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

Equal Employment Opportunity Commission

Jul 25, 2017

0120161650 (E.E.O.C. Jul. 25, 2017)

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

Karleen R.,1
Complainant,

v.

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

Appeal No. 0120161650

Agency No. 4E-800-0010-16

DECISION

On April 22, 2016, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s April 6, 2016, 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 Mail Processing
Clerk at the Grand Junction Mail Processing Facility in Grand Junction, Colorado. The
Supervisor, Distribution Operations was Complainant’s first level supervisor during the relevant
time. The Plant Manager was Complainant’s second level supervisor.2

Complainant submitted a form requesting eight hours of Family Medical Leave Act (FMLA)
sick leave for September 4, 2015, which was approved by Complainant’s supervisor. When
Complainant received her paycheck for the relevant time period, she noticed that she had been
charged Leave Without Pay (LWOP) for September 4, 2015. The record contains TACS
documentation indicating Complainant was charged eight hours LWOP for September 4, 2015.

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 In the record, the Plant Manager is also referred to as the Manager, Distribution Operations.
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On November 30, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against her in reprisal for prior protected EEO activity when:

On September 4, 2015, she was charged eight hours of Leave Without Pay (LWOP).

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). 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 her to discrimination as alleged.

On appeal, Complainant states she understands that her case was denied because the Agency
alleged that she did not have FMLA coverage for September 4, 2015. However, Complainant
stated she did have FMLA coverage for that day. Complainant provided a copy of FMLA
documentation dated September 9, 2015, regarding information received on September 4, 2015,
showing her request for FMLA was approved. The documentation contained the notation
Complainant was approved for “1 time per week; 1 day per episode & Scheduled Appointments
thru 12/1/15 *Addtl med docs required for leave after*.”

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, she 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).

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
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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 her 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).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990).

In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
The Plant Manager stated that Complainant had called in for unscheduled family medical sick
leave on September 4, 2015. He stated that the TACS system will charge LWOP for any request
for leave that requires additional approval if that information is not provided at the required time.
The Agency noted that with respect to FMLA sick leave, employees have obligations to provide
notice and information such as medical certification to their employers, in order for an FMLA
sick leave absence request to receive final approval.

The Agency noted the ERMS Employee Information Management Report for August,
September, and October 2015 indicates that Complainant was approved for FMLA sick leave
one time per week from July 9, 2015, through December 1, 2015. The Agency stated the TACS
Employee Everything reports indicated that Complainant took 2.53 hours of Family Medical
Leave on Thursday, September 3, 2015, one day prior to being charged eight hours LWOP
instead of FMLA sick leave she had requested. The Agency noted there was no indication in the
record that Complainant submitted any additional documentation in support of her request for
FMLA sick leave for Friday, September 4, 2015.

Thus, the Agency stated Complainant had prior approval for FMLA sick leave one day per week
during this period and she used that leave on Thursday, September 3, 2015. When she requested
an additional eight hours of FMLA sick leave for the next day, Friday, September 4, 2015, her
request was initially approved by her supervisor, but because she did not have approval for
additional FMLA sick leave for that week, and did not provide any additional documentation in
support of his request, this time was converted to eight hours of LWOP.

Upon review, we find Complainant failed to establish by a preponderance of evidence that she
was subjected to retaliation for her prior protected EEO activity. The Agency presented
legitimate, nondiscriminatory reasons for charging Complainant with LWOP on September 4,
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2015, i.e., at the time Complainant was approved for FMLA sick leave one time per week and
she had already taken FMLA leave the day before her September 4, 2015 request. The
documentation provided by Complainant on appeal supported the Agency’s position that
Complainant was approved for FMLA leave one time per week through December 1, 2015.
Thus, we find Complainant failed to show that the Agency’s actions were a pretext for
discrimination.

CONCLUSION

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

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.
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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 (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

July 25, 2017
Date