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

Equal Employment Opportunity Commission

Feb 20, 2015

0120123069 (E.E.O.C. Feb. 20, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.

Appeal No. 0120123069

Agency No. 1K-284-0001-12

DECISION
Complainant filed an appeal from the Agency’s June 18, 2012 Final Decision concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of 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, finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Fayetteville Processing and Distribution Center facility in Fayetteville,
North Carolina. On January 17, 2012, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of disability (physical) when:

1. On September 19, 2011, Complainant became aware that she had been charged
absent without official leave (AWOL).

2. On unspecified dates, Complainant was assigned to work outside her restrictions
and work hours and not provided breaks in accordance with a March 15, 2011
District Court Settlement agreement.

By letter dated February 1, 2012, the Agency dismissed claim (2) pursuant to 29 C.F.R.
§ 1614.107 on the grounds that enforcement of the District Court settlement agreement was not
within the jurisdiction of EEO complaints process. Claim (1) was accepted for investigation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
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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).

In its Decision, the Agency found Complainant alleged she became ill while at work on
September 15, 2011, and requested sick leave. Complainant stated that at the time she
requested leave to go home, Complainant had two leave slips prepared, one for five hours of
leave on September 15, 2011 (the balance of her shift) and another slip requesting sixteen
hours of leave including five on September 15, 2011, eight hours of leave the next day, and
three hours of leave for September 19, 2011, the day that Complainant would otherwise return
to work after her regularly nonscheduled days. Complainant believed, the Agency found, that
she had submitted the leave request for 16 hours to management. However, the Agency found
that Complainant had submitted the request for 5 hours only. When Complainant did not
report for work, and did not contact the Agency to request leave on September 16, 2011, she
was charged with 8 hours of AWOL by her supervisor. Complainant discovered the AWOL
charge when she reported for work on September 19, 2011.

The Agency considered that Complainant believes that her supervisor, S1, charged her with
AWOL because Complainant suffers from a disability caused by an incident in 2006, wherein
she was charged by a dog while delivering the mail and has been assigned to modified duties
since accepting a modified job offer in June 2011.

The Agency found that Complainant is a qualified individual with a disability. However, the
Agency found that Complainant failed to establish a prima facie case of disability
discrimination because she failed to identify any other employees, not in her protected group,
who were treated any better than she was under the same or similar circumstances.
Specifically, the Agency considered E1, an employee that Complainant claimed had failed to
report for work or call in when scheduled to work. E1, however, Complainant contended was
not charged AWOL. Instead, Complainant alleged that E1 was called at home to find out why
she did not report to work. The Agency found that E1 was not similarly situated to
Complainant because she held a different position and did not report to the same supervisors.

The Agency considered management’s legitimate, nondiscriminatory reason for charging
Complainant with AWOL. Specifically, the Agency found that S1 charged Complainant with
AWOL when Complainant failed to report to work, failed to contact the attendance control
system, and failed to request leave. S1 denied that Complainant’s disability played any role in
her decision to charge Complainant with AWOL. The Agency found that Complainant did not
present any evidence to show that S1’s stated reasons for her actions were a pretext to mask
discrimination.

The Agency’s Final Decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

0120123069

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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. (November 9, 1999) (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”).
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he or she 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks

, 509 U.S. 502, 519 (1993).
As a preliminary matter, we find that Complainant does not challenge the Agency’s dismissal
of claim (2) on appeal and therefore we shall not address claim (2). Further, Complainant
does not challenge the Agency’s framing of her complaint and we confine our decision to
consideration of claim (1) only.

In the instant case, we assume, without so finding, that Complainant is a qualified individual
without a disability. We find, as did the Agency, that E1 is not a similarly situated employee
for purposes of establishing a prima facie case of disability discrimination. We find, as did the
Agency, that E1 does not hold the same position that Complainant holds and that
Complainant’s supervisors are unaware of whether E1 has ever failed to report to work without
requesting leave or whether E1 has been charged with AWOL for failing to report for work.
We find that E1 and Complainant do not report to the same immediate and second level
supervisors. We further find that Complainant explains she was carrying two leave requests
with her when she needed to leave work because she was ill. We find Complainant presented
no evidence that she presented a request for 16 hours of leave to management at the time she
was ill and requested to take leave. We find no evidence that Complainant’s disability played
any role in the Agency’s decision to charge Complainant with AWOL for the day that
Complainant failed to report for work, failed to notify the Agency that she would not be
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reporting to work, and did not submit a leave request in accordance with the Agency’s
established leave process.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision finding
no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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”
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
February 20, 2015