[Redacted], Brian D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jul 8, 2021

Appeal No. 2020001583 (E.E.O.C. Jul. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brian D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020001583 Agency No. 4E-890-0013-19 Hearing No. 480-2020-00359X DECISION On December 30, 2019, Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 25, 2019 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., 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 worked as a City Carrier, Q-01, at the Agency’s Sunrise Carrier Annex in Las Vegas, Nevada. On March 14, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of color (Black), disability (physical, 20% disabled), age (YOB 1962), and in reprisal for prior protected EEO activity when on November 30, 2018, 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. 2020001583 2 February 22, 2019, Complainant was issued Leave Without Pay (LWOP) after requesting Sick Leave.2 Complainant stated that an incident occurred on November 8, 2018, and he submitted a PS Form 3971 Request for or Notification of Absence to request sick leave. He claimed that he submitted his leave slip on several occasions to the Supervisor but that it was disapproved by the Manager even though he had sufficient sick leave to cover the time. Complainant claimed he had an approved Family Medical Leave Act (FMLA) case related to the issue, however, he was informed his request was denied because he needed to provide medical documentation. Complainant alleged he provided management with documentation upon his return but that his leave was charged as Leave Without Pay (LWOP) despite having sufficient sick leave and FMLA leave. The Supervisor stated that Complainant failed to submit medical documentation as requested to support his absence. She stated she spoke to him after his return about his leave requests and informed him he would be in non-pay status without documentation. A review of Complainant’s time and attendance record reveals that Complainant was charged as absent without leave (AWOL) for over seven hours on November 8, 2018, LWOP for a full day on November 10, 2018, and in pay status on November 30, 2018 and February 22, 2019. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The Agency issued a final Agency decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency concluded that Complainant failed to establish that he was subjected to discrimination or reprisal as alleged. The instant appeal followed. ANALYSIS AND FINDINGS As an initial matter, Complainant argues on appeal that he requested a hearing. Commission records indicate that Complainant filed a hearing request directly with the Commission’s Los Angeles District Office on or around February 25, 2020, and the matter was assigned to an AJ (EEOC Hearing No. 480-2020-00359X). There is no evidence demonstrating that this request was timely filed within 30 days of Complainant’s receipt of the notice of his right to request a hearing nor is there any evidence demonstrating that Complainant notified the Agency as required. Furthermore, the hearing request form provided to Complainant expressly stated that: “I understand that, if I have not provided the [Agency] with a copy of this request for a hearing to the address listed above, the [Agency] will issue a final decision on my complaint, resulting in the loss of my right to a hearing.” 2 The Agency dismissed a second claim pursuant to 29 C.F.R. 1614.107(a)(2) finding that the claim was not brought to the attention of the EEO counselor and was like not “like or related” to the original complaint. Complainant raised no challenges regarding this matter and the Commission finds no reason to disturb the Agency’s dismissal of this claim. 2020001583 3 Complainant has not provided any documentation demonstrating that he timely filed the hearing request and that he sent a copy of his hearing request to the Agency. We note that the Agency informed the AJ of this situation, but the AJ subsequently dismissed the hearing request for unrelated reasons.3 Accordingly, based on the specific circumstances present, we find that Complainant forfeited his right to a hearing and the Agency's issuance of its FAD was proper. 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”). Disparate Treatment 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). 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Assuming arguendo Complainant established a prima facie case of discrimination and reprisal, the Commission finds that the Agency articulated legitimate, non-discriminatory reasons for its actions. As mentioned above, despite Complainant’s claims, time and attendance records reveal that he was in a non-pay status only on November 8, 2018 and November 10, 2018. Complainant’s supervisor stated that Complainant requested leave on November 8, 2018. The form was marked as “must provide documentation” and was disapproved for “dropped route.” The record indicates that management stated that Complainant got upset following a performance discussion and left work without authorization. Complainant then called into work around a holiday. Complainant was charged AWOL on November 8, 2018, and LWOP on November 10, 2018. 3 As we find that there is no evidence of a valid hearing request, we need not address the AJ’s reasons for dismissing the hearing request. 2020001583 4 The record shows that Complainant was in a pay status for November 30, 2018 and February 22, 2019. Complainant’s supervisor affirmed that she spoke with Complainant about his leave requests when he returned and informed him that since he had called in in conjunction with the holiday schedule, he would need to submit medical documentation in support or be placed in a non-pay status. Complainant’s supervisor confirmed that Complainant did not submit acceptable documentation and was placed in a non-pay status for the days in question. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. Aside from conclusory statements and his subjective belief, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2020001583 5 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020001583 6 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 July 8, 2021 Date