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