EEOC Appeal 2023004536

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Hiroko V.,1
Complainant,
v.
David Steiner,
Postmaster General,
United States Postal Service
(Field Areas and Regions),
Agency.
Appeal No. 2023004536
Agency No. 4J-530-0011-23
DECISION
On July 31, 2023, 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 July 27, 2023, 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.
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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BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part-
Time Flexible (PTF) Sales and Services Distribution Associate at the Agency’s
Clear Lake Post Office in Clear Lake, Wisconsin. Complainant’s manager was the
new Postmaster (Postmaster) who started in late September 2022.
On March 20, 2023, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of disability (Major Depressive Disorder,
Post-Traumatic Stress Disorder (PTSD), Anxiety) and reprisal (told the Postmaster
she was no longer comfortable carrying mail; using her Family Medical Leave Act
(FMLA) leave) when:
1. Since October 10, 2022, and ongoing, Complainant’s work hours were
reduced.
During 	the 	investigation, 	Complainant 	stated 	that 	she 	experiences 	Major
Depressive Disorder, Post-Traumatic Stress Disorder (PTSD), and Anxiety. She
stated that her new provider indicated she could expect her condition to continue
until January 26, 2024. Complainant stated that her condition causes her to have
loss of appetite and low mood. She stated that she does not have any physical
restrictions, and she is able to perform all of her duties. Complainant stated that she
has approved FMLA leave and is allowed one to four days off at a time, seven
times a month for doctor appointments and mental health recovery. The record
contains a form from the Department of Labor, Wage and Hour Certification of
Health Care Provider signed on December 6, 2022, that stated for the next six
months it would be medically necessary for Complainant to be absent from work
due to episodes of incapacity. These episodes were expected to occur seven times a
month for approximately one to four days per episode. 	Report of Investigation
(ROI) at 81-85.
Complainant had an agreement with the previous postmaster that she would carry
mail to help the office as needed. Postmaster stated she scheduled Complainant on
October 8, 2022, to carry the four-hour AUX route. Id. at 96. After calling in sick,
Complainant agreed to came in on October 10 to carry the route. On October 10,
2022, Complainant texted Postmaster stating that she was no longer comfortable
carrying mail. Id. at 105. Postmaster stated she reworked the schedule on October
11, removing Complainant from the AUX route.

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On October 12, 2022, Postmaster said Complainant had changed her mind, and
verbally told Postmaster she wanted to carry the AUX route. Id. at 96. Postmaster
fixed 	the 	schedule, adding 	Complainant 	to 	the 	AUX 	route. 	Later 	that 	day,
Complainant texted Postmaster stating she was worried about getting in trouble
and did not want to carry mail. Id. at Id. 105-108.
Complainant stated she worked 40-60 hours a week, Monday-Saturday, as early as
5:30 a.m. and up until 7 p.m. Id. at 60. Complainant alleged that after telling
Postmaster that she was no longer comfortable carrying mail, her hours were cut in
half. She stated that her hours were reduced to four hours a day from October 19,
2022, to November 7, 2022. Id. at 58-9.
Postmaster created the schedules for October 19, 2022 - November 7, 2022, for the
Clear Lake office. Id. at 99. Postmaster stated that as a PTF clerk, Complainant
was expected to be available as needed by the office, including weekends. At the
time, the office had on a daily basis an open AUX route. One of the two PTF clerks
had been out since March 2022 due to injury, leaving Complainant as the only PTF
clerk. Postmaster stated that when she started in late September, she had been
scheduling Complainant about 40 hours a week on average, however, Complainant
would come in to work about 16 hours per week. Id. at 99. Due to Complainant’s
absence, Postmaster stated she had to choose between having to close the window
and loose revenue, delay mail on the rural route or work a 14–16-hour shift doing
distribution, then work the window hours, then carry the AUX route when the
window was closed. Starting October 18, 2022, one of the regular carriers had a
pre-approved two-week vacation, leaving Postmaster with two open routes every
day. Postmaster stated she made a business decision to schedule a clerk from
another office in the mornings and schedule Complainant in the afternoon. If
Complainant 	needed 	to 	call 	off work, either the other 	clerk 	could 	stay, or
Postmaster had to close the window for four hours. Id. at 100.
Per a doctor’s note submitted on December 23, 2022, Complainant could not be
scheduled before 8 a.m. because it would exasperate her mental health symptoms.
Id. at 195. Postmaster stated she submitted this with the Disability Reasonable
Accommodation Committee (DRAC), but a decision had not been made as to the
reasonable accommodation request. In the meantime, Postmaster stated she had not
been scheduling Complainant before 8 a.m. Id. at 98.

