0120080615
03-17-2011
Donnie Andrews, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Donnie Andrews,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120080615
Hearing No. 480-2007-00127X
Agency No. 1F-901-0137-06
DECISION
On November 12, 2007, Complainant filed an appeal from the Agency's
October 11, 2007, 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. The Commission accepts the appeal pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's
issuance of a decision without a hearing was appropriate; and (2)
whether Complainant established that the Agency discriminated against
him on the bases of race, disability, age, and reprisal for engaging in
prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Casual Mail Processor at the Agency's Los Angeles, California Processing
and Distribution Center (P&DC).1 Effective February 9, 2006, Complainant
received a Casual Appointment with an expiration date of May 9, 2006.
Complainant attested that he has permanent nerve damage on both of his
lower legs due to third degree burns from military service.
On January 13, 2006, before his employment began, Complainant signed
two documents that set forth the terms and conditions of his position.
A Casual Employment (Casual Clerk / Mail Handler) form advised Complainant
that, "[a]s a casual employee, [he] will be expected to work the schedule
deemed necessary by the [Agency], including weekends, holidays and all
tours ... If necessary, [he] may be required to work in excess of eight
(8) hours per day or more than 40 hours per week." A second form listed
the functional requirements and environmental factors of the position,
which included "Walking (8 hours)" and "Standing (8 hours)," but did not
include "Protracted or irregular hours of work." Complainant indicated
"No" in response to the question, "Do you have any medical disorder
or physical impairment which could interfere in any way with the full
performance of duties of the position for which you are applying?"
On February 6, 2006, the Medical Unit cleared Complainant for employment.
A Medical Assessment Determination found that Complainant had "[n]o
medical limitations or restrictions" and was "medically qualified to
perform the functions of the position."
On February 9, 2006, Complainant began his employment as a Casual
Mail Processor. Complainant's First Level Supervisor was a Supervisor,
Distribution Operations (S1). Complainant was also supervised by two
Acting Supervisors, Distribution Operations (AS1, AS2). Complainant's
Second Level Supervisor was the Acting Manager, Distribution Operations
(AMDO). Complainant's Third Level Supervisor was the Senior Manager,
Distribution Operations (SMDO).
During his first week of employment, Complainant told S1 that he was
a disabled veteran and requested not to work overtime as a reasonable
accommodation. S1 asked Complainant for medical documentation to support
his accommodation request. On February 14, 2006, Complainant visited
the Long Beach Veterans Affairs Medical Center (VAMC). A nurse told
Complainant that, due to patient volume, he would have a two month wait
for an appointment with his physician. In a VAMC medical note dated
March 28, 2006, a staff physician indicated that Complainant visited the
facility on February 14, 2006 and that, "pending further evaluation of
back and leg pain, we recommend that this patient not work more than 40
hours per week."
On February 15, 2006, Complainant wrote a letter to the Plant Manager
regarding his accommodation request. Complainant stated that his
request was to work a normal eight-hour day for the duration of his
Casual employment, as opposed to the eleven-hour day he was being
required to work. Complainant explained, "My legs were injured while
in the military and this accelerated pace is problematic" because "the
excessive hours leave my legs sore." Noting that he had a two-month
wait for an appointment with his VAMC physician, Complainant asked,
"Since I am a former Career employee and working in the same location
could they accommodate my request until I can get the appointment and
bring the doctor[']s light duty documentation[?]"
On February 16, 2006, Complainant wrote a similar letter to the Acting
SMDO. Complainant noted that he had requested accommodation "due to
[t]he fact he is a disabled veteran; the [Agency] has records of this."
Complainant explained that his request was to work eight hours a day
and that "[his] legs are the area of concern." Complainant stated that,
earlier that day, AMDO prevented him from turning in his VAMC paperwork
(which indicated that he had a two-month wait for an appointment) to the
Medical Unit and stopped him from filling out a routing slip to request
a meeting with the Acting SMDO.
On February 23, 2006, Complainant filed a Report of Hazard, Unsafe
Condition or Practice. Complainant wrote, "The higher than normal work
schedule is currently causing me physical discomfort in my lower legs ..."
In response, S1 wrote:
As discussed on ... Feb. 14, 2006, medical documentation must be
presented. All casuals are required to work the hours as instructed
... The work hours required of a casual employee may vary any day. The
number of days in a week varies according to the needs of the [Agency].
