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

Equal Employment Opportunity Commission

Aug 1, 2014

0120122602 (E.E.O.C. Aug. 1, 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
(Western Area),
Agency.

Appeal No. 0120122602

Hearing No. 551-2011-00041X

Agency No. 4E-970-0009-10

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s April 27, 2012 final order 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. 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 Lead Sales and
Services Associate at the Agency’s Midway Retail Station in Portland, Oregon. On August 13,
2009, Complainant faxed her manager a request for donated leave stating that her mother had a
terminal illness. M1 denied the request because it did not meet the requirements for the
Agency’s donated leave program. M1 cited to the program’s policy which stated that to be
eligible for donated leave, a “career employee must be incapacitated for available postal duties
due to serious personal health conditions.” On August 25, 2009, Complainant submitted a
second request citing “stress, due to several deaths in the family and terminal illness of
mother.” M1 determined that this documentation met the requirements for the program and
forwarded the request to the Agency’s Shared Services Unit. The request was approved by a
Labor Relations Specialist on October 22, 2009, and Complainant subsequently received
donated leave. In addition, in December 2009, Complainant was granted advanced sick leave
retroactively for the entire month of September 2009.

0120122602

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On March 2, 2010, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the basis of disability when:

1. In July and August 2009, management did not approve her schedule change request
and subjected it to a higher level of scrutiny; and

2. From August 25, 2009 through October 22, 2009, management delayed processing
her leave donation program request, which resulted in a loss of pay.

On March 30, 2012, the Agency dismissed the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(1) for failure to state a claim. Complainant appealed, and in EEOC Appeal No.
0120102321 (Sept. 28, 2010), the Commission reversed the Agency’s dismissal and remanded
the complaint for further processing.

On October 12, 2010, the Agency reviewed the remanded claims and dismissed claim (1)
pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. The Agency
determined that the alleged incident in claim (1) occurred in July and August 2009; however,
Complainant did not contact an EEO counselor until November 19, 2009, well beyond the 45-
day limitation period. As a result, the Agency dismissed claim (1) and accepted claim (2) for
investigation. At the conclusion of the investigation of claim (2), 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 April 11, 2012.

In the decision, the AJ initially determined that the Agency’s dismissal of claim (1) was
proper.1

Next, the AJ found that, assuming arguendo that Complainant established a prima
facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, the record showed that Complainant submitted a request for donated
leave dated August 12, 2009, citing her mother’s illness. The request was disapproved by M1
citing the Agency’s donated leave program requirements. Complainant submitted a second
request on August 25, 2009, stating that she was requesting donated leave for her own stress
due to several deaths in the family and the terminal illness of her mother. This request was
approved and signed by a Labor Relations Specialist on October 22, 2009. The AJ noted that
an advanced sick leave request was submitted on Complainant’s behalf for the entire month of
September 2009 for personal health reasons.

1 The Commission notes that the AJ incorrectly noted that the Commission affirmed the
Agency’s dismissal of claim (1) in its September 28, 2010 appellate decision. Nonetheless, the
Commission finds that Complainant has raised no challenges to the dismissal of this claim on
appeal; therefore, the Commission exercises its discretion to review only the issue specifically
raised in Complainant’s appeal. Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), 9-10 (Nov. 9, 1999).
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The AJ concluded that Complainant had presented no evidence establishing that the Agency’s
reasons for its actions were pretextual. As a result, the AJ found that Complainant had not
been discriminated against as alleged. The Agency subsequently issued a final order adopting
the AJ’s decision. The instant appeal followed.

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.
Disparate Treatment

In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies
that its decisions were motivated by Complainant's disability and there is no direct evidence of
discrimination, the Commission applies the burden-shifting method of proof set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir.
1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in
order to establish a prima facie case, Complainant must demonstrate that: (1) she is an
“individual with a disability”; (2) she is “qualified” for the position held or desired; (3) she
was subjected to an adverse employment action; and (4) the circumstances surrounding the
adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245
F.3d 916 (7th Cir. 2001). The burden of production then shifts to the agency to articulate a
legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy
his burden of proof, Complainant must then demonstrate by a preponderance of the evidence
that the agency's proffered reason is a pretext for disability discrimination. Id

.
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 is an individual with a disability and otherwise established a prima facie case
of disability discrimination, Complainant failed to present evidence to rebut the Agency's
legitimate, nondiscriminatory reasons for its actions. Specifically, M1 affirmed that
Complainant’s initial request was denied because she was not eligible to receive donated leave
under the Agency’s donated leave program. ROI, Ex. 3; Aff. B, at 4. When Complainant
submitted a request that met the program requirements, M1 forwarded the request to Shared
Services for processing. ROI, Aff. B, at 3. A Labor Relations Specialist approved the request
on October 22, 2009. ROI, Aff. A, at 39. In December 2009, Complainant was retroactively
granted advanced sick leave covering the month of September 2009, and her leave and pay
were adjusted. Id. at 40-47. Further, the record reveals that once Complainant was approved
for the donated leave program, she subsequently received donated leave from several co-
0120122602

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workers. There is no evidence that Agency officials intentionally delayed processing
Complainant’s donated leave paperwork.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's disability was 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 animus. Complainant failed to carry this burden. As a result, the
Commission finds no basis to disturb the AJ's summary judgment decision finding that
Complainant was not subjected to discrimination 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
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.
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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 1, 2014