Zenobia P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 6, 20180120172463 (E.E.O.C. Nov. 6, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zenobia P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120172463 Agency No. 4J-606-0002-16 DECISION On July 12, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 8, 2017 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Supervisor, Customer Service at the Agency’s Chicago Central Carrier Annex in Chicago, Illinois. On November 18, 2015, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on race (African-American), sex (female), disability, and in reprisal for prior EEO activity when: 1. on September 24, 2015, she was taken off her detail; 2. on October 3, 2015, she was involuntarily detailed to work routes at multiple stations; 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. 0120172463 2 3. on or around November 11, 2015, she was not selected for the Acting Manager positions or the Acting Customer Service Operations Manager (CSOM) positions; and 4. on or around November 16, 2015, her doctor’s statement was emailed to managers and the Postmaster without her consent. After the investigation of the formal complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. The AJ, however, issued an order dated May 2, 2017, dismissing Complainant’s hearing request, finding that Complainant had not file any request for a hearing and her request for a hearing filed with the Agency was untimely. Consequently, the Agency issued the instant final decision on June 8, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).2 The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of 2 Complainant identified her disability as carpal tunnel syndrome. For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability. 0120172463 3 Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. Regarding claim 1, Complainant asserted that on September 24, 2015, she was taken off her detail. Specifically, Complainant stated that her detail as Acting Manager of the Loop Station started on June 13, 2015, and was to end on October 10, 2015. Complainant further stated that the Manager, Post Office Operations told her that her detail could not last more than 120 days, but she only served 104 days on the detail. The Manager, Post Office (P.O.) Operations (black, female, unknown disability/prior protected activity) explained that she informed Complainant approximately three weeks prior to September 24, 2015, that her detail would conclude on September 11, 2015.3 The Manager, P.O. Operations noted at that time, Complainant failed to follow protocol by not contacting her prior to putting any employee on Emergency Placement or ending any higher-level detail. The Manager, P.O. Operations stated that while Complainant was informed of the protocol several times, her instructions were ignored twice. Furthermore, the Manager, P.O. Operations stated that details were not guaranteed positions and that Complainant’s detail was up on September 11, 2015. Regarding claim 2, Complainant claimed that on October 3, 2015, she was involuntarily detailed to work routes at multiple stations. Another Manager (African-American, female, unknown disability/prior protected activity) stated that during the relevant period, the Chicago District was assigned to complete route inspections in various stations for the fiscal year. The Manager also stated that Complainant is a certified route examiner, and was selected to a detail with the inspection based on her skills and knowledge. The Manager stated that Complainant never was removed from her official position as a Supervisor, Customer Service at that time. Regarding claim 3, Complainant claimed that on or around November 11, 2015, she expressed an interest in serving as the Acting Manager, Southwest Carrier Annex, but was not selected. The Manager, Customer Service Operations (African-American, female, unknown disability/prior protected activity) stated she had no knowledge of Complainant requesting the position in question. The Manager stated there was another supervisor who was assigned to work there when she arrived, and was later reassigned to a different facility. 3 The Manager, P.O. Operations stated, however, Complainant was later asked to stay until September 24 so the replacement Acting Manager at the Loop Station could report to work. 0120172463 4 Further, the Manager stated that Complainant was given opportunities as a Manager of the Loop Station “which was not in my area of responsibility. However, every time that the complainant contacted me for help and assistance as it relates to operational concerns, I would assist.” The Manager noted that Complainant was promoted to Manager of Cicero Station, EAS Level 21, sometime in 2016. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination. Disclosure of Medical Information Regarding claim 4, Complainant asserted that on or around November 16, 2015, her doctor’s statement was emailed to managers without her consent. The Americans with Disabilities Act (ADA) specifically prohibits the disclosure of medical information except in certain limited situations. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 42 (revised October 17, 2002). The Guidance indicates in Note 111 that the “limited exceptions to the ADA confidentiality requirements are: (1) supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations; (2) first aid and safety personnel may be told if the disability might require emergency treatment; and (3) government officials investigating compliance with the ADA must be given relevant information on request. The Manager stated that after Complainant provided her a note from her doctor explaining that she had work restrictions (no lifting with her right arm and avoid repetitive movements), the Manager emailed it to a named manager and the Manager, P.O. Operations without elaboration. The Manager explained the reason she emailed Complainant’s doctor’s note to the managers was they were supervising Complainant’s work on her detail and needed to know her restrictions and “to [substantiate] employee missing from detail assignment.” In support of her assertions, the Manager provided a copy of her emails dated November 5 and 16, 2015 to the named manager and Manager, P.O. Operations concerning Complainant’s work restrictions. After careful review of this evidence, we determine that, the disclosure at issue was permissible. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred.4 4 On appeal, Complainant does not challenge the November 30, 2015 partial dismissal issued by the Agency regarding two other claims. Therefore, we have not addressed these issues in our decision. 0120172463 5 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. 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. 0120172463 6 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 6, 2018 Date Copy with citationCopy as parenthetical citation