Nick S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Office of the Inspector General), Agency.

Equal Employment Opportunity Commission

Oct 16, 2018

0120173042 (E.E.O.C. Oct. 16, 2018)

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

Nick S.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Office of the Inspector General),
Agency.

Appeal No. 0120173042

Hearing No. 480201600539X

Agency No. 1F901014715

DECISION

Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from a September 26, 2017,
final agency order (“FAD”) 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., 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Laborer Custodial, PS-04, in the Los Angeles International Service Center (“ISC”) located in
Los Angles, California.

On December 28, 2015, Complainant filed an EEO complaint alleging discrimination by the
Agency on the bases of race (Filipino-American), national origin (Filipino), color (Brown),
Disability (PTSD, Chronic Bronchial Asthma, Chronic Ankle Sprain, Chronic Shoulder and

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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Back Pain, Hearing Loss, Type II Diabetes), age (58), and Retaliation for engaging in prior EEO
activity when:

1. On or about September 14, 2015, he was issued a Notice of Seven-Day
Suspension, and

2. On or about September 14, 2015, he was charged three hours of Leave
Without Pay (“LWOP”) even though he requested Annual Leave for his
absence.

At the conclusion of its investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”).
Complainant timely requested a hearing.

On July 6, 2016, Complainant submitted a “Motion to Amend” to the AJ, seeking to add an
additional claim of retaliation for engaging in protected EEO activity (instant complaint) when
S1 allegedly denied him leave on October 23, 2015.2

On July 20, 2017, the AJ denied Complainant’s Motion to Amend, finding it untimely. The
Agency then submitted a Motion for a Decision Without a Hearing (summary judgment). Over
Complainant’s objection, the AJ granted the Agency’s motion and issued an Order for Summary
Judgment in favor of the Agency on August 30, 2017.

In reaching his decision, the AJ determined the following facts:

Complainant reported to the Supervisor, Maintenance Operations, EAS-17, (“mocha” skin tone,
American, age 51, “human race,” EEO activity and disability status not specified) as his first
level supervisor (“S1”). Complainant’s second level supervisor (“S2”) was the Supervisor,
Maintenance Operations Support, EAS-19 (African-American, black, American, 52, EEO
activity and disability status not specified). Both S1 and S2 were aware of Complainant’s
protected classes and that Complainant was approved for FMLA leave throughout the relevant
time frame.

In February 2015, at Management’s request, S1 began “cleaning up” ISC employee attendance
records. S1 conducted “attendance reviews,” auditing employee attendance by using data from
the employees’ PS Form 3972 Absence Analysis for Leave Year 2015. Afterward, S1 took
disciplinary action against multiple employees for “attendance deficiencies,” including
Complainant. S1 states that he issued a Letter of Warning to Complainant on April 25, 2015.
However, Complainant denies receiving it.

2 The Motion is dated July 3, 2015, but is referenced by the date it was received, July 6, 2015.
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S1 testified that he relied on ELM and ISC policies to identify employees with attendance
violations warranting disciplinary action. Agency-wide attendance policy is dictated by the
Employee and Labor Relations Manual (“ELM”), which provides that unscheduled absences
may result in disciplinary action, up to and including termination. “Unscheduled absences” refer
to “any absences from work which are not-requested and approved in advance” (ELM 511.42).
Absent without leave (“AWOL”) is a type of unscheduled absence, which occurs when an
employee is late or fails to report for duty on his or her scheduled days, and Management places
them on nonpaid status for the duration of the absence (ELM 665.42). To ensure “objective”
enforcement of the ELM policies regarding unscheduled absences, the ISC attendance policy
specified that 3 or more unscheduled non-FMLA protected absences within a 90-day period
constitute an attendance violation.

