Tasia C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jun 3, 2020

2019002038 (E.E.O.C. Jun. 3, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tasia C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2019002038 Agency No. 4F-956-0040-18 DECISION On December 10, 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 November 13, 2018 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. 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible Sales and Services Distribution Associate, PS-06/O, at the Agency’s Post Office in El Dorado, California. Complainant experiences complications from spastic hemiplegia, a form of cerebral palsy that results in muscle spasms along her right side. As a result, she walks with a limp and cannot grasp with her right hand. Complainant asserted that the Postmaster at El Dorado was aware of her disabilities and accommodated her by allowing her to distribute parcels in hampers that were numbered rather than a cart, requiring carriers to put parcels where Complainant could reach them, and by allowing her to work morning hours because she performed better due to her body and back hurting after standing too long. 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. 2019002038 2 Complainant asserted that she took significant leave in January and February 2017 to seek mental health treatment and returned to work on March 20, 2017. Subsequently, Complainant contended that her supervisor, the Postmaster, refused to continue her accommodations and ignored her. Instead, the Postmaster humiliated her for no reason and did not tell her co-worker (CW1) not to stack parcels. As a result, Complainant had to ask CW1 to retrieve the parcels. Thereafter, Complainant contended the Agency failed to offer her accommodations or refer her to the District Reasonable Accommodation Committee (DRAC). The Postmaster denied knowledge of Complainant’s conditions, the reason for her leave of absence, or that she was being accommodated. The Postmaster “recall[ed] that there was paper applied to the hampers that contained route numbers but [he] did not provide that for Complainant.” Further, “[t]he hampers are used interchangeably for the distribution of mail, so no particular hamper remains in the building unless by coincidence.” The Postmaster disclaimed knowledge of the hampers’ use as an accommodation and suggested that it “may be something that Complainant arranged herself with the carriers, but she never requested such an accommodation from [the Postmaster, who] was not involved in providing such an accommodation.” The Postmaster also denied that Complainant was given a particular schedule as an accommodation. Rather, prior to Complainant’s two-month leave, the other part-time clerk wanted the afternoon shift because he was a caregiver to his wife and mother-in-law, so Complainant took the earlier shift. That clerk retired in November 2016, and for a while, Complainant was the only clerk until the Agency hired CW1 in January 2017. Neither CW1 nor Complainant wanted to work the later shift, so the Postmaster had to rotate the shift out of fairness. Additionally, the Postmaster acknowledged Complainant complained that the parcels were out of reach. The Postmaster said he talked with CW1 about making sure the parcels were within reach and suggested that Complainant could use a stepstool. The Postmaster did not recall any recurring issues and assumed that meant the issue was resolved. In rebuttal, Complainant insisted that the Postmaster was aware of her requests for accommodation because, upon her return from extended leave, she asked him to “please accommodate me and keep the schedule as is with me on morning shifts until I get back feeling better.” Complainant admitted, however, that she did not seek formal accommodations or otherwise have her accommodations acknowledged in writing. Complainant believed the Postmaster discriminated against her based on her age because CW1 worked faster and the Postmaster bestowed on CW1 the nickname, “Fast and Furious.” The Postmaster also asked Complainant where her shirt was, when Complainant walked into the Post Office in street clothes. At that moment, CW1 was working the window in an orange Giants shirt and the Postmaster did not behave similarly toward CW1. 2019002038 3 The Postmaster denied harassing Complainant or referring to CW1 as Fast and Furious. The Postmaster acknowledged that CW1 may have worn a Giants shirt if she was not working at the window but that she would change into her uniform. However, the Postmaster asserted that he has talked to CW1 about wearing a uniform and the record contains evidence of an investigative interview of CW1 for failure to wear a uniform. On September 12, 2017, the Agency placed Complainant on Emergency Placement in an Off-Duty Status. The notice explained that Agency management “believes that retaining [Complainant] on duty may be loss of mail or funds.” The notice provided, in detail, that the Office of the Inspector General (OIG) informed management that Complainant “may have been involved in making cash transaction stamp purchase voids and taking the cash for” herself. An audit indicated that Complainant’s drawer count was short $51.39, and her change drawer was $150.00 short. Complainant believed this occurred because she was not following proper window procedures which led to shortages in the office. Complainant alleged that the Postmaster discriminated against her because he did not submit the shortage discrepancies to the