0120081868
08-28-2009
Samuel Pitts, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capitol-Metro Area), Agency.
Samuel Pitts,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capitol-Metro Area),
Agency.
Appeal No. 0120081868
Agency No. 4K-200-0145-07
DECISION
On March 17, 2008, complainant filed an appeal from the agency's February
12, 2008 final decision (FAD) 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 appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final decision.
ISSUE PRESENTED
Whether the FAD correctly found that complainant failed to meet his
burden of proving discrimination as to the issues in this complaint.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Supervisor of Customer Services at the Georgetown Annex in Washington,
D.C. On August 23, 2007, complainant filed an EEO complaint alleging
that he was discriminated against on the bases of sex (male), disability
(major depression; right foot/disabled veteran), and age (57) when:
(1) on or about April 2007 he was made aware that his request for
FMLA from December 2006 to April 2007 had been disapproved and he was
charged an accumulative total of over 460 hours of AWOL (Absent Without
Official Leave);
(2) on or about May 1, 2007, he was made aware that Management had
not timely processed his stress claim paperwork (Form CA-2); and
(3) (on an unspecified date) he was not promoted to the next level.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). 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 pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged.
The FAD initially indicated that complainant failed to provide an
Affidavit to the EEO investigator, despite being requested to do so.
The FAD then found the following: complainant failed to provide
evidence that he is disabled, pursuant to the Rehabilitation Act.
Additionally, complainant otherwise failed to establish a prima facie
case of discrimination on any of the alleged bases. Further, the agency
articulated legitimate, nondiscriminatory reasons for its actions.
As to issue (1), management stated that complainant was charged with
AWOL because he failed to report to work or to call to request leave,
as required. His manager (M1) explained that, on a Thursday, complainant
was 45 minutes late due to oversleeping. Complainant submitted a leave
slip (PS Form 3971, Request for or Notification of Absence) to another
supervisor while M1 was in a meeting. M1 did not hear from complainant
again until December 16, 2006. Complainant worked from December 16,
2006 until December 23, 2006 and then M1 did not hear from complainant
again until February 10, 2007. M1 acknowledged that complainant came
into the office on February 9, 2007 and brought medical documentation
and, as such, complainant began receiving sick leave until April 21,
2007, when he stopped providing medical documentation and so he was
again charged with AWOL.
As to issue (2), the FAD found that M1 stated that he believed he had
previously submitted complainant's CA-2 stress claim documentation,
however, when he was notified by Injury Compensation that they did not
have a copy he asked that complainant complete another CA-2. As to issue
(3), the FAD found that there is nothing in the record indicating that
complainant was denied a promotion. S1 stated that he had no knowledge
of complainant requesting or being denied a promotion. The FAD found
no evidence of pretext in the record.
The FAD further noted that complainant failed to establish that he
was denied a reasonable accommodation. The FAD found no evidence of a
request in the record, and M1 stated that he was unaware of complainant
making any requests for an accommodation or of complainant having any
work restrictions or limitations.
CONTENTIONS ON APPEAL
Although complainant's counsel requested an extension to file a brief in
support of the appeal, such request was not timely, and accordingly it
was denied by the Commission. The agency requests that the Commission
affirm the FAD.
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 EEOC Management
Directive 110, 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").
The allocation of burdens and order of presentation of proof in a
Title VII, ADEA or Rehabilitation Act case alleging disparate treatment
discrimination is a three step procedure: complainant has the initial
burden of proving, by a preponderance of the evidence, a prima facie case
of discrimination; the burden then shifts to the employer to articulate
some legitimate, nondiscriminatory reason for its challenged action; and
complainant must then prove, by a preponderance of the evidence, that
the legitimate reason offered by the employer was not its true reason,
but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Initially, as to the claim concerning denial of promotion, the record
does not contain evidence that such action in fact occurred, or if so,
when or under what circumstances it occurred. As to issues (1) and
(2), assuming complainant is an individual with a disability and that
he is able to establish a prima facie case of discrimination on all
alleged bases, the agency has proffered legitimate, nondiscriminatory
reasons for each of its actions, as described above in this decision.
Complainant has not shown by a preponderance of the evidence, that such
reasons are merely pretexts for discrimination. In so finding, we note
that although the EEO investigator asked complainant to respond to 65
specific questions, complainant never did so. Furthermore, we note
that we do not have the benefit of an AJ's findings after a hearing,
and therefore, we can only evaluate the facts based on the weight of the
evidence presented to us. Finally, we find no evidence that complainant
ever requested an accommodation or that it should have been obvious to
management that an accommodation was required.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
08/28/09
______________
ate
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0120081868
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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