Angela O'Day, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 10, 2009
0120081716 (E.E.O.C. Sep. 10, 2009)

0120081716

09-10-2009

Angela O'Day, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Angela O'Day,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120081716

Hearing No. 532-2007-00097X

Agency No. 4C-430-0121-06

DECISION

On March 7, 2008, complainant filed an appeal from the agency's January

22, 2008 final order 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. For the following reasons, the Commission AFFIRMS the

agency's final order.

At the time of events giving rise to this complaint, complainant worked

as a Part-Time Flexible Sales, Services/Distribution Associate, PS-5,

at the agency's West Worthington work facility in Columbus, Ohio.

On January 8, 2007, complainant filed an EEO complaint wherein she claimed

that she was discriminated against in reprisal for her prior protected

EEO activity under Title VII when on August 14, 2006, September 16,

2006 and October 2, 2006, she was denied Family and Medical Leave Act

(FMLA) sick leave even though she informed management at the time of

each call that she was requesting FMLA sick leave.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. After the agency submitted a Motion for a Decision

Without a Hearing and complainant filed a Response to the agency's

Motion, the AJ assigned to the case issued a decision without a hearing

on January 15, 2008, wherein she found that no discrimination occurred.

The AJ noted that complainant claimed that she was treated differently

than four employees who were all granted sick leave/FMLA sick leave.

According to the Acting Supervisor, complainant had a FMLA covered

condition, but he stated that FMLA covers unpaid leave not paid sick

leave. He stated that when an employee calls in and requests FMLA

paid sick leave, the employee must provide documentation. The Acting

Supervisor stated that complainant hung up on him when he requested

documentation. The AJ stated that only one of the comparisons cited by

complainant had a FMLA condition. According to the Acting Supervisor,

the comparisons were granted sick leave but they had to provide

documentation if sick leave abuse was suspected. The AJ noted that

the Acting Supervisor further stated that complainant had an off day

on October 2, 2006. The AJ stated that complainant was credited with

four hours of FMLA sick leave for both August 14, 2006 and September

16, 2006, and no leave for October 2, 2006, since that was her off day.

The AJ observed that agency regulation ELM 513.36 states that supervisors

have the right to request medical documentation for an employee for an

absence of less than three days.

The AJ found that complainant fulfilled the elements of establishing a

prima facie case of reprisal discrimination. However, the AJ further

found that the agency articulated a legitimate, nondiscriminatory

explanation for its denials of complainant's requests. According to

the agency, complainant failed to provide documentation as requested for

her FMLA sick leave requests. The AJ found that complainant failed to

establish that the agency's explanation was pretext. The AJ noted that

it is undisputed that complainant did not submit any documentation to

her Acting Supervisor as requested in support of her FMLA sick leave

requests.

The agency subsequently issued a final order fully implementing the

AJ's finding that complainant failed to prove that she was subjected to

discrimination as alleged.

On appeal, complainant contends that the AJ issued a decision before she

was provided with discovery. Complainant maintains that the discovery

would have offered material evidence in support of her reprisal claim.

Complainant notes that the reprisal occurred less than two months after

the filing of her prior complaint.

We must first determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. The Commission's

regulations allow an AJ to issue a decision without a hearing when

he or she finds that there is no genuine issue of material fact.

29 C.F.R. � 1614.109(g). This regulation is patterned after the summary

judgment procedure set forth in Rule 56 of the Federal Rules of Civil

Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive

legal and evidentiary standards that apply to the case, there exists

no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,

a court's function is not to weigh the evidence but rather to determine

whether there are genuine issues for trial. Id. at 249. The evidence of

the non-moving party must be believed at the summary judgment stage and

all justifiable inferences must be drawn in the non-moving party's favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing

a decision without holding a hearing is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider issuing a

decision without holding a hearing only upon a determination that the

record has been adequately developed for summary disposition. See Petty

v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

Finally, an AJ should not rule in favor of one party without holding

a hearing unless he or she ensures that the party opposing the ruling

is given (1) ample notice of the proposal to issue a decision without

a hearing, (2) a comprehensive statement of the allegedly undisputed

material facts, (3) the opportunity to respond to such a statement, and

(4) the chance to engage in discovery before responding, if necessary.

According to the Supreme Court, Rule 56 itself precludes summary

judgment "where the [party opposing summary judgment] has not had the

opportunity to discover information that is essential to his opposition."

Anderson, 477 U.S. at 250. In the hearing context, this means that the

administrative judge must enable the parties to engage in the amount

of discovery necessary to properly respond to any motion for a decision

without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an

administrative judge could order discovery, if necessary, after receiving

an opposition to a motion for a decision without a hearing).

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). He

must generally establish a prima facie case by demonstrating that

he 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). 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 United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case of

reprisal by showing that: (1) he or she engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently,

he or she was subjected to adverse treatment by the agency; and (4) a

nexus exists between the protected activity and the adverse treatment.

Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

Initially, with regard to complainant's contention on appeal that the

AJ inappropriately issued her decision before complainant received

discovery, we find no persuasive evidence to support this argument.

In her Response to the agency's Motion for a Decision Without a Hearing,

complainant's only reference to discovery was not being provided with

the investigative reports concerning the incident of being threatened

on May 9, 2005. That alleged incident, however, is not at issue in the

instant complaint.

We find that complainant set forth a prima facie case of reprisal.

We further find that the agency met its burden of articulating a

legitimate, nondiscriminatory reason for its handling of the FMLA sick

leave requests by stating that complainant failed to submit requested

medical documentation in support of her requests. The agency cited its

regulation that provides supervisors have the right to request medical

documentation for an absence of less than three days. The agency noted

that although complainant has a FMLA covered condition, she sought paid

sick leave rather than unpaid leave. The agency further stated that

complainant was not entitled to FMLA leave on October 2, 2006, because

that was her day off.

Upon review of the arguments presented by complainant and the record

overall, we find that complainant failed to establish the agency's

explanation is pretextual. Complainant does not dispute the agency's

position that she failed to provide requested medical documentation in

supports of her requests for FMLA paid sick leave. Complainant also has

not shown that the agency granted FMLA paid sick leave to any comparison

who did not provide requested medical documentation. Based on the record,

we find that complainant has not established that she was discriminated

against in reprisal for her prior EEO activity.

The agency's final action finding no discrimination is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. 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 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 (S0408)

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 (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 10, 2009

__________________

Date

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0120081716

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120081716