John A. Mazovick, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 30, 2006
01a54401_r (E.E.O.C. Mar. 30, 2006)

01a54401_r

03-30-2006

John A. Mazovick, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


John A. Mazovick v. United States Postal Service

01A54401

March 30, 2006

.

John A. Mazovick,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A54401

Agency No. 1J-612-0004-03

Hearing No. 210-2003-06351X

DECISION

On January 15, 2003, complainant, a Clerk, PS-05, filed an EEO complaint

in which he claimed that the agency discriminated against him on the

bases of his sex (male), race (White), and color (white), when on or

about November 16, 2002 and November 19, 2002, his requests to change

his scheduled annual leave to scheduled sick leave were disapproved.

The complaint was accepted for investigation. Subsequent to the

completion of the investigation, complainant requested a hearing before

an EEOC Administrative Judge (AJ). The hearing was held on April 12,

2005.

The AJ issued a decision on May 9, 2005, finding that complainant

had not been subjected to discrimination on any of the alleged bases.

The AJ found that complainant failed to establish a prima facie case

of discrimination based on sex, race or color. The AJ observed that

complainant had previously scheduled medical and dental appointments for

the period of his annual leave, and no medical or dental practitioner

provided documentation that he was unable to work. The AJ noted that

complainant claimed that a Black female coworker received more favorable

treatment under similar circumstances. The AJ found that this coworker

was not similarly situated to complainant. The AJ stated that in contrast

to complainant, the coworker requested annual leave and became ill while

on annual leave. The AJ noted that the Leave Control Supervisor offered

the coworker only unscheduled sick leave when the coworker requested

sick leave, and that the coworker only received scheduled sick leave

through resolution of a union grievance.

The AJ found that the agency provided legitimate, nondiscriminatory

reasons for denying complainant's request for conversion to sick leave.

The AJ noted that the Leave Control Supervisor stated that there are

agency guidelines governing requests to change annual leave to sick leave.

According to the Leave Control Supervisor, the pertinent provision states

that a prerequisite is that an employee becomes ill while on annual leave.

The AJ noted that the Leave Control Supervisor testified that complainant

had a prearranged medical appointment and did not become ill while on

annual leave. The AJ found that complainant failed to establish pretext

and that complainant failed to prove discrimination by a preponderance

of the evidence.

The AJ further found that complainant failed to state a claim because

he did not suffer any harm when his request to convert leave was denied.

The AJ reasoned that there was no adverse action that had some tangible

job consequence.

On May 13, 2005, the agency issued a final action wherein it implemented

the AJ's decision.

On appeal, complainant contends that agency guidelines state that medical

documentation is only required for absences of fewer than three days

if the employee is on restricted leave, or when the supervisor deems

documentation desirable for the protection of the interests of the

agency. Complainant states that he was not on restricted sick leave

either before or during the time he requested annual leave and sick

leave in November 2002. Complainant further claims that the agency did

not provide any evidence explaining why he needed to produce any medical

documentation under the circumstances or why there was a need to protect

the interests of the agency. Complainant argues that documentation that

he did produce in advance verified that he had a scheduled medical and

dental appointment. Complainant notes that the Leave Control Supervisor

denied his request for conversion to sick leave, but allowed a Black

female employee a conversion to unscheduled sick leave.

In response, the agency asserts that complainant's medical documentation

was unacceptable as it never indicated that he was incapacitated for the

performance of his duties. The agency notes that complainant testified

that he asked for annual leave in advance citing that it was for medical

appointments. The agency states that complainant did not indicate that

he became ill while on annual leave, but merely that he was attempting

to change his leave since it was his belief that the Leave Control

Supervisor would disapprove his request for scheduled sick leave for

his medical appointments on November 12 and 19, 2002.

EEOC Regulation 29 C.F.R. �1614.405(a) provides that all post-hearing

factual findings by an EEOC Administrative Judge (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). 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).

Initially, we address the agency's position that complainant failed to

state a claim. We find that denying complainant a conversion of annual

leave to sick leave constitutes personal harm to a term, condition

or privilege of complainant's employment. With regard to the merits

of the claim, the Commission finds that the AJ's decision finding no

discrimination is supported by substantial evidence. Complainant has not

rebutted the agency's reason for denying the conversion. Complainant has

not shown that other similarly situated persons of different protected

bases were treated differently. Complainant has not shown that the

conversion denial was motivated by discrimination.

The agency's decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

March 30, 2006

__________________

Date