0120071435
05-28-2009
Felix S. Picone, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Felix S. Picone,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071435
Hearing No. 170-2005-00154X
Agency No. 4A-088-0029-04
DECISION
Complainant appeals to the Commission from the agency's decision
dated December 20, 2006, finding no discrimination. In his complaint,
dated April 3, 2004, complainant alleged discrimination based on age
(over 40) when on November 22, 2003, he was required to provide medical
documentation in support of his sick leave request while a younger
employee was not required to do the same.
The record indicates that after completion of the investigation of
the complaint, complainant previously requested a hearing before an
EEOC Administrative Judge (AJ) who issued a decision without a hearing,
dismissing the complaint for failure to state a claim and alternatively,
finding no discrimination. The agency previously issued its decision
adopting the AJ's decision. Upon complainant's appeal, under EEOC Appeal
No. 01A60303 (May 17, 2006), the Commission reversed the agency's decision
and remanded the case back for a hearing.
Accordingly, the agency requested a hearing before the AJ. On November
29, 2006, the AJ issued an order dismissing the complaint for failure
to state a claim. The agency issued its December 20, 2006 decision
adopting the AJ's dismissal and alternatively, finding no discrimination.
Complainant now appeals.
Initially, we find that the agency, by adopting the AJ's order, improperly
dismissed the complaint for failure to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1). We find that complainant clearly alleged age
discrimination when he was treated differently than his younger coworker
with regard to a term, condition, or privilege of his employment, mainly
his use of sick leave.
Nevertheless, we agree with the agency's decision finding no
discrimination in that complainant failed to show that the alleged
incident was motivated by discrimination. We find that, assuming arguendo
that complainant had established a prima facie case of discrimination,
the agency has articulated legitimate, nondiscriminatory reasons for
the alleged incident. Specifically, complainant's supervisor stated
that prior to the alleged incident, he informed all carriers, including
complainant, that they would have to work overtime on November 22, 2003.
The supervisor indicated that complainant then called in sick on November
22, 2003. The supervisor asked complainant to provide acceptable medical
documentation for his sick leave request in accordance with the agency's
leave policy. Complainant provided a note from a physician on November
24, 2003, the following Monday, since he could not get an appointment
to see his doctor on November 22, 2003.
Complainant claimed that his younger coworker was not required to bring
in medical documentation to justify his absence on November 22, 2003.
The supervisor indicated that when the younger employee also asked for
sick leave on the same day, the supervisor asked for the same thing to
that employee, i.e., acceptable medical documentation. The supervisor
stated that the coworker submitted his wife's statement and the supervisor
accepted such documentation. In that statement, the employee's wife
indicated that the employee was sick on November 22, 2003, because he was
ill during the previous night and had very little sleep. The statement
also indicated that the coworker went back to work later on that day
after the illness ran its course. The coworker and complainant simply
submitted different types of documentation regarding their respective
absences from work.
Based on the foregoing, we find that complainant failed to show that the
agency's proffered reasons were pretextual or that the agency's action
was motivated by discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
5/28/09
__________________
Date
2
0120071435
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013