[Redacted], Priscilla H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Mar 2, 2021

Appeal No. 2020000712 (E.E.O.C. Mar. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Priscilla H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020000712 Agency No. 1J-531-0011-19 DECISION On October 6, 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 September 5, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a full-time Laborer Custodial, PS-04, at the Agency’s Processing and Distribution Center in Madison, Wisconsin. On January 28, 2019, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the bases of her sex (female), age (52) and in reprisal for her prior protected EEO activity when: 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. 2020000712 2 1. On or around October 16, 2018, Complainant was not accepted in the Maintenance Selective System (MSS). Complainant later amended her complaint to allege that she was discriminated against on the bases of her race (Caucasian), religion (Christian), national origin (American), sex (female), mental disability (bi-polar disorder, anxiety, chemical imbalance), and in reprisal for her prior EEO activity when: 2. On or about March 27, 2019, management failed to provide Complainant with reasonable accommodations as requested. 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 EEOC 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). Complainant explained that the MSS is a series of tests and interviews to determine if an employee is eligible for advancement to a higher-level position within the maintenance craft. Complainant stated that acceptance in the MSS would make an employee eligible for placement on the registers for jobs outside her present occupational group. According to Complainant, she passed the tests but subsequently failed her interview. Complainant maintained that even though her qualifications were higher than half of the current Maintenance Mechanics, she was not placed on the register, and an open Maintenance Mechanic position was given to a Caucasian male. On September 19, 2018, Complainant took the MSS examinations and received eligible scores on the registers for Electronics Technician, Maintenance Mechanic, Maintenance Mechanic - MPE and Building - All Other. Complainant was interviewed on or around October 16, 2018, for those registers except that of Electronics Technician and received a rating of ineligible, with a retest date of February 13, 2019. Complainant scored almost entirely 1s and 2s on a scale of 1 to 5 (5 being the highest score) for the questions she was asked in the interview, and the interview panel concluded that Complainant did not meet the minimum required competencies to be placed on the registers. Complainant was re-interviewed on February 13, 2019 but was again deemed ineligible. Prior to her next re-test, Complainant requested reasonable accommodation. Complainant submitted a list of reasonable accommodations that had been previously granted to her for the examination, which included 50 percent more time to take the examination, approved breaks, and being able to bring bottled water, snacks and gum into the examination room. Complainant stated that she wanted these accommodations for her interview, but that the list was not all- inclusive of what she would need as a reasonable accommodation. Complainant stated that she also asked for the interview questions to be given to her in writing, and that she be afforded additional time to respond to the questions due to her medical conditions. 2020000712 3 Complainant maintained that this accommodation would have allowed her to successfully pass the interview. Complainant’s Supervisor stated that Complainant informed him that as reasonable accommodations for the interview, she sought the interview questions ahead of time and more interview time so she could have a better opportunity to formulate her responses. An Agency official noted that the most recent medical documentation Complainant had on file was from November 24, 2015, which would not be considered current. A letter from Complainant’s physician dated March 18, 2019, stated that in preparation for the upcoming interview Complainant would be having for the maintenance registers, Complainant would benefit from having the questions in a written form at the time of the interview. Complainant’s physician further stated that Complainant would need some extra time to respond to the questions. That same day, the District Reasonable Accommodation Committee (DRAC) Chair sent Complainant forms so that Complainant could clarify the nature and scope of her request for reasonable accommodation. On April 16, 2019, Complainant sent the DRAC Chair documentation concerning her request. Complainant claimed her medical condition was mental health trauma triggered by violence, and she requested more open communication in writing of what was expected of her. Complainant’s physician, in a document dated April 15, 2019, explained that Complainant experiences complications from bi-polar disorder and struggles with interactions with coworkers, processes written material better than verbal, and needs more concrete instructions. Complainant interviewed for the position prior to the DRAC issuing a determination. At the interview, Complainant was allowed to write the questions down and was provided as much time as she needed to respond. In the final decision, the Agency determined that management articulated legitimate, nondiscriminatory reasons for its actions. A panelist for Complainant’s interview in October 2018 (Panelist 1) stated that during the interview employees were asked questions about certain competencies and their answers were rated, with the ratings compiled to arrive at an overall eligible or ineligible rating. The panelist asserted that Complainant was judged ineligible based on her low competency answers in several areas. Another panelist (Panelist 2) stated that the required competency areas were Information Usage, Safe Work Habits, Analytical Problem Solving, Organizational Citizenship, Skilled Trades and Electronics Knowledge. Panelist 2 stated that Complainant had not met the minimal requirements for four of these areas. A third panelist (Panelist 3) stated that the three-member review panel selected a question for each competency of the position to be filled and asked the selected question as well as providing the competency definition, and the applicant was to give an example of their knowledge by describing a past experience, their behavior, and the outcome. According to Panelist 3, Complainant did not pass the interview process because she gave ineffective responses on four of the six competencies, and below average responses on the other two competencies. With regard to Complainant’s request for reasonable accommodation, Panelist 1 stated that Complainant’s Supervisor forwarded Complainant’s request, which sought to have the interview questions in advance and to have more time during the interview to answer the questions. 