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

Equal Employment Opportunity Commission

Aug 26, 2014

0120130037 (E.E.O.C. Aug. 26, 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
(Southwest Area),
Agency.

Appeal No. 0120130037

Hearing No. 420-2012-00160X

Agency No. 4G-350-0077-11

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s August 29, 2012 final order concerning her 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’s review is de novo. For the following reasons, the Commission AFFIRMS the
final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at
the Agency’s Prichard Station in Mobile, Alabama. On September 17, 2011, Complainant
called in to the Agency’s automated system to request Family Medical Leave Act (FMLA) sick
leave. The automated system informed Complainant that she was required to provide
documentation in support of her absence as she had been identified as “deems desirable.”
Employees identified as “deems desirable” are instructed to provide documentation to support
their absence upon return to work when they call in. Complainant did not submit
documentation in support of her absence and her supervisor (S1) charged her leave as
unscheduled FMLA leave without pay (LWOP). S1 determined that Complainant had
developed a pattern of calling in sick before or after non-scheduled days.

On December 1, 2011, Complainant called into the automated system to request dependent
care sick leave. Complainant was advised to provide documentation in support of her absence,
0120130037

2
but again failed to submit the requested documentation. As a result, S1 charged Complainant’s
absence as unscheduled LWOP. The acting manager (M1) concurred with S1’s decisions as to
Complainant’s leave based on Complainant’s attendance record.

Complainant called in for leave on December 31, 2011, January 2, 2012, and January 3, 2012,
and failed to provide documentation in support of these absences. As a result, Complainant
was not initially paid for the New Year’s holiday. Complainant later submitted documentation
supporting her absences, and S1 initiated a pay adjustment on January 26, 2012.

On December 17, 2011 (and amended on January 27, 2012), Complainant filed a formal
complaint alleging that the Agency discriminated against her on the bases of disability and in
reprisal for prior protected EEO activity when:

1. On September 20 and 21, 2011, she was asked to provide a doctor's statement for
her absence of September 17, 2011, and she was not paid;

2. She was not paid for requested sick leave for her absence of December 1, 2011; and

3. She was not paid for the 2012 New Year's Day Holiday.1

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the
case granted summary judgment in favor of the Agency and issued a decision on August 27,
2012. In the decision, the AJ assumed arguendo that Complainant established a prima facie
case of disability discrimination and reprisal and determined that Complainant failed to
establish that the Agency’s reasons for its actions were pretextual. As a result, the AJ found
that Complainant had not been subjected to discrimination or reprisal as alleged. The instant
appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant alleges that she has new information that contradicts Agency
management’s statements. More specifically, Complainant submits attendance records which
she claims show that she did not call in after holidays as stated by management. Accordingly,
Complainant requests that the Commission reverse the final order.

1 The Agency dismissed one additional claim for failure to state a claim. Complainant raised
no challenge on appeal to the Agency’s dismissal; therefore, the Commission will not address
the claim in this decision.

0120130037

3

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp.

, 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.
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 she 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. 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 the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that, assuming arguendo
that Complainant established a prima facie case of disability discrimination and reprisal,
Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory
reasons for its actions. Specifically, as to her absences on September 17, 2011, and December
1, 2012, S1 affirmed that he disapproved Complainant’s leave requests because she did not
provide the requested documentation in support of her absences. ROI, at 91. S1 stated that
Complainant needed to provide documentation because she had been identified as “deems
desirable” based on her attendance pattern of taking leave in conjunction with a holiday or non-
scheduled days. Agency’s Motion for a Decision Without a Hearing (Agency’s Motion), Ex.
A. Agency attendance records (which Complainant also submitted on appeal) confirm that
Complainant accumulated multiple unscheduled leave incidents in conjunction with holidays
and non-scheduled days. ROI, Ex. 3; Complainant’s Appeal Brief. As a result of her
attendance pattern, Complainant was instructed to submit documentation in support of her
absences upon her return to work, and S1 charged Complainant’s leave as LWOP when she
failed to do so. Id

.
With respect to the New Year’s 2012 Holiday, S1 stated that he initially disapproved
Complainant’s leave request because she failed to submit documentation in support of her
absences on December 31, 2011; January 2, 2012; and, January 3, 2012. ROI, at 94;
Agency’s Motion, Ex. A. When Complainant submitted proper documentation in support of
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4
her absence, S1 submitted a pay adjustment for the holiday. ROI, at Ex. 5; Agency’s Motion,
Ex. A. Complainant does not dispute that she was subsequently paid for the holiday.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's protected classes were a factor in any of the Agency's actions. 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 discriminatory or retaliatory animus. Complainant failed to carry this burden. In
addition, to the extent that Complainant alleged harassment, the Commission finds that the
actions alleged do not rise to the level of a hostile work environment and that Complainant did
not show that the actions alleged were based on her protected classes. As a result, the
Commission finds no basis to disturb the AJ's summary judgment decision finding that
Complainant was not subjected to discrimination or 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 order, because the Administrative Judge’s issuance of summary judgment
was appropriate and a preponderance of the record evidence does not establish that
discrimination occurred.

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
0120130037

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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
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 26, 2014