Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.Download PDFEqual Employment Opportunity CommissionAug 7, 20130120122217 (E.E.O.C. Aug. 7, 2013) Copy Citation 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”). 0120122217 2 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. 0120122217 3 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 0120122217 4 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 Copy with citationCopy as parenthetical citation