EEOC Appeal 2020000332

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shamika P.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 2020000332
Agency No. 1K-221-0004-19
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 14, 2019, 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. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.
ISSUE PRESENTED
The issue is whether Complainant established that the Agency subjected her to discrimination or
harassment based on her disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General Clerk at the
Agency’s 	Northern 	Virginia 	Processing 	and 	Distribution 	Center 	in 	Merrifield, 	Virginia.
Complainant stated that since May 21, 2018, she had not been assigned to Pay Location #140, and
that the management officials’ reason was that Complainant’s husband was a supervisor for Pay
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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Location #140. However, Complainant stated that her husband was no longer a Pay Location #140
supervisor as of May 21, 2018. Report of Investigation (ROI) at 56-7.
Complainant stated that she has been deaf since birth and can perform her duties with a reasonable
accommodation. Complainant stated that on October 4, 2018, and December 14, 2018, she was
subjected to pre-disciplinary interviews without an in-person sign language interpreter. ROI at 55-
6,58.
Complainant stated that on October 12, 2018, a supervisor (S1) issued Complainant a Letter of
Warning (LOW) for Unacceptable Attendance, without an in-person interpreter. ROI at 59. The
LOW listed seven instances of unscheduled sick leave, unscheduled leave without pay, and
absence without leave, from July 3, 2018, through September 8, 2018. S1 noted that he conducted
a pre-disciplinary interview with Complainant on October 4, 2018, and that she responded, “no
comment” to his questions. ROI at 161-3.
On January 14, 2019, another supervisor (S2) issued Complainant a Notice of 7-day Suspension
for Unsatisfactory Attendance for nine incidents of unscheduled sick leave, unscheduled leave
without pay, and absence from overtime from October 9, 2018, through December 13, 2018. S2
noted that during the pre-disciplinary interview conducted on December 14, 2018, Complainant
responded, “no comment” to every question. ROI at 164-6. Complainant stated that the suspension
notice was mailed to her home, which she received on or about February 25, 2019. ROI at 60.
Complainant stated that on March 14, 2019, she was asked to leave the cyber security training
because there was no in-person interpreter at the training. Complainant stated that another
supervisor (S3) stated that the interpreters left early for the day, and that they would be back at
6:00 a.m. ROI at 62. Complainant stated that on March 14, 2019, her 40-year service award was
not presented to her and was placed in the inbox at the office. ROI at 64.
EEO Complaint
On February 25, 2019, Complainant filed an EEO complaint alleging that the Agency subjected
her to discrimination and harassment based on her disability (deafness) when:
1. 	since on or about May 21, 2018, she had not been reassigned to pay location #140;2
2 The Agency determined that incident 1 was not a timely discrete act and would only be
considered as part of Complainant’s overall harassment allegation. ROI at 33. We note that the
Commission has the discretion to review only those issues specifically raised in an appeal. See
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9,
§ IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the Agency’s determination; as
such, we will not address claim 1 as a discrete claim and only consider it as part of the harassment
claim in the instant decision.

