Charles B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 18, 20180120171169 (E.E.O.C. Oct. 18, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charles B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120171169 Hearing No. 5102016-00179X Agency No. 4G335016515 DECISION On September 21, 2016, 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 September 6, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED Whether Complainant was discriminated against based on reprisal (prior EEO activity) or disability (neck, shoulder, back), when he was issued a Notice of 14-Day Suspension. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Markup Clerk at the Agency’s Tampa Computer Forwarding Systems (CFS) facility in Tampa, Florida. Complainant alleged that A1 (CFS Supervisor), A2 (Manager Mail Forwarding) have intentionally discriminated against him because of his disability (physical and mental) and in retaliation for 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. 0120171169 2 engaging in prior EEO activity) when, on June 17, 2015, he was issued a Notice of 14-Day Suspension. Complainant testified that on or about June 17, 2015, A1 issued him a Notice of Fourteen 14-Day Suspension for an attendance-related issue and alleged breach of security. Complainant asserted that he disagreed with the attendance-related charge because he was on FMLA, and that he disagreed with the alleged security breach charge because he complied with the CFS and Office of Inspector General (OIG) rules regarding security. The Markup Clerk was a new position, in a new facility, for Complainant. The Seacoast District Reasonable Accommodations Committee (DRAC) had provided Complainant with reasonable accommodations at Complainants pervious worksite. The Agency, pursuant to the stated policy, required Complainant to provide current documentation if he needed accommodations in his new position. Complainant did not provide the Agency with a response. Per Agency policy, Complainant was required to request and document each specific medical issue for which he required an accommodation. Documentation was required for each specific job, date(s) and time(s). Complainant asserted that the Agency was provided with his medical documentation on December 1, 2012, when DRAC forwarded Complainant’s medical documentation to the CFS, Tampa. The record showed that Complainant’s medical records were limited to Complainant’s earlier history before he transferred to his new facility and his new position as Markup Clerk-Automated. The record shows that DRAC sent Complainant a letter on July 29, 2015, requesting documentation relative to his new position. Although the Agency requested new/updated information on July 29, 2015, it had not received a response to its inquiry regarding a new request for accommodation as of October 8, 2015. On that date, the Agency sent Complainant a letter informing him that since he had not requested a reasonable accommodation his “case was closed.” A1 testified that she became aware of Complainant’s prior EEO activity in June 2013, when she received a request to complete an affidavit; however, she was unable to answer the questions because she was not involved in the matter. A1 further testified that she did not meet Complainant until December 2012 and the alleged incidents described in his prior EEO Complaint No. 4G-335- 0017-13 occurred before December 2012. A1 maintained the incidents described in Complainant’s prior EEO activity occurred at the Tampa Plant, which was Complainant’s former unit; however, she did not work there. Although A1 stated she was unaware of Complainant’s medical condition and she never received any medical documentation referencing his medical condition, she asserted that she adhered to his work limitations relevant to his former position until she was informed that a reasonable accommodation is specific to a position. A1 further asserted that since Complainant no longer performed the duties of a Mail Processing Clerk position, which was his former position; a letter was sent to him, on July 29, 2015, requesting that he update his information with the DRAC. A1 stated that as of October 8, 2015, no updated documentation was provided by Complainant; therefore, his case was closed and he no longer had work restrictions. 0120171169 3 A1 stated that on June 17, 2015, she issued Complainant a Notice of Fourteen (14) Day Suspension because after she gave him a discussion, issued him a Letter of Warning on December 13, 2013, and issued him a Notice of Seven (7) Day Suspension on September 17, 2014, he continued to have unscheduled absences. A1 noted that when Complainant had unscheduled absences, he would indicate that some were FMLA absences; however, they were denied as he had not been approved for FMLA. A1 further noted that she was unaware of why Complainant did not apply for FMLA; however, she was unsure if he did or did not, as FMLA requests are processed by an FMLA Coordinator in Greensboro, North Carolina. The suspension was signed by A1 and concurred by A2. A2 testified that she concurred with Complainant’s Notice of Fourteen (14) Day Suspension, issued by A2 on June 17, 2015, due to Complainant’s unsatisfactory attendance. A2 asserted Complainant was previously issued a Letter of Warning and Seven (7) Day Suspension for unsatisfactory attendance. A2 testified Complainant’s absences were not covered under FMLA and she was unsure why he never applied for FMLA. Like A1, A2 testified that Complainant could have applied for FMLA and may have been denied; however, she would have no knowledge of that process since it is handled by FMLA coordinators in North Carolina. 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). Complainant timely requested a hearing but subsequently withdrew his request. Based on Complainant’s withdrawal of his request for a hearing, the AJ dismissed Complainant’s request for the hearing. The AJ remanded the matter to the Agency to issue a final decision. 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. 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”). 0120171169 4 ANALYSIS AND FINDINGS To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. 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). Assuming, arguendo, Complainant established a prima facie case of discrimination based on disability and reprisal, we find that the Agency articulated a legitimate, non-discriminatory reasons for its actions. Complainant was suspended due to his unsatisfactory attendance. We find no persuasive evidence of pretext in this case. Although Complainant maintained that some of his absences were covered by FMLA, the record did not support his contention. A1 and A2 both testified that he either did not request FMLA leave or it was not approved. In this regard, we note that when Complainant transferred to his current facility and position, he apparently never provided updated medical information as requested. Subsequently, because he failed to respond to the Agency’s request for updated information, he was advised that his case was closed. Accordingly, we find that Complainant did not establish that his suspension was based on his disability or previous EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 0120171169 5 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 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. 0120171169 6 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 18, 2018 Date Copy with citationCopy as parenthetical citation