Agency’s Office of the Inspector General until after Complainant returned from being in the hospital. Complainant disagreed with the Agency’s actions because she was never told she was performing her duties incorrectly and claims that she should have been retrained. The Postmaster explained that the OIG investigation occurred “because of a pattern of missing stamps and post voided cash stamp purchase transactions” by Complainant. The Agency performed audits in January, April, and July 2017, which revealed shortages of $1,274.36, “that correlated by item number and quantity to the 113 post-voided (refunded) cash transactions of stamp purchases, which [C]omplainant performed while she was working at the retail window since October 1, 2016.” When management counted Complainant’s cash and change drawer on September 12, 2017, they discovered the roughly $200 shortage and believed “sufficient cause existed” that Complainant should be placed off-duty. On November 22, 2017, the Agency issued Complainant a Notice of Removal. The Notice of Removal articulated three charges: unacceptable conduct, failure to follow proper window service regulations, and failure to properly account for postal service funds and/or stamp stock. The Notice added that, during the OIG investigation, Complainant gave conflicting versions of her explanation about the change drawer. OIG pointed out that Complainant’s explanation that she did not have time to go to the bank to get change until the end of the day conflicted with another clerk’s account that the clerk had been working specifically to relieve Complainant so that she could go to the bank. OIG concluded that “there were no known circumstances which prevented [Complainant] from getting change from the bank while there was another clerk present to cover [Complainant’s] time.” OIG also did not accept Complainant’s failure to explain the discrepancies in the post- voided cash transactions of stamp purchases. 2019002038 4 The Postmaster made the decision to remove Complainant. He explained that the OIG investigation provided cause for removal “was based on the nature of [Complainant’s] behavior, which rose to the level of pilferage.” The Postmaster asserted that pilferage is a standard cause for removal. Following the Notice of Removal, Complainant received an intra-agency offer to work at the Newcastle Post Office on February 22, 2018. However, the very next day, Complainant received a voicemail from the retired District Complement Coordinator (DCC-Retired) rescinding the offer as a result of her termination from the El Dorado Post Office. Complainant contended that DCC- Retired told her the termination was due to “theft” and Complainant insisted her removal notice does not state that she was accused of theft. The District Complement Coordinator (DCC) said that DCC-Retired, her predecessor, was responsible for filling the vacancy at Newcastle. The DCC was training with her predecessor at the time and said that Agency management at Headquarters determined that Complainant’s offer needed to be rescinded because Complainant was pending termination. DCC disclaimed any knowledge of the circumstances surrounding Complainant’s termination. DCC-Retired provided confirmed DCC’s account of the events. On May 18, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected to a hostile work environment on the bases of age (48), disability, and in reprisal for prior protected EEO activity when: 1. From March 20, 2017, through December 31, 2017, Complainant’s requests for reasonable accommodation were ignored and her previous accommodations were no longer honored; 2. From March 20, 2017, through December 31, 2017, Complainant was subjected to a hostile work environment when the Postmaster treated CW1 better and humiliated Complainant in front of other employees; 3. On September 12, 217, Complainant was put on Emergency Placement in an Off- Duty Status and, subsequently, on November 22, 2017, Complainant was issued a Notice of Removal; and 4. On or about February 23, 2017, Complainant was told that her offer to work at the Newcastle Post Office was rescinded.2 2 The Agency dismissed an additional claim pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Complainant raised no challenges to the dismissal on appeal; therefore, the claim will not be addressed herein. 2019002038 5 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). In accordance with Complainant’s request, 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 or reprisal as alleged. The Agency concluded that the alleged incidents were insufficiently severe or pervasive to establish hostile work environment. Further, Complainant failed to show that the conduct at issue was based on her protected classes. As a result, the Agency found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment. Finally, the Agency concluded that Complainant failed to establish that management denied her reasonable accommodation. The instant appeal followed. 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 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”). Denial of Reasonable Accommodation In Claim (1), Complainant is alleging that she was denied reasonable accommodation. The Commission notes that an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). For purposes of this decision, we assume that Complainant is an individual with a disability. The Commission further notes that under the Rehabilitation Act, an employee is not required to use the magic words “reasonable accommodation” when making a request. See Enforcement Guidance on Reasonable Accommodation, Question 1. Instead, the employee or the employee’s representative need only inform the agency that he or she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. U.S Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24, 2006), req. for reconsideration denied, EEOC Request No. 05A60859 (Sep. 19, 2006); see also Geraldine B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120090181 (Oct. 13, 2015). 