This is not the correct form to address a personal health condition.
On March 10, 2006, AS1 and AS2 instructed Complainant to check with AS1
each day to find out what time he had to report to work on the following
scheduled work day and to find out what his scheduled off day would be
for that week.
On March 11 and 12, 2006, Complainant did not report to work. On February
6, 2006, the Medical Unit cleared Complainant for employment.
On March 15, 2006, AS1 and AS2 met with Complainant to ensure that he
was aware of certain procedures that Casual employees had to follow
regarding work schedules. First, they told Complainant that he failed
to follow the reporting instruction on March 13 and, as a result,
he reported to work on March 14 at 4:30 p.m. instead of at 3:30 p.m.
Second, they again instructed Complainant to check in with AS1 each
day for his reporting schedule and told him that he could find a posted
schedule of the reporting times on AS1's desk if he could not find AS1.
Third, they instructed Complainant not to leave his tour of duty until
he was told to do so by AS1 or another supervisor.
On March 21, 2006, Complainant sent a routing slip to AS1, AMDO, and SMDO
which stated in part: "I object to the [Agency]'s unreasonable failure
to give appropriate notice of change of schedule. Every employee is
entitled to have a schedule around which he can plan his daily / weekly
responsibilities at home."
On March 22, 2006, AS1 instructed Complainant to take his break and
return to the section afterwards, but Complainant instead clocked out and
left work. Complainant later told AS1 that he went to the Medical Unit
to see the nurse because his legs were hurting after working 10 hours,
but she was not there.
On April 5, 2006, AS1 issued Complainant a Casual Employee Termination
Notice. Complainant was terminated effective March 22, 2006 for the
infraction of "Failed to follow instructions." Specifically, AS1 noted
the following: "You are given an instruction to see your unit supervisor
to find out about your reporting time and before leaving the building
you have to find out also if you are needed or the time for you to go
home. But you have failed to do so." In a Casual Employee Evaluation
/ Recommendation issued at the time of his termination, AS1 did not
recommend Complainant's rehire and rated Complainant as "unsatisfactory"
for the following factors: (1) attendance/punctuality; (2) ability to
understand and follow instructions; and (3) productivity and work habits.
AMDO concurred with AS1 on the termination and evaluation.
On August 3, 2006, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American),
disability (third degree burns and nerve damage to legs), age (52),
and reprisal for prior protected EEO activity2 when:
1. He was denied reasonable accommodation; and
2. On March 22, 2006, he was terminated from his position as a Casual
employee.
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
timely requested a hearing. Over the complainant's objections, the AJ
assigned to the case granted the Agency's August 21, 2007, motion for
a decision without a hearing and issued a decision without a hearing
on September 30, 2007. The Agency subsequently issued a final order
adopting the AJ's finding that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.
In her decision, the AJ separately analyzed each basis of discrimination.
Regarding the bases of race and age, the AJ found that Complainant
failed to establish a prima facie case of discrimination because there
was no evidence that he was treated differently than similarly situated
individuals outside his protected classes.
Regarding the basis of reprisal, the AJ initially found that Complainant
had established a prima facie case. Next, the AJ found that the Agency
articulated legitimate, nondiscriminatory reasons for Complainant's
termination; namely, Complainant did not come to work as scheduled and,
on one occasion, left work before he was released by AS1. Finally, the
AJ found that Complainant failed to show that the Agency's reason was
pretextual. The AJ noted that Complainant provided several explanations
for his actions: (a) working 10 to 11 hours per day caused pain in
his legs; (b) his schedule was always changing by an hour or so and he
received conflicting instructions about his reporting time; (c) AS1's
desk where his work schedule was posted was some distance from his work
area; and (d) the Agency's call-in system malfunctioned when he attempted
to call in. The AJ specifically cited the following statement made by
Complainant in his response to the Agency's motion for summary judgment:
"The [Agency]'s hubris in declaring the 'Contract' does not give me the
'right' to take off weekends, leave the building without 'permission'
or having family responsibilities that take precedent over my 'Contract'
obligations is fundamentally a modern form of enslavement." The AJ found
Complainant's statement to be "very telling." The AJ reasoned that,
clearly, Complainant did not accept the difference between being a Career
Mail Processor and being a Casual employee, without a set schedule or
the option of rejecting overtime. The AJ stated that Complainant should
have been on notice as to "what he was getting into" because he signed
the documents which set forth the terms and requirements of a Casual
appointment. The AJ found that the Agency followed its usual practice
with Casual employees and there was nothing to suggest that Complainant
was terminated for retaliatory reasons.
