Antwan N.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 2, 20180120171341 (E.E.O.C. Feb. 2, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Antwan N.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120171341 Agency No. 4C-190-0069-16 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated February 14, 2017, finding no discrimination concerning his 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, we AFFIRM the Agency’s final decision finding of no discrimination. BACKGROUND In his complaint, filed on August 25, 2016, Complainant alleged discrimination in reprisal for prior EEO activity when on February 8, 2016, he was issued a notice of removal for submitting altered medical documentation to excuse an unscheduled absence and for failure to cooperate in the investigation of the altered medical document by the Office of the Inspector General (OIG). After completion of the investigation of the complaint, Complainant was notified of his right to request a hearing. Complainant did not request a hearing. The Agency thus issued its final decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant filed the instant appeal from the Agency decision. ANALYSIS AND FINDINGS 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. 0120171341 2 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 (EEO MD-110), Chap. 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"). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its issuance of the notice of removal. At the relevant time, Complainant was employed by the Agency as a Letter Carrier Casual Assistant 1, a short term non-career employee, at its Southampton, Pennsylvania Post Office. Complainant’s supervisor (S1) indicated that S1 issued Complainant the notice of removal at issue for his improper conduct. Specifically, S1 indicated that on October 14, 2015, Complainant had an unscheduled absence from work and on October 15, 2015, Complainant submitted medical documentation from an identified Health Provider to his acting Postmaster (P1) to support his absence. P1 thought the document appeared to have been altered by changing the dates from a note that was issued on October 4, 2015, and referred the matter to the OIG for investigation. The OIG was informed by the Health Provider that they did not provide the documentation to Complainant and he was not seen by their staff on October 14, 2015. Health Provider indicated that Complainant was admitted to its emergency department only once on October 3, 2015, and was provided a medical note dated October 4, 2015. On December 22, 2015, the OIG interviewed Complainant but he refused to answer any question without consulting an attorney first, even though he was advised via a formal warning that the answers he provided would not be used against him in a criminal proceeding. On January 20, 2016, S1 conducted a pre-disciplinary interview concerning his failure to cooperate with the OIG. Complainant acknowledges that he refused to be interviewed by the OIG on December 22, 2016. S1 indicated that based on the foregoing, S1, P1 concurring, issued the notice of removal at issue to Complainant because he could no longer be trusted to effectively and efficiently uphold his obligations as an employee of the Agency. Therein, S1 indicated that Complainant’s prior letter of warning, seven-day suspension, and 14-day suspension were taken into consideration in his issuance of the removal notice. Complainant does not contest the foregoing disciplinary actions. Complainant denied submitting the false medical documentation at issue on October 15, 2015. We note that Complainant, however, did not participate in the OIG’s investigation contesting the October 15, 2015 documentation. The record indicates that Complainant filed a grievance concerning the removal at issue. On August 30, 2016, the arbitrator, issued his decision denying the grievance and affirmed the Agency’s removal action. 0120171341 3 After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons for issuing the removal notice were a mere pretext for discrimination. We do not address whether Complainant altered any documents. We simply find that the Agency acted in a nondiscriminatory manner in deciding to remove Complainant. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED. 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 0120171341 4 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. 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 February 2, 2018 Date Copy with citationCopy as parenthetical citation