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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 	requested 	a 	final 	agency 	decision 	and 	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 	as 	alleged. 	The 	Agency’s 	final 	decision 	found 	that
management articulated legitimate, non-discriminatory reasons for its actions. The
Agency found that Postmaster made a business decision when she decided to
schedule 	a 	clerk 	from 	another 	office 	in 	the 	mornings 	and 	just 	schedule
Complainant in the afternoon. She stated she had been scheduling Complainant for
40 hours per week and Complainant would, on average, come in to work 16 hours
per week. Postmaster explained that while a regular carrier was on two-week leave
starting October 18, 2022, she scheduled the other clerk to work mornings to keep
the window open during business hours, thus increasing revenue for Agency and to
reduce the amount of delayed mail. The Agency’s decision determined that there
was nothing in the record showing management’s reasons for its actions were
pretext for discrimination.
The Agency’s decision found Complainant failed to establish a prima facie case of
disability discrimination based on failure to accommodate regarding her work
hours. The Agency found the record did not show the Agency failed to provide
Complainant with a reasonable accommodation. As a PTF Clerk, Complainant was
expected to be available as needed by the office. The Agency found that based on
Complainant’s medical documentation, Complainant could not be scheduled before
8 	a.m. 	Postmaster 	had 	submitted 	Complainant’s 	request 	and 	medical
documentation 	to 	the 	DRAC, 	but 	a 	decision 	had 	not 	been 	made 	regarding
Complainant’s 	RA request. In the meantime, Postmaster stated she had not
scheduled Complainant before 8 a.m. The decision noted that Complainant was
entitled to an effective accommodation, however, she was not entitled to the
reasonable accommodation of her choice. The Agency found that Postmaster had
acted within Complainant’s medical restriction by not scheduling her prior to 8
a.m. and there was no evidence indicating management failed to reasonably
accommodate Complainant.

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The instant appeal followed. Neither Complainant nor the Agency submitted any
arguments regarding this appeal.
ANALYSIS
Reprisal
As a preliminary matter, Complainant failed to identify prior protected EEO
activity 	for 	her 	claim 	of 	reprisal. 	The 	prior 	protected 	activity 	Complainant
identified was her use of FMLA leave and her statement to the Postmaster that she
was not comfortable carrying mail because she thought it would get her in trouble.
Neither of these is a covered basis under Title VII or the other EEO regulations and
do not constitute protected EEO activity. Complainant’s claim lacks the requisite
prior EEO activity necessary for stating a claim of reprisal. Therefore, we find that
Complainant failed to state an actionable claim of reprisal.
Disparate Treatment
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). Complainant must initially establish
a prima facie case by demonstrating that they were 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. 	Burdine, 450
U.S. 248, 253 (1981). 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, 143
(2000); St. Mary's Hon. Ctr. 	v. Hicks, 509 U.S. 	502, 519 (1993); Tx. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
To establish a prima facie case of disparate treatment discrimination based on
disability, a complainant generally must prove the following elements: (1) she is an
individual with a disability as defined in 29 C.F.R. §§ 1614.203(a) and 1630.2(g);
(2) she is “qualified” as defined in 29 C.F.R. § §1614.203(a) and 1630.2(m); (3)
the agency took an adverse action against her; and (4) there was a causal

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relationship between her disability and the agency's actions. See Annamarie F. v.
Dep’t of the Air Force, EEOC Appeal No. 2021004539 (Aug 17, 2023).
Assuming arguendo, Complainant established a prima facie case of disability
discrimination, the Commission finds, as described above, the Agency articulated
legitimate, non-discriminatory reasons for its actions. Postmaster explained that
Complainant was the office’s only PTF Clerk due to the other PTF Clerk being out
since March 2022 for an injury. As a PTF Clerk, she was expected to be available
as needed, including weekends. Postmaster stated Complainant was working, on
average, about 16 hours per week. Postmaster had an open AUX route daily. When
a regular carrier had pre-approved two-week leave starting October 18, 2022,
Postmaster was 	left 	with 	two 	open 	routes 	every 	day 	for those 	two 	weeks.
Therefore, Postmaster made the decision to schedule a clerk from another office in
the morning and to schedule Complainant in the afternoon. If Complainant called
out, the other clerk could remain, if not, the window would need to close for only
four hours.
The record contains Complainant’s TACS reports and Complainant’s Form 3972,
which 	appear 	to 	support 	Postmaster’s 	decision. 	The 	record 	also 	contains
Complainant’s 	leave 	requests 	emailed 	to 	Postmaster, 	showing 	Complainant
requested 8 hours of leave per day from October 13-15; 6 hours of leave for
October 16; 	4 hours of leave per day for October 20 and 21; 5 hours of leave for
October 22; 4 hours of leave per day for October 25 and 26; 8 hours of leave from
October 28 to October 29; 4 hours of leave for October 31; and 8 hours of leave for
November 7. ROI at 136-152. Postmaster reduced Complainant’s hours due to the
loss of the second PTF clerk, the open AUX route, a regular carrier’s scheduled
leave starting October 18, 2022, and her experience with Complainant’s average
availability. To avoid mail delays and window closures in the office, she changed
the schedule and borrowed a clerk to help with the work.
On December 2, 2022, Complainant texted Postmaster stating she got the schedule,
and informed Postmaster could not work earlier than 8 a.m. Postmaster responded
informing Complainant she was a PTF Clerk and was not full-time with a bid.
Every other day of the week she had scheduled Complainant to start at 8:30 a.m.,
however, 	Postmaster 	could 	not 	do 	distribution 	by 	herself 	on 	Mondays, 	so
Complainant was scheduled for 6:30 a.m. on Monday. After receiving a doctor’s
note stating Complainant could not work before 8 a.m., a request for a RA was
submitted the DRAC.

