Lavonne E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Nov 30, 2018

0120172185 (E.E.O.C. Nov. 30, 2018)

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

Lavonne E.,1
Complainant,

v.

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

Appeal No. 0120172185

Agency No. 4G-335-0215-16

DECISION

On June 6, 2017, 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
May 15, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier
Associate (RCA), Grade 05, at the Agency’s Lake Jackson Branch in Sebring, Florida.

On November 25, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of reprisal for prior protected EEO activity when:

1. On September 10, 2016, the Agency issued Complainant a 14-Day Suspension; and

2. On November 28, 2016, the Agency issued Complainant a Notice of Removal.

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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Complainant’s allegations arise out of three leave requests that Complainant submitted on March
17, 2016. On the first request, Complainant sought leave from July 28 to July 31, 2016. The
second request sought leave from August 18 to August 22, 2016. The third request sought leave
from October 24 to October 31, 2016. Complainant’s supervisor (S1) denied all three requests by
checking the box on each form next to the phrase, “Disapproved (Give reason below).” S1 wrote,
“will look at closer to date.” S1 averred that she disapproved Complainant’s leave requests
because she could not approve them that far in advance. S1 also stated that she told Complainant
that if any of the dates Complainant sought leave fell on her regular carrier’s non-scheduled work
days, Complainant would need to coordinate with her regular carrier to ensure coverage on their
route, and to notify management that an arrangement had been reached.

Complainant was scheduled to work on August 20, 2016, but did not work and did not call out of
work. Complainant was charged eight hours of absence without leave (AWOL) for the day.
Management conducted an investigative interview during which Complainant did not provide a
reasonable explanation to mitigate discipline. In addition, Complainant had active, prior discipline
on her record. On or about September 9, 2016, Complainant was issued a Notice of 14-Day Paper
Suspension. The Notice stated that Complainant engaged in unsatisfactory performance, failed to
follow instructions, had unsatisfactory attendance, and was AWOL. The Notice further explained
that the Agency disapproved Complainant’s March 17, 2016, request for leave on August 18 to
22, 2016.

Complainant argued that she submitted a leave form requesting time off for that period and
explained that she had non-refundable financial commitments during that period. Complainant
claimed that she should not have received discipline because she was the first to turn in a leave
request for that period. Complainant contended that the applicable collective bargaining
agreement did not allow S1 to state that she would look at the leave request closer to the date while
simultaneously denying the request. As such, Complainant believed the 14-Day Suspension was
“in retaliation for prior EEO and grievances filed and won.”

On October 29, 2016, Complainant failed to report to work as scheduled and was charged AWOL.
Management held an investigative interview with Complainant on November 1, 2016, and
Complainant failed to provide an acceptable explanation for her absence. On November 28, 2016,
management issued Complainant a Notice of Removal for continued unsatisfactory performance,
unavailability for work, and AWOL. Therein, the Agency explained that Complainant failed to
report to work on October 29, 2016 as scheduled. Further, management stated that Complainant
knew that her regular carrier would be unable to accommodate Complainant’s leave request, and
Complainant told her supervisors that “I’m not going to be here so it does not matter anyway.”
The Agency considered Complainant’s disciplinary history in deciding to remove Complainant.
S1 stated that prior attempts to correct Complainant’s attendance were unsuccessful. The Officer-
in-Charge for the Lake Jackson Branch (OIC) concurred in the removal because it was progressive
in discipline for the same offense.

Complainant argued that she submitted the leave request well in advance and said that S1 and OIC
had a phone conversation in which they agreed to get rid of her because she stood up for her rights.
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Complainant provided no further evidence with respect to this telephone call. In the Step 1
Grievance with respect to her removal, Complainant also admits that she spoke with RC, who was
unable to cover her shift.

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). The decision concluded
that Complainant failed to prove that the Agency subjected her to reprisal as alleged. Specifically,
the Agency concluded that Complainant was unable to rebut the Agency’s legitimate, non-
retaliatory reasons for issuing her discipline and removing her from the Agency. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant articulates a broad range of grievances against OIC. Complainant also
provides detail about why she sought leave in August and October 2016. Complainant claims that
the conversation between S1 and OIC occurred during mediation for her prior EEO complaint.
Accordingly, Complainant requests that the Commission reverse the final decision.

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”).

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at
804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct.
2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
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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. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June
28. 1990): Peterson v. Dep’t of Health and Human Servs., EEOC Request No. 05900467 (June 8,
1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

A fair reading of the record demonstrates that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. As to claim (1), management denied Complainant’s
request for leave in March 2016, but she failed to report to work as scheduled on August 20, 2016.
Moreover, S1 explained that she informed Complainant that she could not approve her leave
request that far in advance, and that Complainant needed to ensure that the Regular Carrier could
cover Complainant’s route. Because the Rural Carrier could not, S1 did not approve
Complainant’s request for leave. When Complainant failed to report to work as scheduled, S1
suspended Complainant based on her prior disciplinary history.

Regarding claim (2), S1 denied Complainant’s request for leave for October 29, 2016, because it
was too early to grant it and she did not have sufficient coverage. Complainant failed to report to
work as scheduled despite S1’s disapproval of her request. S1 and OIC both explained that they
issued Complainant a Notice of Removal because it was the next step in progressive discipline
after the 14-Day Suspension.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

Complainant has failed to carry her burden. Regarding claim (1), we find unpersuasive
Complainant’s suggestion that that the annotation S1 put on her leave request form demonstrated
that S1 did not completely deny her request for leave. The leave form clearly provides two options
for a supervisor: to approve or to deny the request. If a supervisor denied the request, then the
supervisor is encouraged to provide a reason. Here, S1 explained that she denied the request
because it was too early to approve Complainant’s request for leave and Complainant did not
ensure that the Regular Carrier could cover her route. Thus, Complainant was not approved for
leave, but failed to report to work as scheduled anyway. Complainant has offered nothing to
controvert S1’s decision-making process or suggest that unlawful discrimination was the real
reason for her suspension. As for claim (2), Complainant does not offer any explanation that
suggests S1’s and OIC’s explanations were false or unworthy of belief. Accordingly, the
Commission finds that Complainant was not subjected to reprisal as alleged.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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.

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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

November 30, 2018
Date