Bart M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionSep 1, 20160120142691 (E.E.O.C. Sep. 1, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bart M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120142691 Agency No. 4G-720-0021-14 DECISION On July 16, 2014, Complainant filed an appeal from the Agency’s July 8, 2014, final decision concerning his 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. The Commission deems the appeal timely and accepts it for de novo review. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a City Carrier at the Post Office in Fort Smith, Arkansas. On January 27, 2014, Complainant filed an EEO complaint in which he alleged that a Customer Services Manager (CSM) discriminated against him on the bases of race (African-American), sex (male), color (Black), disability (hypertension), age (58), and in reprisal for prior protected EEO activity by placing him under a sick leave restriction on December 12, 2013, and by causing him to be given six hours of leave without pay between December 11 and 13, 2013. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not 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. 0120142691 2 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 him to discrimination as alleged. In a memorandum dated December 12, 2013, the CSM informed Complainant that he would be put on restricted sick leave for the next 90 days, which would require him to submit acceptable medical documentation or other evidence of incapacity to work. IR51, 96. The CSM averred that he based his action on the fact that Complainant had been calling in sick on days that were his nominal days off, but for which he had been scheduled to work. IR 68. On December 26, 2013, the memorandum was rescinded as a result of unspecified procedural errors, which Complainant acknowledged. IR 52, 97. The CSM stated that he did not make any further attempts to place Complainant or any other employee on restricted sick leave. IR 70. Complainant submitted a request for 24 hours of leave for the period between December 11 and December 13, 2013. According to CSM and a Customer Services Supervisor (CSS), after the CSS had entered Complainant’s leave request into it’s the pay and leave system, the system suffered a minor malfunction which caused it to credit Complainant with only 16 hours of paid leave and to charge Complainant with 8 hours of Leave without pay. IR 60, 71, 73, 80, 117. The CSM and the CSS both averred that once the error was brought to their attention, they resolved it immediately and paid Complainant for the 8 hours of leave that he had lost as a result of machine error. IR 73, 80-81. Complainant acknowledged that the error had been corrected. IR 54. 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”). The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on his disparate treatment claims, Complainant would have to prove, by a preponderance of the evidence, that the CSM was motivated by unlawful considerations of his sex, disability, age, skin color, previous EEO activity, or race in connection with the two leave-related incidents he described in his complaint. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). In circumstantial-evidence cases such as this, Complainant can prove the existence of discriminatory motive by presenting 0120142691 3 evidence tending to show that the reasons articulated by the CSM for the sick leave restriction and the receipt of only 16 hours of sick leave were pretexts, i.e., not the real reason but rather a cover for discrimination and reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993). Beyond his bare assertions that the CSM discriminated against him and other employees and had retaliated against him for having filed two previous EEO complaints, Complainant has not presented any sworn statements from other witnesses or documents which contradict the CSM’s explanations for the leave restriction and the error in computing the leave taken in December 2013 or which cause us to question the CSM’s veracity. Moreover, both issues were eventually resolved in Complainant’s favor. We therefore agree with the Agency that Complainant has not sustained his burden to prove the existence of a discriminatory motivation on the part of the CSM. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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), 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. The requests 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 0120142691 4 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 (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 September 1, 2016 Date Copy with citationCopy as parenthetical citation