2020000712 4 Panelist 1 asserted that Complainant was granted more time to respond to the questions during the interview and that the questions were read slowly and repeatedly to Complainant, and she was told to notify the interviewers if she needed anything to be reread or read more slowly. The Manager, Maintenance Operations for the Milwaukee facility was on the interview panel for Complainant’s interview following her March 2019 reasonable accommodation request. The Manager stated that he became aware of Complainant’s request for a reasonable accommodation at the beginning of the interview. The Manager explained that Complainant could not receive the questions in advance as they were confidential and thus not available prior to the interview. According to the Manager, it was agreed that Complainant could write the questions down but would not be allowed to take them with her at the end of the interview. The Manager asserted that Complainant was permitted to take as much time as she needed to respond to a question. The Agency concluded that Complainant’s claims were unsupported and unsubstantiated in the record. The Agency determined that Complainant was correctly found ineligible in October 2018, and most of her requests for reasonable accommodations for future interviews would be provided. The Agency stated that the only accommodation that could not be provided was for the interview questions to be given to Complainant before the interview since that would compromise the confidentiality of those questions. The Agency determined that Complainant failed to show that management’s explanations for its actions were a pretext for discrimination or reprisal. As a result, the Agency found that Complainant was not subjected to discrimination or reprisal as alleged. ANALYSIS AND FINDINGS Disparate Treatment 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. 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 Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We shall assume arguendo that Complainant set forth a prima facie case under the alleged bases with respect to claims (1-2). The Commission finds that the Agency has articulated legitimate, nondiscriminatory reasons as to claim (1) for Complainant not being placed on the MSS registers for which she interviewed on or around October 16, 2018. The record indicates that Complainant received a rating of ineligible to be placed on the MSS registers. 2020000712 5 According to Panelist 3, Complainant did not pass the interview process because she gave ineffective responses on four of the six competencies, and below average responses on the other two competencies. Complainant attempts to establish pretext by arguing that two male officials dislike old women and retaliate against anyone who files an EEO complaint. We discern no evidence to support this contention. Moreover, Complainant was deemed ineligible after she had been evaluated during her interview by three older females. Complainant has not submitted any persuasive evidence to support her contention that Panelist 1 has a grudge against her. Complainant has not presented sufficient argument or evidence that challenges the scores she was issued on the various competencies. It is evident that Complainant’s performance on the interview in October 2018 was not adequate and did not warrant her placement on the MSS registers for which she was interviewed. We find that Complainant has not established that the Agency’s explanation was pretext intended to mask discriminatory or retaliatory motivation. With respect to claim (2), the Agency asserted that it provided Complainant with all of the accommodations she requested for her interview except for the interview questions being given to her in advance. The Agency stated that it denied this aspect of Complainant’s request based on the questions being confidential. The Agency stated that Complainant was given all the time she needed to provide her responses and that the questions were read slowly and repeatedly to Complainant, and she was told to notify the interviewers if she needed anything to be reread or read more slowly. We find that the Agency has articulated a legitimate, nondiscriminatory explanation for how it addressed Complainant’s request for reasonable accommodation. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged. Denial of Reasonable Accommodation The Commission notes that an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). 2020000712 6 Complainant has been diagnosed with bi-polar disorder. We shall assume without expressly finding that Complainant is a qualified individual with a disability. The Agency explained that Complainant requested that she receive the interview questions in writing and to have more time during the interview to answer the questions. The Manager, Maintenance Operations for the Milwaukee facility stated that Complainant could not receive the questions in advance because they were confidential. According to the Manager, it was agreed that Complainant could write the questions down but would not be allowed to take them with her at the end of the interview. The Manager asserted that Complainant was permitted to take as much time as she needed to respond to a question. Panelist 1 asserted that Complainant was granted more time to respond to the questions during the interview and that the questions were read slowly and repeatedly to Complainant, and she was told to notify the interviewers if she needed anything to be reread or read more slowly. The Commission has long held that individuals protected under the Rehabilitation Act are not entitled to the accommodation of their choice, but to an “effective” accommodation. See Castaneda v. United States Postal Service, EEOC Appeal No. 01931005 (Feb. 17, 1994); U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002) (alternative proposed accommodations must be “effective”). We find that the Agency provided Complainant with substantial accommodations pursuant to her request. While Complainant requested the interview questions in writing, Agency officials allowed Complainant to write down the questions and take as much time as needed to respond. Complainant has presented no evidence that the alternative accommodations granted were ineffective. Accordingly, under the specific circumstances present, the Commission finds that Complainant has not established the Agency denied her reasonable accommodation in violation of the Rehabilitation Act. CONCLUSION The Agency’s determination that no discrimination occurred is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal 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. 2020000712 7 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, a 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. 2020000712 8 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 March 2, 2021 Date