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

Equal Employment Opportunity Commission

Jan 28, 2015

0120133236 (E.E.O.C. Jan. 28, 2015)

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
(Southwest Area),
Agency.

Appeal No. 0120133236

Hearing No. 510-2012-00345X

Agency No. 1G-321-0008-12

DECISION
Complainant appeals to the Commission from the Agency’s final decision dated July 9, 2013,
finding no discrimination concerning her 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. For the following reasons, we AFFIRM the Agency’s final decision finding no
discrimination.

BACKGROUND
In her complaint, dated March 15, 2012, Complainant alleged discrimination in reprisal for
prior EEO activity when:

(1) Since September, 2011, and continuing, she was subjected to harassment in that her
attendance was monitored with continuous discussions about her attendance;
(2) On December 29, 2011, her Family & Medical Leave Act (FMLA) absences were
changed by the manager; and
(3) On January 4, 2012, she was given a pre-disciplinary interview and subsequently on
January 10, 2012, she was issued a notice of removal.

After completion of the investigation of the complaint, Complainant requested a hearing but
later withdrew the request. The Agency then issued its final Agency decision concluding that
it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to
rebut.
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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

, at Chapter 9, § VI.A. (November 9, 1999) (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”).
After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period at issue, Complainant was a
Mail Processing Clerk, PS-06, at the Jacksonville P&DC in Jacksonville, Florida. With
regard to claim (1), Complainant’s manager indicated that during the relevant time period at
issue, Complainant filed numerous FMLA leave requests, some of which were denied by an
FMLA coordinator, causing mass confusion concerning her leave status. The manager stated
that she did talk with Complainant in order to clarify her absences and denied monitoring her
attendance or giving “continuous discussions” about her attendance as she alleged. Upon
review, we find that Complainant failed to show that she was treated less favorably than a
similarly situated employee under similar circumstances concerning this matter or that any
alleged Agency action was motivated by discrimination.

With regard to claim (2), the manager denied changing Complainant’s FMLA absences as
alleged. Specifically, the manager stated that some of Complainant’s requested FMLA
absences were changed to non-FMLA only because an FMLA Coordinator denied her FMLA
request.1

The manager denied she discriminated against Complainant as alleged.
With regard to claim (3), an Acting Attendance Control Supervisor indicated that he gave
Complainant the pre-disciplinary interview and the notice of removal at issue because she
failed to be regular in attendance. The Supervisor stated that although Complainant previously
signed a Last Chance Agreement on October 15, 2010, as a settlement to a removal she had
previously been given regarding her attendance, she failed to maintain regular attendance
pursuant to the Agreement.2

1 We note that Complainant did not claim that the Agency violated the FMLA.
The Supervisor indicated that at the time of the removal notice at
issue, he was notified by FMLA Office that Complainant had numerous non-FMLA absences
from October 3, 2011, to December 30, 2011. The record indicates that the most of these
absences, except a few, were later approved for FMLA leave when the Human Resources
Shared Service Center corrected its prior errors in its electronic management leave system. On
appeal, the Agency indicates and Complainant acknowledges that all her FMLA leave requests
2 We note that Complainant’s Last Chance Agreement is not a live issue in this case.
0120133236

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made during the relevant time period at issue, i.e., October – December, 2011, were approved
but her absence dates of October 3, 2011, and December 30, 2011, were not approved for
FMLA leave. Upon review, we note that there is no evidence that the Human Resources
Shared Service Center’s mistake concerning Complainant’s FMLA leave request was motivated
by discrimination.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. With regard to her claim of
harassment, we find that Complainant failed to establish the severity of the conduct in question
or that it was related to any protected basis of discrimination. Furthermore, we find that
Complainant failed to show that she was treated less favorably than a similarly situated
employee under similar circumstances. Based on the foregoing, we find that Complainant has
failed to show that the Agency’s action was motivated by discrimination as she alleged.

CONCLUSION
Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.3

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

3 Although the Agency, in its final decision, dismissed claims (1) and (2) for failure to state a
claim, pursuant to 29 C.F.R. § 1614.107(a)(1), we need not address such dismissal since we
find no discrimination concerning the matters.
29 C.F.R. § 1614.604. 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

(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
January 28, 2015