Dion H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Feb 27, 2019

2019001153 (E.E.O.C. Feb. 27, 2019)

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

Dion H.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 2019001153

Hearing No. 480-2014-00185X

Agency No. 4F-900-0135-13

DECISION

On October 15, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s September 25, 2018 final action concerning an equal employment opportunity (EEO)
complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Data Collection Technician at the Agency’s
Los Angeles Bulk Mail Center in Los Angeles, California.

On July 25, 2013, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her in reprisal for prior EEO activity when she was required to
submit medical documentation for sick leave taken on March 30 and 31, 2013. Subsequently, the
documentation was deemed unacceptable and she was charged Leave Without Pay (LWOP).2

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

2 The record reflects while the accepted claim cites April 1, 2013 for which Complainant was
required to provide medical documentation for sick leave, the evidence in the record indicates that
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After an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a
Decision Without a Hearing. On September 20, 2018, the AJ issued a decision by summary
judgment in favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint:

During the relevant period, Complainant’s schedule was 3:00 am to 11:30 am from Saturday
through Wednesday, with non-scheduled days of Thursday and Friday. Complainant asserted that
on March 30, 2013, she called the Supervisor, Statistical Programs’ office and the Enterprise
Resource Management System (eRMS) and left a message stating she would not report to work
“due to illness” on Saturday, March 30, 2013 and on Sunday, March 31, 2013.3 Complainant also
stated that she submitted medical documentation when she returned to work on April 8, 2013, but
the supervisor deemed the documentation insufficient and as a result she was not paid sick leave
for March 30 and 31, 2013.

The AJ noted that in Complainant’s PS Form 3971 “Request for Notification of Absence” that she
submitted on March 11, 2013, Complainant requested 56 hours of annual leave from March 28,
2013 through April 7, 2013. The supervisor signed the subject form indicating that her leave
request was disapproved because it was “not vacation period, end of qtr [quarter]. Cannot afford 2
weekends.” The AJ noted, however, the subject form includes another notation stating that the
supervisor would approve Complainant’s leave request from April 1, 2017 to April 7, 2013 and
directed Complainant to a modified Form 3971.

Further, the AJ noted that the supervisor signed another Form 3971 dated March 27, 2013 that she
authorized Complainant to take 40 hours of annual leave from April 1, 2013 through April 7, 2013.

The supervisor explained that she denied Complainant’s request for 56 hours of annual leave from
March 28, 2013 to April 7, 2013, because the workload and limited staffing would not allow for
Complainant to be on leave for two weekends. The supervisor also noted that after reviewing the
test schedules, “it was determined that we could only sacrifice Monday, April 1, 2013 through
Sunday, April 8, 2013. The Service could not afford to give [Complainant] two weekends off.”

The supervisor stated that Complainant then asked her if she could start work early on March 27,
2013, to stay overnight with her mother at the hospital. The supervisor stated that she approved

Complainant had approved annual leave for April 1, 2013, and the actual dates for which she was
required to provide medical documentation for sick leave were March 30 and 31, 2013.

3 The supervisor worked as a Supervisor, Statistical Programs from January 2013 until the end of
May 2013.
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Complainant’s request to be absent on March 27, 2013, immediately prior to her non-scheduled
days of Thursday and Friday.

Further, the supervisor stated that Complainant requested leave for Thursday, March 30, 2013,
because she might be required to stay with her mother on Friday, March 29, 2013. The supervisor
stated that she told Complainant that she understood “her dilemma but I could not give her that
day off, it was the end of the end of the Quarter and [Complainant] was needed to cover a
rescheduled test. She would be required to come to work. She told me that she may not have a
choice but to release her from her assignment and if she did not come in to work. If she [chose]
not to come to work, she was required to contact ERMS Leave Request Line and to contact [Acting
Supervisor]. The complainant was also told that she would be required to bring in documentation
from the hospital explaining that they required her to stay with her mother.”

