Roman B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Nov 20, 2018

0120171995 (E.E.O.C. Nov. 20, 2018)

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

Roman B.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120171995

Hearing No. 550-2014-00276X

Agency No. 4F945010113

DECISION

On May 17, 2017, 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
April 13, 2017, final order 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. The Commission’s review
is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Grade
01, at the Agency’s Post Office in Salinas, California.

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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On October 31, 2013, Complainant filed an EEO complaint2 alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of race
(Asian), national origin (Filipino), disability, and age (56) when:

1. The Agency issued him an Absence Without Approved Leave (AWOL) notice dated
July 15, 2013, threatening Complainant’s removal from the Agency.

Complainant also alleges that the Agency incorrectly categorized his time. Specifically, the
Agency shorted Complainant’s paycheck on the following occasions:

2. Pay Period 10 (April 20 to May 3, 2013) was short 24 hours of pay;

3. Pay Period 12 (May 1 to May 31, 2013) was short 40 hours of pay;

4. Pay Period 15 (June 29 to July 12, 2013) was short 32 hours of pay;

The Agency did not pay Complainant on the following occasion:

5. Pay Period 16 (July 13 to July 26, 2013);

The Agency placed Complainant on Absent Without Approved Leave (AWOL) on the following
occasions:

6. Pay Period 17 (July 27 to August 9, 2013);

7. Pay Period 18 (August 10 to August 23, 2013);

8. Pay Period 19 (August 24 to September 6, 2013);

The Agency did not pay Complainant sick leave on the following occasions:

9. Pay Period 21 (September 21 to October 4, 2013);

10. Pay Period 22 (October 5 to October 18, 2013);

Finally, Complainant also alleges the Agency subjected him to harassment when:

11. On or around February 28, 2014, Complainant became aware that only 36 hours of the
annual leave Complainant requested in February 2014 had been approved.

2 The Agency, and subsequently, the EEOC Administrative Judge (AJ) arranged the eleven claims
chronologically. However, we have rearranged Complainant’s allegations herein to fairly reflect
the substance of the allegations.
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Complainant had an accepted Office of Workers’ Compensation Programs (OWCP) claim for a
shoulder injury from May 2011. In August 2013, Complainant filed an OWCP claim for anxiety
and emotional distress that he claimed occurred in November 2012. The OWCP later denied that
claim in June 2014. Complainant stated that he is “totally and permanently disabled.”
Complainant has not reported to work since March 2013. Complainant has taken a combination
of leave without pay (LWOP), annual leave, and sick leave during this period. Complainant
alleged that management has not correctly paid him or failed to pay him completely in the above-
mentioned claims. Complainant claimed that although he notified the Agency that his paychecks
were short, the Agency did not take any action and never gave him any reason why his paychecks
were short.

With respect to the leave issues in claims (2) and (3), Complainant’s supervisors entered his time
as OWCP LWOP believing that Complainant was being compensated by OWCP. The record
reflects that management officials later approved adjustments to Complainant’s hours to correct
these issues once the errors were reported to them. Instead of charging Complainant 24 hours of
OWCP LWOP hours and 16 hours of sick leave in Pay Period 10, the Agency charged Complainant
40 hours of sick leave. In Pay Period 12, the Agency switched 40 hours of OWCP LWOP hours
to sick leave. Similarly, regarding the leave at issue in claims (4) and (5), Complainant was
charged sick leave for several dates in July 2013, holiday leave for July 4, 2013, and LWOP for
the remaining days.

On July 15, 2013, management sent Complainant a letter stating that he had been absent since
March 20, 2013, and did not have documentation to support his absence beyond April 20, 2013.
The letter directed Complainant to contact management with evidence of his inability to report for
duties. The letter warned Complainant that his failure to do so could result in his removal from
the Agency. Complainant responded to this letter on July 17, 2013 stating that he was on sick
leave due to work-related stress. Complainant attached a letter from his psychiatrist that he
claimed he had previously submitted in April 2013. Complainant later submitted additional
medical documentation in or around August 2013, October 2013, and December 2013.

The Agency sent Complainant a second letter on September 6, 2013, stating that Complainant still
had not provided acceptable documentation to justify his continued absence. The letter informed
Complainant that he was being scheduled for an investigative interview on September 13, 2013
for being in an AWOL status since March 2013. Complainant had initially been charged AWOL
for the pay periods in claim (6) – (8); however, the times were later changed to combinations of
LWOP, annual leave, and annual leave in lieu of sick leave, based on Complainant’s requests.
Complainant was charged with AWOL on September 2, 2013 through September 6, 2013.

