Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Sep 11, 2014

0120130415 (E.E.O.C. Sep. 11, 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
(Northeast Area),
Agency.

Appeal No. 0120130415

Hearing No. 520-2012-00202X

Agency No. 1B-021-0003-11

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s September 20, 2012 final order 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 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 final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-Time
Regular Mail Handler at the Agency’s Processing and Distribution Center in Boston,
Massachusetts. Complainant suffered a work-related injury in October 1984, and has been
working in a rehabilitation position within his restrictions with work hours of Monday through
Friday 2:00 p.m. to 6:00 p.m. Complainant worked his regularly scheduled day on Christmas
Eve December 24, 2010. Christmas Day was his scheduled day off; therefore, his designated
holiday was Christmas Eve. For the holiday, Complainant was paid for four hours of regular
Work Hours; four hours of workers’ compensation (OWCP) pay; four hours of Holiday
Leave; and four hours of Christmas Work. Similarly, that next week, Complainant worked his
regularly scheduled day on New Year’s Eve, December 31, 2010, and since his scheduled day
off was New Year’s Day, his designated holiday was New Year’s Eve. For the holiday,
Complainant was paid four hours Work Hours; four hours OWCP pay; four hours Holiday
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Leave; and four hours Holiday Work. Complainant believed that his pay was incorrectly
calculated and that he was entitled to additional compensation.

On January 4, 2011, the Agency issued Complainant a letter requesting that he provide updated
medical documentation for his limited duty modified assignment by January 19, 2011.
Complainant failed to provide the requested medical documentation prior to the deadline, but
later submitted the information to his supervisor on March 17, 2011. Prior to receiving the
documentation, the Health and Resource Management Specialist (HR1) sent Complainant’s
manager a follow-up request for updated medical documentation cautioning Complainant that if
he did not provide the requested updated documentation, his modified assignment could be
terminated. As Complainant had provided the medical documentation, no action was taken.

On April 26, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of
disability, age (52), and in reprisal for prior protected EEO activity when:

1. On December 24, 2010, and December 31, 2010, he was required to work his
holidays but only received holiday pay for the 4 hours he worked and not for the
additional four hours he was paid by the Office of Workers’ Compensation
Programs (OWCP); and

2. On March 22, 2011, he was advised by management that his Limited Duty
Modified Assignment may be terminated on April 15, 2011.

On May 12, 2011, the Agency dismissed the complaint for failure to state a claim. The
Agency determined that claim (1) was a collateral attack on the OWCP process and that
Complainant failed to establish that he suffered harm as to claim (2). Complainant appealed,
and in Complainant v. U.S. Postal Serv.

, EEOC Appeal No. 0120113211 (Nov. 3, 2011), the
Commission reversed the Agency’s dismissal of claim (1), affirmed the Agency’s dismissal of
claim (2) as to the bases of age and disability, and remanded the matter (claim (1) and reprisal
in claim (2)) for further processing.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the
case granted the Agency’s motion for summary judgment and issued a decision on September
14, 2012.

In her decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, as to claim (1), Complainant’s supervisor (S1) affirmed
that she relied on the Employee and Labor Relations Manual (ELM) and concluded that
because Complainant only worked his regularly scheduled four hours on Christmas Eve, he
was entitled to receive four hours of Holiday Leave and four hours of Christmas Work pay in
addition to his regular four hours and four hours of OWCP. Likewise, on New Year’s Eve,
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she concluded that he was entitled to receive four hours of Holiday Leave and four hours of
Holiday Work pay in addition to his regular four hours and four hours of OWCP. She did not
conclude that he was entitled to additional compensation for hours not worked. With respect to
claim (2), HR1 asserted that she requested the information pursuant to her responsibilities and
the obligation of Complainant to periodically supply current medical information to the Agency
to justify his limited duty assignment.

In attempting to establish pretext, the AJ determined that Complainant failed to offer any
evidence to support his contention that the Agency deliberately miscalculated his salary because
of his age and disability. Further, the AJ added that Complainant was not challenging his
obligation to provide medical documentation periodically to continue his limited duty
assignment nor did he challenge the fact that he did not submit the documentation, due on
January 18, 2011, until March 17, 2011. Complainant further acknowledged that no action
was taken to terminate his limited duty assignment. The AJ noted that Complainant simply
disagreed with the Agency’s actions. The AJ concluded that Complainant failed to show that
the Agency’s reasons for its actions were pretextual and he failed to show that he was
discriminated against as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in granting the Agency’s motion for
summary judgment as he believes that there are material facts still in dispute. Complainant
argues that the ELM was irrelevant in computing his pay for the days in question and that the
Memorandum of Understanding of the collective bargaining agreement controlled. Further,
Complainant claims that he never received the Agency’s January 2011 request for updated
medical documentation and believes that it is reasonable to conclude that it was never sent.
Finally, Complainant argues that the AJ fragmented his hostile work environment claim.
Accordingly, Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp.

