Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 12, 2013

0120114073 (E.E.O.C. Sep. 12, 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
(Capital Metro Area),
Agency.

Appeal No. 0120114073

Hearing Nos. 430-2011-00015X; 470-2011-00035X

Agency Nos. 4K-270-0087-10; 4K-270-0038-11

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
July 28, 2011 final Agency decision (FAD) concerning her 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. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Hilburn Station in Raleigh, North Carolina. On July 13, 2009,
Complainant and her supervisor (S1) were involved in an incident, and Complainant claimed
that S1 struck her on the shoulder. Complainant reported to work the next day, but left
without approved leave and has not returned to work since. Complainant and management
then began communicating by letters sent through certified mail. Complainant submitted
several notes from her doctor only indicating that she was incapacitated and that she could not
work for an indefinite period of time. Additionally, Complainant filed a workers’
compensation claim, however, the claim was denied in January 2010.

After Complainant’s workers’ compensation claim was denied, management requested that
Complainant submit new medical documentation to substantiate her continued absence.
Complainant failed to submit the requested documentation. On February 1, 2010, S1 sent
Complainant a Letter of Instruction requesting that she appear at the station for an investigative
interview. Complainant refused to attend the interview and failed to provide the Agency with
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acceptable medical documentation substantiating her absence. The Agency sent Complainant a
letter providing her additional time to submit acceptable documentation. Complainant failed to
comply and from February 27, 2010 through April 27, 2010, Complainant’s leave requests
were denied based on her failure to submit acceptable medical documentation in support of her
absence. In addition, Complainant failed to properly complete many of the leave request
forms.

On December 4, 2010, Complainant called the Agency’s automated call-in line to request two
hours of sick leave. S1 denied the leave citing Complainant’s ineligibility to use the automated
line to request leave based on her absence without official leave (AWOL) status. Additionally,
S1 denied Complainant’s leave request for four hours of sick leave and 36 hours of annual
leave for January 11, 2011, as they were untimely submitted.

On January 21, 2011, Complainant was issued a letter informing her that her health and life
insurance were canceled as a result of her being in a non-pay status for 365 days. Finally, on
March 16, 2011, S1 issued Complainant a Notice of Removal for failure to be regular in
attendance.

On June 16, 2010, Complainant filed a formal complaint (Agency No. 4K-270-0087-10)
alleging that the Agency discriminated against her in reprisal for prior protected EEO activity
when:

1. Beginning on March 13, 2010, and continuing, she has been denied sick and annual
leave.

Additionally, on March 9, 2011, Complainant filed a second formal complaint (Agency No.
4K-270-0038-11) alleging that the Agency again retaliated against her when:

2. Her request for 2 hours sick leave on December 4, 2010, was denied;

3. Her request for 4 hours of sick leave and 36 hours of annual leave was denied on
January 3, 2011, and her request for 40 hours of annual leave for January 20-25,
2011 was denied on January 11, 2011;

4. She received a letter dated January 21, 2011, informing her that her health and life
insurance were canceled due to her being in non-pay status for 365 days; and

5. On March 22, 2011, she received a Notice of Removal.

At the conclusion of the investigations, the Agency provided Complainant with copies of the
reports of investigation (ROI1 and ROI2 respectively) and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
On May 16, 2011, the AJ assigned to the case consolidated the two complaints. Complainant
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subsequently withdrew her request for a hearing. Consequently, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
reprisal and found that management articulated legitimate, non-retaliatory reasons for its
actions. Specifically, regarding claim (1), Complainant’s supervisor (S1) affirmed that almost
all of Complainant’s leave requests were denied due to her inability to properly complete the
form. S1 noted that Complainant was sent correspondence along with each form instructing
her on the correct way to fill out the form. S1 affirmed that Complainant has not reported to
work since July 2009 and has been in AWOL status since. S1 stressed that Complainant’s
AWOL status was due to her inability to substantiate her absence from work with supporting
medical documentation for the continuing absence.

Regarding claim (2), S1 stated that Complainant was denied two hours of sick leave on
December 4, 2010, because Complainant used the automated call in line to request leave. S1
asserted that the automated line is for employees who are experiencing a temporary problem,
illness, injury, or emergency for a short duration of time where the requirement to submit a
leave slip is not possible. As Complainant had been in AWOL status since July 2009, her
ailment was not of a temporary nature.

With respect to claim (3), Complainant’s request for four hours of sick leave was denied based
on Complainant’s untimely submission. As to her request for leave for January 20-25, 2011,
S1 affirmed that he denied the request because Complainant did not have documentation to
support her continued absence, had shown an unwillingness to report to work, and was instead
looking for monetary gain to stay at home.

