U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tanya P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120160846 Agency No. 4E-640-0055-13 DECISION On January 7, 2016, 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 December 8, 2015 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. ISSUE PRESENTED Whether the evidence of record established that Complainant was subjected to discrimination based on sex (female) when: (1) she was not permitted to work from April 4 through April 12, 2013, and was required, during this period, to obtain additional information regarding her request for light duty; and (2) was given a light duty assignment that changed her normal starting time from 5:00 p.m. to 7:55 p.m. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Group Leader Mail Handler at the Agency's Post Office in Springfield, Missouri. On August 8, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) when: 1. The Agency did not permit her to work from April 4, 2013 to April 12, 20132 when she requested a light duty assignment. 2. The Agency changed her starting time from 5:00 p.m. to 7:55 p.m. for three (3) months after she was assigned to a light duty position.3 The Agency accepted the complaint and conducted an investigation. At the time of Complainant's allegations, her job involved hooking large containers of mail to a motorized vehicle and transporting the containers from one area of the facility to another. Complainant states that the job involved heavy pushing and pulling. Her normal working hours were 5:00 P.M. - 1:30 A.M. She states that those hours were awarded through the bidding process based on seniority under the relevant union contract. In early 2013, Complainant began to experience pain when walking. She was examined by a physician and diagnosed with osteitis pubis, an inflammation of the joints that hold the pelvis together in front. Her physician provided her with a note, dated April 4, 2013, requesting light duty, which she, in turn, provided to her supervisor. The note indicated Complainant was restricted from lifting more than 20 lbs., should not sit or stand continuously for more than one hour at a time, and should avoid all pushing and pulling. According to Complainant, over the following ten days, she submitted additional medical documentation requested by Agency officials, and called her supervisor every day inquiring as to when she could return to work. Her supervisor (male) requested additional "clarification" in writing regarding her restrictions from her physician. The record shows two additional letters from Complainant's physician to the Agency during this period, dated April 9 and 10, 2013, that clarified that Complainant could work full-time (8-10 hours per day), and could sit, stand or walk as long as she rotated these activities so she was not doing one thing for longer than one hour at a time. Complainant was permitted to return to work on April 15, 2013, on light duty, asserting that she had lost seven days of pay. Two additional letters were received by the Agency, dated May 1 and June 4, 2013, extending the need to stay with her light duty restrictions. When she returned to work, Complainant was assigned to work the flat sorter, which she states was within her medical restrictions. However, her starting time was changed by nearly three hours (from 5:00 p.m. to 7:55 p.m.). The record shows that this decision was made by the Officer-in-Charge (female). Complainant stated that she observed that there was light duty work available during her regular working hours, the management disregarded the facility policy, and failed to meet with her and her union representative to discuss the availability of light duty work within her normal duty hours. By contrast, Complainant alleges that various male employees, all also Mail Handlers, obtained approval during this period to perform light duty work and retained their normal starting times. In addition to filing an EEO complaint with the Agency, the Complainant filed a grievance with her Union regarding her request for light duty. Her grievance was resolved on July 1, 2013. Her starting time returned to 5:00 p.m., she was paid back wages for the period April 4 - 15, 2013 when she was not permitted to work, and she was paid back pay for her missed shift differential. Through her EEO complaint, Complainant seeks compensatory damages for the alleged disparate treatment in addition to the resolution of her grievance. In her brief submitted on appeal, Complainant details some of the emotional harm she suffered due to the alleged discrimination. 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 timely requested a hearing, but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency first found that Complainant's claim was moot, as her grievance provided her with the relief she sought. In the alternative, the decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency determined that Complainant failed to show that similarly situated male employees were treated more favorably under the same or similar circumstances. The instant appeal followed. CONTENTIONS ON APPEAL In her brief submitted on appeal, Complainant first argues that her EEO complaint was not rendered moot by the resolution of her union grievance because she was claiming entitlement to compensatory damages, which were not provided by the grievance. Regarding the merits of her sex discrimination claim, Complainant points to four male comparators, all Mail Handers who worked on her same tour under the same supervisor. She asserts they each experienced physical restrictions due to medical conditions from early to mid-2013. She asserts that each of the male comparators were provided with more favorable light duty assignments than she was offered, including not having to change their start times from their regular bid position. 