, 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.
To prevail in a disparate treatment claim, 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).
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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 the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that, assuming arguendo
that Complainant established a prima facie case of discrimination and reprisal, Complainant
failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its
actions. Specifically, as to claim (1), S1 confirmed that she relied upon the ELM in inputting
Complainant’s pay for the two holidays in question. ROI, at 128. The relevant ELM
provisions state:

434.4 Holiday Leave Pay
434.41 Policy
434.411 Holidays Observed
Provisions for holiday observance are as follows:
a. The following 10 days are observed as holidays:...
(1) New Year's Day...
(10) Christmas Day....
434.412 Application
On these holidays, eligible employees receive holiday leave pay for the number of
hours equal to their regular daily work schedule, not to exceed 8 hours.
Note: Holiday leave pay should not be confused with holiday-worked pay, holiday
scheduling premium, or Christmas-worked pay.
434.43 Pay Computation for Holiday Leave Pay
Provisions concerning pay computation are as follows:
a. Eligible employees are paid for the holiday at their basic hourly rate for those hours
equal to their regular daily working schedule, not to exceed 8 hours…

434.5 Holiday-Worked Pay
434.51 Policy
Holiday-worked pay is paid to eligible employees for the hours worked on a recognized
holiday or for the hours worked on the employee's designated holiday, except
Christmas. Christmas-worked pay is paid to eligible employees for the hours worked
on Christmas day or the day designated as the employee's Christmas holiday…
434.53 Pay Computation
Provisions concerning pay computation are as follows:
a. Eligible employees who are required to work on their holiday or designated holiday
are paid (in addition to any pay for holiday leave to which they may be entitled) their
basic hourly straight time rate for each hour worked up to.
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b. Eligible employees…who are required to work on Christmas day or their designated
Christmas holiday are paid, in addition to authorized holiday leave pay and holiday-
worked pay, Christmas-worked pay at 50 percent of their basic hourly straight-time
rate.

ROI, Ex. 7. As a result, Complainant was paid four hours of holiday leave; four hours of
OWCP; four hours of holiday work; and, four hours of regular work hours. ROI, at 120, 144.
Complainant’s manager asserted that when Complainant raised the matter, he confirmed with
the Labor Relations, Human Resources, and Time Control departments, and all stated that
Complainant had been paid correctly. Id

. at 144.
With respect to claim (2), HR1 affirmed that it was standard procedure to request updated
medical documentation from rehabilitation employees on a yearly basis provided the employee
had not already submitted it. ROI, at 164. HR1 stated that she forwarded a standard form
letter to be sent to Complainant requesting updated medical documentation in March 2011,
after he failed to comply with the first request in January 2011. Id

. Complainant submitted
the requested documentation, and no action was taken to terminate his assignment.
In attempting to establish that the Agency’s reasons for its actions in claim (1) are pretextual,
Complainant argued that the ELM was irrelevant in this matter and that the Memorandum of
Understanding regarding holiday scheduling contained in the collective bargaining agreement
controlled in this situation. While Complainant disagrees with the Agency's interpretation of
the proper applicable pay policies, he has pointed to no evidence to support a finding that the
Agency's motivation for its interpretation was discriminatory. Further, as to claim (2),
Complainant contended that he did not receive the initial January 2011 letter requesting
updated medical documentation which he believes shows that the Agency trumped up threats to
terminate him. The Commission notes, however, that Complainant did not dispute that
maintaining current medical documentation was a condition of his continuation in the limited
duty assignment. In addition, Complainant did not dispute that no action was taken once he
submitted the requested medical documentation.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's protected classes were a factor in any of the Agency's actions. 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 the Agency acted on
the basis of discriminatory animus. Complainant failed to carry this burden. Further, to the
extent that Complainant contends that he was subjected to a hostile work environment with
respect to the matters herein, the Commission finds that finding of a hostile work environment
is precluded by the Commission's determination that Complainant failed to establish that any of
the actions taken by the Agency were motivated by discriminatory animus. See Oakley v.
U.S. Postal Service

, EEOC Appeal No. 01982923 (Sep. 21, 2000). As a result, the
Commission finds no basis to disturb the AJ's summary judgment decision finding that
Complainant was not subjected to discrimination as alleged.
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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 order, because the Administrative Judge’s issuance of summary judgment
was appropriate and a preponderance of the record evidence does not establish that
discrimination occurred.

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,
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”
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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 11, 2014