Byron E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionApr 7, 2016
0120142590 (E.E.O.C. Apr. 7, 2016)

0120142590

04-07-2016

Byron E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Byron E.,1

Complainant,

v.

Megan J. Brennan,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120142590

Agency No. 4K300022413

DECISION

On July 6, 2014, Complainant filed an appeal from the Agency's June 9, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.

ISSUES PRESENTED

Whether the Agency discriminated against and subjected Complainant to a hostile work environment based on sex (male), disability (VA Disability-Service Connected and rotator cuff strain) and reprisal for prior EEO activity (filing EEO complaints) when:

1. On and around June 11, 2013, his supervisor (S1) changed his starting time from 5:30a.m. to 7:30a.m.;

2. On June 17, 2013, S1 requested that he get a physician signature on his CA-17 form;2

3. On June 18, 2013, S1 sent him home;

4. From June 18-21, 2013, S1 charged him with annual leave, without his consent;

5. Since June 26, 2013, and ongoing, he has been harassed by S1;3

6. On July 1, 2013, S1 yelled at him, told him to clock out and leave the building;

7. On July 8, 2013, S1 sent him home after he did not provide medical documentation;

8. On July 8-12, 2013, S1 recorded him with Absence without Leave (AWOL);

9. On July 9, 2013, S1 sent him home and issued him a Five-Day Absence Notice letter;

10. On July 24, 2013, S1 issued him a 14-Day Suspension;

11. On dates to be specified, he was assigned to drive a two ton truck but did not receive higher level pay;4 and

12. On October 22, 2013, S1 and another management official required him to work outside of his medical restrictions.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Custodian at the Rex Post Office in Rex, Georgia. Complainant stated that on June 11, 2013, S1 changed his work schedule to start at 7:30a.m., and on June 12, 2013, S1 offered Complainant a modified work assignment, with a starting time of 7:30a.m., which he refused to sign. The modified work assignment was to perform various cleaning and maintenance duties, without lifting more than twenty pounds and no pushing/pulling more than twenty pounds of force.

On June 17, 2013, S1 requested that Complainant obtain a physician's signature on a CA-17 form. On June 18, 2013, S1 offered Complainant another modified work assignment to perform various cleaning and maintenance duties, without lifting more than ten pounds and no pushing/pulling more than ten pounds of force. Complainant alleges that after he refused to sign it, S1 sent him home. From June 18-21, 2013, Complainant's attendance was recorded as annual leave (AL).

On July 1, 2013, a mail carrier (MC) asked Complainant for a bucket of water because she had bugs in her vehicle. When S1 saw Complainant watching MC wash out the interior of her vehicle, she instructed Complainant to go back to work. Complainant alleged that S1 "yelled at" him so he left the Rex Post Office and went to another post office to try to get some assistance from a manager there.

On July 8, 2013, Complainant alleged that S1 told him to go home because he did not provide proper documentation to support his absence from July 2-8, 2013. On July 9, 2013, S1 issued Complainant a Five-Day Absence Notice letter, which advised him of his need to provide documentation to support his absences and that if he did not, he would be marked as AWOL. From July 8-12, 2013, Complainant's attendance was recorded as AWOL.

On July 24, 2013, S1 issued Complainant a 14-day suspension for improper conduct related to the events on July 1, 2013, and nine instances of AWOL between July 2, 2013, and July 12, 2013. In regards to the improper conduct, Complainant was charged with creating a disturbance on the workroom floor, which was found to be inappropriate. For the AWOL charges, Complainant was found to have called in stating that he would not return to the Rex Post Office on July 2, 2013; called in sick but did not provide supporting medical documentation on July 3, 5, 7 and 8, 2013 and; did not call in to inform anyone that he would not be reporting to work on July 9-12, 2013. The concurring official on the suspension was the Manager, Post Office Operations (MPOO).

Complainant alleges that on October 22, 2013, S1 and the Postmaster (PM) from the Jackson Post Office instructed him to use his left arm to vacuum, which was beyond his medical restriction. He stated that he followed their instruction and subsequently injured himself.

Complainant initiated EEO counseling on July 9, 2013 and at the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his 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 on June 9, 2014, 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.

The Agency found that Complainant had established a prima facie case for reprisal discrimination because S1 was aware of Complainant's prior EEO activity; the most recent complaint was filed on March 22, 2013. However, the Agency noted that PM and MPOO were not aware of his prior EEO activity. The Agency presumed that Complainant was subjected to an adverse employment action and that there was a close causal connection between his EEO activity and the employment actions.

