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

Equal Employment Opportunity Commission

Aug 7, 2013

0120122207 (E.E.O.C. Aug. 7, 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
(Eastern Area),
Agency.

Appeal No. 0120122207

Hearing No. 531-2011-00165X

Agency No. 4C-080-0090-10

DECISION

Complainant filed an appeal from the Agency’s final order dated April 13, 2012, finding no
discrimination with regard to her complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In her complaint, dated August 8, 2010, Complainant alleged discrimination based on race
(Asian) and religion (Muslim) when: while she was out of the country, she was not paid
Family and Medical Leave Act (FMLA) leave requested from February 20, 2010, through
April 26, 2010; and she received a notice of removal dated April 2, 2010, and effective May
2, 2010. The record indicates that Complainant subsequently filed a grievance and on
February 27, 2011, an arbitrator issued a decision in favor of Complainant and ordered the
Agency to rescind the notice of removal.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On March 28, 2012, the AJ issued a decision without
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holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s
decision. 1

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The AJ noted that during the relevant time period at issue,
Complainant was employed as a Part-Time Flexible Sales and Service Associate at the
Agency’s Atlantic City Post Office in Atlantic City, New Jersey.

On February 20, 2010, Complainant called her supervisor to inform him that she had to go to
Pakistan for 2-3 weeks because her grandmother was seriously ill. At that time, Complainant
had 36.6 hours of annual leave and 36 hours of sick leave. The Agency indicated that
Complainant did not request leave or FMLA leave at that time or in advance. The Agency
noted that Complainant was at work prior days on February 16 – 19, 2010. The Agency stated
that on February 20, 2010, the supervisor asked Complainant to submit necessary
documentation to support her absence. When Complainant failed to submit any documentation
for her leave, on March 2, 2010, the Agency issued a “Letter of Availability for Duty” to her

1 In her complaint, Complainant also alleged that whenever she requested leave, the leave was
never approved regardless of how far in advance the leave was requested and she was denied
leave on September 9, 2009. On September 8, 2010, the Agency dismissed this claim for
failure to state a claim and/or due to untimely EEO Counselor contact pursuant to 29 C.F.R.
§§ 1614.107(a)(1) and (2), respectively. However, since Complainant failed to raise this
dismissal during the hearing or on appeal, we will consider this dismissed claim as abandoned.
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at her address of record requesting her to submit necessary documentation within five days if
she believed her absence was covered under FMLA. Complainant acknowledged that her
relative was picking up her mail for her while she was in Pakistan. Complainant did not
respond to the foregoing letter or submit any necessary documentation, and on March 18,
2010, management issued Complainant a pre-disciplinary interview notice scheduled to be held
on March 22, 2010. On March 22, 2010, Complainant called her supervisor and told him that
she was still in Pakistan and told him that she would not be attending the pre-disciplinary
interview. The Agency indicated and Complainant acknowledged that she did not attempt to
reschedule the interview at that time.

Complainant claimed that she faxed to management a copy of the airline ticket and a letter
from the travel agent in the end of February and beginning of March, 2010. However, later
on March 20, 2010, she learned that the Agency did not receive any documentation she faxed
previously. Thus, on March 27, 2010, stated Complainant, she re-faxed all documents she
previously faxed, including information about her grandmother’s death on March 20, 2010,
and her mother and her child’s illness while she was in Pakistan.

On April 2, 2010, the Agency issued Complainant a notice of removal effective May 2, 2010,
due to her continuous absence without official leave since February 20, 2010. The Agency
indicated that Complainant failed to submit proper documentation for her leave and never
requested leave under FMLA, and that caring for one’s grandparent was not covered by
FMLA. The Agency added that Complainant’s documentation showed that she made the travel
reservations on February 15, 2010, with a return date of April 26, 2010, which showed that
her absence was premeditated and she had no intention of returning in two weeks as she told
her supervisor on February 20, 2010. Complainant claimed that she was not able to return to
the United States until April 26, 2010, due to her grandmother’s death on March 20, 2010, and
due to her mother and her daughter’s illness while she was staying in Pakistan. Complainant
returned to work on April 27, 2010.

Based on the foregoing, we find that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for the alleged actions. The record clearly indicates that
Complainant did not request leave and/or FMLA leave in advance of her two-month absence
from work. Furthermore, despite her purported attempts, Complainant nevertheless failed to
timely provide documentation to support her leave/absence as requested by the Agency. We
also find that Complainant failed to show that she was treated less favorably than a similarly
situated employee under similar circumstances. Based on the foregoing, we find that
Complainant has failed to show that the Agency’s action was motivated by discrimination as
she alleged.

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.

0120122207

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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.

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
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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 7, 2013
Date