Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Aug 15, 2013

0120120451 (E.E.O.C. Aug. 15, 2013)

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

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120120451

Hearing No. 530-2011-00032X

Agency No. 4B-070-0121-10

DECISION

On October 24, 2011, Complainant filed an appeal from the Agency’s final decision
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C.
§ 621 et seq., and Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. For
the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s station in Elmwood Park, New Jersey. On June 17, 2010, Complainant filed an
EEO complaint wherein he claimed that the Agency discriminated against him on the bases of
his national origin (Moorish-American), sex (male), religion (Moorish), disability
(unspecified), age (44), and in reprisal for prior protected EEO activity when:

1. On December 3, 2009, Complainant was issued a Letter of Removal for Failure to
Meet the Requirements of his Position, which was subsequently reduced to a seven-
day suspension during a grievance procedure on February 1, 2010.

2. On May 1, 2010, Complainant was issued a Notice of Removal for Failure to Meet
the Requirements of his Position.

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3. On May 12, 2010, Complainant was issued a Notice of Removal for Failure to
Maintain Regular Attendance.

4. On June 23, 2010, Complainant was issued a Notice of Removal for Continuous
Absence Without Official Leave (AWOL) and Failure to Follow Instructions.

5. As of May 25, 2010, Management refused to place Complainant on Administrative
Leave.

The Agency accepted for investigation claims (2-4). Claim (1) was dismissed pursuant to 29
C.F.R. § 1614.107(a)(2) on the grounds of failure to initiate contact with an EEO Counselor in
a timely manner. The Agency stated that Complainant did not contact an EEO Office until
March 30, 2010, after the expiration of the 45-day limitation period. Claim (5) was dismissed
pursuant to 29 C.F.R. § 1614.107(a)(1) on the grounds of failure to state a claim. The Agency
determined that there is no evidence Complainant was disciplined, injured, or suffered a
present harm or loss with respect to a term, condition, or privilege of employment as a result
of not being placed on administrative leave.

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 EEOC
Administrative Judge (AJ). Complainant requested a hearing. However, the AJ remanded the
complaint to the Agency for a final decision because Complainant contended he did not have an
obligation to anyone to appear, engage in discovery, or attend a hearing. The AJ considered
this to be a withdrawal of Complainant’s request for a hearing.

The Agency determined that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. With regard to claim (2) and the Notice of Removal issued to
Complainant for failure to meet the requirements of his position, the Agency stated that
Complainant had been working as a City Carrier since 1991, with his appointment being
contingent on having a valid state driver’s license. Complainant’s driver’s license was
suspended on April 27, 2009. The Notice of Removal referenced in claim (1) was issued, and
the subsequent grievance decision specified that the reduction to a seven-day suspension be
accompanied by Complainant satisfying any fines that New Jersey had imposed for suspension
of the driver’s license. Complainant was notified that he had ten days to satisfy the decision.
On March 2, 2010, and April 20, 2010, a pre-disciplinary interview was conducted with
Complainant where it was determined that Complainant still lacked a valid state driver’s
license and had not satisfied the accompanying state fines. The Agency stated that
Complainant had made no effort to have his driver’s license reinstated as of the date of the
Notice of Removal.

As for claim (3) and Complainant being issued a Notice of Removal for Failure to Maintain
Regular Attendance, Complainant was cited for having the following unscheduled absences:
Eight hours of unscheduled leave on February 8, 2010, 32 hours of unscheduled leave from
February 13–18, 2010, sixteen hours of unscheduled leave from March 31 – April 1, 2010,
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eight hours of unscheduled leave on March 14, 2010, and 32 hours of AWOL from May 4-8,
2010. On July 20, 2010, a Step B decision reduced the Notice of Removal to a fourteen-day
suspension.

In terms of the Notice of Removal dated June 23, 2010, at issue in claim (4), the first charge
specified that Complainant had been continuously absent without official leave from his official
duties from May 25, 2010 to the present. Complainant had been instructed on May 25, 2010,
to submit a leave request, and he did not comply. The second charge specified that on June 8,
2010, Complainant was sent a letter to appear for a pre-disciplinary interview after he failed to
submit a leave request or submit documentation in support of his absences. Complainant
subsequently failed to appear for the pre-disciplinary interview and did not contact
management to reschedule.

