Natalie S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Sep 17, 2019

0120181656 (E.E.O.C. Sep. 17, 2019)

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

Natalie S.,1
Complainant,

v.

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

Appeal No. 0120181656
Hearing No. 530-2016-0024X
Agency No. 4C170003215

DECISION

On April 19, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 14, 2018, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether the Agency properly found that Complainant was not subjected to discrimination based
on disability when: (1) on January 24 and 26, 2015, she was not permitted to work, and was
subsequently charged with Absent Without Leave (AWOL) for those two days; and (2) on
February 17, 2015, she was issued a Letter of Warning (LOW).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 Commission notes that the initial complaint included one additional allegation which was
dismissed on July 6, 2015. Because the dismissal of that allegation is not at issue in the instant
appeal it will not be discussed further in this decision.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Full-time City Carrier
at the Agency’s Whitehall Post Office facility in Whitehall, Pennsylvania. The FAD clearly
articulated the facts of record. This decision incorporates those facts by reference. We do,
however, note the following salient facts: on June 16, 2015, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the basis of disability as articulated in the
statement of Issues Presented above. At the conclusion of the investigation, the Agency provided
Complainant with a copy of the report of investigation and notice of her right to request a hearing
before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant
requested a hearing, but the AJ subsequently dismissed the hearing request because Complainant
failed to comply with several pre-hearing orders. The AJ remanded the complaint to the Agency,
and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision
concluded that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

The instant appeal followed. Among other things, Complainant questions the sufficiency of the
investigation and contends that there were individuals who should have been interviewed during
the investigation of her case but were not.

STANDARD OF REVIEW

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. (Aug. 5, 2015) (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”).

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in Rehabilitation Act case alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor
Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff’d 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially
establish a prima facie case by demonstrating that she was subjected to an adverse employment
action under circumstances that would support an inference of discrimination. Furnco Constr. Co.
v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts
of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981).
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To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

For purposes of analysis only we will assume, without so finding, that Complainant is a qualified
individual with a disability, and that she established prima facie cases of discrimination based on
disability. However, we find that the Agency articulated legitimate, non-discriminatory reasons
for the incidents Complainant cites to establish her discrimination claim, and that Complainant did
not demonstrate that any conduct on the part of the Agency was based on discriminatory animus.

The record reveals that Complainant submitted a PS Form 3971 (leave request) dated January 27,
2015. On this form Complainant was requesting 15.5 hours of sick leave, administrative leave,
and FMLA for January 24 and 26, 2015. The reason given was “request admin leave for work
denied at 1/24/15 and told not to report to work on Monday, January 26, 2015…” On this same
form, it was noted that the leave was disapproved. The record indicates that Complainant left work
on January 24, 2015 and did not answer her phone on January 26, 2015. Complainant was
subsequently charged AWOL. By all accounts in the record, Complainant walked off the job on
January 24, 2015 stating, “I can’t do this anymore,” and was unavailable when she was called to
report to work on January 26, 2015. Additionally, the record indicates that the leave request she
submitted was not approved because Complainant did not complete it properly. She included a
request for three different types of leave on one form.

Record evidence establishes that there were at least two other instances where Complainant
abandoned her job duties without following the appropriate protocol, once on July 22, 2014 and
again on February 6, 2015. On February 17, 2015, Complainant was issued a Letter of Warning
because she walked off the job without providing a leave request to management. In light of the
previous incidents, Management felt it was appropriate to issue a LOW on February 17, 2015
because Complainant had abandoned her job again without obtaining appropriate management
approval.

In sum, our review of the record confirms the Agency’s assertion that its decisions were based on
its determination of how best to effectively manage the workplace and its assessment of
Complainant’s conduct in the workplace. Nothing in the record, or submitted on appeal by
Complainant, demonstrate that the actions were in any way motivated by discriminatory animus.
The Commission has long held that an Agency has broad discretion to set policies and carry out
personnel decisions and should not be second-guessed by the reviewing authority absent evidence
of unlawful motivation. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek
v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997).

With respect to Complainant’s contentions on appeal, we find that, upon review of the entire
record, we are not persuaded that the investigation into Complainant’s complaint was incomplete
or improper. The Commission notes that Complainant requested a hearing with a Commission AJ
but her request was subsequently dismissed because she failed to comply with several pre-hearing
orders resulting in the complaint being remanded for a FAD.
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The hearing process would have afforded her the opportunity to conduct discovery and to cure any
alleged defects in the record. Thus, despite the above referenced arguments, the Commission
determines that the investigation was properly and adequately conducted. Moreover, Complainant
has not indicated what evidence or witness testimony that was not considered would have rebutted
the evidence contained in the record.

CONCLUSION

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 decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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.
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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 (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

September 17, 2019
Date