In June and July 2015, S1 conducted another attendance review and discovered that Complainant
took unscheduled absences for the full days of May 5 and 7, 2015, and was charged 0.16 AWOL
when he was late to work on May 8, 2015. As the three absences fell within 90 days of each
other, and S1 saw no documentation to indicate the absences were FMLA-protected, S1
determined Complainant was in violation of the ELM and ISC attendance policy. S1 testified
that on July 22, 2015, he conducted an investigatory interview with Complainant about the
attendance deficiencies, but Complainant vehemently denies the meeting occurred, and notes that
the Agency failed to offer documentation of his attendance.

On September 14, 2015, S1 issued the 7-Day Suspension to Complainant for the three May
attendance deficiencies. Complainant claims he “knew nothing about progressive disciplinary
warnings verbal or written” prior to receiving the 7-Day Suspension, but Complainant did not
dispute the absences.

Also on September 14, 2015, Complainant requested 3 hours of annual leave so that he could go
home to take his medication, and get some rest before a doctor appointment he previously
scheduled using FMLA-approved leave. Complainant states that S1 and S2 gave him permission
to leave early and that he told them he would complete the required leave form (PS Form 3971)
later. S1 was reluctant to approve Complainant’s request, as the facility was short staffed for
custodial workers. However, Complainant contended it was a medical emergency. The next day,
rather than interact with S1, Complainant gave his completed PS Form 3971 and a doctor’s note
to the Acting Supervisor, Maintenance Operations, EAS-17 (“tannish brown and pink skin tone,”
American, 57, “Human Race,” EEO activity and disability status not specified) who in turn gave
it to S2. S1 did not receive the documentation, so he recorded the 3 hours of leave as LWOP, a
type of authorized absence from duty (ELM 514.1).

The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove
discrimination as alleged. The instant appeal addressing both the AJ’s decision and the AJ’s
denial of Complainant’s prior Motion to Amend followed.

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ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s Final Order adopting them, de novo. See 29 C.F.R. §
1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on
a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that
an administrative judge’s determination to issue a decision without a hearing, and the decision
itself, will both be reviewed de novo).

Motion to Amend

An Administrative Judge (“AJ”) has broad discretion in the conduct of a hearing, including
matters such as discovery orders, scheduling (e.g., deadlines for submissions), and, as with the
instant complaint, whether to accept a party’s “Motion to Amend.” See 29 C.F.R. § 1614.109(e).
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (“EEO-MD-
110”) at 7-8 to 7-14 (revised Nov. 9, 1999); Bennett v. Dep't of the Navy, EEOC Request No.
05980746 (Sept. 19, 2000). In this case, the AJ denied Complainant's motion to amend because,
among other things, Complainant failed to comply with the filing deadline provided in the June
7, 2017, “Order Scheduling Initial Conference,” and offered no justification for the delay.

On appeal, Complainant insists that the AJ erred, and argues that we must review his Motion
because S1’s actions “justify” or explain the rest of this Complaint. We disagree with both
contentions, and note that Complainant’s Motion was less than forthcoming, as it withheld
relevant information that impacted the AJ’s timeliness finding. Specifically, Complainant raised
the same issue a year and a half earlier but chose not to pursue it. Complainant’s Formal
Complaint included an allegation (“Claim 3”) that on October 23, 2015, S1 became angry when
Complainant clocked out early to go home sick, telling him “you are shooting your own foot.”
On January 25, 2016, the Agency issued a “Notice of Partial Acceptance/Dismissal” to
Complainant, dismissing Claim 3 for failure to state a claim. See 29 C.F.R. 1614.107(a)(1). The
Notice explained that if Complainant disagreed with the dismissal of Claim 3, he could provide a
statement for the record, and, once the Agency completed its investigation of Claims 1 and 2, he
could raise an objection. Complainant did neither. He was provided additional opportunities by
the AJ, yet failed to submit his motion until after the deadline had passed.

The AJ acted within his discretion and in accordance with the Commission’s regulations when he
properly dismissed Complainant’s July 6, 2017 Motion to Amend.