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"). Mootness As an initial matter, we find that the Agency erred in asserting that Complainant's EEO complaint was rendered moot by the resolution of her union grievance. A complaint may be dismissed as moot where there is no reasonable expectation that the alleged violation will recur, and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Wildberger v. Small Business Administration, EEOC Request No. 05960761 (Oct. 8, 1998) (citing County of Los Angeles v. Davis, 440 U.S. 625 (1979)). Here, Complainant requested compensatory damages for the alleged discriminatory acts of the Agency, a remedy not provided to her through the union grievance process. Should Complainant prevail on her EEO complaint, the possibility of an award of compensatory damages exists. See Glover v. U.S. Postal Service, EEOC Appeal No. 01930696 (December 9, 1993). As the Agency failed to address the issue of compensatory damages, we find that dismissal on the grounds that the complaint was rendered moot was improper. See Rouston v. Nat'l Aeronautics and Space Administration, EEOC Request No. 05970388 (March 18, 1999). Disparate Treatment In order 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. 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. Texas Dep't of Community Affairs v. 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 pretextual. Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, Agency management has articulated legitimate, non-discriminatory reasons for the disputed actions. Essentially, Agency witnesses stated that they processed and granted Complainant's request for light duty as expeditiously as possible once Complainant provided the needed medical documentation, and changed her start time because there was no "meaningful" light duty work available during her bid position hours. As such, the burden shifts to Complainant, who must prove, by a preponderance of the evidence, that these proffered reasons were a pretext masking sex discrimination. Claim 1 - Delay in Approving Light Duty Request After thorough review of the record and the arguments of the parties, the Commission finds that Complainant failed to prove pretext with regard to the approximate one week delay in approving her light duty request. Management witnesses testified that it was not clear from the initial physician's note Complainant provided with her request whether or not she could work a full-time shift or if her hours were limited. The record supports this contention and shows that subsequent doctor's notes clarified this issue. While Complainant alleged that other employees who requested light duty did not have to wait for approval like she did, we recognize that each employee had unique medical restrictions and management's request for additional information in Complainant's case resulting in a relatively brief delay was reasonable under the circumstances. We do recognize that the delay may have violated the relevant union contract as we note that Complainant's grievance resulted in her pay being restored for the time she was not allowed to work. However, a violation of the collective bargaining agreement does not equate to a violation of Title VII, and we do not find that Complainant proved discrimination with regard to Claim 1. Claim 2 - Change in Start Time While on Light Duty Once Complainant was granted light duty starting on April 15, 2013, her regular start time was changed by about three hours, from 5:00 p.m. to 7:55 p.m. This altered schedule continued for about three months until she was returned to her 5:00 p.m. start time due to the settlement of her union grievance. The Officer-in-Charge (female) stated that she made the decision to change Complainant's time to the later hours because this was the "peak time" for working the culling machine, Complainant's light duty assignment, and would provide her with eight hours of "meaningful" work. She claimed that several other employees at the Springfield plant have had their hours and/or days changed to accommodate a light duty request, but did not identify any specific employees during the investigation. Complainant's supervisor (male) said that he was not aware of any other employees who had their start times changed like Complainant to accommodate a light duty request. Complainant claimed that Comparator PF (male), who normally loaded and unloaded large containers of mail into and out of trucks, was granted light duty in February 2013 on the "culling belt," a task Complainant claimed was within her medical restrictions. He was still working the culling belt in April 2013, when Complainant requested light duty. While on light duty, Comparator PF worked the same hours as his regular bid job. Complainant identified another employee, Comparator JR (male), who was granted a light duty assignment on the culling belt shortly before Complainant requested light duty. He was still working the culling belt when Complainant requested light duty. While on the culling belt, his regular start time did not change. A third Mail Handler identified by Complainant, Comparator DY (male), who she asserts was on light duty working "empty sleeves," at the time Complainant was requested light duty. She claimed this was also a job within her medical restrictions. She also asserted that this job was performed by Comparator DY within her regular work hours. Sometime after Complainant started coming in at 7:55 p.m., Comparators PF, JR and DY all went back to their regular bid jobs. Complainant reasoned that since Comparator PF had started at 3:00 p.m. on the culling belt, and Comparator JR had started at 6:00 p.m. on the culling belt, there must have been culling belt work available for Complainant at 5:00 p.m. after they returned to their regular jobs. Likewise, Complainant argued that there was empty sleeve work available at 5:00 p.m. when DY returned to his regular job, but Agency management left her start time at 7:55 p.m. despite that availability of light duty work that had been performed by her male comparators.4 Finally, Complainant asserts a fourth Mail Handler, Comparator BW (male), who normally worked the dock, was assigned to flat sorting in late April 2013, at the same time Complainant was working flat sorting as her light duty assignment. Comparator BW was allowed to keep his normal start time of 4:00 p.m. Complainant asserts that Comparator BW was provided the flat sorting work that management claimed was not available for her at 5:00 p.m. In its final decision and on appeal, the Agency does not dispute Complainant's testimony concerning the treatment of the four male comparators and their retention of their bid shift during their light duty assignments. Instead, the Agency argues that the male comparators were not similarly situated to Complainant because they did not have the same medical restrictions as Complainant. We are unpersuaded by the Agency's argument. Here, Complainant and her comparators were substantially similar in all