Regarding claim (4), S1 stated that he did not cancel Complainant’s health and life insurance;
however, he believed that if an employee is in AWOL status for more than 365 days, then the
insurance company may cancel the policy. Finally, as to claim (5), S1 affirmed that he issued
the Notice of Removal for Complainant’s failure to be regular in attendance, her failure to
report to work as instructed, her failure to show up for investigative interviews, and her failure
to supply the agency with acceptable documentation to substantiate her continued absence.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
retaliated against as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that Agency management improperly denied her leave requests
and failed to explain how her documentation was not sufficient. Additionally, Complainant
contends that management provided contradictory reasons for denying her leave requests.
Complainant argues that she has shown that she was singled out for adverse treatment.
Accordingly, Complainant requests that the Commission reverse the FAD.
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ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, 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 she 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. Complainant may establish a prima facie case of
reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of
the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency;
and a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). 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).

In the instant case, assuming arguendo that Complainant established a prima facie case of
reprisal, the Commission finds that the Agency articulated legitimate, non-retaliatory reasons
for its actions. Specifically, as to claim (1), the record reveals that Complainant has not
reported to work since July 14, 2009, and her workers’ compensation claim was denied in
January 2010. On February 1, 2010, S1 sent Complainant a Letter of Instruction to report to
the station for an investigative interview to explain her failure to report for duty. ROI1, at
166. Complainant failed to report to the station and instead sent a letter stating that she has not
been released by her doctor to return to work and a handwritten note from her doctor simply
stating “No work due to incapacitation.” Id. at 161-62. On February 12, 2010, S1 informed
Complainant that her submitted documentation was insufficient to substantiate her absence and
provided her additional time to provide acceptable documentation. Id. at 160. Complainant
failed to provide acceptable documentation.

S1 affirmed that Complainant’s requests beginning in March 2010 were denied based on her
inability to properly fill out the leave form. ROI1, at 98. For example, Complainant’s
February 27, 2010 through March 26, 2010 leave request included remarks stating that medical
documentation had been provided and to “utilize all sick leave then use annual leave.” Id. at
104. S1 informed Complainant this request was denied because she failed to provide the
correct amount of sick and annual leave requested and each form of leave requested needed a
separate form. Id. at 105. Complainant’s requested leave March 27, 2010 through April 27,
2010 was in the same manner as the previous request and S1 informed Complainant that her
request was denied for the same reason. Id. at 110. S1 noted that Complainant had been out
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of work without a medically documented acceptable reason and failed to follow the instructions
of management to return to work. Id. at 102.

Regarding claim (2), S1 stated that Complainant’s sick leave request was denied because she
called the automated line to request leave. ROI2, at 140. S1 affirmed that Complainant failed
to follow the proper leave request procedures because the automated line is for employees who
are experiencing a temporary problem, illness, or emergency for a short duration of time while
Complainant had been in AWOL status since 2009. Id. As to claim (3), S1 confirmed that
Complainant’s request for leave on January 3, 2011 was denied because she untimely
submitted the leave request on January 11, 2011. Id. In addition, S1 denied Complainant’s
request for 40 hours of leave for January 20-25, 2011, because Complainant had demonstrated
an unwillingness to report to work and failed to provide documentation to support her
continued absence. Id. at 141.

As to claim (4), S1 stated that he did not know who was responsible for employees’ life and
health insurance plans; however, generally the insurance company may cancel the policies due
to lack of payment once an employee is in AWOL status for 365 days. ROI2, at 143. Finally,
as to claim (5), S1 affirmed that he issued the Notice of Removal for Complainant’s failure to
be regular in attendance, failure to report to work as instructed, failure to show up for
investigative interviews, and failure to supply management with acceptable documentation to
substantiate her continued absence. Id. at 150.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

The Commission finds that the record is devoid of any evidence that Complainant's prior
protected EEO activity was a factor in any of the Agency’s actions. At all times, the ultimate
burden remains with Complainant to demonstrate by a preponderance of the evidence that the
Agency's reasons were not the real reasons and that the Agency acted on the basis of
retaliatory animus. Complainant failed to carry this burden. As Complainant chose to
withdraw her hearing request, the Commission does not have the benefit of an AJ's credibility
determinations after a hearing; therefore, the Commission can only evaluate the facts based on
the weight of the evidence presented. As a result, the Commission finds that Complainant has
not established that she was subjected to unlawful reprisal.

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.

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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.
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.

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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

September 12, 2013
Date