2019002038 6 Here, Complainant claimed that she had received accommodations since she began working at El Dorado in 2013, that her condition is obvious to the Postmaster, and that she made him aware that she needed accommodations since she started in June 2013. Complainant stated that her condition was obvious to management officials because she walks with a limp and cannot grasp with her right hand. The accommodations included the use of hampers, a designated location where carriers placed parcels, and a morning work schedule which allowed her to perform more work before her body began to ache after standing too long. Complainant alleged that when she returned to work on March 20, 2017, after medical leave, she was no longer allowed her accommodations. The Postmaster denied any knowledge of Complainant’s condition or any need for an accommodation and affirmed that Complainant productively performed the duties of her position. The Postmaster stated that Complainant had transferred from another office and, in discussions with her prior Postmaster, she had no accommodations at that office either. With respect to the accommodations Complainant claimed were initially granted, the Postmaster explained that Complainant’s use of certain hampers or the carriers’ placement of packages in a certain location must have been the result of Complainant’s own arrangement with the carriers. Regarding her morning work schedule, Complainant initially worked morning hours because the other clerk requested an afternoon schedule. After that clerk retired and a new clerk was hired, he began a rotating schedule because both clerks wanted the morning shift. The Postmaster noted that Complainant never requested the morning shift as an accommodation; rather, she indicated it was personal preference and she believed she was entitled to by seniority. Additionally, the Postmaster stated that once Complainant told him that parcels were out of reach, he reminded her that she could use a stepstool and he spoke with CW1 about not triple stacking the parcels because it was also a safety concern. The record is devoid of evidence, aside from Complainant’s assertion that she requested a reasonable accommodation or otherwise made clear that her condition required reasonable accommodation. Notably, in rebuttal, Complainant solely argues that she requested of the Postmaster to be accommodated with an early schedule until she felt better. These words, if true, remain insufficient to demonstrate that Complainant informed the Agency that she needed a work adjustment for a disability. Complainant does not otherwise demonstrate in the record that she sought accommodations for her physical limitations. Accordingly, we cannot find the Agency to provide Complainant reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment 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). Complainant must initially establish a prima facie case by demonstrating that he 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2019002038 7 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). As explained above, Agency management suspected, based on a pattern that coincided with transactions Complainant was responsible for, that Complainant was engaging in cash transactions that resulted in significant financial losses to the Agency. After the Agency’s OIG investigation appeared to corroborate management’s suspicions, Complainant’s employment was terminated. Because of that termination process, the Newcastle Post Office could not maintain its offer of employment to Complainant. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. At most, Complainant argues that she was unable to recall the transactions in question and was not given an opportunity to review the receipts. While that may be, it does not act to controvert the Agency’s proffered reasons. Finally, to the extent that Complainant is alleging that she was subjected to a hostile work environment regarding all of the alleged incidents, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Specific to Claim (2), Complainant’s allegation rests on her belief that the Postmaster treated CW1 better. In particular, Complainant alleged that she was admonished for not wearing her uniform shirt while CW1 was not on another occasion. The Postmaster denied treating Complainant less favorably than CW1 and maintained that he has admonished CW1 for not wearing the proper uniform attire. 2019002038 8 Similarly, the Postmaster could not recall calling CW1 “Fast and Furious.” We do not see any evidence that the incidents at issue were sufficiently severe or pervasive to establish a hostile work environment or were based on discriminatory or retaliatory animus. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination, reprisal, or a hostile work environment as alleged. 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 (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). 2019002038 9 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 June 3, 2020 Date