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Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

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 Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

Here, the Agency’s legitimate nondiscriminatory reason for its actions in both Claims 1 and 2
was that it was acting in accordance with the policies discussed in the previous section. The
Agency further reasons that its actions depended on Complainant’s compliance with the ELM
and ISC employee attendance requirements. For instance, the ELM and ISC require employees
to provide necessary documentation before changes can be made to his or her attendance record.
An employee marked AWOL may provide proper documentation that the absence was FMLA-
protected, the employee’s record will be changed from AWOL to approved FMLA-LWOP
(ELM 665.42, .43). To use regular (non-FMLA) sick leave for planned medical treatment, the
employee “should first consult with a management official about the timing of the leave and
must make a reasonable effort to schedule the treatment so as not to unduly disrupt the
operation.” (ELM 515.51). For regular sick leave employees are required to obtain supervisor
permission and complete the PS Form 3971 prior to taking sick leave, with an exception for
medical emergencies. Further, Agency employees are responsible for making “every effort to
avoid unscheduled absences” and failure to maintain their assigned schedule could result in
disciplinary action, including termination (ELM 511.43).

To establish that the Agency’s explanation that it was acting in accordance with the ELM and
ISC attendance policies was pretext for discrimination, Complainant must identify a similarly
situated employee outside of his protected group that was treated more favorably under similar
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circumstances or offer some other evidentiary link between her membership in a protected class
and the alleged discriminatory action. See Furnco Construction Corp. v. Waters, 438 U.S. 567,
576 (1978).

Regarding Claim 1 specifically, where the alleged discriminatory action is an agency’s response
to “problem conduct,” where the proffered “comparator's conduct was materially distinguishable
from that of complainant, he or she is not “similarly situated” to Complainant. See Grappone v.
Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request
No. 05A20020 (Dec. 28, 2002); see also Complainant v. Dep’t of the Treasury, EEOC Appeal
No. 0120132983 (Jun. 10, 2015) (Affirming that the complainant failed to prove that a
disciplinary action was issued in a discriminatory manner when his proffered comparator
received lighter disciplinary actions because the complainant and his comparator did not commit
similar infractions and their infractions rendered two different findings.) Here, the AJ properly
found that Complainant and his single proffered comparator were not similarly situated.
Additionally, the Agency offered ample comparative evidence of other employees outside
Complainant’s protected classes who were also subject to disciplinary action because of
attendance deficiencies.

For Claim 2, it appears Complainant was granted a “medical emergency” exception, as he was
able to submit the Form 3971 after his absence. Despite S1’s frustrated comments that
Complainant “abandoned his assigned schedule” when the facility was short-staffed, “unduly
disrupting the operation,” S1 granted Complainant’s request once Complainant explained it was
due to a medical emergency. We note that regardless of documentation, S1 ensured Complainant
would not be at risk of discipline for an unscheduled absence by recording the 3 hours as LWOP
instead of AWOL. Complainant offers no evidence that S1’s explanation that he did not have the
paperwork to authorize recording the 3-hour absence as FMLA or annual leave, was pretext for
discriminatory motive. Moreover, Complainant confirms that he did not provide the necessary
paperwork to support FMLA or annual leave to S1.

Further, we conclude that Complainant did not set forth any other evidence on appeal from
which we could draw an inference of discrimination both within the record and on appeal. See
Grant v. United States Postal Serv., 001A23956 (Dec. 10, 2003) citing Furnco. Complainant’s
arguments of appeal consist of bald assertions, such as S1 “orchestrating a cover up,” and
disagreements with Agency processes, which are not enforced by the Commission (e.g.
Complainant’s argument that to factors outside his control, such as traffic causing him to arrive
0.16 hours late, should not contribute to disciplinary action.) Similarly, Complainant’s assertion
that S1 lacked the “legal authority” to record his absences as LWOP is both outside the
Commission’s jurisdiction and immaterial to whether the action was pretext for a discriminatory
motive.

Having thoroughly reviewed the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the
evidence did not establish that Complainant was discriminated against by the Agency as alleged.

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CONCLUSION

Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s 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

October 16, 2018
Date