EEOC Appeal 2020000101

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Danita S.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 2020000101
Agency No. 1J-531-0001-19
DECISION
On September 19, 2019, 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 11, 2019, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a PSE Mail Processing
Clerk, P-06, at the Agency’s Milwaukee Processing and Distribution Center facility in Milwaukee,
Wisconsin.
On January 23, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her
to discrimination and harassment on the bases of race (African-American), color (Black), sex
(female), and disability when:
1. 	On May 8, 2018, she was yelled at;
2. 	On June 11 and 26, 2018, she was told that she was useless;
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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3. 	On June 11 and 26, 2018, she was told that she would be moved to another tour;
4. 	On June 22 and 26, 2018, she was sent home; and
5. 	On July 21, 2018 and starting on September 14, 2018, she was not accommodated
per her medical restrictions when she was not permitted to work.
The Agency accepted the complaint and conducted an investigation which produced the following
pertinent facts.
Complainant alleged that, on May 8, 2018, the Supervisor, Distribution Operation (Supervisor1)
yelled at her, stating that she did not care who asked her to do what, she is to listen to her and only
her. Supervisor1 denied the allegations and there were no corroborating witness statements.
Complainant alleged that, on June 11, 2018, Supervisor1 told Complainant that she could not leave
until she was done and, if she did not stay, she was going to make sure they changed her tour
because she was a useless PSE. 	Complainant also alleged that, on another unspecified date,
Supervisor1 told her to clock out because she was useless. Supervisor1 denied the allegations and
there were no corroborating witness statements.
Complainant alleged that, on June 22 and 26, 2018, Supervisor1 sent her home. Complainant also
alleged that, on June 25, 2018, the Lead Manager, Distribution Operations (MDO1) switched her
to the flat sorter and Supervisor1 told Complainant that, since she wanted to switch over, she
should clock out and be with her kids.
Complainant also alleged that, on June 26, 2018, she was told to go to Supervisor1’s pay location
because an employee went home early and, when she came back from her break, another employee
was on the machine and Supervisor1 told her that she did not need her anymore. Complainant
alleged that, when she told Supervisor1 that she was going back to her regular location,
Supervisor1 told her that she was useless and directed her to clock out. Supervisor1 denied the
allegations and there were no corroborating witness statements.
The Agency’s records show that Complainant left work 1 hour and 13 minutes early on June 22,
2018 and 36 minutes early on June 26, 2018.
Complainant alleged that, on July 21, 2018 and, from September 14, 2018 until a date to be
specified, she was not accommodated per her medical restrictions when she was not permitted to
work. The record establishes that Complainant was not injured at work but injured an upper
extremity while off-duty. On July 21, 2018, she came to work wearing a sling and management
informed her that, as a PSE, she could not work with a sling and they would have to send her home.
Complainant indicated that she was placed on light duty on July 25, 2018. She alleged that, on
September 14, 2018, MDO1 told her that since the doctor had not released her from restrictions,
September 14, 2018 would be her last day. Complainant further alleged that MDO1 told her that,
until her doctor faxes over her medical restrictions, she could not return to work.

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MDO1 attested that Complainant originally asked for a two-week accommodation and two months
later, there had been no improvement. He explained that management had been required to reduce
the manual cases and all PSEs had been removed from manual operations. He also attested that
Complainant’s job required lifting mail tubs and trays up to 25 pounds and Complainant had a 5
pound with restriction, which made other work impossible.
The Agency’s records show that Complainant did not work from September 15, 2018 through
December 16, 2018.
A Request for or Notification of Absence form, dated September 14, 2018 indicates that
Complainant was on leave without pay (LWOP) and that documentation was required. It indicates
that, per MDO1, no work was available, due to Complainant’s light duty status, and that a medical
update was required.
A letter from MDO1 to Complainant, dated October 16, 2018, provides that Complainant was
required to report to the Agency facility on October 23, 2018 at 1800 hours. It indicates that
Complainant had been asked to submit weekly updates about her status of returning to work, but
Complainant had not done so. It indicates that information on file indicates that Complainant has
a 10-pound lifting restriction, but MDO1 understood that Complainant may be able to lift 15
pounds.
A letter from MDO1 to Complainant, dated December 5, 2018, indicates that it is in follow up to
previous discussions indicating that the Agency has work available within Complainant’s current
medical restrictions, within the manual letter section. The letter indicates that Complainant initially
declined the Agency’s offer of this work and the purpose of this letter was to offer it again. The
letter asks that Complainant respond in writing on the next day following receipt of the letter and
failure to do so will be considered a declination of the offer for suitable work.
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). When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), 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 instant appeal followed. The Agency has not submitted a brief or statement in response to
Complainant’s appeal.
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).

