James R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Apr 8, 2016

0120142251 (E.E.O.C. Apr. 8, 2016)

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

James R.,1
Complainant,

v.

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

Appeal No. 0120142251

Agency No. 4E-852-0111-13

DECISION

On May 31, 2014, Complainant filed an appeal from the Agency’s May 12, 2014, final
decision 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. 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
Postal Support Employee (PSE) Mail Processing Clerk at the Phoenix-Washington Station
located in Phoenix, Arizona. During the relevant time, the Supervisor of Customer Services
(Person A) was Complainant’s first level supervisor when they worked the same shift. Person
B (Supervisor of Customer Services) also supervised Complainant when Complainant worked a
different shift. The Manager Customer Services was Complainant’s second level supervisor
(S2).

On July 14, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of sex (male) and in reprisal for prior protected EEO activity2 when:
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.
2 During the investigation of his complaint Complainant withdrew the basis of retaliation.

0120142251

2

1. On various dates during March 2013, Complainant’s work hours were reduced; and
2. On March 28, 2013, Complainant was not informed of the type of documentation
needed for absences, and on March 30, 2013, Complainant was terminated.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

In its final decision, the Agency noted that Complainant stated that prior to the incident
described in claim (1), he usually worked Monday through Saturday between six to eight hours
daily. The Agency noted that Complainant stated when the schedule was posted on March 9,
2013, he asked Person A why he was getting low hours and she responded that the low hours
were only for one week. The Agency noted Complainant stated that later the following week
he received his schedule and his hours were reduced to three to four hours daily and then he
was put on a split shift. The Agency noted Complainant alleged that Person A made the
ultimate decision to reduce his work hours and that S2 concurred with this decision.

The Agency noted that the record revealed Complainant worked six or more hours on nine
days between March 9, 2013, and March 30, 2013. The Agency noted Complainant worked
less than six hours on eight days during this time frame.

The Agency noted that Complainant alleged that Person B and Person A discriminated against
him when he was not informed of the proper documentation needed for absences and then was
issued a Notice of Removal. Specifically, Complainant stated that on March 28, 2013, Person
B asked him to provide medical documentation to support his absence from work on March 27,
2013. In response, Complainant stated he told Person B and Person A that he would not be
able to get medical documentation because he had not seen a doctor. Complainant stated he
then asked what would be proper documentation to support his absence and he claimed that
they said nothing. Complainant stated on March 29, 2013, he provided a written statement
from his fiancé which explained his absence was because she was pregnant and needed him to
care for her. Complainant claimed he asked Person B if the note from his fiancé would be
appropriate documentation to support his absence and that Person B said “fine.”

The Agency noted Complainant stated he was subsequently told a Fact-Finding Interview
would be held because the Agency wanted to terminate him for falsifying documentation to
excuse his absence. Complainant stated the Fact-Finding Interview occurred on March 30,
2013, and three hours later he was issued a Notice of Removal on the grounds that he falsified
a document in support of his absence from work.

0120142251

3
The Agency noted that Complainant stated the charges against him were not accurate because
he had not provided false documentation in support of his absences and he had followed
instructions by submitting a written statement from his fiancé to Person B regarding his
absence from work. The Agency noted Complainant claimed there had been no warnings,
discussions, or disciplinary actions regarding his work or attendance prior to being terminated;
nor had he had any unscheduled absences or sick leave.

The Agency noted Complainant filed a grievance regarding the Notice of Removal and that it
was resolved on May 29, 2013. The Agency noted Complainant was returned to work at
another location and was not given back pay.

The Agency found Complainant did not show that an individual not in his protected group was
treated more favorably under similar circumstances. The Agency noted Complainant alleged
that Comparative 1 (a female PSE), Comparative 2 (a male PSE), and Comparative 3 (male,
Sales Services Distribution Associate) got more hours than him, were not required to provide
documentation for absences, and had no disciplinary action taken against them for arriving late
to work or taking extended leave. However, the Agency stated that Person A confirmed that
Complainant’s work hours were not reduced in comparison to any other PSEs in the Unit and
that all PSEs worked comparable hours. The Agency also noted that S2 stated that
Comparative 1 and 2’s hours were comparable to Complainant’s and that none of these
employees worked significantly more hours than Complainant did, and that the only notable
difference in hours would have been during the week Complainant did not show up to work.
The Agency noted that S2 stated that none of the identified employees provided false
documentation in support of an absence like Complainant. The Agency noted that
Comparative 3 held a different position than Complainant. Further, the Agency stated that
Comparative 2 and Comparative 3 were male, which negated any inference of discrimination
based on sex.

Finally, the Agency found that assuming Complainant established a prima facie case of
discrimination based on sex, it articulated a legitimate, nondiscriminatory explanation for the
actions at issue. With regard to claim (1) the Agency noted that S2 stated she was not involved
in the decision to reduce Complainant’s work hours as she had not returned to the Washington
Station until March 25, 2013. The Agency noted that S2 further stated that after returning to
the Station she only observed and evaluated operations but did not make any staffing decisions.
S2 stated there were no decisions to reduce work hours of any specific employees. Instead, S2
noted that two or three vacant jobs were filled with Full-Time Regular Career employees in
March 2013, which resulted in less hours being filled by the temporary non-career employees,
including Complainant. The Agency noted that S2 stated that Complainant held a temporary
non-Career position as a PSE and that such a position was not guaranteed any daily or weekly
work hours and was strictly based on need. The Agency noted that S2 further explained that in
March 2013, it was reiterated that supervisors were required to schedule PSEs per the 1994
staffing model.

