Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Aug 22, 2014

0120123121 (E.E.O.C. Aug. 22, 2014)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120123121

Agency No. 4F-926-0043-12

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
July 6, 2012 final Agency decision (FAD) 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. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former City Carrier at
the Agency’s North Carrier Annex in Long Beach, California. Complainant was terminated
from the Agency effective July 8, 2011, and received terminal leave pay for his accumulated
annual leave. When Complainant received his final paycheck, he believed that he was owed
payment for an additional 29 hours of unused annual leave. Complainant claimed that he
contacted the office to make them aware that he was owed annual leave, but believed that the
Postmaster refused to properly pay him for his annual leave hours.

On April 24, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of reprisal for prior protected EEO activity when on or
about October 20, 2011, he notified management he had not been paid his remaining hours of
annual leave.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) 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
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provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R.
§ 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
reprisal and determined that management articulated legitimate, non-retaliatory reasons for its
actions. Specifically, the Postmaster affirmed that he was not involved in Complainant’s
terminal leave pay and that the issue was handled through the Eagan, Minnesota Information
Technology and Accounting Service Center. The Human Resources Generalist Principal
(HR1) stated that Complainant was paid the maximum amount of leave that could be carried
over in accordance with the Employee and Labor Relations Manual. In accordance with the
Agency’s rules, Complainant’s lump sum terminal leave payment was limited to the
accumulated annual leave from the previous year and any accrued annual leave for the year he
separated, up to the maximum carryover amount. In addition, any part of the unused annual
leave earned that was in excess of the maximum carryover amount was granted prior to the
separation rather than paid in the form of a lump sum payment. Thus, HR1 stated that
Complainant was properly paid as no payment was made for unused leave that an employee
would have been required to forfeit at the end of the leave year.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
retaliated against as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant disagrees with the FAD and argues that the Postmaster has taken no
action to properly reimburse him for the 29 hours of annual leave due to him. Complainant
contends that the Postmaster has retaliated against him because the Eagan Information
Technology and Accounting Service Center would only pay him based on information
generated by the Long Beach Post Office. Accordingly, Complainant requests that the
Commission reverse the FAD.

ANALYSIS AND FINDINGS
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 was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. To establish a prima facie case of reprisal, Complainant must
show that (1) he engaged in protected EEO 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 his protected activity and the adverse treatment. Whitmire v. Dep't of
the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
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The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Tx. 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 Prods., Inc., 530 U.S. 133, 143
(2000); St. Mary's Honor Ctr. v. Hicks

, 509 U.S. 502, 519 (1993).
In the instant case, the Commission finds that, assuming arguendo that Complainant established
a prima facie case of reprisal, Complainant failed to present evidence to rebut the Agency's
legitimate, non-retaliatory reasons for its actions. More specifically, the Postmaster stated he
was not involved in Complainant’s terminal leave pay and that the matter was handled by the
Eagan Information Technology and Accounting Service Center. ROI, at 81. Further, HR1
confirmed that Complainant was paid the maximum amount of leave he could be paid in
accordance with the Employee and Labor Relations Manual. Id

. at 86. Under the Employee
and Labor Relations Manual, the maximum amount of leave that can be carried over is 440
hours and the lump sum terminal leave payment is limited to the maximum carryover amount.
ROI, Ex. 8; ROI, at 86. Further, an employee cannot receive payment for unused leave that
he or she would have been required to forfeit at the end of the leave year. ROI, Ex. 8; ROI, at
86. The record reveals that Complainant’s last pay stub included payment for 440 hours of
annual leave used with a remaining balance of 29 hours. ROI, Ex. 7. As a result,
Complainant was properly paid the maximum amount of leave he could be paid under the
Employee and Labor Relations Manual.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for reprisal. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this
directly by showing that the Agency's proffered explanation is unworthy of credence. Tx.
Dep't of Cmty. Affairs v. Burdine

, 450 U.S. at 256. The Commission finds that there is no
persuasive evidence in the record that Complainant’s prior protected EEO activity played a role
in any of the Agency’s actions. As Complainant chose not to request a hearing, the
Commission does not have the benefit of an Administrative Judge's credibility determinations
after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of
the evidence presented. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that the Agency acted on the basis of retaliatory animus. Complainant failed to
carry this burden. As a result, the Commission finds that Complainant has not established that
he was subjected to reprisal as alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
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.
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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”
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
0120123121

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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
August 22, 2014