Marvin D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

May 17, 2018

0120161174 (E.E.O.C. May. 17, 2018)

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

Marvin D.,1
Complainant,

v.

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

Appeal No. 0120161174

Agency No. 4J-604-0152-15

DECISION

On January 29, 2016, 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
January 4, 2016, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales Service
Associate, Level 6, at the Agency’s Joliet Main Post Office in Joliet, Illinois. He also served in
the position of back-up Business Mail Entry Unit (BMEU) Clerk. This position required
Complainant to fill in when the regular BMEU clerk was on leave. In June and July 2015, the
regular BMEU clerk took annual leave. Complainant’s work schedule was changed on short notice
to require him to work on July 8, 2015, which was usually a non-scheduled day for him.
Complainant’s regular non-scheduled days were Wednesday and Sunday. Under the schedule
adjustment, his non-scheduled days were changed to Friday and Sunday for the period of July 4
through July 10, 2015. Complainant regarded the work schedule change as invalid under the
collective bargaining agreement because of its untimely notice and failed to report for work on

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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July 8, 2015. As a result, Complainant was charged with being absent without leave and issued a
letter of warning. Complainant also requested sick leave for Friday, July 10, 2015, which was
denied.

On August 12, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of sex (male) when:

1. On July 10, 2015, he was charged with Leave Without Pay;

2. On July 16, 2015, his request for Sick Leave for July 10, 2015 was denied; and

3. On July 21, 2015, he was issued a Letter of Warning for Failure to Call or Report for
Duty on July 8, 2015.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of his 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 the Agency subjected him to discrimination as alleged.

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”).

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with where the Agency has articulated legitimate and nondiscriminatory reasons
for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request
No. 05950351 (Dec. 14, 1995).
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Claim #2 (Sick Leave Denied)

According to the Agency, Complainant’s sick leave request for July 10, 2015 was denied because
Complainant was not scheduled to work on that day and the Agency’s payroll system cannot
process leave requests for non-scheduled work days. According to his regular schedule,
Complainant believed he was scheduled to work on July 10, 2015 and requested leave accordingly.
Under the schedule adjustment issued on July 2, 2015, that Friday, July 10, 2015 was a non-
scheduled day for which the Agency could not approve leave in the time and attendance system.
The request was not granted because it could not be processed. ROI Affidavit C at 6-7. This is a
legitimate, nondiscriminatory reason for the Agency’s action. Complainant has failed to show that
it is a pretext designed to conceal discriminatory animus.

Claim #1 (Charged Leave Without Pay)
Claim #3 (Letter of Warning)

The Agency explains that Complainant was charged with Absent Without Leave (AWOL)2 on July
8, 2015 and issued a Letter of Warning because he failed to report for duty despite having been
informed that the Agency had been unable to find a replacement for him for that day. July 8, 2015
was supposed to be one of his regularly scheduled days off, but was a scheduled work day for
Complainant, under a schedule adjustment he was issued on July 2, 2015. When attempts to
accommodate Complainant’s request for leave on that day were unsuccessful, he was informed,
on short notice, that he would be required to work on July 8, 2015. Complainant, believing the
short notice to be a violation of his collective bargaining rights, chose to disregard his obligation
to report to work on that day. As a result, he was charged AWOL and issued a Letter of Warning.
This is a legitimate, nondiscriminatory reason for the Agency’s actions.

Complainant argued that he was subjected to discrimination based on his sex. He claimed that he
had married his male partner in May 2015, and had personal business to attend to on July 8, 2015,
in relation to the marriage. Complainant argued that female clerks who were married to males
were permitted to take paid leave for a day or were allowed to keep their scheduled day off in order
to attend to business with their spouses, while he was not. Complainant has failed to show that
it is a pretext designed to conceal discriminatory animus. He has not demonstrated that the Agency
required him to work on Wednesday, July 8, 2015 and did not allow him to keep his regularly
scheduled day off due to discriminatory animus. Rather the record shows that Agency officials
were primarily concerned with filling the absence of the BMEU clerk with an Agency employee
who had been trained in those functions, as Complainant was.

CONCLUSION

2 Contrary to the allegations of the complaint, the Agency states that Complainant was charged
with AWOL rather than leave without pay, for July 8, 2015. ROI Affidavit C at 2.
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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

May 17, 2018
Date