Ross R., Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Feb 19, 2016

0120141593 (E.E.O.C. Feb. 19, 2016)

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

Ross R.,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120141593

Agency No. 66-000-0019-13

DECISION

Complainant filed an appeal from the Agency’s March 11, 2014, final decision concerning his
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
Our review is de novo. 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 a Postal Police
Officer at the Agency’s work facility in Chicago.

On October 17, 2013, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his race (Caucasian) and in reprisal for his prior
protected EEO activity under Title VII when:

1. On July 4, 2013, he was told to provide documentation for his absence from July 1 to
July 3, 2013.

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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2. On July 19, 2013, he was charged Absent Without Leave (AWOL) for his absences
from July 1 to July 3, 2013.

3. On September 25, 2013, Complainant was questioned by an Office of Inspector
General (OIG) agent about his documentation for his absence from July 1 – July 3,
2013.

The Agency accepted claims (1-2) for investigation. The Agency dismissed claim (3) pursuant
to 29 C.F.R. § 1614.107(a)(1) on the grounds of failure to state a claim. The Agency reasoned
that matters concerning the OIG are properly addressed within that forum and not the EEO
process. The Agency stated that the claim constituted a collateral attack on another forum’s
proceeding. 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). In accordance with
Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. The record reveals that Complainant stated he was absent from work
from July 1-3, 2013, due to a root canal procedure. On July 4, 2013, the Sergeant provided
Complainant with a Request for or Notification of Absence marked disapproved pending receipt
of medical documentation. The Agency noted that Complainant claimed he was told by the
Sergeant that he was required to provide medical documentation because he had been abusing
sick leave and creating a pattern of connecting sick leave days with non-scheduled days and
holidays. Complainant claimed that the Sergeant informed him that he had to submit medical
documentation that stated he was totally incapacitated due to illness and also accused him of
disobeying an order by not calling in on the sick leave automated line. Complainant asserted that
he attempted to call in on July 1, 2013, to the automated system, but was unsuccessful each time
and he was incapacitated due to mouth swelling. Complainant stated that his wife called in on
July 2, 2013, and also had problems communicating with the automated system.

According to Complainant, the most recent instance where he called in sick was more than eight
months prior to the matter at issue. Complainant claimed that his physician’s fax machine was
down so the physician provided an e-mail concerning his procedure, but the Sergeant did not
accept the e-mail. The Sergeant subsequently charged Complainant with being AWOL because
the physician’s note did not state that Complainant was totally incapacitated due to illness for
three days and was not signed by the physician. Complainant’s wife provided a note but that was
also not accepted.

The Agency determined that Complainant failed to set forth a prima facie case of race
discrimination because he did not identify similarly situated individuals outside his protected
class who received more favorable treatment. The Agency noted that Complainant identified an
African-American employee who he claimed called in sick in combination before and after his
nonscheduled days and no documentation was required for his absence. Complainant maintained
that no African-American employees were requested to provide medical documentation stating

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total incapacitation and to be signed by a physician or charged with being Leave Without
Pay/Absent Without Leave.

The Agency distinguished Complainant’s situation from that of the comparison by pointing out
that Complainant received an official discussion from the Sergeant concerning his attendance in
October 2012 and the comparison did not. The Sergeant stated that both Complainant and the
comparison were given an attendance review in July 2013. According to the Sergeant, the
comparison was told at that time that he needed to improve his attendance as he was beginning a
pattern of unscheduled absences connected to his days off. The Sergeant stated that the
comparison was required to provide documentation for a five-day absence from April 3-7, 2013,
but not for a three-day absence from May 31 – June 2, 2013. The Sergeant stated that a
Caucasian employee also called in sick for three days and was not required to provide
documentation. The Sergeant noted that in contrast to Complainant, this second comparison had
only one such occurrence.

With regard to Complainant’s claim of reprisal as to claim (1), the Agency determined that
Complainant failed to establish a prima facie case. The Agency stated that Complainant had not
engaged in EEO activity prior to being told to provide medical documentation for his July 1-3
absences.

As for claim (2), Complainant claimed that another Caucasian employee was charged Leave
Without Pay and Absent Without Leave. The Sergeant responded that she did not supervise this
comparison and did not manage his attendance. The Agency determined that the comparison
was not similarly situated to Complainant given he held a different position, was supervised by a
different management official and was not involved in a similar situation as Complainant. The
Agency determined that Complainant failed to set forth a prima facie case of race discrimination.

In terms of Complainant’s claim of reprisal for claim (2), the Agency stated that an informal
EEO complaint was filed several days before Complainant was charged with being AWOL.
However, the Agency determined that Complainant did not set forth a prima facie case of
reprisal because the Sergeant was unaware of Complainant’s EEO activity until August 21, 2013,
when she was contacted by the EEO Dispute Resolution Specialist. The Captain stated that he
did not learn of Complainant’s EEO activity until November 2013. The Agency further
determined that Complainant did not establish a nexus between his EEO activity and his adverse
treatment. The Agency reasoned that although there is a close temporal relationship between the
EEO activity and the charging of the leave to AWOL, such circumstances should be considered
coincidental in the absence of evidence establishing knowledge on the part of a responsible
management official.

Assuming arguendo Complainant had set forth a prima facie case of discrimination under the
alleged bases, the Agency determined that it articulated legitimate, nondiscriminatory reasons for
its actions. The Agency rejected Complainant’s arguments to establish pretext. The Agency
determined that Complainant did not refute its reasons for requiring him to submit medical
documentation and its subsequent decision to charge him with being AWOL.

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ANALYSIS AND FINDINGS

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802.

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715-16 (1983).

Initially, we shall address Complainant’s appeal of the Agency’s dismissal of claim (3). The
Commission has held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding. Wills v. Department of Defense, EEOC Request No.
05970596 (July 30, 1998); Kleinman v. Unites States Postal Service, EEOC Request No.
05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No.
05930106 (June 25, 1993). Complainant challenges the OIG’s questioning of him concerning
his medical documentation. We find that challenging his questioning does constitute a collateral
attack on an OIG proceeding. The proper forum for Complainant to challenge actions that
occurred during the OIG investigative process is within that process itself.

We shall assume arguendo that Complainant established a prima facie case of race
discrimination with regard to each claim and a prima facie case of reprisal as to claim (2). We
find that Complainant cannot establish a prima facie case of reprisal with regard to claim (1) as
he had not previously engaged in EEO activity when the Sergeant told him on July 4, 2013, to
provide medical documentation. As to claim (1), the Agency explained that the Sergeant
instructed Complainant to submit medical documentation for his July 1 – July 3, 2013 absences
because she had noticed a pattern of unscheduled absences, call-ins with scheduled off days, and
had previously informed Complainant during an official discussion in October 2012, that he
needed to improve his attendance and that any further use of unscheduled leave may need to be
substantiated. With regard to claim (2), the Agency stated that the Sergeant issued Complainant
an AWOL because he provided unacceptable medical documentation for his absences.
According to the Sergeant, Complainant’s wife worked at the dental office and wrote the note

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that was submitted. We find that the Agency articulated legitimate, nondiscriminatory reasons
for its actions in claims (1-2).

Complainant attempts to establish pretext by identifying purported comparison employees;
however, the Agency established that the identified comparisons were not similar situated to
Complainant. We find that Complainant has not established that the Agency’s explanation was
pretext intended to mask discriminatory motivation.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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 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, 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).

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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

February 19, 2016
Date