The Agency found that Complainant had not established a prima facie case of discrimination based on sex and disability. While the Agency presumed for the purposes of the decision that S1, PM and MPOO regarded Complainant as an individual with a disability, it found that Complainant did not name anyone outside of his protected bases who was treated more favorably than he was. However, assuming that Complainant had established a prima facie case of sex and disability discrimination, and finding that Complainant had established a prima facie case of reprisal discrimination; the Agency determined that the managers articulated legitimate, non-discriminatory reasons for its actions.

In regards to claim 1, Complainant alleges that S1 changed his start time so that she "could watch him work." S1 stated that she changed his start time because the carriers at the Rex Post Office had been transferred and there was no need for custodial services so early in the morning. She stated that she changed Complainant's start time to 7:30a.m. because that was the time she arrived in the morning and that his start time was changed back to 6:30a.m. after mediation for his EEO complaint. In regards to claim 2, S1 stated that all employees were required to get a signature from a health-care provider on this form. She stated that Complainant had about a week and a half to two weeks to get this form signed but had not.

For claim 3, Complainant stated that he was not given a reason as to why his time was recorded as AL during that time period. S1 stated that Complainant had refused the offers of a modified job assignment on June 11, 12 and 18, 2013. She stated that without a signed agreement between the Agency and an employee of a modified job assignment, an employee cannot continue to work, per the Employee and Labor Relations Manual. In regards to claim 4, S1 stated that on Complainant's PS Form 3971, 5 the box indicating AL was checked for June 19, 20 and 21, 2013. However, no box was checked for June 18, 2013.

In regards to claim 6, S1 stated that when she saw Complainant watching MC wash her vehicle, she told Complainant to get back to work. S1 stated that Complainant responded, "you are a big ass liar;" "I am tired of you;" and "I will show you." S1 stated that she instructed Complainant to clock out and that he left without clocking out. S1 denied yelling at Complainant. S1 stated that Complainant called her from another location and she told him to report to work the next day. Two witnesses provided statements noting that Complainant responded to S1 "loudly" and that he was "screaming and yelling."

For claim 7, S1 stated that she asked Complainant about his medical documentation and that he told her that his union representative would provide it. S1 stated that Complainant repeatedly asked her if she wanted him to go home and that she told him that she was not telling him to go home. S1 stated that Complainant was not sent home but that he left voluntarily.

In regard to claim 8, S1 stated that Complainant was recorded as AWOL because he did not have approved leave for those dates in question. For July 10 and 11, 2013, his form 3971 was marked with "no call." In regards to claim 9, S1 stated that she did not send Complainant home. She stated that when she asked for his medical documentation, Complainant asked if she wanted him to leave and that he "should have stayed out of work after [S1] told him to leave the other day." S1 stated that Complainant then left. As for Five-Day Absence Notice letter, S1 stated that Complainant had been absent from duty for more than five days and that he needed to provide appropriate documentation, otherwise he would be marked as AWOL.

For claim 10, S1 and MPOO stated that they issued Complainant a 14-day suspension for improper conduct and multiple instances of AWOL. For the improper conduct charge, Complainant was found to have responded "loudly" and used "derogatory" language when speaking to S1 on July 1, 2013. Complainant was charged AWOL for one instance when he called to say he would not be returning to the Rex Post Office; four instances where he called in sick without providing proper medical documentation and; four instances where he did not call at all and failed to report to work between July 2-12, 2013.

In regards to claim 12, S1 stated that no management official instructed Complainant to use the vacuum cleaner. S1 stated that she asked PM if it was possible to use either arm to vacuum and that he responded that it was possible to vacuum with one arm. S1 stated that after PM left, she saw Complainant vacuuming but that he was not instructed to do so. PM stated that he did not instruct Complainant to use the vacuum.

S1 denied factoring in Complainant's sex, disability or prior EEO activity when making her decisions and the Agency determined that Complainant did not show that any of the proffered reasons were pretext for discrimination. The Agency found that Complainant's mere assertions that S1 discriminated against him based on sex, disability and reprisal were not supported by any evidence.