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2. 	on or about October 4, 2018, and December 14, 2018, she was subjected to pre-disciplinary
interviews, without an interpreter;
3. 	on October 12, 2018, she was issued a Letter of Warning without an interpreter;
4. 	on or about February 25, 2019, she was issued a 7-day suspension;
5. 	on March 14, 2019, she was not included in the cyber safety training; and
6. 	on or about March 14, 2019, her 40-year service award was not presented to her in front of
her coworkers.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of her right to request a hearing before an EEOC Administrative Judge. In accordance
with 	Complainant’s 	request, 	the 	Agency 	issued 	a 	final 	decision 	pursuant 	to 	29 	C.F.R.
§ 1614.110(b).
The Agency found that Complainant was a qualified individual with a disability but that she was
not denied a reasonable accommodation. The Agency noted that Complainant was provided with
Video Remote Interpreting (VRI) for the pre-disciplinary interviews (claim 2) and she was given
an opportunity to attend a cyber security training with an in-person interpreter (claim 5).
The Agency determined that claims 3, 4, and 5 constituted discrete acts of alleged discrimination.
The Agency assumed for the sake of argument that Complainant established a prima facie case of
disability 	discrimination 	and 	found 	that 	management 	officials 	articulated 	legitimate,
nondiscriminatory reasons for their actions. For claims 3 and 4, S1 and S2 stated that they issued
the discipline for Complainant’s failure to be in regular attendance. Regarding claim 5, S3 stated
that Complainant did not attend the training where an interpreter was scheduled for Complainant,
and that had she stayed for her full tour, she would have been afforded another interpreter at 6:00
a.m. The Agency then found that Complainant did not establish that the reasons were pretexts for
discrimination.
Regarding Complainant’s harassment claim, the Agency found that there was no evidence that the
management officials’ behavior was based on Complainant’s medical condition. In addition, the
Agency found that the conduct was not sufficiently severe or pervasive to unreasonably interfere
with Complainant’s work environment or create a hostile, abusive, or offensive work environment.
The decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.
Complainant filed the instant appeal and submitted a statement in support of her appeal. The
Agency did not respond to Complainant’s appeal.

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CONTENTIONS ON APPEAL
On appeal, Complainant argues that her disability discrimination claims are more appropriately
classified as claims of failure to accommodate. Complainant asserts that the Agency acknowledges
that an in-person interpreter is required during significant safety instructions and for investigatory
interviews, as described in Management Instruction EL-670-2013-6. 	For claim 3, Complainant
argues that the Agency failed to accommodate her when it did not provide an in-person interpreter
when she was issued the LOW. Complainant notes that S2 stated in his affidavit that a VRI was
set up only for the pre-disciplinary interview but not for the issuance of the LOW. Regarding claim
5, Complainant states that the in-person interpreters were sent home early by management.
For claim 1, Complainant argues that her husband was no longer a supervisor for Pay Location
#140, and that the Agency failed to provide evidence that her husband was not allowed to be her
supervisor. Complainant states that the Agency did not reassign her to Pay Location #140 until
one year after her husband was moved. Complainant alleges that this was done to harass her by
the Manager Distribution Operations (MDO).
Regarding the suspension, Complainant states that she disagreed with the reasons and that S2 did
not attempt to find out how he could assist with her attendance. Complainant notes that S2 wrote
that Complainant had no comment to every question, which was true, but that she decided not to
respond due to a lack of privacy and because VRI was not appropriate for a pre-disciplinary
interview.
Complainant alleges that MDO did not present her 40-year service award in front of her coworkers
and placed it in an inbox because Complainant is deaf, and in retaliation for her EEO activity.3
Complainant requests that the Commission reverse the Agency’s final decision and enter a
judgment in her favor.
ANALYSIS AND FINDINGS
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 Chap. 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
3 We note that the Commission has held that it is not appropriate for a complainant to raise new
claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Security, EEOC Appeal
No. 01A40449 (Apr. 22, 2004). We find that the Agency did not accept, nor investigate, retaliation
as a basis for Complainant’s complaint, and we will not address Complainant’s allegation of
retaliation in the instant decision.

