Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Sep 26, 2014

0120130168 (E.E.O.C. Sep. 26, 2014)

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

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120130168

Hearing No. 430-2011-00233X

Agency No. 1K-234-0018-10

DECISION
On October 12, 2012, Complainant filed an appeal from the Agency’s September 20, 2012
final action concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq

. For the following reasons, the Commission AFFIRMS
the Agency’s final action.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at an Agency work facility in Norfolk, Virginia. On November 20, 2010, Complainant
filed an EEO complaint wherein she claimed that the Agency discriminated against her on the
basis of her race (African-American) when on July 8, 2010, she was issued a Notice of
Removal for Absence Without Authorization and Improper Conduct.1

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). Complainant timely requested a hearing, and the AJ held a hearing
on August 22, 2012, and issued a decision on September 11, 2012.

1 Complainant initially also claimed discrimination on the bases of her age and sex. However,
Complainant clarified at the pre-hearing conference that her claim was solely race
discrimination.
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The AJ found that no race discrimination occurred. The AJ noted that Complainant had
worked for the Agency for about fifteen years. Complainant had worked at the Agency’s
facility in Philadelphia until the facility closed on February 27, 2010. Complainant and several
other employees were involuntarily reassigned to the Agency facility in Norfolk. Complainant
was approved on November 25, 2009, while working in Philadelphia, for the use of leave
under the Family and Medical Leave Act (FMLA) so that she could care for her father in
South Carolina, who had Parkinson’s Disease. Complainant was approved to take leave up to
six times per year for seven to fourteen days at a time. The AJ stated that the approval further
indicated that the estimated interval between absences is about every two months.

After working in Norfolk for two weeks, Complainant informed the Manager on March 11,
2010, that she needed to take annual leave for one day to care for her father. Complainant was
charged with annual leave on March 15 and 18, 2010. Complainant was placed in an
emergency annual leave status from March 19 – 25, 2010. Complainant remained absent from
work through May 4, 2010, and was charged with being AWOL from March 26 – May 4,
2010.

According to the AJ, Complainant occasionally called the Agency’s automated number to say
that she would be out of work for the next seven to fourteen days. The AJ noted that
Complainant stated during two of the calls that she was taking FMLA leave. Subsequent to
each of these calls, the Agency mailed Complainant a FMLA package for her to complete in
order for her FMLA leave request to be approved. Complainant did not submit the FMLA
package. The Agency sent Complainant a letter dated April 9, 2010, stating that she would
have to receive medical clearance to return to duty. The letter was accompanied by a return to
duty package containing the documents Complainant needed to complete in order to return to
work. On April 22, 2010, the Agency sent Complainant a letter stating that she had failed to
report to work since March 15, 2010, and she had failed to submit either a written request for
leave or a written justification for her absences.

Complainant sent a fax to the Manager on May 3, 2010, stating she had been caring for her
father and had been approved for FMLA leave when she worked in Philadelphia. On May 4,
2010, the Agency sent a letter to Complainant stating that she had not submitted documentation
concerning her absence from work since March 15, 2010, and that her time out of work would
be charged as AWOL. The Agency also included a demand to work notice in which it
informed Complainant that if she failed to return to work on her next scheduled workday
following receipt of the letter, she would be subject to discipline up to and including removal
from the Agency for being AWOL and for failure to follow instructions related to leave-
requesting procedures.

On May 7, 2010, Complainant submitted a Form 3971, Request for or Notification of Absence
to her Supervisor and Manager. The Form 3971 requested leave without pay for FMLA leave
for May 8 – 14, 2010. On May 7, 2010, the Agency notified Complainant that she was to
participate in a pre-disciplinary interview on May 14, 2010. Complainant attended the pre-
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disciplinary interview with her Supervisor and was placed in an indefinite AWOL status
starting on May 15, 2010.

The AJ stated that on July 8, 2010, Complainant was issued a Notice of Removal stating she
would be removed on August 13, 2010, for being AWOL and for improper conduct. The
Notice of Removal stated that Complainant failed to report for duty as scheduled or notify her
Supervisor of her intended absence for the periods of March 20 through April 9, 2010 and
April 11 through May 4, 2010. The Notice further stated that Complainant failed to follow
proper leave-requesting procedures and failed to provide documentation as required and
instructed to support her absence for the period of March 20 through May 4, 2010. The
Notice also noted that Complainant had been suspended for seven days for improper conduct in
April 2009. 2

The AJ stated that Complainant was charged with being AWOL for 34 consecutive work days.
The AJ noted that a Caucasian Mail Processing Clerk had been AWOL for 28 days during the
period of April 1, 2010 through May 14, 2010, and was AWOL again for sixteen days during
the period of July 17, 2010 through September 3, 2010. This comparison submitted medical
documentation to the Agency stating she was incapacitated during her absences. The
comparison was not issued a Notice of Removal. Complainant and the comparison reported to
different supervisors.

The AJ found that Complainant failed to establish a prima facie case of race discrimination.
The AJ reasoned that Complainant was not meeting the normal requirements of her position.
The AJ observed that Complainant did not report to work for 34 consecutive scheduled work
days and did not provide the required documentation to support her continued absence from
work. The AJ noted that Complainant’s FMLA leave was supposed to be periods of seven to
fourteen days at a time. The AJ further noted that Complainant stated she was missing work
not only to care for her father, but also due to relocation hardship which would not be covered
by the FMLA. According to the AJ, Complainant was not similarly situated to the Caucasian
comparison who was frequently absent from work and not removed. The AJ reasoned that the
comparison did not report to the same Supervisor as Complainant and unlike Complainant,
provided medical documentation substantiating that she was incapacitated during her absences.