Regarding the basis of disability and the denial of accommodation claim,
the AJ found that Complainant did not establish that he was a qualified
individual with a disability, could not establish a prima facie case
of disability discrimination, and did not show that the Agency failed
in its obligation to reasonably accommodate him. Initially, the AJ
stated that the VA's disability designation was not the same as being
disabled under the Rehabilitation Act. In addition, the AJ found
that Complainant failed to engage in good faith in the interactive
process as was required, because he did not provide the Agency with any
current medical documentation to explain the nature of his impairment
and his limitations. As a result of Complainant's failure to engage in
good faith in the interactive process by providing medical support for
his accommodation request, the AJ found that the Agency was under no
obligation to provide him with a reasonable accommodation and possessed
no factual basis upon which to make any decision.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, asserted that genuine
issues of material fact exist as to: (a) whether it was Complainant
or the Agency who failed to make a good faith effort to engage in the
interactive process; and (b) whether the Agency's articulated reasons for
Complainant's termination was a pretext for retaliation. Regarding his
denial of accommodation claim, Complainant argued that he engaged in
the interactive process when he made numerous oral and written requests
for a schedule modification (in which he disclosed his VA disability
status) and provided the Agency with medical documentation from the VA.
In addition, Complainant argued that the Agency failed to engage
in the interactive process when it took no action in response to its
knowledge of his disability and his repeated requests for accommodation.
Further, Complainant argued that the AJ erred in finding that, prior to
triggering the Agency's obligation to engage in the interactive process,
Complainant was required to provide current medical documentation to
explain the nature of his disability and his limitations. Complainant
asserted that, once he made an accommodation request, the Agency was
required to engage in a five-step process to determine the validity,
necessity, and functionality of providing the requested accommodation.
Finally, Complainant argued that the AJ erred in finding that, without
current medical documentation, the Agency possessed no factual basis
upon which to make any decision. Complainant asserted that the Agency
was on notice about his need for accommodation, his 70 percent federal
disability rating which was reflected in his 18 years of Personnel and
Medical Unit records, and his inability to obtain a timely appointment
with his VAMC physician.
Regarding his termination claim, Complainant argued that the real reason
for his termination was in question because the Agency provided three
"widely contrasting reasons" for his termination in its termination
notice, its affidavits, and its motion for summary judgment. In addition,
Complainant argued that he was given instructions to follow that were
not given to other Casual employees only after he began complaining of
harassment and discrimination. Further, with respect to his alleged
absences on March 11 and 12, 2006, Complainant argued that one day he
called in sick through the Agency's automated system and the other day
was his regularly scheduled off day. Complainant noted that, despite
AS1 and AS2's Routing Slips to AMDO, management did not take any action
to officially document his alleged absences. Finally, Complainant argued
that it was no coincidence that he was terminated less than 2 days after
AS1, AS2, and AMDO were informed about his REDRESS Mediation meeting.
The Agency did not submit a statement or brief in opposition to
Complainant's appeal.
ANALYSIS AND FINDINGS
We note that, as a general rule, no new evidence will be considered on
appeal unless there is an affirmative showing that the evidence was not
reasonably available prior to or during the hearing process. EEO MD-110,
at Ch. 9, � VI.A.3. Here, Complainant sought to introduce the following
new evidence: (1) his December 11, 2007, declaration in support of his
appeal; (2) a February 15, 2006, medical note from a VA Clinic nurse
practitioner stating, "[CP] has known H/O service connected disabilities:
3RD DEGREE BURNS in his lower legs. According to [CP], working more
than 8 hours/day aggravates pain in his legs;" (3) a February 14, 2006,
medical note from a VAMC case manager stating, "Patient was at the VAMC
today, 2/14/06. First Available appointment w/ Primary Care Provider
... available on 4/20/06;" and (4) various sections of the Employee and
Labor Relations Manual (ELM). None of these documents were previously
part of the record; therefore, the AJ, in determining whether summary
judgment was appropriate, did not have access to them. Complainant has
not shown that this new evidence was not reasonably available prior to
or during the hearing process. Accordingly, we decline to consider this
new evidence on appeal.
