Willetta L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 26, 20180120170619 (E.E.O.C. Oct. 26, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willetta L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120170619 Agency No. 1C171002616 DECISION On November 30, 2016, 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 November 1, 2016, 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 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. ISSUES PRESENTED Whether Complainant established that she was discriminated against based on disability (Thoracic Outlet Syndrome/Neuritis/Inflamed Bursae) and reprisal (prior EEO activity) when she was issued a Notice of Removal, effective February 27, 2016. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency’s Lehigh Valley Processing and Distribution Center facility in Lehigh Valley, Pennsylvania. 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. 0120170619 2 Complainant alleged that the Manager of In-Plant Support (M1) and the Manager of Operation Programs Support (M2) issued her the Notice of Removal (NOR) effective February 27, 2016. At the time of the issuance of the NOR, Complainant had been off work for a period of time. She had sustained an injury at work on February 19, 2014. She filed a claim with the Office of Workers’ Compensation Programs (OWCP). The claim was accepted for her left shoulder condition and cervicalgia. Complainant was off work claiming total incapacitation. She was offered, but declined a number of limited duty assignments. Complainant’s physician “determined that there was no specific alteration in Complainant’s job requirement that would allow her to continue work and perform up to expectations.” Although Complainant claimed she was totally incapacitated, the Agency learned that she was operating a private photography business during the time she was out. The Office of Inspector General was advised and investigated Complainant, and she was observed and filmed conducting business and engaging in physical activity that she claimed she was prohibited from performing. The Agency interviewed Complainant’s physician, learned that her physician was unaware of her activities. Based on Complainant’s ability to perform the observed physical activities, the physician “released her to full duty.” Complainant stated that her business activities did not “create the type of movement that would affect her condition”; however, her physician contradicted her statement based on his immediate release of Complainant to full duty. The Agency charged Complainant with violating applicable standards of conduct contained in the Employee and Labor Relations Manual. The NOR referenced Complainant’s failure to report income from her business and that she misrepresented her condition to her physician and to OWCP. 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 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 On March 7, 2017, Complainant’s attorney was informed that her third request for an extension of time to file a statement or brief to support the appeal was denied. The Agency, among other things, requests that its FAD be affirmed. 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 0120170619 3 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”). Disability and Reprisal In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies, as it does here, its decisions were motivated by Complainant’s disability and there is no direct evidence of discrimination, Complainant must demonstrate that: (1) she is an “individual with a disability;” (2) she is “qualified” for the position held or desired; (3) she was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability and reprisal, we find that the Agency provided a legitimate, non-discriminatory reason for removing Complainant. After receiving information that Complainant was operating a private business while off work due to total incapacitation, the Agency contacted the Office of Inspector General who investigated. The investigation revealed that Complainant was working in her photography business engaging in physical activities that were contrary to the limitations placed upon her by her physician and to which she refused offers of assignments to return to work. Postal Inspectors interviewed her physician who claimed that Complainant misrepresented her condition and he was unaware of her private business activities including the exceeding of the restrictions he placed on her. We find no persuasive evidence of pretext in this matter. M1, after reviewing the investigative report and interviewing Complainant, made the decision to issue the NOR. M1, prior to his interview, had never met Complainant and was not aware of her prior EEO activity. Likewise, the concurring official, M2, had never met Complainant and was not aware of her EEO activity. To the extent that Complainant alleged that she was somehow denied a reasonable accommodation, we note that prior to the investigation the medical information presented to the Agency indicated that she was totally incapacitated and thus unable to perform the essential functions of a position. In this regard, we note that she was offered, but declined, several limited duty assignments. Likewise, the Agency was under no obligation to excuse her misconduct as a form of reasonable accommodation. Since reasonable accommodation is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual’s disability. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act at Question 36. 0120170619 4 CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s final decision. 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. 0120170619 5 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 October 26, 2018 Date Copy with citationCopy as parenthetical citation