0120142251

4
The Agency noted that Person A confirmed that PSE hours are scheduled based on operational
needs and are not guaranteed. The Agency noted that Person A denied Complainant’s work
hours were reduced and noted that Complainant’s work hours varied anywhere between 30 to
40 hours per week based on operational needs. The Agency noted that Person A stated there
was not a direct decision to cut Complainant’s work hours but rather to manage the Clerks
hours based on the 1994 staffing model guideline. The Agency noted that Person A stated that
Complainant was scheduled for window training from March 19 – 23, 2013, but that this
training was cancelled due to the contract not allowing non-window designated PSEs for the
window after April 1, 2013. The Agency noted that they worked Complainant back into the
schedule once they were notified Complainant’s training was cancelled.

With regard to claim (2), the Agency explained that on March 28, 2013, Person A stated that
Complainant told her he called in for sick leave for his girlfriend who was pregnant and he said
he needed to monitor her because of some medication the doctor had given her. The Agency
noted that in response, Person A stated he would need to get a note from the girlfriend’s doctor
stating that Complainant was needed to care for the girlfriend. The Agency noted that Person
A explained that when Complainant stated he would have to make an appointment to see the
doctor to get the note she told him to let Person B know that he was trying to get the proper
documentation for the absence and that should be fine.

The Agency noted that Person B stated that Complainant was provided an electronic mail
message from the Attendance Control Coordinator which indicated that applicable medical or
other certification was required upon his return to work. The Agency stated that Complainant
failed to provide this documentation. The Agency noted that Person B stated Complainant was
not terminated for the failure of providing proper documentation but for not being honest
during the investigative interview regarding his absence from work. Specifically, the Agency
noted that Person B averred that during the investigative interview Complainant was dishonest
stating that his absence was due to needing care for his fiancé; when in fact, the fiancé was at
work during the time of the absence.

The Agency noted that S2 concurred in the discipline issued to Complainant after reviewing the
information from the Fact-Finding Investigation. The Agency noted that S2 stated although the
progressive discipline and restricted sick leave processes were applicable to career craft
employees, that these provisions were not part of the PSE agreement and did not apply to
temporary, non-career employees. The Agency noted that S2 averred Complainant called in
and requested emergency annual leave for March 23, 2013, and again for March 27, 2013, and
the pre-recorded employee automated system stated that Complainant would need to provide
documentation to support his leave requests. The Agency noted that S2 also confirmed that
despite the fact that Person B and Person A had informed Complainant of what would be
considered acceptable documentation, he elected to submit nothing but a letter from his
girlfriend which stated she needed Complainant at home to care for her. The Agency noted,
however, that the clock rings show that Complainant’s girlfriend, who worked at another
Phoenix Station, was actually on the clock working during the time Complainant claimed to be
caring for her at home. The Agency further noted that S2 provided several different reasons to

0120142251

5
various supervisors for his two absences and the reasons why he was not able to provide the
documentation.

The Agency noted that in an attempt to show pretext Complainant claimed his sex was a factor
when his hours were reduced because Person A allegedly told him she was going to get rid of
him but then immediately told Comparative 1 she would not get rid of Comparative 1 and she
would make sure Comparative 1 had no less than six hours of work daily. The Agency noted
that Complainant further alleged that his sex was a factor when he was not informed of what
type of proper documentation was needed for an absence and then was issued a Notice of
Removal because management assigned females light duty while he had to perform the more
strenuous and labor intensive duties around the station.

The Agency determined Complainant’s allegations were not supported by the evidence in the
record. The Agency found the record did not show Complainant’s hours were reduced while
other similarly situated PSEs were not reduced. The Agency recognized that although Person
A denied making the statement to Comparative 1 as alleged by Complainant, Comparative 1
stated that Person A told her that she would make sure that she would get her hours and would
not be one of the PSEs that would get transferred. The Agency noted that notwithstanding,
Comparative 1 did not indicate that this statement was based on Complainant’s sex. Moreover,
the Agency stated that the investigative file lacks any evidence that Person A or any other
management official made any decisions based on Complainant’s sex.

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”).

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie
case of discrimination by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse
employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).

0120142251

6
Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

After a careful review of the record, the Commission finds the record supports the Agency’s
decision finding no discrimination. We note Complainant does not challenge the definition of
the issues identified by the Agency. We find the record in the present case fully developed. In
the present case, the record reveals that the Agency presented legitimate, nondiscriminatory
reasons for its actions. Complainant failed to show that the Agency’s actions were a pretext
for prohibited discrimination based on sex.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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.

0120142251

7
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 (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

April 8, 2016
Date