Standard of Review
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the Agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an
Agency's final action shall be based on a de novo review . . ."); see also
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at Ch. 9, � VI.B. (Nov. 9, 1999) (providing that an AJ's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Ch. 9, � VI.A. (explaining that the de novo standard of review
"requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker," and
that EEOC "review the documents, statements, and testimony of record,
including any timely and relevant submissions of the parties, and
. . . issue its decision based on the Commission's own assessment of
the record and its interpretation of the law").
Summary Judgment
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment "where
the [party opposing summary judgment] has not had the opportunity to
discover information that is essential to his opposition." Anderson,
477 U.S. at 250. In the hearing context, this means that the AJ must
enable the parties to engage in the amount of discovery necessary to
properly respond to any motion for a decision without a hearing. Cf. 29
C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery,
if necessary, after receiving an opposition to a motion for a decision
without a hearing).
After a careful review of the record, we find that the AJ's issuance
of a decision without a hearing was appropriate. The record has been
adequately developed, Complainant was given notice of the Agency's motion
to issue a decision without a hearing, he was given an opportunity
to respond, he was given a comprehensive statement of undisputed
facts, and he had the opportunity to engage in discovery. On appeal,
Complainant asserted that a hearing is necessary because genuine issues
of material fact exist. We find that, even assuming all facts in favor
of Complainant, a reasonable fact-finder could not find in Complainant's
favor, as explained below. Therefore, no genuine issues of material
fact exist. Under these circumstances, we find that the AJ's issuance
of a decision without a hearing was appropriate
Reasonable Accommodation
Under the Commission's regulations, federal agencies are required to make
reasonable accommodation for the known physical and mental limitations
of qualified individuals with disabilities, unless an agency can show
that reasonable accommodation would cause an undue hardship. See 29
C.F.R. �� 1630.2(o) and (p); see Appendix. For purposes of analysis only,
we assume, arguendo, without so finding, that Complainant is an individual
with a disability entitled to coverage under the Rehabilitation Act
In response to a request for reasonable accommodation, an agency cannot
ask for documentation when: (1) both the disability and the need
for reasonable accommodation are obvious, or (2) the individual has
already provided the agency with sufficient information to substantiate
that he has a disability under the Rehabilitation Act and needs the
reasonable accommodation requested. See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, Notice No. 915.002, Q. 8 (Oct. 17, 2002). However,
an agency may ask an individual for reasonable documentation about his
disability and functional limitations when the disability or the need
for accommodation is not obvious. Id. at Q. 6. In addition, the agency
may require that the documentation about the disability and functional
limitations come from an appropriate health care or rehabilitation
professional. Id. Further, if an individual's disability or need for
reasonable accommodation is not obvious, and he refuses to provide the
reasonable documentation requested by the agency, then he is not entitled
to reasonable accommodation. On the other hand, failure by the employer
to initiate or participate in an informal dialogue with the individual
after receiving a request for reasonable accommodation could result in
liability for failure to provide a reasonable accommodation. Id.
Upon review of the record, we find that, even viewing the facts in the
light most favorable to Complainant, he was not entitled to reasonable
accommodation because, despite management's request, he provided
insufficient medical documentation to substantiate his disability under
the Rehabilitation Act and his need for the accommodation requested.
The record reflects that Complainant provided management with information
about his status as a disabled veteran, stated the specific accommodation
he was requesting (no overtime hours), and described generally what
his impairment was and why he needed the accommodation. For example,
Complainant noted in his February 15 and 16, 2006 letters to management
that "[his] legs were injured while in the military," "the accelerated
pace is problematic," "the excessive hours leave [his] legs sore," and
"[his] legs are the area of concern." However, there is no evidence in
the record that, before his termination, Complainant provided management
with any medical documentation detailing the exact nature of his physical
impairment or setting forth his functional limitations.3
On appeal, Complainant argued that, even without current medical
documentation, the Agency had a sufficient factual basis upon which to
make a decision on his accommodation request. We disagree. Even if the
Agency had information about his 70 percent VA disability rating or other
medical information from his 1986 to 2004 tenure as a Career employee,
we find that Complainant failed to show that such prior information
would have been sufficient for the Agency to substantiate that, in 2006,
he had a disability under the Rehabilitation Act and needed the requested
accommodation. In addition, Complainant argued that the Agency failed to
engage in the interactive process. We note that an agency's failure to
engage in the interactive process does not, by itself, demand a finding
that a complainant was denied a reasonable accommodation. See Broussard
v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002). Rather,
to establish a denial of reasonable accommodation, a complainant must
show that the failure to engage in the interactive process resulted in
the agency's failure to provide reasonable accommodation. Id. In this
case, as explained above, Complainant was not entitled to reasonable
accommodation because he provided insufficient medical documentation
to substantiate his disability under the Rehabilitation Act and his
need for the accommodation requested. Therefore, even if the Agency
failed to engage in the interactive process, we would still find that
Complainant was not subjected to discrimination as alleged.
