[Redacted], Sherill S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Apr 15, 2021

Appeal No. 2020000716 (E.E.O.C. Apr. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherill S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020000716 Hearing No. 520-2017-00397X Agency No. 4B-070-0228-16 DECISION On October 8, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 23, 2019 final action concerning an equal employment opportunity (EEO) complaint claiming 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 During the period at issue, Complainant worked as a Mail Carrier at the Agency’s High Bridge Post Office in High Bridge, New Jersey. On October 29, 2016, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him on the bases of race (African-American), national origin (West Indian), sex (male), disability (disabled veteran), age (over 40), and in reprisal for prior EEO activity when: 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. 2 2020000716 1. since July 13, 2016 and continuing, he has been required to provide medical documentation whenever he takes Family Medical Leave Act (FMLA) leave; 2. on August 8, 2016, his request for annual leave was disapproved; and 3. on August 13, 2016, he was falsely charged Leave Without Pay (LWOP) and management intentionally delayed the processing of the pay adjustment. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). On July 31, 2018, the Agency filed a Motion for Summary Judgment. Complainant responded to the motion. Thereafter, on September 20, 2019, the AJ issued a decision by summary judgment, finding no discrimination. The Agency issued its final action adopting the AJ’s decision. The instant appeal followed. . 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). However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While, Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point out with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 3 2020000716 The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Based on the evidence developed during the investigation of the complaint, we concur with the AJ’s determination that the responsible management official articulated legitimate, non- discriminatory reasons for the disputed actions. Regarding claim 1, Complainant alleged that since July 13, 2016 and continuing, he has been required to provide medical documentation whenever he takes FMLA leave. The AJ noted that during the relevant period, Complainant had an approved FMLA case for intermittent leave 1-2 times, every two months, 1-2 day per episode. He had the right to have paid leave (sick leave or annual leave) run concurrently with his unpaid FMLA leave as long as he met the applicable requirements of the leave policies. According to the Agency’s attendance policy, an unscheduled absence is an absence that has not been approved in advance by a supervisor. In 2016, Complainant had eleven unscheduled absences charged to his annual leave and thirteen unscheduled absences charged to his sick leave. The AJ noted that this did not count the twelve additional FMLA protected absences that were charged to Complainant’s sick leave. During the period of January 1, 2016 through July 13, 2016, Complainant had eleven unscheduled sick leave days and one unscheduled annual leave day. According to the Agency’s Employee and Labor Relations Manual, Employee Benefits, Section 513.391, “supervisors or installation heads who have evidence indicating that an employee is abusing sick leave privileges may place the employee on the restricted sick leave list.” An employee on that list must provide medical documentation or other acceptable evidence of incapacity for work when requesting sick leave. On September 26, 2016, Complainant was placed on the restricted sick leave, which required that he provide medical documentation for his unscheduled sick leave absences. The AJ further noted that Complainant does not have a limited or light duty position. He is able to perform his duties as a Mail Carrier without any restrictions. The Postmaster, also Complainant’s immediate supervisor (Caucasian, English-Irish, male, over 40) explained that Complainant had an attendance problem prior to having a FMLA case. Specifically, he stated that Complainant “had been put on “deems desirable” on 9/26/2016 due to the pattern of usage of sick leave, emergency annual leave and family medical leave. Under the direction from USPS/HRSSC FMLA team I was advised that if giving ‘paid leave’ - I could for, business reasons request documentation to substantiate the absence. 4 2020000716 If the employee failed to provide the documentation for the paid leave, then I could charge the employee LWOP for emergency annual leave, sick leave or family medical leave, also, under the family medical leave act he was protected, but could be given leave without pay.”2 Furthermore, the Postmaster asserted that he did not need Complainant to provide his medical documentation and that Complainant “was fully aware that I simply want ‘documentation’ to substantiate the absence.” Regarding claim 2, Complainant asserted that on August 8, 2016, his request for annual leave was disapproved. The AJ noted that the Choice Vacation Period (or Prime Time) runs from the first week of May until the last week of September. Carriers select their week(s) based upon seniority commencing February 1st. Complainant used his prime time weeks that he selected. After using his Prime Time weeks, on August 8, 2016, Complainant submitted a leave slip requesting 80 hours of annual leave for the period of August 15, 2016 through August 27, 2016, which falls within the Choice Vacation Period. The Postmaster denied Complainant’s request. The Postmaster stated that he gave a service talk before handling out the prime time annual leave calendars. He told everyone that he would be using the local memorandum and “explained how to work the calendars by seniority and time blocks used. The complainant proceeded to fill out the calendar to his satisfaction using too many blocks of weeks and not rotating the calendar by seniority as required.” The Postmaster further stated that Complainant had four weeks of annual leave and “his prime time choices and weeks had been fulfilled. When he came to me for more vacation time during prime time, I disapproved it stating I was going strictly by the local memorandum and all annual leave time needed to be covered and would not be approved unless approved when the calendar choices were taken.” He stated, however, Complainant proceeded “to take the time off anyway - although disapproved by management.” The Postmaster stated that management sent a Letter of Availability to Complainant “for which I did not receive an answer until the Complainant came back from where ever he decided to go. Turned out to be another vacation.”3 Regarding claim 3, Complainant asserted that on August 13, 2016, he was falsely charged LWOP and management intentionally delayed the processing of the pay adjustment. 2 HRSSC is an abbreviation for Human Resources Shared Services Center. 3At that time Complainant was issued a Letter of Warning for Abandonment of Duties. Thereafter, Complainant filed a grievance. As a result of Complainant’s grievance settlement, he was allowed to use 32 hours of annual leave instead of the 32 hours of LWOP that he was initially issued. However, both the union and management agreed that pursuant to the contract, the Postmaster had the right to enforce the Prime Time vacations picks at the post office. 5 2020000716 The Postmaster noted that Complainant was mistakenly charged LWOP for August 13, 2016 when, in fact, Complainant worked that day. He explained to Complainant that it was an error on his part when he “used a block (week) that extended from Saturday to Saturday instead of Monday to Monday when giving the complainant LWOP for one of the weeks that the complainant decided to go AWOL from his route. Once I was notified of this, I adjusted that day of part and notified Complainant that I made the adjustment.” The undisputed facts fully support the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. The record evidence simply does not a finding that of the Agency’s actions were motivated by discriminatory animus toward Complainant’s race, national origin, sex, disability, age and/or retaliatory animus due to his prior EEO activity. CONCLUSION Therefore, after a review of the record in its entirely, including consideration of all statements on appeal, it is the decision of the Commission to AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination. 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 6 2020000716 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. 7 2020000716 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 April 15, 2021 Date