The supervisor explained that Complainant told her that she would not be able to get anything
from the hospital to support her absence from work. The supervisor then told Complainant “if [the
hospital] requires you to be there, [the hospital] will provide documentation.” The supervisor
stated that on March 29, 2013, she sent out a revised schedule that included the Origin-Destination
Information System – Revenue, Pieces and Weights (ODIS-RPW) test that Complainant was to
perform as well as an email to Complainant and the Acting Supervisor with specific instructions
for the site to be tested and a copy of the email notification and test documents. Furthermore, the
supervisor stated that to her surprise, she received an Out of Office Reply that stated that the
Complainant was out of the office and would not be back until April 8, 2013.

The supervisor stated at that time, she was planning to be on leave the following week, and she
sent an email to a named Agency official who would be the Acting Manager Financial Programs
Compliance (Acting Manager) “letting her know what I had received the Out of Office Assistant
and it looked like the Complainant did not [plan] to come in as instructed. That same afternoon, I
sent an email to the Acting Supervisor Statistical Programs and the Acting Manager regarding a
possible call in by the Complainant and gave instructions on how to handle the possible call in.”

The supervisor explained that because the Acting Supervisor did not have access to TACS or
ERMS, the Acting Manager would be the one entering the leave and was asked to input Absent
Without Official Leave (AWOL) if Complainant did not report to work.4 Consequently,
Complainant did not report to work on March 30, 2013 or March 31, 2013, the Acting Manager
entered the AWOL code.

The supervisor stated that when Complainant returned to work on April 8, 2013, she claimed that
she did not report to work on March 30 and 31, 2013 because she was sick and had to go to the
emergency room. In support of her assertions, Complainant submitted a PS Form 3971 along with
an attached Kaiser Permanente note indicating “this patient is placed off work from 3/30/13
through 3/31/13.” The documentation also indicated that Complainant was a patient and the form
was electronically signed by a named physician with the date of March 27, 2013 and the form was

4 TACS is an abbreviation for Time and Attendance Collection System.
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printed at 12:00 a.m. on March 28, 2013. The supervisor explained that she reviewed the form
along with the Acting Manager and Acting Labor Relations Specialist and they determined it was
deemed unacceptable.

The supervisor stated that Complainant was asked to obtain sufficient documentation to cover her
leave or the AWOL would stand. The supervisor stated, however, Complainant did not feel that
she should be required to provide documentation and asked the Acting Manager “who was now
performing the duties of the Time and Attendance Manager for the Los Angeles District for her
opinion and she was told that it was not sufficient and provided the Complainant with the written
verbiage from the ELM to take with her to request the correct documentation from the Hospital.
Since there was so much conflicting information regarding this absence, an investigative interview
was also held.”5

Complainant never submitted additional documentation and her absences on March 30 and 31,
2013 were categorized as AWOL. The record reflects that a Form 3971 signed by Complainant
and the supervisor and dated April 8, 2013, indicated that Complainant’s request for 16 hours of
sick leave from March 30 to March 31, 2013, was disapproved because it was “documentation
insufficient.”

The supervisor stated that at that time she relied on Sections 513.361 “Three Days of Less,”
513.364 “Over Three Days” and 513.365 “Failure to Furnish Required Documentation” under the
513.36 “Sick Leave Documentation Requirements” of the ELM in requiring Complainant to
submit medical documentation and subsequently categorizing her absences as AWOL.

Moreover, the supervisor stated that Complainant’s prior protected activity was not a factor and
“had no bearing on this decision. The request for documentation was based solely on the
circumstances surrounding this absence.”

Based on this evidence, the AJ concluded no discrimination was established. The Agency issued
its final order, adopting the AJ’s decision.

The instant appeal followed. Complainant did not submit a brief on appeal.

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. In
rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and

5 ELM is an abbreviation for Employee and Labor Relations Manual.
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the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for the decision to deny
Complainant’s sick leave request for March 30 and 31, 2013. Complainant had previously
requested vacation leave that encompassed these dates, but was denied that request due to the needs
of office. When she later called off work on the two days in question and asserted she was sick,
management requested medical documentation. Moreover, the documentation Complainant later
submitted was not deemed sufficient and she was asked to supplement it, she she did not do. In
sum, the Agency asserts that Complainant’s own actions resulted in the matter at issue. Here,
Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were
a pretext designed to mask discrimination or unlawful retaliation.

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding
no discrimination.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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
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and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

February 27, 2019
Date