aspects relevant to her disparate treatment claim. Like Complainant, the four male comparators were Mail Handlers who worked on the same tour as Complainant at the Springfield plant, reporting to the same supervisor and Officer-In-Charge. While the Agency also argues that Complainant was a Group Leader Mail Handler and the males were regular Mail Handers, there is no indication that this was relevant as there is no evidence that the Agency sought to give Complainant special "Group Leader" duties while on light duty. Moreover, we note that Complainant and the four males were all subject to the same collective bargaining agreement for mail handlers. Finally, Complainant and each of the male comparators experienced physical restrictions during the same period of time that prevented them from performing their regular duties and were provided a light duty assignment. Of the five, Complainant, the only female, had her normal start time significantly altered. While the Agency argues that all five may have had different physical restrictions, it is undisputed that the light duty assignments (flat sorter, culling belt, empty sleeves) given to all four of the male comparators was work within Complainant's restrictions. Moreover, the males performed these light duty assignments during the same hours as Complainant's regular shift. For example, just a few weeks after Complainant was required to report at 7:55 p.m. for her light duty assignment on the flat sorter, Comparator BW was assigned to the flat sorter as a light duty assignment with his normal start time of 4:00 p.m. Particularly telling is the fact that when each of these male comparators returned to their regular jobs, Complainant was still not permitted to work their light duty hours, which would have returned her to her regular start time. The Agency has failed to provide an adequate explanation for why Complainant, the only female, was treated less favorably than her valid male comparators. As such, we conclude that Complainant has proven her claim of disparate treatment due to her sex. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter pursuant to the following Order. ORDER The Agency is ordered to take the following remedial action: 1. Conduct a supplemental investigation within 90 calendar days of the date this decision is issued, to determine whether Complainant is entitled to compensatory damages, and if so, the amount of damages Complainant is entitled to under Title VII of the Civil Rights Act. a. Notify Complainant of her right to submit objective evidence based our guidance in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)5 and request objective evidence from Complainant in support of compensatory damages. b. Issue a determination on the results of the investigation to Complainant with appeal rights to this Commission. c. Pay Complainant the determined amount of compensatory damages within 30 calendar days of the date of the determination, and explain to Complainant that she may accept the award and still appeal to this Commission if she disagrees with the outcome. 2. Provide at least 3 hours of one-on-one in-person training for the Officer-in Charge, within 30 calendar days of the date this decision is issued. This single training session can be prepared/provided by an Agency employee or contractor with subject matter expertise to: (1) explain this decision and what, if anything, the Officer-in-Charge should do differently if presented with a similar scenario; and (2) explain the Agency's obligations under Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. If the Officer-in Charge has left the Agency, the Agency shall furnish documentation of her departure date. 3. Consider taking appropriate disciplinary action against the Officer-in-Charge, within 60 calendar days of the date this decision is issued. Training does not count as disciplinary action. The Agency shall report its decision to the EEOC compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the Officer-in-Charge has left the Agency, the Agency shall furnish documentation of her departure date. 4. Post the attached Notice, in accordance with the "Posting Order" below. 5. Complainant is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. Complainant's attorney shall submit a verified statement and affidavit of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within forty-five (45) calendar days of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501(e). The Agency shall issue and decision determining the amount of attorney's fees and cost, and issue payment, within sixty (60) calendar days of receipt of the statement and affidavit. 6. Submit a Report of Compliance, as provided in the "Implementation of the Commission's Decision" section below. The Report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Post Office in Springfield, Missouri, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 _4/30/18_________________ Date 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. 2 A review of the record shows that Complainant's light duty request was actually submitted on April 8th, not April 4th. Complainant was not permitted to work from April 8th to April 14th, a period of seven days. The Agency offered her a light duty assignment starting on April 15th. 3 In her complaint, Complainant initially also raised a claim of disability discrimination, and an allegation concerning her assignment to work on a holiday weekend. However, in her brief submitted on appeal, Complainant confirms that she has elected not to pursue these additional claims. Complainant's Brief, footnote 1. Therefore, we will not address these matters any further. 4 As already noted, Complainant was returned to her normal start time while on light duty in July 2013 due to the settlement of her union grievance. 5 For more information on determining compensatory damages: EEOC Mgt. Directive 110, Ch. 11 § VII (Aug. 5, 2015) available at https://www.eeoc.gov/federal/directives/md-110_chapter_11.cfm (provides the types of compensatory damages available under Title VII and "Objective Evidence" of entitlement); and N. Thompson, Compensatory Damages in the Federal Sector: An Overview, EEOC Digest Vol. XVI, No. 1 (Winter 2005) available at https://www.eeoc.gov/federal/digest/xvi-1.cfm#article (explains Carle v. Dep't of the Navy under the subsection "Proof of Damages"). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160846 11 0120160846