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

Equal Employment Opportunity Commission

May 15, 2013

0120120826 (E.E.O.C. May. 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
(New York Metro Area),
Agency.

Appeal No. 0120120826

Hearing No. 530-2008-00159X

Agency No. 1A-086-0014-07

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s October 19, 2011
appeal from the Agency’s August 5, 2011 final order concerning his 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.1

The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
final order.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler
Group Leader at the Agency’s Processing and Distribution Center in Trenton, New Jersey. In
August 2005, Complainant entered into a Last Chance Agreement wherein he agreed to be

1 The Agency urges the Commission to dismiss Complainant’s appeal as untimely based on a
track and confirm document purportedly showing when Complainant received the final order.
The document, however, does not sufficiently indicate when Complainant received the final
order at his address of record and there is no information in the record revealing when
Complainant received the final order. The Commission notes that where, as here, there is an
issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to
support a reasoned determination as to timeliness.” See Guy v. Dep't of Energy, EEOC
Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request
No. 05920506 (Aug. 25, 1992)). The Commission finds that the Agency has not met this
burden and deems the instant appeal timely.
0120120826

2
regular in attendance in exchange for a prior Notice of Removal to be held abeyance for two
years. Complainant agreed to report for duty on time and as scheduled and to incur no more
than three absences over a three-month period. Further, Complainant agreed to submit
acceptable documentation in support of any absences not approved in advance.

Throughout 2006, Complainant’s attendance did not improve, and he failed to report to work
on an excessive amount of days from January 2006 through October 12, 2007, using some
form of unscheduled leave. Additionally, Complainant incurred frequent instances of leave
without pay (LWOP) and absence without official leave (AWOL). In July 2006,
Complainant’s supervisor warned Complainant about his attendance. In September 2006,
Complainant felt ill at work and went to the hospital where he was admitted and had surgery
for a liver cist. Complainant’s doctor submitted a note to management informing them that
Complainant had undergone surgery and would be cleared to return to work on November 1,
2006. Complainant returned to work around November 5, 2006, but left after a few hours
feeling ill. Complainant did not return to work after that day.

Complainant’s supervisor informed Complainant that he needed to submit sufficient
documentation to support his absences. Complainant submitted a note from his doctor stating
that he would be out of work indefinitely. Complainant failed to submit sufficient
documentation in support of his prior absences. On November 15, 2006, the Agency sent
Complainant a Letter of Availability informing him that he was in AWOL status and requested
documentation in support of his absences. The letter informed Complainant that this was his
final opportunity to explain his absences. Complainant failed to respond to the letter.

On November 30, 2006, the Agency sent Complainant a pre-disciplinary interview letter
informing him that he was required to attend a pre-disciplinary interview or face removal. The
letter was returned unclaimed, and Complainant failed to appear for the interview.

On March 12, 2007, Complainant’s wife contacted the Acting Distribution Operations
Manager (AM) regarding Complainant’s absences. AM advised Complainant’s wife to submit
medical documentation to support Complainant’s inability to work. Complainant’s wife
submitted documentation regarding a surgery scheduled for April 3, 2007, but did not provide
any information regarding Complainant’s prior absences. On April 19, 2007, Complainant
was issued a Notice of Removal effective May 31, 2007. The notice charged Complainant
with violating the Last Chance Agreement, continuous AWOL, and failure to follow
instructions.

On September 5, 2007, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of disability when he received a Notice of Removal
effective May 31, 2007, for Violation of Last Chance Agreement/Continuous Absence Without
Official Leave/Failure to Follow Instructions. At the conclusion of the investigation, the
Agency provided Complainant with a copy of the report of investigation (ROI) and notice of
his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely
0120120826

3
requested a hearing. The AJ granted the Agency’s motion for summary judgment and issued a
decision on September 9, 2011.

In her decision, the AJ assumed arguendo that Complainant had established a prima facie case
of discrimination and determined that the Agency had articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, Complainant was issued the Notice of Removal based on
his failure to be regular in attendance as required under the Last Chance Agreement.
Complainant failed to report to work on an excessive number of days throughout 2006 and,
after November 2006, Complainant did not report to work at all. Complainant failed to submit
documentation in support for most of his absences. In addition, Complainant’s failure to
report to work violated the Employee and Labor Relations Manual. As a result of his violation
of the Last Chance Agreement and the Employee and Labor Relations Manual, Complainant
was issued the Notice of Removal.

The AJ concluded that Complainant had presented no evidence that the Agency’s reasons for
its actions were pretextual. As a result, the AJ found that Complainant had not been
discriminated against as alleged. The Agency subsequently issued a final order adopting the
AJ’s decision. Complainant filed the instant appeal without submitting any contentions or
arguments in support.

ANALYSIS AND FINDINGS

The AJ’s Issuance of Summary Judgment

The Commission's regulations allow an AJ to grant summary judgment 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.

Upon review of the record, the Commission determines that there are no genuine issues of
material fact or any credibility issues which required a hearing and therefore the AJ's issuance
of summary judgment was appropriate. The Commission finds that, even assuming all facts in
his favor, a reasonable fact finder could not find in Complainant’s favor, as explained below.

0120120826

4
Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he
must first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was
a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Tx. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,
Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor
Ctr. v. Hicks

, 509 U.S. 502 (1993).
In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the Commission finds that the Agency has articulated legitimate,
nondiscriminatory reasons for Complainant’s removal. Specifically, Complainant was issued
the Notice of Removal for violating the Last Chance Agreement, continuous AWOL, and
failure to follow instructions. ROI, at 105. Complainant had signed a Last Chance Agreement
specifying that he was to be regular in attendance and was to submit acceptable documentation
for any absences not approved in advance. Id. at 121. Complainant failed to be regular in
attendance and was absent a significant number of days without acceptable documentation in
support of those absences. Id. at 91, 113-17. In November 2006, Complainant stopped
reporting to work and was placed in AWOL status. Management sent Complainant a Letter of
Availability requesting documentation in support of his absences and Complainant failed to
provide the requested documentation. Id. at 105. Finally, Complainant failed to attend a pre-
disciplinary interview to address his attendance irregularities. As a result, Complainant was
issued the Notice of Removal for violating the Last Chance Agreement, continuous AWOL,
and failure to follow instructions.

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.

Construing the evidence in the light most favorable to Complainant, the Commission finds that
the record does not establish that Complainant’s disability 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 discriminatory animus. Complainant has failed to carry this
burden. Accordingly, the Commission finds that Complainant has failed to show that he was
discriminated against as alleged.

0120120826

5
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 order, because the Administrative Judge’s grant of summary judgment was
appropriate and a preponderance of the record evidence does not establish that discrimination
occurred.

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 (Nov. 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.
0120120826

6
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

May 15, 2013
Date