U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Heath P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120181101
Agency No. 4G-700-0009-17
DECISION
On February 12, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s January 4, 2018 final decision 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 Title II of the Genetic
Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier at the Agency’s Downtown
Station in Baton Rouge, Louisiana.
On February 10, 2017, Complainant filed the instant formal complaint. Complainant claimed
that the Agency discriminated against him based on disability, genetic information, and in
reprisal for prior EEO activity when:
1. from August 2016 through January 2017, he was not paid for hours he worked and his
approved leave was changed to Leave Without Pay (LWOP) or Absent Without
Official Leave (AWOL);
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 September 23, 2016, his request for leave was denied; and
3. on January 11, 2017, his manager yelled at him and gave him an Investigative
Interview.
The Agency accepted the complaint and conducted an investigation.2 The Agency issued its final
decision on January 4, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed. Complainant did not submit a brief on appeal.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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 Department of
Community 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
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In his complaint, Complainant alleged he had a documented disability resulting in Family and
Medical Leave Act (FMLA) coverage but failed to identify a particular medical condition or any
medically-related work restrictions. Complainant also failed to specify what genetic information
he believed to have influence the actions he claimed to have been discriminatory.
2 The record reflects that during the investigation, Complainant did not submit an affidavit
during the investigation.
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Regarding claim 1, Complainant asserted that from August 2016 through January 2017, he was
not paid for hours he worked, and approved leave was changed to LWOP or AWOL.
The Manager Customer Service (“Manager”) (unknown disability/prior protected activity) was
not aware of Complainant’s claim that his approved leave was changed to either LWOP or
AWOL. The Manager explained that supervisors are the ones that approve or disapprove an
employee’s leave requests and enter the approval or disapproval into ERMS.
The Manager stated that the Enterprise Resource Management System (ERMS) indicated that
Complainant was charged AWOL on December 24, 2016 to December 27, 2016. Specifically,
the Manager stated “I don’t know why, as all leave is approved or disapproved by the immediate
supervisor and put into ERMS. According to ERMS that leave was entered by [supervisor] and
or [supervisor].”
The Manager noted that during Pay Period #24, Complainant worked a full day and was charged
with 2.10 hours of AWOL and 5.90 hours of annual leave. The Manager explained that
Complainant “may not have been paid because he didn’t call in to report his absence as
instructed. At that time , his reporting time was 7 am. Employees have been instructed to call
the IVR 1 hour prior to reporting time to inform management of their inability to report for duty.
Looks like [Complainant] didn’t call the IVR until 9:10am. He was charged AWOL from 7 am,
his reporting time, up to the call in. he was allowed the other 5.90 hours as EAL per his call in to
the IVR.”3
The Manager also noted that during Pay Period #19, Complainant was charged 6.54 hours of
AWOL that day and 16 hours of LWOP for the follow two days because he became upset during
an investigative interview and left work without requesting leave that day. The Manager stated
that upon his return to work, Complainant submitted medical documentation and there was an
adjustment to pay him.
Further, the Manager noted that during Pay Period #26, Complainant was not paid because of the
2.69 hours of work on December 14, 2016 and the 5.31 hours of LWOP for the remainder of the
day. The Manager determined that Complainant had one call in for 8 hours of FMLA/Annual
Leave when he left work early on December 14, 2016 and was charged LWOP by his supervisor.
The Manager also noted that Complainant was charged with AWOL on December 24 and 27,
2016, and 8 hours of LWOP on December 26, 2016. The Manager explained that the non-pay
status on these dates made Complainant ineligible for holiday pay for December 25, 2016.
Regarding claim 2, Complainant alleged that on September 23, 2016, his request for leave was
denied. Specifically, Complainant stated while he had an approved FMLA on record, the
supervisor told Complainant that he could not leave because he did not think he was ill.
3 EAL is an abbreviation for Emergency Annual Leave and IVR is an abbreviation for Integrated
Voice Response.
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The Manager stated “I am not aware of any leave denied [Complainant]. However, [his]
approval or disapproval of leave is governed by ELM, HB-21, and all local agreements.” The
Manager asserted that Complainant worked the full work on September 23, 2016.
The record contains a copy of Complainant’s Time and Attendance Collection System (TACS)
report for September 23, 2016. The record reflects that Complainant worked 8 regular work
hours on September 23, 2016.
The Manager asserted that he did not have any PS Forms 1260 “Non-Transactor Card”
completed by Complainant nor did the Complainant’s supervisor. The Manager averred that
based on a review of Complainant’s work history, it seemed he was properly paid.
Regarding claim 3, Complainant asserted that on January 11, 2017, his manager yelled at him
and gave him an Investigative Interview.
The Manager acknowledged instructing Complainant “to stop casing standard mail and to pull
his route down and “leave to begin street delivery.” The Manager stated that Complainant
jammed a mail piece in his face saying in a loud voice. “Is this standard mail?” I instructed
[Complainant] to report to my office for an investigative interview pertaining his unacceptable
behavior on the workroom floor. Not once did I raise my voice.”
Agency management articulated a legitimate, nondiscriminatory reason for its actions. Beyond
his bare assertions, Complainant produced inadequate evidence to establish that these
explanations were pretext designed to mask the true, discriminatory or retaliatory motives.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee’s race, color, sex, national
origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v.
United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v.
Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
To prove his harassment claim, Complainant must establish that he was subjected to conduct that
was either so severe or so pervasive that a “reasonable person” in Complainant’s position would
have found the conduct to be hostile or abusive. Complainant must also prove that the conduct
was taken because of his protected bases -- in this case, disability, genetic information, and prior
protected activity. Only if Complainant establishes both of those elements, hostility and motive,
will the question of Agency liability present itself. Here, the evidence simply does not establish
that the incidents alleged by Complainant occurred because of his disability, genetic information
and/or prior protected activity. His claim of harassment is precluded based on our findings that
Complainant failed to establish that any of the actions taken by the Agency were motivated by
his protected bases or retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No.
01982923 (Sept. 21, 2000).
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CONCLUSION
We AFFIRM the Agency’s final decision finding no discrimination because the preponderance
of the evidence of record does not establish that discrimination or unlawful retaliation occurred.
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
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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
June 25, 2019
Date
