0120160040
10-12-2016
Brenton W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brenton W.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120160040
Agency No. 1J-609-0005-15
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 31, 2015 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Sack Sorting Machine Operator at the Agency's Chicago Network Distribution Center in Forest Park, Illinois.
On March 16, 2015, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of disability and in reprisal for prior EEO activity when:
1. on a date to be specified in December 2014, he was charged Absent Without Leave (AWOL); and
2. on or around December 30, 2014, he was not paid for approved leave.
The record reflects that on December 2, 2014, Complainant's brother died, and Complainant did not report to work. Complainant did not call in his absence until the next day, December 3, 2014, because he was distraught with the news of his brother's death.
After the investigation, Complainant was provided with a copy of the report of the investigation2 and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On July 31, 2015, the Agency issued the instant final decision. The Agency found no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of disability3 and retaliation. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
The instant appeal followed. Complainant, on appeal, argues that during the relevant period he was incapacitated and following the filing of the instant complaint, he was subjected to ongoing harassment by his supervisors. Complainant further requests that his instant complaint "be repealed back to its investigative stage in order for the complainant to properly answer and address his portion of the investigative report."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Regarding claim 1, the Supervisor Attendance Control (Supervisor) was the deciding official to charge Complainant AWOL for December 2, 2014 for failure to report his absence. The Supervisor stated that she later learned from Complainant's supervisor that Complainant had a death in the family and that he would bring in documentation to support his absence for December 2, 2014. The Supervisor stated, however that she never received the documentation for Complainant's absence on December 2, 2014. The Supervisor stated that sometime late December, Complainant's supervisor informed him that Complainant brought documentation but she "was not informed that the documentation was covering the first day (AWOL). I did not physically see any documentation."
Further, the Supervisor stated that on December 3, 2014, Complainant requested 40 hours of Leave Without Pay (LWOP) from December 2, 2014 through December 7, 2014 and "he was approved for LWOP from December 3 to December 7, 2014."
Regarding claim 2, the Supervisor stated that Complainant requested leave for December 30, 2012. However, Complainant did not have sufficient leave to cover the requested day. The Supervisor stated that Complainant "was approved and scheduled 3 hrs .02 units LWOP." The Supervisor further stated that Complainant had a minus of 20.77 hours of leave at that time.
We find that this testimony was a sufficient articulation by the responsible Agency officials of legitimate, non-discriminatory reasons for the disputed actions. After careful review of the record, we further conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination. While we question the management decision to charge Complainant with being AWOL on the day his brother died, we are confined to determining whether or not this action was motivated by Complainant's disability and/or prior EEO activity. The evidence of record simply does not establish that this was the case.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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 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
October 12, 2016
__________________
Date
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.
2 The record reflects that during the investigation of his claims, Complainant did not submit an affidavit or any medical documentation.
3 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
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