Complainant also alleged that the Agency discriminated against him based on disability when it failed to provide him with a reasonable accommodation. While the Agency determined that Complainant had not established that he was substantially limited in any major life activity, it assumed, for the sake of argument that he was an individual with a disability. The Agency noted that Complainant's physician restricted use of his right arm, but did not specify a weight restriction in a note dated October 15, 2013. Even though S1 and PM denied instructing Complainant to vacuum on October 22, 2013, the Agency found that even if they had, this was not in violation of Complainant's medical restrictions. As such, Complainant had not shown that the Agency had failed to reasonably accommodate him when on October 22, 2013; he was worked outside of his medical restrictions.

In regards to Complainant's claim that he was harassed based on his sex, disability and in reprisal for prior EEO activity, the Agency found that the discrete acts (claims 6, 7, 9 and 10) were not found to be discriminatory and Complainant had not described any additional conduct that would be considered unwelcome. Additionally, the Agency found that many of the events described consisted of the types of interactions that take place between an employee and his supervisor. As to the allegation that S1 "yelled" at Complainant, the Agency found that he did not indicate what S1 said when she "yelled" at him nor did he describe S1's demeanor in such a way to conclude that she engaged in hostile or offensive behavior. In conclusion, the Agency found that Complainant had not proven that the incidents identified were severe or pervasive, when judged by a reasonable person standard, to establish that he was subject to a hostile work environment.

On July 6, 2014, Complainant filed the instant appeal of the Agency's decision but did not submit any arguments in support of his appeal. The Agency did not file a response to Complainant's appeal.

ANALYSIS AND FINDINGS

Standard of Review

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").

Failure to Provide Reasonable Accommodation

Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. In order to establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(g); (2) he is a "qualified" individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).

An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. � 1630.2(i). They also include thinking, concentrating, interacting with others, and sleeping. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997).

An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner or duration under which an individual can perform a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability to perform the major life activity must be restricted as compared to the ability of the average person in the general population to perform the activity. Id.

For the purposes of this decision, we will assume, but not decide, that Complainant is a qualified individual with a disability. Here, Complainant alleged that the Agency discriminated against him when it failed to reasonably accommodate him when on October 22, 2013, S1 and PM required that he perform work that was outside of his limitations; specifically that he vacuum with his left arm. Complainant alleged that S1 and PM told him that vacuuming was not ten pounds of force weight and could be done within his medical restriction. PM stated that he did not instruct Complainant to vacuum and that he does not assign Complainant any assignments. S1 stated that no management official instructed Complainant to use the vacuum cleaner that day. She stated that after PM left, she saw Complainant take it upon himself to vacuum a rug.

The record provides no persuasive evidence that any management official requested that Complainant vacuum with his left arm.6 However, assuming that they had, Complainant's medical restriction, dated October 15, 2013, notes that he has limited use his right arm so even if he were told to vacuum using his left arm, this was not outside his medical limitation. Accordingly, Complainant has not shown that the Agency discriminated against him on the basis of disability when it failed to reasonably accommodate him on October 22, 2013.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Reprisal

Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).

Assuming, arguendo, that Complainant has established a prima facie case of discrimination based on sex, disability and reprisal for prior EEO activity, we find that the Agency has articulated legitimate, non-discriminatory reasons for its actions.

For claim number 1, Complainant alleges that he was discriminated against when his work schedule was changed from 5:30a.m. to 7:30a.m. on June 11, 2013. S1 stated that Complainant's start time was changed because all of the carriers from the Rex Post Office moved to the Stockbridge location and there was no longer a need to have a custodian on duty prior to 6:30a.m. Additionally, S1 stated that she changed Complainant's start time to 7:30a.m., because that was the time that she came in to work.

In response to claim number 2, S1 stated that a physician's signature is required on the CA-17 form to consider it complete. She stated that all employees who submit this form need to have their treating physician's signature.

For claim 3 that S1 discriminated against Complainant when she sent him home on June 18, 2013, S1 stated that all employees who are injured are required to have a modified job assignment, signed by all parties, which outlines the requirements of the job as it relates to the injuries. S1 stated that since Complainant refused to sign his modified job assignment, he was unable to continue working.

In claim 4, Complainant alleged that he was charged AL from June 18-21, 2013, without his consent. S1 stated that on his 3971 form for June 19-21, 2013, he checked the box selecting AL. Additionally, for June 18, 2013, Complainant did not make a selection and that S1 decided to charge him with AL so that he would get paid because she did not believe he had any sick leave available. S1 stated that Complainant was not forced to sign the form or check a certain box.

