0120091890
06-09-2010
Lisa M. McMilleon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Reference #: 0120091890
Lisa M. McMilleon
4122 Norwood Dr
Columbus, GA 31907
Reference #: 0120091890
U.S. Postal Service (Southeast)
NEEOISO - Appeals
U.S. Postal Service
PO Box 21979
Tampa, FL 33622-1979
Lisa M. McMilleon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120091890
Agency No. 4H-310-0114-08
DECISION
On March 11, 2009, complainant filed an appeal from the final agency decision concerning her equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
During the period at issue, complainant worked as a Transitional City Letter Carrier at the agency's Columbus Carrier Annex in Columbus, Georgia. She had worked for the agency for approximately nine years when she was diagnosed with a brain tumor in February 2008. She verbally informed management that she would have to have surgery.
Complainant was scheduled to work on May 24 and May 27, 2008. However, at 6:45 pm on May 23, 2008, complainant submitted a request for 80 hours of Leave Without Pay (LWOP) even though LWOP could only be approved by the Postmaster, who was not on the premises. Complainant stated that she would not be coming to work because she was going to attend her daughter's graduation and that May 23, 2008, would be her last day before surgery. This LWOP request was not approved, and complainant was placed in AWOL status.
Complainant was admitted to the hospital on June 12, 2008 and discharged into a nursing home for rehabilitation on June 25, 2008. On June 17, 2008, the agency issued her a Notice of Removal because she had not reported to work since May 23, 2008, and had failed to submit any medical documentation to justify her absence. Complainant filed a grievance, and on July 30, 2008, she was restored to her position as a Transitional Employee. However, complainant never returned to work.
On August 14, 2008, complainant filed a formal EEO complaint. Therein, complainant claimed that she was the victim of unlawful employment discrimination on the bases of disability (brain tumor) and age (42) when she was issued a Notice of Removal.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC 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 she was subjected to discrimination as alleged.
ANALYSIS and FINDINGS
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, complainant must 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. Next, the agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, then the complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
We conclude that complainant has not established a prima facie case of discrimination on the basis of disability or age. Complainant took no steps in advance to secure approved LWOP for the period of time that she anticipated being out for surgery. Moreover, complainant did not inform her supervisors when the surgery was scheduled or for approximately how long she expected to be out. She provided no medical documentation regarding her progress. Moreover, she requested LWOP on the evening prior to the day she intended to stop working and admitted that her need for the leave was to attend her daughter's graduation. We do not find that the agency's response to these facts requires further explanation, and we find no other evidence in the record from which we can infer unlawful discrimination.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the final agency decision.
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
June 9, 2010
__________________
Date
2
0120091890
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013