0120130200
02-27-2013
Earlie Clark, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Earlie Clark,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120130200
Hearing No. 410-2012-00178X
Agency No. 1K-301-0014-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 17, 2012 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., 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.
BACKGROUND
During the relevant period, Complainant worked as a Vehicle Dispatcher, PS-8, at the Agency's North Metro Processing and Distribution Center in Duluth, Georgia.
On July 18, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), disability (upper respiratory), age (over 40), and in reprisal for prior EEO activity when:
1. on or about March 29, 2011, he requested nine days of sick leave, but management only paid him for eight of the days requested;
2. on June 3, 2011, he received a Letter of Demand for $1,046.22 for payroll-related debt;
3. on August 8, 2011, his request for annual leave for August 12-13, 2011, was denied and he was charged Absent Without Leave (AWOL) when he did not report to work on those two days; and
4. on September 8, 2011, he was issued a 7-Day Suspension for an unauthorized absence.1
Following a hearing held on June 6, 2012 and August 14, 2012, the AJ issued a decision on September 5, 2012, finding no discrimination. The AJ found that Complainant did not establish a prima facie case of race, disability, age and reprisal discrimination.2 The AJ further found that even if Complainant established a prima facie case of race, disability, age and reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. On September 17, 2012, the Agency fully implemented the AJ's decision in its final action.
The AJ noted that in regard to claim 1, Complainant became ill with an upper respiratory infection during work on March 29, 2011. Complainant left work early and called the Postal Service Leave Control Number and requested sick leave. The AJ further noted that Complainant saw a doctor, the following day, March 30, 2011. Complainant's doctor instructed Complainant not to return to work until the following Monday, April 4, 2011, and that if Complainant was still ill at that time, to return to the doctor for further treatment.
On April 1, 2011, during his absence from work, Complainant received a three-day letter requesting documentation of his illness, in accordance with the Postal Service regulations. The AJ noted that the three-day letter is a standard letter sent to all employees during their sick leave and notifies them of the documentation requirements needed to authenticate their sick leave and return to work.
The AJ noted that Complainant was still sick on Monday, April 4, 2011, and returned to his doctor. Complainant received further treatment and was told to recuperate for one more week. The AJ further noted that on that day, a nurse practitioner from the doctor's office contacted his second level supervisor concerning the necessary documentation for Complainant's return to work. Complainant then returned to work on April 12, 2011, with the documentation provided by his doctor and nurse practitioner. Complainant missed a total of nine days of work.
The AJ noted that during his testimony, Complainant's second level supervisor stated that the purpose of the three-day letter is "for absences in excess of three days, employees are required to submit other documentation or other acceptable evidence of incapacity to work, or the need to care for a family member, and requests the substantiation of that family relationship." The second level supervisor stated that the two documents Complainant provided to Agency management was unacceptable. Specifically, the second level supervisor stated that there were contradictory statements on the two documents concerning the dates of the alleged incapacitation. The second level supervisor also stated that he had concerns about the date changes made by the nurse practitioner on the second document. The second level supervisor stated that there were cross-outs in the second document which he did not accept, and that the documents did not comport with the Agency's leave policy.
Further, the second level supervisor stated that in the second document it states that Complainant "may return to work on April 12th [2011], but then on the bottom it says, because of his illness from 3/30 till 4/12, he can't come to work. You can't tell me he can come back on the 12th, but he's still out sick on the 12th. And the other thing is, it's also contradicting what the doctor said on - - because this was done by, I assume, by a nurse practitioner, the doctor's - - she's contradicting what the doctor said."
The second level supervisor stated that management informed Complainant the reasons why his medical documents were unacceptable. As a result, Complainant was not entitled to be paid sick leave for any of the nine days because he did not provide acceptable documentation to support his request for sick leave. Furthermore, the second level supervisor stated that Complainant was given the opportunity to submit additional documentation but he declined to do so.
Complainant's supervisor testified that on April 13, 2011, he informed Complainant that the second level supervisor had deemed his medical documents unacceptable and that he was to change the leave status from sick leave to Leave Without Permission (LWOP) and recoup the monies that were paid to Complainant during his absence. Specifically, the supervisor stated "I was the one who run [Complainant's] time for him. And then, when it wasn't accepted by our manager, I was the one who changed it to leave without pay."
The AJ noted at that time, the last date of absence was changed to LWOP but management was unable to change the previous eight days to LWOP because that pay period had ended. In order to make the change, management would need to submit documentation to the payroll department.
Regarding claim 2, the AJ noted that on June 3, 2011, Complainant received a Letter of Demand requesting $1,048.22, which was equivalent to the eight days that he had been paid sick leave in April 2011. The second level supervisor testified that Complainant was issued a Letter of Demand because "I needed that debt collected." Specifically, the second level supervisor stated "because sick leave, [Complainant] got paid for the sick leave and now it's going to be WOP-ed, which is leave without pay."
Further, the second level supervisor stated that he relied on Section 462.12 of the Employee and Labor Relations Manual which states "and each postmaster installation head is responsible for the collection in accordance with these regulations, any debt owed to the Postal Service by an employee under his or her supervision."
Regarding claim 3, the AJ noted that on August 8, 2011, Complainant submitted an annual leave request for the dates August 12 and 13, 2011 to his supervisor due to a death in the family. The AJ further noted that Complainant did not tell his supervisor that the absence was to attend a funeral, and he did not indicate on his leave slip that he was requesting bereavement leave. The AJ noted that during his testimony, Complainant stated that he did not want to tell the supervisor about the funeral because he felt that the supervisor could not keep it confidential.
The supervisor testified that he denied Complainant's request because the weekly schedule had already been posted. The supervisor stated that after Complainant told him that he had to attend a funeral "I told him that, if he would have made me aware that he had to go off for a funeral, I would have done anything I could to accommodate him. Even if I had to do it. But . . . he told me he wasn't required to tell me why he needed leave if the percentage had not been met." Further, the supervisor stated that he later charged Complainant AWOL "because he went ahead and took the time off after his leave had been denied and he didn't call in."
The second level supervisor stated that Complainant's annual leave request was denied because "one of my policies is, if you're requesting leave, once I've posted the schedule, I have the right to disapprove it based on operational requirements. The needs of the service comes first." The second level supervisor further stated that management gave Complainant "an opportunity, we cannot give you Friday off, or for Thursday and Friday, but we can give you this Saturday, that's the new week."
Regarding claim 4, the AJ noted that Agency management issued Complainant the 7-Day Suspension because he engaged in egregious misconduct when he failed to report to work on August 12 and 13, 2011, as scheduled, when Complainant already knew that his leave had been disapproved and when he failed to call in to advise the supervisor that he would be absent. The supervisor testified that following an investigative interview with Complainant, he issued him a 7-Day Suspension for failure to report to work as scheduled. The supervisor stated that Complainant's race, disability, age and prior protected activity were not factors in his decision to issue him the suspension.
The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, 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 action, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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" 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
February 27, 2013
__________________
Date
1 The record reflects that claims 3-4 were later amended to the instant formal complaint.
2 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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