Wanita Z.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 30, 20180120172024 (E.E.O.C. Nov. 30, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wanita Z.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120172024 Hearing No. 443-2015-00137X Agency No. 4E570005214 DECISION On May 17, 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 May 11, 2017 final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency’s Grand Forks Post Office in Grand Forks, North Dakota. Her duties included “sweeping” and “feeding” of the Delivery Bar Code Sorter (DBCS) machine. 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. 0120172024 2 On December 8, 2014 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Hispanic), national origin (Mexican), sex (female), color (Brown), disability (diabetic/heart), age (58), and in reprisal for prior protected EEO activity when: 1. on various unspecified dates, Complainant's supervisor harassed her; 2. on February 24, 2014, Complainant was issued a Letter of Warning; 3. on or about August 25, 2014, Complainant was denied reasonable accommodation when the supervisor refused her doctor's documentation and ordered her to leave the premises; and 4. on an unspecified date, management informed Complainant that her recently acquired Express Mail bid assignment would have its duties changed. 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for summary judgment and issued a decision without a hearing on April 24, 2017. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. For the reasons set forth below, we find that this case presents no genuine issue of material fact requiring a hearing to be resolved. Claim #1 (Harassment) It is well-settled that harassment based on an individual's statutorily protected bases is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment, Complainant must show that: (1) she belongs to the statutorily protected classes or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her 0120172024 3 membership in those classes or her prior EEO activity; (3) the harassment complained of was based on those classes or that activity; (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). Further, the incidents must have been “sufficiently severe or 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). In the instant case, Complainant alleged that her supervisor (S1) harassed her when he made remarks on numerous occasions that she was doing things wrong and made comments about her speaking Spanish in the workplace. ROI at 127, A.41. The Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Moreover, there is insufficient evidence that S1 subjected Complainant to any offensive conduct based on her protected classes. With respect to the comments about speaking Spanish, Complainant contended that S1 frequently made offensive comments about her speaking Spanish, but provided no corroborating evidence in support of her claim. Most significantly, none of the co-workers Complainant cited as witnesses provided evidence of ever having heard S1 comment about Complainant speaking Spanish. ROI at 290, 317, 324. Regarding comments about her work performance, S1 acknowledged discussing with Complainant such workplace matters as her failure to follow instructions to make her aware of her obligations and responsibilities. ROI, at 183. Complainant has presented no evidence that these discussions were based on her protected classes. For this reason, we conclude that there is insufficient evidence to support a claim of harassment. Claim #2 (Letter of Warning) To prevail in a disparate treatment claim such as this, 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. Corp. 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 Prods., 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). Complainant was injured when a coworker opened a parcel “drop cage” striking Complainant in the face. As a result of this incident, management issued Complainant a Letter of Warning. According to management, the Letter of Warning was issued because Complainant was not authorized to be in the coworker’s workspace when the accident occurred. 0120172024 4 This is a legitimate, nondiscriminatory reason for the Agency’s action. In an effort to demonstrate that the Agency’s reason is pretextual, Complainant argued that other employees have engaged in similar behavior without being disciplined. However, Complainant has adduced no evidence other than her own conclusory statements to support this contention. Claim #3 (Denial of Reasonable Accommodation/Medical Inquiry) For a significant period in Summer 2014, Complainant was absent from work after her physician determined that the performance of her normal work duties might pose a health risk to her because of her heart condition. On August 23, 2014, Complainant reported for work. She submitted a brief written statement from her physician to her supervisor, stating, without elaboration, that Complainant “may return to work Saturday 8/23/14.” Complainant’s supervisor refused to permit her to return to work on the ground that she had not submitted the necessary paperwork to return to duty after a medical absence. Complainant claimed that the Agency’s refusal to permit her to return to work on August 23, 2014, without a more detailed statement of her medical condition, constituted a violation of the Rehabilitation Act. Complainant’s position is not well taken. The record reveals that the Agency attempted to engage in the interactive process with Complainant to determine what medical restrictions she may have had or what modifications she may have needed upon her return to work. Employers are permitted to make inquiries concerning an employee’s medical condition following an absence from work under circumstances such as are involved here. See EEOC Enforcement Guidance on Disability- Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (Jul. 27, 2000) Question 17. The Agency’s established policy required all employees returning to duty after an absence caused by certain specified medical conditions (including “cardiovascular disease(s)”) to provide a detailed statement of fitness for duty signed by a physician. See, “Return to Duty Guidelines” ROI at 499. The brief doctor’s note provided by Complainant did not satisfy that requirement. Complainant later submitted medical documentation on September 4, 2014, which indicated her restrictions and Complainant was subsequently returned to work performing duties in accordance with those medical restrictions once they were ascertained. For that reason, the Agency’s refusal to return Complainant to duty on August 23, 2014, did not violate the Rehabilitation Act. Claim #4 (Change of Duties) Complainant alleges that after she successfully bid on an Express Mail bid assignment, the duties of that assignment were changed to include working on the DBCS machine, work she regarded as undesirable and had sought to avoid by bidding for the Express Mail assignment. However, the record evidence shows that the duties of the assignment were not changed as Complainant alleged. The Express Mail bid assignment, as described in the Vacancy Notice, included, “Mail processing Clerk secondary.” ROI at 457. According to the Agency, mail processing clerk duties included working on the DBCS machine. Complainant has presented no evidence rebutting the Agency’s explanation. Accordingly, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. 0120172024 5 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 order. 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. 0120172024 6 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 November 30, 2018 Date Copy with citationCopy as parenthetical citation