Anglea R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Aug 29, 2019

2019002362 (E.E.O.C. Aug. 29, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Anglea R.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.

Appeal No. 2019002362

Agency No. 4B100002518

DECISION

On December 28, 2018, 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
November 28, 2018, final decision (FAD) 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01,
at the Agency’s Fordham Post Office facility in The Bronx, New York.

On May 5, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), national origin, sex (female), religion,
disability (Diabetes), age (not specified), and reprisal for prior protected EEO activity when:

1. On December 2, 2017 through December 9, 2017, Complainant was charged forty
hours of Absent without Leave (AWOL); and

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.
2019002362

2

2. On January 8, 2018, Complainant’s supervisor called Complainant’s physician
enquiring about her medical condition.

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. Specifically, the FAD found that Complainant’s Manager (M: Black,
African American, female, Catholic, no claimed disability, age not provided) articulated
legitimate, nondiscriminatory reasons for her actions when she averred that she charged
Complainant with being AWOL because Complainant did not request leave in advance or call in
sick. In addition, M and Complainant’s Supervisor (S: Spanish, American, female, Christian, no
claimed disability, 35 years old) both denied calling Complainant’s physician. The FAD further
found that Complainant failed to participate in the investigation and therefore failed to rebut the
Agency’s articulated reasons for its actions.

The instant appeal followed.

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”).

Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
2019002362

3
Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

This established order of analysis 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 Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that
complainant established her prima facie case of discrimination.

We next find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
With regard to claim 1, M averred that she was the one who charged Complainant with being
AWOL and that she did so because:

She did not call or come to work neither did she submit documentation to
substantiate her absence. . . . I had a verbal Service Talk with the Complainant
and the entire floor prior to her vacation that they would be charged AWOL if
they extended their vacation in conjunction with a Holiday. Complainant had a
vacation beginning Thanksgiving and she extended it thru 12/9/17 and returned to
work 12/10/17. 1 give verbal Service Talks about five times a month regarding
this issue not to add on an extra week to their vacation.

With regard to claim 2, M and S both denied contacting Complainant’s physician. The Agency
having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to
Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were
not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell
Douglas. Following a review of the record, we find that Complainant has failed to meet this
burden.

We note that the record shows that Complainant failed to participate in the investigation and
failed to provide an affidavit. On appeal, Complainant alleges that, with regard to claim 1, she
did provide the appropriate documentation to substantiate her absences and that somebody in
management changed her entries after the fact to make her AWOL. We note that S averred that
Complainant “was probably untimely in bringing in her documentation to substantiate her
absence. I believe she gave it to me but I don't recall what it was; and it was probably after three
days.” Complainant on appeal provided an undated statement purporting to come from S stating:

[Complainant] called Fordham Station Dec 04, 2017 to inform management that
she will be extending her sick leave and will be providing proper documentation
from her doctor's office when she return [sic]. I [S] informed her to be sure to
bring all necessary documentation upon her return. When [Complainant] returned
2019002362

4
to work I reviewed [her] attendance with her and informed her that she was
AWOL from December 2, 2017 - December 8, 2017 by the Manager [M]. I
AWOL her for the 9th due to no call no show on the 9th. On December 19th I was
then informed that she did call the system for the 9th but it was too late to change
the AWOL to paid leave due to the week being closed.

The signature on the document is illegible. Assuming that this statement was indeed from S, it
does not support Complainant’s contention that she was charged with AWOL for discriminatory
or retaliatory reasons but instead suggests, along with S’s testimony during the investigation, that
the AWOL charge was because, with the exception of December 9, 2017, Complainant was late
in providing medical information justifying her absence, and further, that S was unaware that
Complainant had indeed called in on the 9th. Complainant has also included two notes from her
physician stating that Complainant was treated by him on November 16 and December 7, 2017.
We note that the November 16 date is not relevant to the issue at hand as Complainant was
charged with being AWOL from December 2nd through the 9th, 2017. Furthermore, the
physician’s note does not explain Complainant’s absence on every other date between December
2nd and the 9th. Even assuming that Complainant provided the medical documentation on time,
she has not shown that the AWOL charge was not merely an error, as opposed to discrimination
or reprisal.

Finally, with regard to claim 2, Complainant has not addressed management officials’ denials
that they ever contacted Complainant’s physician. Accordingly, we find that Complainant has
not met her burden of establishing, by a preponderance of the evidence, that the Agency’s
articulated reason for its action is a pretext to mask discrimination and/or reprisal. Nor has
Complainant otherwise shown that discrimination or reprisal occurred.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not shown that discrimination or
reprisal occurred, and we AFFIRM the FAD.

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.
2019002362

5
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 (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.
2019002362

6
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

August 29, 2019
Date