Daniell H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Nov 20, 2018

0120171460 (E.E.O.C. Nov. 20, 2018)

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

Daniell H.,1
Complainant,

v.

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

Appeal No. 0120171460

Agency No. 4J481012516

DECISION

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 January 20, 2017, final
decision 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. 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 Letter Carrier, Q-02,
at the Agency’s Brightmoor Station in Detroit, Michigan.

On September 7, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when: 1) on May 17, 2016, she was issued a Notice of Removal
(NOR); and 2) on May 21 and 24, 2016, her requests for sick leave were denied.

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.
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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 Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

On January 20, 2017, the Agency issued a final decision, finding no discrimination. In so finding,
the Agency explained that Complainant was issued a NOR because she failed to adhere to
attendance regulations. The Agency also explained that Complainant’s request for sick leave were
denied due to the needs of the service, and that Complainant did not have sufficient accumulated
sick leave to cover her absence. The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged because she did not present any evidence that
could raise an inference of discrimination or indicate that her prior EEO activity was a
consideration or a determinative factor.

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. (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”).

On appeal, Complainant contends that the Agency’s actions were in reprisal for her prior EEO
activity because management did not fire other employees for their attendance and there were other
employees at the Brightmoor Station who were not in compliance with attendance policies. She
asserts that the dates which were held against her were not noted in the investigative interview.
She contends that she made every effort to be in regular attendance despite her anxiety condition.

The record reflects that management articulated legitimate, nondiscriminatory reasons for issuing
Complainant with a NOR. In the final decision, the Agency indicated that Complainant was issued
a NOR because she incurred unauthorized absences on four occasions between February 11, 2016
and April 13, 2016. The Agency noted that management conducted an investigative interview on
April 20, 2016, prior to issuing the NOR, to afford Complainant the opportunity to explain her
actions. At such time, Complainant cited to her anxiety as the basis for her attendance problems.
In issuing the NOR, Complainant’s supervisors averred that they took into consideration her prior
14-day no-time-off suspension. Complainant has not claimed disability discrimination.

Complainant has failed to show that the Agency’s legitimate, nondiscriminatory reasons for
issuing her a NOR were pretext for reprisal. In so finding, we note that Complainant acknowledged
during the investigative interview that she understood the Agency’s attendance policies and
requirement for regular attendance.
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Nevertheless, she incurred unauthorized absences on four occasions between February 11, 2016
and April 13, 2016, thereby violating the Agency’s attendance policies.

Although Complainant asserts on appeal that management did not take disciplinary action against
other employees for their attendance, we find such contention to be unpersuasive. In this regard,
we note that management took disciplinary action against other employees for their failure to
adhere to the Agency’s attendance policies (including those without prior EEO activity). While
we acknowledge that management did not issue a NOR to those employees, we note that most of
the comparator employees had no prior disciplinary history.2 Accordingly, Complainant has not
shown she was treated less favorably than other similarly situated employees.

We are also unpersuaded by the statement from Complainant’s colleague.3 While we note that
both Complainant and her colleague were employed at the Brightmoor Station, it is unclear as to
whether they reported to the same first level supervisor. Moreover, we are unable to discern from
the record whether Complainant’s colleague had prior EEO activity or disciplinary history. Based
on the foregoing, she has failed to show that the Agency’s articulated legitimate, nondiscriminatory
explanation was a pretext for reprisal.

We also agree with the Agency’s finding of no discrimination with regard to claim (2). The record
reflects that the Agency denied Complainant’s May 21, 2016 request, due to the needs of the
service. The Agency also explained that Complainant’s May 24, 2014 request was denied because
she did not have enough sick leave. Complainant has not demonstrated that the Agency’s
articulated reasons for denying her requests were pretext for discrimination. Consequently, the
Commission finds that Complainant has failed to show that the Agency’s explanation was a pretext
for discrimination.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

2 Two comparators had prior disciplinary records consisting of a letter of warning and a 7-day no-
time-off suspension (each for failing to adhere to attendance regulations). None of the comparator
employees had similar disciplinary profiles as Complainant (who had a prior 14-day no-time-off
suspension).

3 Complainant’s colleague alleged that management allowed her to clock in late and make up time
at the end of the workday without discipline.
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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.
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.
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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

November 20, 2018
Date