden. She
stated her belief that she was consistently sent to other stations because management did not want
her around. Complainant asserted that she was told she was being sent to other stations because
they needed help; and that there was no work or vehicle for her even though she was scheduled.
She stated that she started disagreeing with being sent to other installations when they sent her to
work at Forest Acres, which was where MCS2 was the supervisor in violation of her medical
documentation. Complainant stated her belief that MCS1 and MCS2 were aware of her prior EEO
complaint, but she was not sure when they became aware. She claimed that no other CCA was
treated the same as she, stating that they were not “bounced around” like she was, and were not
assigned duties that exceeded their medical restrictions.

MCS1 asserted that she had been told that Complainant worked at the stated installations as part
of an effort to find a suitable position for her. She added that she sent Complainant to Forest
Acres because she did not have a route that was suitable for her, and she needed Complainant to
be productive. MCS1 also asserted that she was not aware of Complainant’s prior EEO activity
and had not been named or been personally involved in any capacity in Complainant’s prior EEO
activity.

MCS2 stated that she was not aware of Complainant’s prior EEO activity until she received an
affidavit for the instant complaint.

The Postmaster testified that he was not sure who Complainant would report to because she had
been out so long, explaining that CCAs gave management flexibility to assign them to the facilities
that needed help. He attested that CCAs were told during the pre-hire interview that they could be
assigned to one building but would be sent where there was a vacant assignment and help was
needed, explaining that Complainant was sent to other offices due to her performance.

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. When Complainant did not request a hearing
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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). The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

The parties did not provide statements on appeal.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of reprisal, we find that the
Agency provided legitimate, non-discriminatory reasons for its actions as set forth above.
Likewise, we find no persuasive evidence of pretext or of discriminatory animus. The evidence
supports management’s explanations that Complainant was asked to go home due to her medical
restrictions; and was not allowed to return until she had the proper medical documentation; and
that she was moved to Forest Acres and other locations because of her performance, and to find a
suitable installation for her to work. At the time of her permanent move to Forest Acres, MCS2
was no longer there, and although Complainant may have temporarily worked at Forest Acres
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during MCS2’s tenure there, she was never supervised by MCS2. Therefore, we do not find that
she was worked outside of her medical restrictions.2

CONCLUSION

As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge’s
credibility determinations after a hearing; therefore, we can only evaluate the facts based on the
weight of the evidence presented to us. Based on a thorough review of the record, we AFFIRM
the Agency’s FAD.

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.

2 Although Complainant did not allege that she was denied a reasonable accommodation in
violation of the Rehabilitation Act, we find it important to note that the Commission has held that
an employer does not have to provide an employee with a new supervisor as a reasonable
accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, Question 33 (March 1, 1999). Although an
employer is not required to change supervisors, the employer may require that supervisory
methods be altered as a form of reasonable accommodation. Id.
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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 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

August 8, 2019
Date