The Agency determined that Complainant failed to establish a prima facie case of
discrimination based on sex, religion, age and national origin. According to the Agency, none
of the comparisons cited by Complainant had their driver’s license suspended and/or revoked
or had any instances of AWOL or continued absences without leave. With regard to
Complainant’s claim of disability discrimination, the Agency determined that Complainant
failed to establish that he is a person with a disability. Complainant had claimed that not
having a New Jersey driver’s license was his disability. The Agency reasoned that even if
Complainant was a person with a disability, he was not qualified for the position of City
Carrier because this position requires maintaining a valid state driver’s license. As for
Complainant’s claim of reprisal, the Agency determined that Complainant failed to establish a
causal connection between his prior EEO activity and the adverse actions, and thus failed to set
forth a prima facie case. The Agency stated that the instant complaint is Complainant’s only
EEO activity and that although the Officer-in-Charge believed Complainant had engaged in
EEO activity two years before, this timeframe would be too attenuated to establish a causal
connection.

The Agency determined even if Complainant had set forth a prima facie case on the alleged
bases, it nevertheless articulated legitimate, nondiscriminatory reasons for its actions. With
respect to claim (2), the Agency noted that it had allowed Complainant to deliver his assigned
route in a walkout method beginning on April 27, 2009. According to the Agency,
Complainant refused to obtain a valid state driver’s license despite being provided with the
non-driving assignment for over a year. As for claim (3), the Agency cited as reasons for the
Notice of Removal for Failure to Maintain Regular Attendance that over the three-month
period of February 8, 2010 – May 8, 2010, Complainant had five instances of unscheduled
absences for a total of 96 hours. The Agency noted that Complainant was AWOL for 32 of
those hours. The Agency further noted that Complainant provided a note from his wife stating
that he needed to stay home to care for their children from May 4-8, 2010. The Agency stated
that Complainant was charged AWOL since the letter did not indicate the children were ill or
there was some type of emergency. With respect to claim (4), Complainant was considered
AWOL from May 25, 2010, to the issuance of the Notice of Removal on June 23, 2010. The
Agency explained that the removal was warranted in light of Complainant’s attendance and his
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failure to obtain the state driver’s license. The Agency stated that Complainant did not have
approved leave for his continued absence, and Complainant failed to comply with the
requirement to submit a leave request and/or provide acceptable documentation to substantiate
his continued absence. The Agency determined that Complainant did not present evidence to
suggest its legitimate reasons for its actions were a pretext for discrimination.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he has been terminated based on fabricated statements,
events and charges. Complainant maintains that his employment was not contingent on having
a valid state driver’s license. Complainant argues that management did not require that he
provide it with a copy of the license before receiving the vacant bid assignment position.1

In response, the Agency asserts that as an employee, Complainant was required to be regular
in attendance. The Agency states that as a City Carrier responsible for operating Agency
vehicles, Complainant had to maintain a valid driver’s license. According to the Agency,
Complainant’s lack of a valid state driver’s license rendered him unqualified for his position.

ANALYSIS AND FINDINGS

Initially, we observe that Complainant has not challenged on appeal the procedural dismissal of
claims (1) and (5). Absent any argument on these claims, we shall not address the Agency’s
dismissal of these claims. We shall assume arguendo that Complainant established a prima
facie case of discrimination under the alleged bases as to claims (2-4).

The Agency explained as to claim (2) that Complainant’s lack of a valid driver’s license
prevented him from fulfilling the driving duties of his City Carrier position. The Agency
further explained that it afforded Complainant ample time to have the license reinstated.
According to the Agency, Complainant made no effort to have his license reinstated and did
not pay the state fines. As to claim (3), Complainant had 32 hours of AWOL and altogether
96 hours of unscheduled absences over a three-month period. With respect to claim (4), the
Agency based this Notice of Removal on Complainant’s continuous absence without official
leave and his failure to submit a leave request and/or sufficient documentation to support his
absences. The Agency also based the Notice of Removal on Complainant’s failure to attend a
pre-disciplinary interview. We find that the Agency articulated legitimate, nondiscriminatory
reasons for the actions taken in claims (2-4).

1Complainant also argues that requiring him to have a state driver’s license is contrary to the
practices of his religion as a member of the Moorish Science Temple of America. During the
grievance of the Notice of Removal dated December 3, 2009, Complainant argued that a copy
of his Grand Sheik Authorized Operator Automobile, Light Truck and Motorcycle licensed
issued by Moorish National is the only document he needs to operate a motor vehicle.
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Upon reviewing Complainant’s contentions to establish pretext, we discern no persuasive
argument or evidence that refutes the explanation offered by the Agency. Complainant has not
presented any credible argument to challenge the Agency’s assertion that having a valid state
driver’s license was a requirement for fulfilling the driving component of a City Carrier’s
duties. Complainant also has not offered sufficient reasoning to negate the AWOL and other
unscheduled absences that in part led to his removal. The Agency’s determination that no
discrimination occurred is AFFIRMED.

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
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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

August 15, 2013
Date