In claim 5, Complainant alleged that S1 yelled at him on July 1, 2013, and S1 denied yelling at him. She stated that after telling him to go back to work, Complainant began yelling at her, "you are a big ass liar, I am tired of you" and "I will show you." S1 stated that she then told him to clock out and go home. Additionally, S1 stated that when Complainant said, "I will show you," she felt that it was a threat.

In regards to claim 6 where Complainant alleges that S1 yelled at him and told him to leave, S1 stated that she did not yell at him. She stated that when she instructed Complainant to go back to work, he yelled at her and then she told him to leave the building.

For claim 7, S1 stated that she did not send Complainant home on July 8, 2013. S1 stated that she asked him if he had medical documentation to support his absences since July 2, 2013, Complainant replied that his union representative would be bringing that documentation. When S1 stated that she needed the document to make sure that he would be working within his limitations, Complainant replied, "what are you saying, are you telling me to go home?" S1 stated that she told him that she was not telling Complainant to go home but that he simply left. In claim 8, Complainant alleged that he was improperly charged AWOL from July 8-12, 2013. S1 stated that she recorded Complainant as AWOL because he left on July 8, 2013, and that he did not call into the office on those other days and when employees do not call in, they are considered AWOL. The record shows that Complainant's Form 3971 are marked "no call" for July 10 and 11, 2013. His time was recorded as sick leave on July 8, 2013, and AWOL on July 9, 2013.

In regards to claim 9, S1 denied sending Complainant home on July 9, 2013. S1 stated that when she asked Complainant for documentation regarding his absences, he became belligerent towards her and left the building. In response to claim 10 when S1 issued Complainant a 14-day suspension on July 24, 2013, she stated that she issued the suspension based on Complainant's improper conduct and AWOL instances.

For claim 12, Complainant alleged that on October 22, 2013, S1 and PM instructed him to use the vacuum cleaner with his left arm. S1 replied that no management official instructed Complainant to use a vacuum cleaner. PM also denied instructing Complainant to vacuum. S1 stated that she asked PM if it would be possible to use either hand/arm to vacuum and that he replied that it would be possible. Additionally, S1 stated that she later saw Complainant take it upon himself to vacuum. In response to Complainant's allegation that S1 improperly disclosed his medical information to PM, S1 denied discussing Complainant's medical restriction with PM.

S1, PM, and MPOO denied factoring into their decisions Complainant's sex, disability or prior EEO activity and Complainant has not provided any evidence to show that the Agency's proffered reasons were pretext for discrimination. Complainant alleges that S1 made "certain comments" that led him to believe that S1 was discriminating against him based on sex but he did not provide any examples of comments that S1 allegedly made. However, S1 denied making any comments and the record does not show that S1 made any comments about Complainant's sex. At most, the record shows that MC provided a statement noting that S1 was "yelling and screaming" in response to Complainant saying that S1 was harassing him on July 1, 2013. However, two other witnesses stated that Complainant was the one shouting and screaming but did not state that S1 was yelling. Even if S1 did yell at Complainant, he has not shown that she did so because of his sex, disability or in reprisal for his EEO activity. Accordingly, we find that Complainant has not provided evidence to show that he was discriminated against based on his sex, disability or in reprisal for prior EEO activity.

Harassment

Finally, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant did not establish his claim of a hostile work environment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant did not establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

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 the Agency's proffered reasons were pretext for discrimination; that the Agency failed to reasonably accommodate him or; that the Agency subject him to a hostile work environment. Accordingly, we AFFIRM the Agency's decision finding no unlawful employment discrimination based on sex, disability and reprisal for prior EEO activity.

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

__4/7/16________________

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 CA-17 form is a Department of Labor Office of Workers' Compensation Program form used to obtain a duty status request for an employee and is required to obtain or retain a benefit.

3 Complainant specified that the harassing conduct were events 6, 7, 9 and 10.

4 This claim was settled on June 11, 2013, and was dismissed because the claim has already been adjudicated. Accordingly, this decision will not address this claim.

5 The Form 3971 is the "Request for or a Notification of Absence" form.

6 As we do not have the benefit of an Administrative Judge's findings and credibility determinations after a hearing, as Complainant did not request a hearing, we can only evaluate the facts based on the weight of the evidence presented to us.

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