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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”).
Reasonable Accommodation
In order to establish that Complainant was denied a reasonable accommodation, Complainant must
show that: (1) she is an individual with a disability; (2) she is a qualified individual with a
disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The
term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies
the requisite skill, experience, education and other job-related requirements of the employment
position such individual holds or desires and, with or without reasonable accommodation, can
perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to
make reasonable accommodation to the known physical and mental limitations of a qualified
individual with a disability unless the Agency can show that accommodation would cause an undue
hardship. See 29 C.F.R. §§ 1630.2(o), (p).
It is undisputed that Complainant is a qualified individual with a disability. However, we find that
Complainant did not show that the Agency failed to provide her with a reasonable accommodation
for claims 2, 3, and 5. Complainant argues that the Agency failed to accommodate her because it
did not provide her with an in-person interpreter. However, we note that while the Rehabilitation
Act provides that qualified individuals with a disability be granted an effective reasonable
accommodation, it does not entitle them to the accommodation of their choice. See Castaneda v.
U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also Enforcement Guidance
at Question 9.
For claims 2 and 3, S1 and S2 stated that they provided an interpreter via VRI, and S2 added that
it was their practice to use VRI interpreters for corrective action or discipline. We note that there
is conflicting evidence for claim 3 because S1 stated that they used a VRI service, while S2 stated
that VRI was not used, when the LOW was issued. ROI at 115-16,109-10. However, we find that
Complainant specifically alleged that the Agency failed to accommodate her when it did not
provide an “in-person” interpreter, and that she did not corroborate that the Agency failed to
provide a VRI interpreter when she was issued the LOW. ROI at 59-60. Complainant argues that
the Agency failed to follow its own policy to provide in-person interpreters; however, the
Commission has found that providing VRI interpreters, instead of in-person interpreters, was not
a failure to accommodate. See Crista H. v. U.S. Postal Serv., EEOC Appeal No. 2019005383 (Jul.
21, 2020). In addition, we find that Complainant did not provide any arguments that a VRI
interpreter was not an effective accommodation.
Regarding claim 5, S3 stated that Complainant did not attend the training where an interpreter was
there for her. S3 added that Complainant would have been afforded another opportunity at 6:00
a.m., had she stayed for her full tour. ROI at 144.

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To the extent that Complainant argues that management officials sent the in-person interpreter
home early, we find that there is no evidence to support this assertion.
While we note that the record does not reveal if Complainant was able to attend a rescheduled
training session with an interpreter, we find that the Agency initially made an in-person interpreter
available for Complainant to the training on March 14, 2019, and it is not clear why Complainant
did not attend that session. In addition, S3 stated that she offered Complainant another opportunity
for a training with an in-person interpreter later during Complainant’s tour, but she left her tour
early. The record shows that Complainant took over three hours of unscheduled sick leave on
March 14, 2019. ROI at 169. As such, we find that Complainant did not show that the Agency
failed to accommodate her when it provided VRI interpreters and made an in-person interpreter
available for a training on March 14, 2019.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 	Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, she must first establish a prima facie case 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. Furnco Constr.
Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming arguendo, that Complainant established a prima facie case of disability discrimination,
we find that the Agency proffered a legitimate, nondiscriminatory reason for issuing a 7-day
suspension. S2 stated that he issued the suspension for Complainant’s failure to maintain regular
attendance. ROI at 102.
We find that Complainant has not shown that the proffered reason was pretext for discrimination.
Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the
Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally
find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No.
0120060802 	(Nov. 	20, 	2007) 	(finding 	that 	the 	agency’s 	explanations 	were 	confusing,
contradictory, and lacking credibility, which were then successfully rebutted by the complainant),
request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal,
Complainant argues that S2 did not attempt to find out how he could assist with her attendance.

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However, Complainant states that she responded “no comment” to every question during the pre-
disciplinary interview when S2 asked for information regarding her attendance. In addition,
Complainant admitted that she had been “absent from work a lot.” ROI at 68. As such, we find
that Complainant did not establish that the Agency discriminated against her based on her
disability when it issued her a 7-day suspension.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment,
Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected
to unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; (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 Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
As discussed above, we found that Complainant did not establish disability discrimination for
claims 2-5. Further, we conclude that a case of harassment is precluded based on our finding that
Complainant did not establish that these actions taken by the Agency were motivated by her
disability. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Accordingly, we will not consider claims 2-5 for Complainant’s harassment claim.
We find that Complainant belongs to a statutorily protected class based on her disability and that
she was subjected to unwelcome conduct. However, we find that Complainant did not provide any
evidence that incidents 1 and 6 were due to her disability, and she only makes unsupported
allegations that MDO was discriminatorily motivated when Complainant was not immediately
moved back to Pay Location #140 or when she was not given her 40-year service award in front
of her coworkers. Accordingly, we find that Complainant did not establish that the Agency
subjected her to harassment based on her disability.
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 finding that Complainant
did not establish that the Agency subjected her to discrimination or harassment based on her
disability.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. 	Any supporting documentation must be submitted together with the 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.

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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
November 3, 2020
Date