U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Huong A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120161249 Agency No. 1E-971-0007-15 DECISION On February 9, 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 January 7, 2016, 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 MODIFIES the Agency's final decision. ISSUES PRESENTED The issues presented are: (1) whether Complainant is entitled to request a hearing; and (2) whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on race, national origin, and/or disability. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler, 2315-01XX, at the Agency's Mt. Hood Processing and Distribution Center (P&DC) facility in Portland, Oregon. Complainant's supervisory chain included two Supervisors, Distribution Operations (S1 and S2) and a Manager, Distribution Operations (S3). Complainant stated that she was diagnosed with cervicalgia in late 2013. According to Complainant, the neck pain from cervicalgia limits her ability to work and do housework. Because she could not perform the Mail Handler duties because of her disability, Complainant requested light duty. Complainant alleged that on various dates between December 12, 2014, and April 3, 2015, she was given less than eight hours of work. S2 averred that during this time frame he would send Complainant home if there was no work available within her medical restrictions. Complainant averred that she used a combination of paid leave and leave without pay (LWOP) when she was sent home after being told that no more work was available. The record contains an April 25, 2014, note from Complainant's physician to Human Resources, which states that he prescribed a neck brace "to be worn during any work time that she needed to look down for extended periods of time." Report of Investigation (ROI) at 159. The record contains a December 16, 2014, Medical Status Report from another physician, which states, "Please allow [Complainant] to wear a neck brace when she feels necessary (such as when she has to consistently look down)." ROI at 430. This document was stamped to indicate receipt on December 18, 2014. The record contains a December 22, 2014, Light Duty Job Offer signed by S3, which states, "according to medical documentation a neck brace is not needed for assigned duties." ROI at 431. S3 stated that on January 2, 2015, she "informed the Complainant that her medical documentation didn't support the necessity to wear a neck brace and we don't allow employees to wear medical devices without proper documentation." ROI at 278. The record contains a January 13, 2015, letter to Complainant from a Manager, Distribution Operations (S4), which states that she was observed wearing her neck brace on January 2, 2015, and January 6, 2015, and that "Local management is concerned that you are feeling the need to wear the neck brace during activities not indicated in the medical documentation." ROI at 182. The record contains a January 15, 2015, Light Duty Job Offer signed by S1, which states, "You must not wear the neck brace when outside any operations you are assigned to, i.e. walking to the rest room, lockers, etc. Neck brace can be utilized while working in your operation as needed." ROI at 177. Complainant stated that she submitted a PS Form 1767 on February 3, 2015, to report unsafe working conditions that aggravated her neck pain. Complainant averred that on February 8, 2015, S1 sent her home from work because she was wearing a neck brace. Complainant alleged that S1 told her that she could keep working if she took the neck brace off. S1 stated that Complainant "was sent home because she was wearing a neck brace; she was given the option [of] taking it off and working or going home." ROI at 332. According to the record, Complainant worked 0.6 hours on February 8, 2015, and took 7.4 hours of LWOP. The record reflects that on May 13, 2015, Complainant's application for disability retirement was approved. On May 18, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Vietnamese), and disability (cervicalgia) when: 1. On various dates beginning December 12, 2014, Complainant worked less than eight hours per day; and 2. On February 8, 2015, management sent Complainant home. 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. CONTENTIONS ON APPEAL On appeal, Complainant requests that the matter be remanded for a hearing. According to Complainant, she thought her attorney had submitted a hearing request on her behalf. In response to Complainant's appeal, the Agency requests that its final decision be affirmed. 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"). As a preliminary matter, we address Complainant's request that the matter be remanded for a hearing. Denial of a 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, No. 915.002 (Oct. 17, 2002). 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. 29 C.F.R. §§ 1630.2(c) and (p). "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). First, we address Complainant's claim that the Agency would not permit her to wear her neck brace. In April 2014, Complainant presented the Agency with medical documentation that indicated that she had been prescribed a neck brace to wear when she was looking down for extended periods of time. On December 16, 2014, a second physician provided the Agency with a status report, noting that Complainant should be permitted to wear a neck brace when necessary. This December 2014 note used extended periods of looking down as an example, but did not limit the use of the brace to such periods. Despite this medical documentation, on December 22, 2014, the Agency offered Complainant a light duty position but noted that her medical documentation did not support Complainant's need to wear a neck brace performing the assigned tasks. Furthermore, in January 2015 the Agency issued Complainant a letter admonishing her for wearing a neck brace, and S3 confirmed telling Complainant that she was not allowed to wear her neck brace. The Agency offered Complainant a subsequent light duty position and stated in the offer that she could wear her neck brace while working but not while in the locker room or walking to the bathroom. Despite this recognition by the Agency, on February 8, 2015, S1 sent Complainant home because she would not take her neck brace off. Here, we find that the Agency denied Complainant a reasonable accommodation when it told her that she could not wear her neck brace and, on at least one occasion, sent her home because she was wearing her neck brace. The preponderance of the evidence in the record establishes that the Agency was aware of Complainant's need to wear the neck brace while working without limitation since receiving the December 16, 2014, Medical Status Report on December 18, 2014, yet the Agency would not allow her to do so. The Agency has made no showing that allowing Complainant to wear a neck brace would constitute an undue hardship. Accordingly, Complainant established that she was denied a reasonable accommodation. Complainant also alleged that she was denied a reasonable accommodation when she was sent home before working eight hours. Here, the record indicates that Complainant was sent home when there was no work available within her medical restrictions, and we find that Complainant has not established that she was denied a reasonable accommodation when she was given less than eight hours of work. Disparate Treatment We will separately examine Complainant's claim that she was provided with less than eight hours of work under a disparate treatment framework. 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). She must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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 Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Here, the Agency's legitimate, nondiscriminatory reason for sending Complainant home was that there was no work available within her restrictions. Complainant has failed to establish by the preponderance of the evidence that this proffered reason is a pretext for discrimination based on race, national origin, and/or disability. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM in part the Agency's final decision but REVERSE the Agency's finding that it did not deny Complainant a reasonable accommodation when it did not permit her to wear her neck brace. Accordingly, we REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER The Agency is ORDERED to take the following remedial actions: 1. Within sixty (60) days of the date this decision is issued, the Agency shall determine the amount of back pay, with interest, and other benefits due the Complainant, pursuant to 29 C.F.R. § 1614.501, for dates on which she was required to take leave without pay as a result of the Agency denying her a reasonable accommodation between December 18, 2014, and the date of her retirement. Within sixty (60) days of determining the amount of back pay owed to Complainant, the Agency shall pay the determined amount to Complainant. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 2. Within ninety (90) days of the date this decision is issued, the Agency shall conduct a supplemental investigation into Complainant's entitlement to compensatory damages and determine the amount of compensatory damages to which Complainant is entitled. Within thirty (30) days of determining the amount of compensatory damages, the Agency shall pay Complainant that amount. 3. Within ninety (90) days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive training with a special focus on the Rehabilitation Act to the responsible management officials, including, but not limited to, S1, S3, and S4. 4. Within sixty (60) days of the date this decision is issued, the Agency shall consider discipline against the responsible management officials, including, but not limited to, S1, S3, and S4. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the 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 any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 5. Within thirty (30) days of the date this decision is issued, the Agency must post the attached notice in accordance with the statement entitled "Posting Order." The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Mt. Hood Processing and Distribution Center (P&DC) facility 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). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 5-9-18 __________________ 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 0120161249 8 0120161249