Termination
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 he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. 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, 441
U.S. at 804 n.14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas 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
Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks,
509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of
discrimination on the bases of race, disability, age and reprisal, we
find that the Agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, S1 attested that Complainant failed to follow
instructions and was rated unsatisfactory in the areas of attendance
and punctuality, ability to understand and follow instructions, and
productivity and work habits. In addition, AS1 attested that Complainant
failed to follow instructions numerous times. Further, AMDO attested
that Complainant continuously failed to follow instructions in terms of
reporting time, when to leave or report to another unit, and even when
told directly by his supervisors he still failed to follow instructions.
Finally, SMDO attested that Complainant was unable to work the hours
required of the Casual employees at that time and there were also many
documented issues where he failed to follow instructions issued by his
supervisors or report to work on weekends.
Because the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to demonstrate by a
preponderance of the evidence that the Agency's reasons are a pretext for
discrimination. On appeal, Complainant argued that retaliatory animus was
reflected by the Agency's shifting explanations for his termination and
by the temporal nexus between his termination and management's knowledge
of his REDRESS Mediation. In addition, Complainant provided explanations
for his absences on March 11 and 12, 2006.
Upon review of the record, we find that Complainant failed to prove,
by a preponderance of the evidence, that the Agency's reasons were a
pretext for discrimination. Regarding his assertion that the Agency
set forth "three widely contrasting reasons" for his termination, we
find that the record indicates that Complainant's failure to follow
instructions, particularly with respect to time and attendance, was the
primary reason for his termination. First, the termination notice listed
"Failed to follow instructions" as the infraction and specified that
the particular instruction related to checking in with his supervisor
about his reporting and departing time. Second, numerous routing slips
in March 2006 from AS1 and AS2 to AMDO detailed Complainant's failure to
follow instructions, which subsequently resulted in time and attendance
problems. Third, management consistently testified that Complainant's
failure to follow instructions and attendance issues were the reasons for
his termination. Fourth, the Agency's attorney cited documentary evidence
and affidavit testimony in arguing in the motion for summary judgment that
Complainant was terminated because he failed to follow instructions from
his supervisors and had attendance problems. Regarding Complainant's
argument that his termination's proximity to the REDRESS Mediation was
indicative of retaliation, we find that Complainant, aside from his
bare assertions, provided no evidence in support of this contention.
Regarding his explanation that he called in sick on March 11, 2006,
we note that Complainant admitted in his opposition to summary judgment
that there was a malfunction with the automated system and his call did
not go through. Regarding his explanation that March 12, 2006 (Sunday)
was his regularly scheduled off day, Complainant's processed clock rings
reflect that he did not appear to have a regularly scheduled off day,
but previously had off days on Wednesdays, Thursdays, and Saturdays.
Accordingly, we find that Complainant failed to show that the Agency's
reasons were a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
Final Order.
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 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
___3/17/11_______________
Date
1 Complainant was a Career Mail Processor at the Los Angeles P&DC for
approximately 18 years before resigning in 2004.
2 On February 17, 2006, Complainant filed an informal EEO complaint
(Agency No. 1F-901-0095-06) against AMDO. On March 20, 2006, the EEO ADR
Specialist informed S1, AS1, AS2, and AMDO that the REDRESS Mediation
for Complainant was scheduled for March 29. On March 29, 2006, the
informal complaint was resolved by a settlement agreement Complainant
filed other EEO complaints in 1992, 1993, 2005, and served as a union
shop steward for five years while he was a Career Mail Processor.
3 The record contains medical notes from a VAMC staff physician
indicating that, "pending further evaluation of back and leg pain,
we recommend that this patient not work more than 40 hours per week."
However, we emphasize that this note, dated March 28, 2006, was written
after Complainant termination on March 22, 2006.
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01-2008-0615
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080615