Michel H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jun 29, 2018

0120161853 (E.E.O.C. Jun. 29, 2018)

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

Michel H.,1
Complainant,

v.

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

Appeal No. 0120161853

Hearing No. 531-2015-00192X

Agency No. 4K-200-0129-14

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated April 15, 2016, finding no discrimination
regarding his 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a full-time City Carrier, Q1, at the Washington, D.C. Post Office. On October 20, 2014,
Complainant filed his complaint alleging discrimination based on disability (back) and in reprisal
for prior EEO activity when:

(1) On July 17, 19, and 21, 2014, he was charged Leave Without Pay (LWOP);

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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(2) On September 29, 2014, he was issued a Letter of Warning (LOW); and

(3) On October 30, 2014, he was issued a LOW.

After completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On March 3, 2016, the AJ issued an order denying
Complainant’s hearing request due to his failure to participate in the scheduled teleconference.
The AJ remanded the case back to the Agency for its issuance of its final decision. Complainant
does not contest the AJ’s denial of his hearing request. The Agency issued its final Agency
decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which
Complainant failed to rebut.

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time, Complainant was a City Letter Carrier at
the Agency’s Collections Unit in Washington, D.C. Complainant indicated that he had an on-
the-job back injury and had exercised Family Medical Leave Act (FMLA) since 2002. He stated
that his tasks as a City Carrier were to collect and unload mail at the end of the day and he was
able to perform his tasks.

Regarding claim (1), S1 stated that she charged Complainant LWOP on July 17, 19, and 21,
2014, because he did not have enough sick leave for the leave time he requested. Specifically,
S1 indicated that at the relevant time, Complainant asked for FMLA sick leave, i.e., eight hours
for one day and coming into work late for two other days, but he already exhausted his FMLA
sick leave for the month of July and he did not change his request to annual leave as he was
instructed. S1 noted that at the relevant time, Complainant never informed her of his disability
or requested any reasonable accommodation.

Regarding claim (2), S1 indicated that on September 29, 2014, she did not issue Complainant a
LOW as he indicated but issued him a 7-day suspension notice. Complainant acknowledged that
in the record.
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Specifically, S1 stated that Complainant was issued the suspension for his unacceptable
attendance – failure to maintain the attendance requirement of his position on August 8, 9, 18,
20, 25, and 29, 2014, and September 10 and 15, 2014.

Regarding claim (3), S1 indicated that on October 30, 2014, she issued Complainant a LOW for
a safety violation. Specifically, S1 indicated that another supervisor observed Complainant
driving a two-ton postal truck with ear buds in his ear and talking on the phone in violation of the
Agency’s policy. S1 noted that Complainant filed a grievance regarding the subject LOW and it
was reduced to an official discussion.

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Furthermore, we note that Complainant has not claimed that he was denied a
reasonable accommodation or he was required to perform duties beyond his medical restrictions.
We find that Complainant failed to show that he was treated less favorably than a similarly
situated employee under similar circumstances. Based on the foregoing, we find that
Complainant has failed to show that the Agency’s action was motivated by discrimination as he
alleged.

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.
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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. 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

June 29, 2018
Date