Sharolyn S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.Download PDFEqual Employment Opportunity CommissionJan 29, 20160120141766 (E.E.O.C. Jan. 29, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sharolyn S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency. Appeal No. 0120141766 Agency No. 4G770024913 DECISION Complainant filed an appeal from the Agency’s March 11, 2014, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The U.S. Equal Employment Opportunity Commission (EEOC or Commission) deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). 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 City Carrier, Q- 01, at the Houston Post Office in Houston, Texas. On September 24, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (54), and (reprisal for prior protected EEO activity) when on August 14, 2013, she was notified that she had been separated from the Postal Service.2 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 The Agency dismissed one additional claim due to untimely EEO contact. Complainant raised no challenge to the Agency's dismissal on appeal; therefore, the Commission will not address the dismissed claim in this decision. 0120141766 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her 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 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. FACTUAL BACKGROUND Complainant testified that she was given a Notice of Separation (NOS) on August 14, 2013. She indicated that the issuance of the NOS was the result of a grievance decision from the previous year. Complainant also acknowledged that she had previously been issued a Notice of Removal (NOR) on September 7, 2012, by Supervisor, Customer Services, EAS-17 (S2). She indicated that the NOR was issued on the grounds that she did not maintain a regular schedule and because she failed to provide management with written documentation from a doctor. She noted that she was in a transitional or "limbo" status until she applied for and was awarded a bid assignment effective June 15, 2013. Evidence of record includes a letter from Complainant’s new bid supervisor (S1) to the Complainant dated August 14, 2013. In this letter, Complainant was notified of the final disposition of the NOR dated September 7, 2012. The letter advised Complainant that the NOR was upheld by a Dispute Resolution Team (DRT) on November 5, 2012. The NOR charged Complainant with Failure to Maintain Regular Schedule/AWOL. In the NOR, S2 noted that Complainant was assigned carrier duties at the TW House Station in Houston, Texas, on January 4, 2011. S2 further asserted that Complainant failed to report for duty and failed to notify management of an inability to report for duty. S2 also pointed out that Complainant did not respond to an investigative interview letter dated July 27, 2012. S2 also recalled that Complainant was a “no call/no show” for the investigative interview scheduled for August 1, 2012. She emphasized that Complainant presented no documentation supporting her absence since January 4, 2011. S2 concluded that Complainant violated various sections of the Employee and Labor Relations Manual (ELM) and also violated Houston Texas Direct Instruction No. HR-26 (Absence Control Procedure). The record also includes a Step B Decision by the DRT dated November 5, 2012. The DRT, which consisted of a management representative and a labor representative, determined that there was just cause for removal. The DRT explained that Complainant had an opportunity to present medical documentation during the grievance process, but she presented nothing more than a medical report which simply stated, "[Complainant] is cleared to return to work." The DRT indicated that the medical report did not indicate whether or not Complainant was under a doctor's care, received treatment, or was somehow incapacitated from performing her carrier duties. The DRT determined that the medical report was insufficient to substantiate an absence for over two years. 0120141766 3 For the first time on appeal, Complainant indicates her desire to amend her complaint to include the basis of perceived disability in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. 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. (Aug. 5, 2015) (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”). We assume for purposes of this decision that Complainant presented a prima facie case of age/disability discrimination and reprisal. However, the record indicates that the Agency articulated a legitimate, non-discriminatory/retaliatory reason for its employment action which Complainant failed to show to be pretext or motivated by discriminatory or retaliatory animus. Specifically, according to the testimony and documentary evidence in the record, Complainant had taken leave to care for her mother who was ill sometime in 2010.3 Complainant’s mother died sometime in 2010. For reasons not explained in the record, Complainant was either in a LWOP status or an Absence without Leave (AWOL) status for more than two years. The Agency asserts that Complainant was in an AWOL status since January, 2011. On September 7, 2012, the Agency issued Complainant the NOR. In response to the NOR, Complainant filed a grievance which was denied at the Step B stage on November 5, 2012, noting that Complainant failed to present a sufficient explanation for her lengthy absence. For reasons not explained in the record, it took the Agency 10 months after the DRT’s decision to issue the NOS. During this period of “limbo” as Complainant describes it, she was successful in bidding on a new position which she started in June 2013 (2 months prior to her dismissal). While the Agency’s manner in processing the NOS is open to legitimate criticism, the record is devoid of evidence of discrimination or retaliation. Moreover, while Complainant claims that she was on FMLA leave related to caring for her mother, such assertion does not explain the two years she was absent after her mother’s death. Given the fact that Complainant was absent after her mother’s death, it seems reasonable that the Agency would need some medical documentation for such absence. 3 Complainant asserts that she took Family and Medical Leave Act (FMLA) leave to care for her mother. However, aside f rom C omplainant’s ba re u ncorroborated a ssertions, t he r ecord i s de void of a ny m ention of F MLA Leave. However, for the purpose of this decision we will assume that Complainant took said leave. 0120141766 4 CONCLUSION Accordingly, after a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final action. 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 tends 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). 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 0120141766 5 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, Director Office of Federal Operations January 29, 2016 Date Copy with citationCopy as parenthetical citation