U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Newton P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120181871
Agency No. 4K-200-0110-17
DECISION
On May 10, 2018, 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 18, 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.
ISSUE PRESENTED
The issue presented is whether Complainant has shown by a preponderance of the evidence that
the Agency discriminated against him when a verbal offer for a Supervisor of Customer Services
position was rescinded and his requests for sick leave and annul leave were denied on multiple
dates.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Customer
Services at the Agency’s Section 2 Carrier Annex facility in Washington, D.C. Complainant has
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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the conditions of anxiety, depression, and stress, which were diagnosed on February 8, 2017. On
April 3, 2017, Complainant’s mental health treatment provider supplied a letter indicating that
Complainant had been under her care since March 2017. The letter requested that Complainant
be allowed to see her for a standing appointment on Mondays at 1:00 p.m. and return to days off
on Fridays and Sundays. Complainant provided the letter to the Section 2 Area Manager.
On May 1, 2017, Complainant was found eligible for Family Medical Leave Act (FMLA)
protected leave once every four (4) months, four (4) days per episode, for his health. On June 9,
2017, Complainant requested FMLA protected leave beginning June 5, 2017 for his health
condition, which he was found eligible for, but required certification to support the request.
On July 1, 2017, Complainant interviewed for the position of Supervisor, Customer Services (SCS)
at the Greenbelt Post Office. According to the Selecting Official, Complainant met all the specific
qualifications and criteria, and interviewed well. The Selecting Official offered Complainant the
position on July 6, 2017. On July 11, 2017, the Selecting Official informed Complainant that the
Agency was rescinding the job offer due to Complainant’s attendance.
On September 11, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American)2 and disability (mental) when:
1. On July 11, 2017, Complainant was notified that the SCS position at the Greenbelt
Post Office that was verbally awarded to him on July 6, 2017, was rescinded; and
2. On September 8, 2017, and unspecified dates, Complainant’s request for annual
leave and sick leave were denied, and his time was changed to leave without pay
(LWOP).
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 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 him to discrimination as alleged.
In the final agency decision (FAD), the Agency determined that Complainant did not provide any
documentation to support a diagnosis or presence of a specific medical condition and did not
provide any information related to the impact his conditions have on his work or personal life,
other than a return to his off days of Fridays and Sundays. The Agency added that there was no
evidence in the record showing that Complainant has a condition which substantially affects a
major life activity. As such, the Agency found that Complainant failed to establish that he is an
individual with a disability and failed to satisfy the first element of his prima facie case of disability
discrimination.
2 During the investigation, Complainant denied asserting race as a basis. ROI, at 91.
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The Agency found that Complainant’s disability discrimination claims were not established
because he did not identify any similarly situated individuals who were treated better than he was
with respect to the accepted claims and there was no evidence in the record that would indicate
that management’s actions gave rise to an inference of disability discrimination. The Agency
noted that the Selectee met all qualifications of the position and that she was the individual who
had vacated the position and had applied when the position was reposted.
The Agency further determined that it provided legitimate, nondiscriminatory reasons for its
actions. The Selecting Official testified that after offering Complainant the Greenbelt SCS
position, she learned information revealing that Complainant did not meet the qualifications for
the position. Specifically, the Selecting Official stated that she learned that Complainant had
attendance issues. She explained that her supervisor, the Concurring Official, rescinded the job
offer because of Complainant’s attendance and explained that the facility only had one Supervisor
and one Postmaster, so they required someone reliable, as she would need to be available in the
absence of supervisors. The Concurring Official denied responsibility for rescinding the job offer
but noted that factors considered when determining whether to rescind a job offer include
attendance, performance in previous and/or current positions, and disciplinary records.
As for claim (2), Agency officials testified that Complainant’s time was entered as LWOP after
Complainant failed to provide the requested documentation. The Section 2 Manager of Customer
Services stated that he advised Complainant why he was charged with LWOP. He noted that
Complainant disagreed and felt that documentation should not have been requested. Nevertheless,
the Agency added that the record did not reflect a denial of sick leave during the relevant period.
The Agency concluded that Complainant failed to establish pretext, as nothing showed by the
preponderance of the evidence that the legitimate explanations given by the Agency were pretext
for discrimination.
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 (EEO MD-
110), at Chap. 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”).
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally 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.
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Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary
depending on the facts of a particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. To
establish a prima facie case of reprisal, Complainant must show that (1) he engaged in protected
EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was
subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity
and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000).
The prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s
Honor Ctr. V. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 256 (1981).
With respect to Complainant’s non-selection claim, the Agency’s legitimate, nondiscriminatory
reasons for not selecting Complainant were based on his attendance rather than a protected class.
For example, Agency officials responsible for Complainant’s non-selection denied having
knowledge of Complainant’s medical conditions. ROI, at 105, 116, 127. The Selecting Official
affirmed that after offering Complainant the position, her supervisor questioned if she had
completed research and provided her with information about Complainant. ROI, at 108, 119. She
stressed that after speaking with her supervisor, the Concurring Official, it was clear that
Complainant did not satisfy the requirements of the position based on his attendance and the
Concurring Official declined her selection of Complainant for the position solely based on
Complainant’s attendance. Id. at 110, 121. She averred that she explained to Complainant that
the Greenbelt Station only allocates one Supervisor and one Postmaster, and therefore she needed
someone with reliable attendance. Id. While the Concurring Official denied rescinding the
position, he noted that attendance is considered when rescinding a position. Id. at 132-133.
While Complainant contends that his absences were FMLA protected, Complainant has not shown
that his unscheduled absences were linked to his alleged disability. The Manager of Customer
Services asserted that Complainant was asked to provide medical documentation and failed to do
so. ROI, at 156, 164. The scant medical notes Complainant has provided do not link his alleged
disabilities to his use of leave and unscheduled absences. A complainant who has an excessive
amount of absences must show a nexus between the absences and the disability. See Tsai v. Fed.
Deposit Insur. Corp., EEOC Appeal No. 0120035347 (June 14, 2007); Roscoe v. Dep’t of the
Navy, EEOC Appeal No. 01974138 (Sept. 21, 2000); Southerland v. U.S. Postal Serv., EEOC
Request No. 05930714 (July 15, 1994). Complainant has failed to prove, by a preponderance of
the evidence, that the Agency’s proffered reasons for rescinding the job offer were pretext designed
to mask disability discrimination.
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As for Complainant’s claims that his requests for annual leave and sick leave were denied, the
record indicates that Complainant was charged with LWOP on July 15, 2017; August 19, 2017;
and November 16, 2017. ROI, at 251. The record includes an annual leave request for November
16, 2017 through November 20, 2017, on which Complainant noted that it was FMLA leave and
a management official noted that FMLA designation was pending. Id. at 254. The Section 2
Manager of Customer Services stated that he was responsible for entering Complainant’s time as
LWOP, and that he did so because Complainant failed to provide documentation as requested. Id.
at 162-164. Complainant has failed to prove, by a preponderance of the evidence, that the
Agency’s proffered reasons were a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record, and in the absence of any contentions on appeal from
the parties, we AFFIRM the Agency’s finding of no discrimination because the preponderance of
the evidence of record does not establish that discrimination 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.
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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.
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
July 17, 2019
Date
