[Redacted], Roxane A., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022004471 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxane A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022004471 Agency No. 4G-370-0007-22 DECISION On August 17, 2022, 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 July 28, 2022 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Mail Processing Clerk, PS-07, at the Agency’s Post Office facility in Clarksville, Tennessee. On January 29, 2022, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (bilateral carpal tunnel syndrome) when, on or around September 2021, Complainant was charged with being Absent Without Leave (AWOL). At the conclusion of the investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). 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. 2022004471 2 When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD found that Complainant failed to establish a prima facie case of discrimination because she failed to show that otherwise similarly situated coworkers outside of her protected group were treated differently than she was. The FAD further found that, assuming Complainant successfully established a prima facia case, the Agency articulated legitimate nondiscriminatory reasons for its action, namely that Complainant failed to provide documentation to support her continued absences, and further, that Complainant was not charged with being AWOL. The FAD further found that Complainant failed to establish that such reasons were pretextual. The instant appeal from Complainant followed. 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”). Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).2 Under this analysis, a complainant initially 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. 2 We note Complainant has not alleged a failure to provide her with reasonable accommodation. 2022004471 3 This established order of analysis 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination. We next find that the Agency articulated a legitimate nondiscriminatory reason for its action. Complainant’s manager (Manager) averred that the reason for the denial of Complainant’s leave requests was that Complainant had not submitted updated medical documentation to support her absence, noting that for absences longer than three days employees are required to provide “acceptable documentation.” The Agency having articulated a legitimate nondiscriminatory reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. We note initially that Complainant did not specify the dates she was charged with being AWOL. On her formal complaint form, she gave the dates simply as “Aug - 2021, Oct - 2021.” A review of the record shows that from August 2 to August 6, 2021, Complainant was charged “Full Day LWOP - unscheduled leave”. We note that August 7 and 8, 2021, was a weekend and the record is blank regarding those dates. From August 9 to September 30, 2021, Complainant was charged “sick leave - Family Medical Leave Act.” The record contains no entries for October 1 through 5, 2021, although we note October 2 and 3, 2021, was a weekend. From October 6 though 8, Complainant was charged with “Full day LWOP - in lieu of Sick Leave.” October 9 and 10 was a weekend. From October 11 to October 15, Complainant was charged with “Full day LWOP” with no further notification indicating whether this was considered in lieu of sick leave or Family Medical Leave Act leave or some other type of leave. October 16 and 17 was a weekend. From October 18 to 19, 2021, Complainant was charged “Sick Leave - Regular.” From October 20 to 22, Complainant was charged with “Sick Leave - Late.” October 23 and 24 was a weekend. From October 25 to October 28, 2021, she was charged with “Sick Leave - Regular.” There is no entry explaining what happened on October 29, 2021, while we noted that October 30 and 31 was a weekend. Thus, as the Agency argues in its FAD, the record does not show Complainant was charged with AWOL during the entire period she identified in her formal complaint. Assuming that Complainant means she was charged LWOP (Leave Without Pay) as opposed to being charged with being AWOL, we note that she does not identify any otherwise similarly situated coworkers outside of her protected bases who were treated differently than she was. When asked why she believed her medical condition was a factor in the Agency’s action, she responded “ask management.” On appeal, Complainant does not address Manager’s contention that Complainant failed to supply acceptable documentation to support her request for leave. 2022004471 4 Following a review of the record, and given the paucity of information provided by Complainant regarding the dates of the alleged action and why she believes the Agency’s action was due to her protected basis, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that the Agency’s articulated reason for its action is a pretext, or that Agency officials harbored discriminatory animus against her protected basis. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination occurred, and we AFFIRM the FAD. 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). 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. 2022004471 5 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. 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 January 26, 2023 Date