2020000332•EEOC Appeal 2020000332
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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.
2020000332 2 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.
2020000332 3 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.
2020000332 4 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.
2020000332 5 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.
2020000332 6 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.
2020000332 7 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.
2020000332 8 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.
2020000332 9 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
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