Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jul 2, 2015

01-2013-2886-0500 (E.E.O.C. Jul. 2, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120132886

Hearing No. 570-2010-00772X

Agency No. 4K-200-0187-09

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s June 26, 2013 final order concerning his equal employment opportunity (EEO)
complaint alleging 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.
For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Automotive
Mechanic at the Agency’s Capital District Vehicle Maintenance Facility in Washington, D.C.
On June 24, 2009, Complainant submitted a leave request form to his supervisor (S1)
requesting 24 hours of advanced sick leave for upcoming surgeries. The Agency’s Employee
and Labor Relations Manual (ELM) grants managers discretion to advance sick leave if the
request for advanced leave is supported by medical documentation. S1 disapproved the request
citing Complainant’s failure to include medical documentation in support of his request.

Complainant suffered numerous on-the-job injuries beginning in December 2006 through July
2009. On July 21, 2009, Complainant suffered a work-related injury while climbing into an
Agency vehicle, striking his head on the door. Complainant completed an accident report and
was transported to the hospital. Complainant’s supervisor (S2) held a pre-disciplinary
interview with Complainant about the accident. On July 30, 2009, S2 issued Complainant a
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Notice of 14-Day Suspension for Unsatisfactory Performance/Unsafe Work Practices for the
accident.

On January 27, 2010, Complainant submitted a request for advanced sick leave to the Acting
Supervisor (AS). Complainant's leave request cited a head cold and sore throat as the
justification for the request, but he failed to submit any medical documentation in support. AS
disapproved the request. Complainant failed to report to work the next two days and did not
call in to report his absences. On January 29, 2010, Complainant submitted another leave
request to AS for the same days; however, Complainant included a doctor’s note stating that he
was unable to work due to an upper respiratory infection. AS disapproved this request and
placed Complainant in an absent without leave (AWOL) status for the two days he was absent.
On February 5, 2010, AS issued Complainant a Notice of 14-Day Suspension for being AWOL
on January 28 and 29, 2010.

On November 24, 2009 (and amended on March 4, 2010), Complainant filed a formal
complaint alleging that the Agency discriminated against and harassed him on the bases of race
(Caucasian), disability, age (56), and in reprisal for prior protected EEO when:

1. On June 24, 2009, his request for advanced sick leave was denied;

2. On July 30, 2009, he was issued a Notice of 14-Day Suspension for Unsatisfactory
Performance/Unsafe Work Practices;

3. On January 27, 2010, his request for 16 hours of advanced sick leave was denied
and he was charged with AWOL; and

4. On February 5, 2010, he was issued a Notice of 14-Day Suspension.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing on April 23 and 24, 2013, and issued a bench decision on May 29,
2013.1

In her decision, the AJ initially assumed arguendo that Complainant established a prima facie
case of discrimination on the alleged bases and determined that the Agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1), S1 testified
that he disapproved the request for advanced leave because Complainant had not attached

1 On January 16, 2013, the AJ dismissed three additional claims regarding sick leave, a dispute
over workers’ compensation leave, and continuation of pay as untimely counseled and failure
to state a claim. Upon review of the record, the Commission finds no basis to disturb the AJ’s
dismissal of these claims; however, the Commission will consider them as background
evidence in support of Complainant’s overall hostile work environment claim.
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supporting medical documentation to the leave request. Complainant argued that he had
previously submitted medical documentation regarding surgery in early-June 2009. The AJ
noted, however, that Complainant had not shown that he contemporaneously submitted medical
documentation with his request for advanced sick leave. Further, S1 testified that, consistent
with Agency policy, when he received the medical documentation, he promptly submitted it to
the Agency’s medical unit rather than retaining it for later consideration.

With respect to claim (2), S2 testified that he issued the suspension notice based on
Complainant’s recent accident history, his placement in the Accident Repeater Program, and
the circumstances of the July 21, 2009 accident. S2 further testified that Complainant had a
history of at-fault accidents – accidents that Complainant could have avoided by taking
appropriate precautionary measures. S2 further explained that in the nine days between the
accident and his issuance of the suspension, he had received a packet from the Agency's Safety
Office which stated that Complainant had been placed in the Agency’s Accident Repeater
Program. S2 testified that he had never seen such a packet before, and that its instructions
called upon him to develop a plan of action to minimize the number of work-related accidents
involving Complainant and to document the corrective actions taken to achieve this objective.