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Even 	though 	a decision 	had 	not 	yet 	been 	made regarding the RA 	request,
Postmaster stated she had not scheduled Complainant before 8 a.m. An agency has
broad discretion to set policies and carry out personnel decisions and should not be
second-guessed 	by 	the 	reviewing 	authority, 	absent 	evidence 	of 	unlawful
motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC
Request No. 05940906 (Jan 16, 1997). We find that Complainant failed to show,
by a preponderance of the evidence, that the Agency’s reasons for its actions were
pretext for discrimination.
Reasonable Accommodation
An agency is required to make reasonable accommodation to the known physical
and mental limitations of an individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o)
and (p).
In 	order 	to 	establish 	that 	she 	was 	denied 	a 	reasonable 	accommodation,
Complainant must show that: (1) she is an individual with a disability as defined
by 29 C.F.R. § 1630.2(g); (2) she is “qualified” as defined by 29 C.F.R. §
1630.2(m); 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 (Enforcement Guidance on
Reasonable Accommodation), No. 915.002 (Oct. 17, 2002).
The Commission has held that management is not required to provide the precise
accommodation the employee wants, so long as the accommodation offered is an
effective one under the circumstances of the situation. See Linn L., v. Dept. of
Veterans Affairs, EEOC Appeal No. 0120151074 (June 2, 2017) (citing U.S.
Airways v. Barnett, 533 U.S. 391 (2002)). Additionally, the Commission has held
that 	employees 	must 	provide 	evidence 	demonstrating 	that 	the 	provided
accommodations and alternative accommodations were ineffective and show how
the requested accommodations are needed to enable the employee to perform the
duties of their position. See Craig G. v. Dept. of Homeland Security, EEOC
Appeal 	No. 	2021002012 	(July 	25, 	2022) 	(finding 	no 	denial 	of 	reasonable
accommodation when complainant did not provide evidence showing the provided
alternative accommodations were ineffective nor evidence demonstrating how the
requested accommodations were needed to enable complainant to perform the
duties of his position).

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To 	the 	extent 	Complainant 	alleges 	discrimination 	based 	on 	a 	failure 	to
accommodate, 	Complainant 	failed 	to 	show 	she 	was 	denied 	a 	reasonable
accommodation. Assuming arguendo Complainant can show she is a qualified
individual with a disability, the record does not establish the Agency failed to
provide her with an effective accommodation. A review of text messages between
Complainant and Postmaster, Complainant’s leave requests, and Complainant’s
time sheets show Complainant’s leave requests for her medical condition and
medical 	appointments 	were 	generally 	granted. 	Additionally, 	the 	Postmaster
implemented Complainant’s requested accommodation of not being scheduled
prior to 8 a.m. while her RA request was pending. We find that Complainant has
not shown that the Agency failed to provide her with a reasonable accommodation.
CONCLUSION
Based on a thorough review of the record we AFFIRM the Agency’s final decision
because the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1125)
The Commission may, in its discretion, reconsider this appellate decision if
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 Sector
(OFS) 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).

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Complainant should submit their request for reconsideration, and any statement or
brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx. 	Alternatively, 	Complainant 	can
submit their request and arguments to the Director, Office of Federal Sector, 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, a complainant’s
request to reconsider shall be deemed timely filed if OFS 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 their 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
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 their 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.

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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:
T. Gimbrere 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 14, 2026
Date