Regarding the leave at issue in claims (9) and (10), Complainant claimed that he was not charged
his requested sick leave. Complainant, instead, was charged annual leave based on his low leave
balance. Management informed Complainant that they would approve his sick leave requests as
annual leave if there was room on the annual leave calendar. A few were initially denied, but
Complainant was granted the annual leave for the dates in question anyway.

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As to the leave at issue in claim (11), Complainant requested LWOP for the dates of February 10,
2014 through February 13, 2014 and February 25, 2014 through March 1, 2014. Complainant
requested annual leave for February 17, 2014 through February 22, 2014. Complainant was
granted annual leave when it was available on the leave schedule, and received LWOP for the
remaining time.

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). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s December 3,
2014 motion for summary judgment and issued a decision without a hearing on April 6, 2017.

The AJ concluded that the Agency provided legitimate, nondiscriminatory reasons for its actions.
As to Pay Periods 10, 12, 15, and 16, the Agency erroneously believed that Complainant was being
compensated through OWCP. The AJ also concluded that the July 15, 2013, letter sent to
Complainant informing him that he was in LWOP status did not constitute discrimination or
harassment because it did not rise to the level of an adverse action. Moreover, the Agency
sufficiently explained, for the July 15, 2013, letter and for placing Complainant in LWOP status
for Pay Periods 16-19, that Complainant had not provided medical documentation to cover the
entire period. For Pay Periods 21 and 22, the AJ accepted the Agency’s explanation that it paid
Complainant through his annual leave balance and not his sick leave balance. With respect to
Complainant’s final claim, that he was only granted 36 hours of the annual leave he requested in
February 2014, the AJ accepted the Agency’s explanation that he was given annual leave if there
were sufficient employees on the schedule. If not, the Agency did not grant Complainant annual
leave. As a result of Complainant’s failure to rebut these explanations, the AJ concluded that
Complainant did not prove that he was discriminated against or subjected to an actionable hostile
work environment.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he sufficiently disputed the Agency’s statement of material
facts and therefore, the AJ improperly disposed of his complaint through summary judgment.
Complainant further argues that the Agency should not have kept him in OWCP status because he
returned to work prior to Pay Periods 10 and 12. Complainant also disputes the nature of the July
15, 2013, letter, claiming that it was pretextual. Complainant advances similar arguments with
respect to his remaining claims. Accordingly, Complainant requests that the Commission reverse
the final order.

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ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim, 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 he 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
804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. Tex. Dep’t of Cmty. Affairs v. 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 pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct.
2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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 Servs., EEOC Request No. 05900467 (June 8,
1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31. 1990).

In the instant case, the Commission finds that summary judgment was appropriate in this matter
as there are no material facts at issue in this case. The Agency articulated legitimate,
nondiscriminatory reasons that are supported by the evidence in the record. Regarding claim (1)
Complainant’s second-level supervisor (S2) explained that management issued the July 15, 2013
letter because Complainant had not provided medical documentation to support his absence and
ability to work. With respect to claims (2) – (5), S2 stated that the Agency placed Complainant in
OWCP LWOP status for Pay Periods 10 and 12 because his supervisors believed he was on leave
due to OWCP claims. The errors were later corrected.

Regarding claims (6) – (8), the record indicates that Complainant may have initially been charged
AWOL for the days in question; however, the times were later changed to combinations of LWOP,
annual leave, and annual leave in lieu of sick leave, based on Complainant’s requests and following
his submission of documentation in support of his absences. Complainant was only charged
AWOL on the dates that he failed to call in or his absence was unsubstantiated by documentation.

As to claims (9), (10), and (11), S2 explained that he informed Complainant that he would pay
Complainant out of annual leave instead of sick leave when possible since Complainant’s sick
leave balances were low and when the Agency had availability on its annual leave calendar.
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A fair analysis of Complainant’s pay stubs support this position. Complainant earned eight hours
of annual leave per pay period compared to four hours of sick leave per pay period. Thus,
Complainant would exhaust his sick leave balance quicker than he would his annual leave balance.
S2’s statement appears designed to ensure Complainant remained in a pay status as long as
possible.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

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 or retaliatory animus. Complainant failed to carry this burden. Upon
review of the record, we find insufficient evidence to establish that the Agency’s actions were
motivated by discriminatory or retaliatory animus.

Hostile Work Environment

Finally, to the extent that Complainant claims he was subjected to a hostile work environment with
respect to the matters set forth in this complaint, we find that under the standards set forth in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of hostile work environment
must fail. See EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice
No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our
determination that Complainant failed to establish that any of the actions taken by the Agency
were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No.
01982923 (Sept. 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order.

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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. 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.
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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

November 20, 2018
Date