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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”).
Harassment Claim
Complainant has alleged the Agency subjected her to harassment, noting several alleged instances.
To establish a claim of hostile environment harassment, Complainant must show that: (1) she
belongs to a statutorily protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on her statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
In other words, to prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of a protected basis – in this case, her race, sex, color, or disability.
Only if Complainant establishes both of those elements – hostility and motive – will the question
of Agency liability present itself.
Complainant’s harassment allegations reflect general workplace disputes and disagreements with
her supervisor, including those relating to managerial decisions. Without evidence of an unlawful
motive, we have found that similar disputes do not amount to unlawful harassment. See
Complainant v. Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record
established that the issues between the complainant and the supervisor were because of personality
conflicts and fundamental disagreements over how work should be done and how employees
should 	be supervised, 	and 	there is 	no 	indication 	that 	the supervisor 	was 	motivated 	by
discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC
Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial
slights and petty annoyances between a supervisor and a complainant do not rise to the level of
harassment). Additionally, with respect to her supervisor allegedly yelling at her, saying things she
did not like, or otherwise speaking to her in a displeasing manner, we find this also is insufficiently
severe or pervasive to have altered the conditions of Complainant’s employment. See Phillips v.
Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a
supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with
AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be
insufficient to state a harassment claim).

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Although Complainant asserts that the Agency acted discriminately, there is insufficient evidence
to support the allegation that Complainant’s race, sex, color, or disability played any role in the
incidents at issue. Thus, Complainant’s allegations, even if true, are insufficient to support a claim
of discriminatory harassment.
Disparate Treatment Claims
Complainants allegations give rise to disparate treatment claims, particularly insofar as she alleges
that she was sent home from work on multiple occasions or not allowed to work. A claim of
disparate treatment is examined under the three-part analysis first enunciated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-
discriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis
of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Even if we assume that Complainant established a prima facie case of discrimination, her claims
ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. Although the Agency’s records show that Complainant went home a little early on June
22 and 26, 2018, the Agency’s management denied sending her home under the circumstances she
alleged. We note that the record does not indicate Complainant filed any grievances with respect
to these allegations.
With respect to Complainant’s allegations that she was not allowed to work following her injury
to her arm, the Agency explained that Complainant was not allowed to work while wearing a sling
or when there was no work available within her limitations. Although Complainant has alleged
discrimination, she has not established by a preponderance of the evidence, that the legitimate,
non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination
or motivated by some unlawful discriminatory animus with respect to these claims.
Reasonable Accommodation
Complainant’s allegations include that the Agency denied her an accommodation for her injured
upper extremity. The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled
individuals. See generally 29 C.F.R. Part 1630. In order to establish that Complainant 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 a qualified individual with a disability
pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable
accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship
under 	the 	Americans 	with 	Disabilities 	Act 	(Enforcement 	Guidance 	on 	Reasonable

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Accommodation), 	EEOC 	Notice No. 	915.002 	(Oct. 	17, 	2002). 	Under 	the Commission’s
regulations, 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) and (p).
Assuming that Complainant was an individual with a disability or a “qualified individual with a
disability,” the matter would turn on whether the Agency failed to provide Complainant a
reasonable accommodation. The Agency’s management explained that Complainant was sent
home initially because she could not work while wearing a sling and, later, because they did not
have work within her restrictions. The Agency subsequently requested that Complainant provide
medical documentation regarding her restrictions and identified and offered Complainant work
within her limitations, but Complainant refused the offer. We find the Agency’s actions were
sufficient to satisfy its responsibility to provide a reasonable accommodation and Complainant has
failed to establish this claim.
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 (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.

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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. 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.

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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 4, 2020
Date