Assuming arguendo that Complainant established a prima facie case of race discrimination, the
AJ found that the Agency articulated legitimate, nondiscriminatory reasons for the Notice of
Removal. The AJ stated that the notice of Removal was based on Complainant’s absences, her
failure to contact her Supervisor regarding her absences and her failure to follow leave policy.

2 The seven-day suspension issued at Complainant’s prior work facility was reduced to an
official discussion pursuant to a grievance settlement. The Supervisor testified that she was
aware of the suspension because it was in Complainant’s folder but that she was unaware of the
grievance settlement since it was not in Complainant’s folder.
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The AJ found that Complainant failed to establish that the Agency’s explanation was pretext
for race discrimination. In terms of Complainant’s argument that other employees who were
removed first received progressive disciplinary actions before their removals, the AJ
distinguished Complainant’s situation based on there being no other employee who was AWOL
for 34 consecutive work days without providing medical documentation. Moreover, the AJ
observed that Complainant’s leave request referenced dates after the period covered by the
Notice of Removal.

With respect to Complainant’s contention that she should not have been charged AWOL
because she had been approved to take FMLA leave to care for her father in November 2009,
when she was working in Philadelphia, the AJ stated that the Commission lacks authority to
decide matters where a Complainant alleges that specific provisions of the FMLA were
violated. Further, the AJ observed that Complainant’s absence from work for 34 consecutive
days far exceeded her authorization to take FMLA leave for periods of seven to fourteen days
up to six times per year. According to the AJ, Complainant’s belief that she was allowed to
take fourteen days of leave six times back to back for a total of 84 days is an issue that falls
within the jurisdiction of the Department of Labor. The AJ further stated that the rules were
followed more strictly in Norfolk than in Philadelphia regardless of employees’ race.

The Agency subsequently issued a final action adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the aforementioned Caucasian comparison should be
considered similarly situated to her because they both worked for the same Manager.
Complainant argues that the Manager was a vital part of the decision-making process for both
her and the comparison and that she was the concurring official on her removal. Complainant
states that the comparison was not recorded as being AWOL even though she had been out of
work for over 21 days without providing documentation. Complainant maintains that unlike
other employees, she was not issued progressive discipline.

Complainant contends that she followed proper leave procedures. Complainant states that she
used the call-in number for employees using unscheduled, emergency absences. Complainant
maintains that the FMLA certification that she provided covered the time in question from
March through April 2010. Complainant argues that the Manager knew about her
responsibility to her father before she left work on March 15, 2010. According to
Complainant, her actions in Norfolk were based on past practices for using the FMLA.
Complainant claims that she did not think there would be a problem with the FMLA since she
had received FMLA in the Agency facility where she worked prior to relocating to the Norfolk
facility.

In response, the Agency asserts that the Caucasian comparison was not similarly situated to
Complainant. The Agency argues that they had different supervisors and that the Manager was
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not involved in the preparatory steps that preceded the issuance of the Notice of Removal to
Complainant or the disciplinary decisions rendered in connection to the comparison. The
Agency states that unlike Complainant, the comparison submitted medical documentation
demonstrating her medical inability to work during the time she was out of work. In support
of its decision to remove Complainant, the Agency notes that Complainant acknowledged that
she did not complete the FMLA packets sent to her on the two occasions she requested FMLA
leave through the automated leave system. The Agency states that Complainant also did not
respond to its correspondence demanding her return to work.

The Agency maintains that Complainant did not submit evidence that she had received
approved FMLA leave for the time she was out of work. The Agency asserts that Complainant
admitted that she never used her prior FMLA leave approval for a consecutive month long
absence as she did during the period at issue. The Agency notes that Complainant only called
the automated leave number on two occasions during the relevant period and that the
automated number is only a mechanism to request leave and not an automatic entitlement.
Finally, the Agency asserts that it uniformly applied its leave policies to other employees.
According to the Agency, the Supervisor issued notices of removal to two other employees,
one of whom was Caucasian and the other was African-American. The Agency states that the
Manager concurred in a total of five notices of removal that included African-American,
Caucasian and Asian employees.

STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant set forth a prima facie case of race discrimination.
The Agency explained that it issued the Notice of Removal based on Complainant being
AWOL for 34 consecutive workdays, her failure to contact her Supervisor regarding her
absences and her failure to follow leave policy. We find that the Agency has articulated
legitimate, nondiscriminatory reasons for issuing the Notice of Removal.

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With regard to Complainant’s arguments to establish pretext, we find that she and the
Caucasian comparison were not similarly situated. The comparison had a different Supervisor
than Complainant and unlike Complainant, she provided medical documentation showing that
she was incapacitated during the period she was not at work. Complainant was afforded the
opportunity to support her request for FMLA leave, but she neglected to complete and submit
the FMLA package that was sent to her on two occasions. Complainant also did not respond
to the Agency’s correspondence demanding that she return to work. Complainant claims that
she believed her FMLA leave was approved given that it had been approved in November
2009 when she worked at the Philadelphia facility. However, in that instance, Complainant
was approved to utilize FMLA leave for periods of seven to fourteen days up to six times per
year. During her tenure at the Philadelphia facility, Complainant never took leave for more
than fourteen days at a time to care for her father. Complainant in this instance was marked
AWOL for 34 consecutive work days. Complainant has not presented any persuasive evidence
to support her contention that she could take fourteen days of FMLA leave six times back to
back for a total of 84 days. Given the substantial number of consecutive days that she was
AWOL, Complainant’s situation was not comparable to other employees who received
progressive discipline. We find that Complainant failed to establish that the Agency’s
explanation for the Notice of Removal was pretext intended to mask discriminatory intent.

CONCLUSION
For the reasons set forth above, we AFFIRM the Agency’s final action.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 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,
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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
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

(Z0610)
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

Date
September 26, 2014