Wilfred M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jun 8, 2016

0120142262 (E.E.O.C. Jun. 8, 2016)

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

Wilfred M.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120142262

Agency No. 4K-300-0190-12

Hearing No. 410-2013-00125X

DECISION

The Commission accepts Complainant’s appeal from the May 6, 2014 final Agency 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following
reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales, Service,
and Distribution Associate at the Agency’s Wesley Chapel Station in Decatur, Georgia. On
May 14, 2012, Complainant requested sick leave for May 22, 2012, to attend a medical
appointment, but his request was disapproved based on the needs of service. Complainant kept
his appointment and called in to request sick leave. When Complainant returned to work,
Complainant’s supervisor (S1) deemed his documentation insufficient and charged him eight
hours of Leave Without Pay (LWOP). On June 5, 2012, S1 issued Complainant a Letter of
Warning for being absent without permission.
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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Additionally, on June 5, 2012, Complainant called in sick after his sick leave request for the
day had been denied. Complainant returned on June 6, 2012, with a leave slip requesting eight
hours of sick leave for the previous day. S1 determined that Complainant had failed to provide
sufficient documentation for the full eight hours of leave. On June 22, 2012, S1 held an
investigative interview with Complainant and his union representative. S1 subsequently issued
Complainant a Seven-Day Suspension for being absent without permission on June 5, 2012.

On July 26, 2012, Complainant filed a formal complaint alleging that the Agency discriminated
against him on the bases of sex (male) and age (56) when:

1. On May 22, 2012, he was charged Leave Without Pay (LWOP);

2. On June 5, 2012, he was issued a Letter of Warning for being absent without
permission on May 22, 2012;

3. On June 5, 2012, he was charged Absence Without Leave (AWOL); and

4. On June 20, 2012, he was issued a Seven-Day Suspension for being absent
without permission on June 5, 2012.

At the conclusion of the investigation of the complaint, the Agency provided Complainant with
a copy of the report of investigation (ROI) and notice of his right to request a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but subsequently withdrew his request. Consequently, the Agency issued
a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and found that management articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, with regard to claims (1) and (2), S1 stated that another supervisor
had disapproved Complainant’s leave request for May 22, 2012, due to the needs of the
service. Complainant called in sick on that day, and S1 informed him that he needed to
provide documentation in support of his full-day absence. Complainant reported to work with
insufficient documentation that simply stated that he had attended an appointment; therefore,
S1 charged him with AWOL. S1 affirmed that she issued Complainant the Letter of Warning
for his unscheduled AWOL on May 22, 2012. As to claims (3) and (4), S1 asserted that
Complainant’s leave request for June 5, 2012, was disapproved in advance based on the needs
of the service. Complainant called in sick that day for an appointment and provided
insufficient documentation. S1 noted that Complainant’s documentation did not state that he
was incapacitated or that his appointment was for the whole day. As a result, S1 charged
Complainant with AWOL for June 5, 2012. After an investigative interview, S1 issued
Complainant a Seven-Day Suspension for again being absent without permission.

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The Agency concluded that Complainant failed to show that the Agency’s reasons for its
actions were pretext for unlawful discrimination. As a result, the Agency found that
Complainant had not been subjected to discrimination as alleged. Complainant filed the instant
appeal without submitting any arguments or contentions in support.

ANALYSIS AND FINDINGS

Disparate Treatment

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). Complainant must initially 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that, assuming arguendo that Complainant established
a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory
reasons for its actions. More specifically, with respect to claims (1) and (2), Complainant
called in sick on May 22, 2012, after his leave request was denied. ROI, at 115, 121.
Complainant was initially charged LWOP; however, management subsequently changed it to
AWOL based on Complainant’s failure to provide sufficient documentation. Id. at 115. S1
issued Complainant a Letter of Warning for being absent without permission. Id. at 115, 142.
Finally, as to claims (3) and (4), S1 maintained that Complainant was charged AWOL on June
5, 2012, after he called in sick and failed to provide sufficient documentation in support of his
absence. Id. at 117. Complainant’s documentation stated that he attended an appointment, but
not that he was incapacitated or that the appointment was for the entire work day. Id.
Complainant had previously been given a Letter of Warning for the same conduct; therefore,
S1 issued Complainant a Seven-Day Suspension for again being absent without permission. Id.
at 117, 149.

As Complainant chose to withdraw his request for a hearing, the Commission does not have
the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore,
the Commission can only evaluate the facts based on the weight of the evidence presented. At
all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that discriminatory
animus was a factor in its actions. Complainant failed to carry this burden. As a result, the

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Commission finds that Complainant has not established that he was subjected to discrimination
as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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 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

June 8, 2016
Date