Regarding claims (3) and (4), AS testified that he disapproved Complainant's request for
advanced leave because Complainant had not demonstrated that the leave was needed for a
serious medical disability or illness as required by the ELM. Complainant identified a cold
and sore throat as the reason for his absence. Likewise, Complainant’s doctor’s note described
Complainant's illness as an upper respiratory infection, which was consistent with
Complainant's self-diagnosis that he was suffering from a cold. AS testified that he placed
Complainant on AWOL because Complainant did not work on January 28 and 29, 2010, failed
to call in to report his absences, and failed to receive approval to take leave on those days.
Complainant argued that he appeared at the building on January 28, 2010, to submit his
medical note, and that this appearance should have satisfied the requirement that he call in to
report his absences. The AJ noted that there was no evidence that AS saw Complainant or
spoke with him on that date. Further, AS did not receive the note until January 29, 2010, and
the record showed that Complainant still did not satisfy the requirement that he timely call in
and notify a manager that he could not work. AS explained that he issued Complainant the
suspension notice based upon Complainant's placement in an AWOL status on January 28 and
29, 2010, and his prior disciplinary record.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. Further, the AJ determined that Complainant’s harassment claim must fail as
he failed to show that any of the alleged incidents were based on discriminatory or retaliatory
animus. As a result, the AJ found that Complainant had not been subjected to discrimination,
reprisal, or a hostile work environment as alleged.

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The Agency subsequently issued a final order fully implementing the AJ’s decision.
Complainant filed the instant appeal on July 24, 2013.2

STANDARD OF REVIEW
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. Nat’l Labor Relations Bd., 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.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS
Disparate Treatment

To prevail in a disparate treatment claim such, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks

,
509 U.S. 502, 519 (1993).

2 EEOC Regulation 29 C.F.R. § 1614.403(d) provides that any statement or brief on behalf of
a complainant in support of an appeal must be submitted to the Office of Federal Operations
within 30 days of filing the notice of appeal. Complainant filed his appeal on July 24, 2013,
but did not submit a brief in support of his appeal until September 23, 2013, which is beyond
the applicable limitations period. As Complainant did not present adequate justification for the
late submission, the Commission finds that his untimely brief will not be considered in this
appeal.
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Upon review, the Commission finds that the AJ’s determination that the Agency articulated
legitimate, nondiscriminatory reasons for its actions is supported by substantial record
evidence. Specifically, as to claim (1), S1 testified that he denied Complainant’s advanced sick
leave request because he failed to attach medical documentation in support of the request.
Hr’g Tr., Vol. 2, at 89. Regarding claim (2), S2 testified that he issued the Notice of 14-Day
Suspension for Unsafe Work Practices after Complainant suffered an at-fault, on-the-job
accident. Id. at 279-81. S2 testified that he decided to issue the 14-Day Suspension based on
Complainant’s accident history and status in the Accident Repeater Program. Id

. at 288-89.
With respect to claim (3), AS testified that he denied Complainant’s advanced sick leave
request because Complainant did not submit medical documentation in support along with it.
Hr’g Tr., Vol. 1, at 305. Complainant failed to report to work the next two days and failed to
call in to report his absence; therefore, AS charged him with AWOL. Id. at 323.
Complainant submitted a doctor’s note when he returned; however, AS believed the note was
insufficient to qualify for advanced sick leave under the ELM. Id. at 311-12. AS held a pre-
disciplinary interview with Complainant on February 3, 2010, regarding the AWOL, and
subsequently issued Complainant a 14-Day Suspension for AWOL-Absence without Permission
based on Complainant’s prior disciplinary history. Id

. at 331, 373-74.
The Commission finds that there is substantial evidence in the record to support the AJ's
finding that Complainant did not establish that the Agency's explanation was pretext for
discrimination or reprisal. The record and facts gleaned at the hearing fail to disclose any
evidence purporting to show the Agency's actions were a result of discriminatory or retaliatory
animus. As a result, the Commission finds that Complainant was not subjected to
discrimination or reprisal as alleged.

Hostile Work Environment Harassment

Finally, to the extent that Complainant contends that he was subjected to a hostile work
environment with respect to the matters herein, the Commission find that under the standards
set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of
harassment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by
the Commission's determination that Complainant has not established that any of the actions
taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v.
U.S. Postal Service

, EEOC Appeal No. 01982923 (Sep. 21, 2000). As a result, the
Commission finds that Complainant has not established that he was subjected to discrimination,
reprisal, or a hostile work environment as alleged. Substantial evidence supports the AJ's
findings of fact, and the Commission discerns no basis to disturb her conclusions of law.
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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 final Agency order 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.
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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

Date
July 2, 2015