Burl M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 24, 20180120171747 (E.E.O.C. Oct. 24, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Burl M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120171747 Agency No. 4J-606-0107-16 DECISION On April 13, 2017, 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 April 4, 2017, 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. BACKGROUND During the period at issue, Complainant worked as a Custodial Worker, PS-5, at the Agency’s Uptown Station in Chicago, Illinois. On October 17, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against him based on reprisal for prior protected EEO activity when: 1. on dates during calendar year 2016, Complainant was charged Leave Without Pay (LWOP) 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. 2 0120171747 2. on dates during calendar year 2016, Complainant was charged Absent Without Leave (AWOL). After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC 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), finding no discrimination. The instant appeal followed. On appeal, Complainant resubmits documents from his formal complaint. 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 final 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”). Complainant waived his opportunity to request a hearing before an EEOC AJ. Had he done so, then he or his representative may have had an opportunity to present his own witnesses and to cross-examine those from the Agency. Complainant also could have benefited from an AJ’s determinations of credibility. Instead of requesting his matters brought before an AJ, Complainant declined to respond to the Agency notice and thus elected a final decision from the Agency based on its report of investigation. Here, Complainant had alleged that the Agency subjected him to discrimination when its management charged him with LWOP and AWOL as opposed to sick leave. To prevail, Complainant needed to satisfy the three-part evidentiary test established by the Supreme Court of the United States. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that the Agency imposed adverse employment actions under circumstances that would support an inference of discrimination. See Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978); McDonnell Douglas at 804 n. 14. If Complainant were to establish his prima facie case, then the burden shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency articulates such a reason, then the burden of proof shifts back to Complainant who must prove, by a preponderance of the evidence, that the Agency’s explanation was pretextual. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 3 0120171747 Assuming arguendo, that Complainant established a prima facie case of discrimination on the raised basis, the Agency nevertheless articulated a legitimate and non-discriminatory reasons for charging Complainant LWOP and AWOL. Complainant’s supervisor charged him as LWOP or AWOL when Complainant took leave which was unscheduled or unapproved. According to the Agency, management notified Complainant he had been placed on its “deems desirable list” due to prior problems with his timeliness as well as his attendance. Thereafter, Agency management had required Complainant to provide documentation to substantiate discrepancies in his clock rings. Complainant could not argue that his time and attendance record was unblemished or that he had submitted written justifications for his tardiness or absences in question. Finally, beyond his bare accusations themselves, Complainant failed to submit evidence that the Agency’s explanations for its actions were pretexts to mask unlawful animus towards his protected statuses. Complainant had asserted that his efforts to file a federal lawsuit against his employer five months prior, caused the Agency to charge him with LWOP and AWOL. To the contrary, his supervisors and local management officials swore that they were unaware of Complainant’s civil suit or EEO activity until they were interviewed regarding this present matter. In light of the foregoing, it follows that Complainant has failed to carry his burden to show, by a preponderance of the evidence, that the Agency subjected him to retaliation or disparate treatment discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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. 4 0120171747 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. 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 24, 2018 Date Copy with citationCopy as parenthetical citation