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

Equal Employment Opportunity Commission

Aug 7, 2013

0120122217 (E.E.O.C. Aug. 7, 2013)

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. 0120122217

Agency No. 4G-752-0331-11

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated April 11,
2012, finding no discrimination. For the following reasons, we AFFIRM the Agency’s final
decision.

BACKGROUND

In his complaint, Complainant alleged discrimination based on race (Black) and sex (male)
when from September 5 to 10, 2011, he was placed in Absent Without Leave (AWOL) status.
After completion of the investigation of the complaint, Complainant did not request a hearing.
The Agency issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which Complainant failed to rebut.

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”).
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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 incident. During the relevant time period at issue, Complainant was a
City Letter Carrier assigned to the Prestonwood Station, Dallas Post Office, Dallas, Texas.
Complainant claimed that on January 6, 2011, he requested annual leave from September 5 to
10, 2011, by signing the vacation book and submitting his completed PS Form 3971 to his
supervisors who approved the leave. However, on September 11, 2011, he became aware that
he was charged with AWOL for September 5 to 10, 2011.

Complainant’s manager indicated that Complainant called in for sick leave on September 2,
and 3, 2011, prior to the Labor Day holiday. Under the Agency policy, an employee must
work the day before and the day after a holiday in order to be compensated for the holiday.
The manager stated that as a result of Complainant’s sick leave for two days prior to the
holiday, an identified supervisor made an error by entering September 2, 3, and 6, 2011 as
AWOL. However, this mistake was subsequently corrected by correctly entering September 2
and 3, 2011, as sick leave. The manager also indicated that as soon as management was
notified of the error on September 12, 2011, for September 6, 2011 annual leave, they made
an immediate adjustment. Complainant acknowledged that in October 2011, he received the
correct pay for September 5 through 10, 2011, including holiday pay.

Upon review, we find that Complainant failed to show that the Agency’s articulated
explanations were pretext for discrimination. Furthermore, we find that Complainant failed to
show that he was treated less favorably than a similarly situated employee under similar
circumstances. Based on the foregoing, we find that Complainant failed to show that the
Agency’s action was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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.

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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”
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
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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

August 7, 2013
Date