0120111704
04-11-2012
Robert L. Laska, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Robert L. Laska,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120111704
Agency No. 4J-630-0090-10
DECISION
On February 4, 2011, Complainant filed an appeal from the Agency’s
January 18, 2011, final decision concerning his 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. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Electronics Technician at the Agency's Centralia Post Office
in Centralia, Illinois. On April 20, 2010, Complainant filled out a
Form 1221 for Advanced Sick Leave Authorization requesting 120 hours
of advanced leave from April 26, 2010, through May 15, 2010. In the
section for remarks, Complainant stated “80 hours of sick leave and 40
hours of annual leave are due to me reference EEO Settlement.” The
record reveals Complainant filed a previous EEO complaint under Agency
No. 1J-631-0011-08, which was settled in a March 1, 2010 settlement
agreement. Under the terms of the settlement agreement, the Agency was,
inter alia, required to credit Complainant with 80 hours of sick leave
and 40 hours of annual leave.
Complainant filed the subject formal complaint (Agency No. 4J-630-0090-10)
dated August 27, 2010, alleging that the Agency discriminated against
him on the basis of disability (back, leg, panic disorder, and major
depression) and in reprisal for prior protected EEO activity when:
1. On April 21, 2010, Complainant was denied advance sick leave.
2. On May 25, 2010, while discussing an entrance path from behind a
mail sorter machine, a coworker of Complainant stated that this is not
in complainant’s EEO settlement.
On September 21, 2010, the Agency accepted issue (1) for investigation.
The Agency dismissed issue (2) on the grounds that it failed to state
a claim. With regard to issue (2), the Agency stated that there is
no evidence Complainant was subjected to any adverse action or that
Complainant was denied any entitlement in relation to a term, condition
or privilege of employment as a result of the incident described in issue
(2).
After the investigation of issue (1), the Agency provided Complainant with
a copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
Complainant's request, the Agency issued a final decision pursuant to
In its final decision, the Agency found Complainant failed to show that
he was subjected to discrimination. The Agency determined Complainant
failed to show he was an individual with a disability. Alternatively,
the Agency stated that assuming Complainant was a qualified individual
with a disability, he could not establish that he was denied a reasonable
accommodation. The Agency noted that Complainant appears to be claiming
he was denied an accommodation of advanced leave for a medical procedure.
The Agency stated the evidence shows that Complainant requested advanced
leave in an effort to comply with his prior EEO settlement agreement as
opposed to requesting leave for a medical procedure. The Agency noted
that the specified leave was restored in accordance with the settlement
agreement. Additionally, the Agency noted that Complainant requested
leave during the week of April 3 to April 9, 2010, which was granted.
Thus, the Agency determined Complainant’s request for advanced leave
was not a request for a reasonable accommodation. The Agency also stated
it did not deny a request for leave for a medical procedure.
With regard to his claim of disparate treatment, the Agency found that
it articulated legitimate, non-discriminatory reasons for its actions.
Assuming Complainant established a prima facie case of discrimination
based on disability and reprisal, the Agency found management articulated
legitimate, non-discriminatory reasons for their actions. The Agency
noted that the request for 80 hours of advanced sick leave and 40 hours
of advance annual leave was denied because the request matched the
same number of hours Complainant would be getting under a prior EEO
settlement agreement. The Agency noted the EEO settlement agreement
was in the midst of being processed. The Agency determined Complainant
failed to show the Agency’s actions were a pretext for discrimination.
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. (November 9, 1999) (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”).
At the outset, we note that Complainant does not challenge the Agency’s
dismissal of issue (2). Nevertheless, we agree with the Agency that
Complainant has not shown how he was harmed by this comment. We note that
Complainant is not alleging in this complaint that any EEO confidentiality
provision was breached. The Agency’s decision dismissing issue (2)
pursuant to 29 C.F.R. §1614.107(a)(1) was proper.
A claim of disparate treatment 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 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. See 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. See Texas Dep't of Cmty. 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).
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. See U.S. Postal Service Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't
of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June
8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
In the present case, the Postmaster stated Complainant’s request for
80 hours of advanced sick leave and 40 hours of advance annual leave was
denied because the amount of sick leave and annual leave hours matched
the amount of leave Complainant was due to receive as a result of a
prior EEO settlement agreement. The Postmaster stated he contacted the
Labor Relations Specialist who told him that processing the advanced
leave request might cause a delay in the overall processing of the
EEO settlement. The Postmaster noted that at the time of the April 20,
2010 request for advanced leave, the EEO settlement was already being
processed. The Labor Relations Specialist confirmed that the Agency was
already processing Complainant’s back pay/leave pursuant to the EEO
settlement agreement at the time Complainant requested advanced leave.
While the leave specified in the agreement was not restored to Complainant
until June 7, 2010, the record reveals that the Agency began processing
the restoration of Complainant’s leave under the settlement agreement
prior to his April 20, 2010 request for advanced leave. Upon review,
we find Complainant failed to show that the Agency’s reason for denying
his advanced leave request was a pretext for prohibited discrimination.
With regard to his claim that he was denied a reasonable accommodation,
we note that on the Form 1221 for Advanced Sick Leave Authorization
Complainant requested 120 hours of advanced leave from April 26, 2010,
through May 15, 2010. On the Form 1221, in the section for remarks,
Complainant stated “80 hours of sick leave and 40 hours of annual
leave are due to me reference EEO Settlement.” In his affidavit,
stated that he disagreed with the processing of his advanced leave
request because the processing of the leave settlement would take longer
than the advanced leave request since the settlement was not finally
processed until June 7, 2010, while the advanced leave should have
only taken one to two pay periods. Upon review, we find Complainant
requested advanced leave as a way to obtain the 80 hours of sick leave
and 40 hours of annual leave due to him pursuant to the EEO settlement
agreement from his prior EEO complaint. Thus, we find Complainant’s
request for advanced leave due to him under a settlement agreement does
not constitute a reasonable accommodation request.1
To the extent that Complainant was requesting advanced leave to
accommodate his disability, we note the record does not contain
documentation that Complainant needed 80 hours of sick leave and 40
hours of annual leave as an accommodation for his purported disability.
The record contains a February 25, 2010 Patient Consultation Report from
Doctor X, stating that Complainant is recommended for surgery for his
back problems; however, the doctor does not specify the amount of leave
Complainant would need for the surgery and recuperation. Moreover,
we note that on the Form 1221 requesting advanced leave, Complainant
requested to take advanced leave from April 26, 2010, through May
15, 2010. However, Complainant provided a printout from the St. Louis
Spine Care Alliance and an appointment card both indicating that his
appointment for the surgery was scheduled for May 17, 2010. Thus, we
find Complainant failed to show a nexus between the requested advanced
leave and surgery for his claimed medical condition. Upon review, we find
Complainant failed to show that he was denied a reasonable accommodation
of 80 hours of advanced sick leave and 40 hours of advanced annual leave.2
CONCLUSION
The Agency’s final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 11, 2012
__________________
Date
1 Complainant acknowledged he received the leave due under the settlement
agreement on June 7, 2010.
2 We do not address in this decision whether Complainant is a qualified
individual with a disability.
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01-2011-1704
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111704