Moshe C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Sep 13, 2019

2019001529 (E.E.O.C. Sep. 13, 2019)

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

Moshe C.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.

Appeal No. 2019001529

Agency No. 4G-770-0263-15

DECISION

On September 20, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 9, 2018 final action concerning an equal employment opportunity (EEO)
complaint claiming 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a City Letter Carrier at the Agency’s Oak
Forest Post Office in Houston, Texas.

On August 14, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve
his concerns were unsuccessful.

On November 19, 2015, Complainant filed the instant formal complaint. Complainant claimed
that the Agency discriminated against him based on race (African-American), sex (male), and
age (over 40) when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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1. on July 22, 2015, he was not allowed to work on his non-scheduled day; and

2. he was issued a Notice of Suspension for attendance.

After an investigation, Complainant was provided a copy of the investigative file, and requested
a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for
Partial Dismissal of Complaint and/or Motion for Decision Without a Hearing. Complainant did
not respond to the Agency’s motion. On August 2, 2018, the AJ issued a decision by summary
judgment in favor of the Agency. In its final action, the Agency adopted the AJ’s decision.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

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). 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 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 Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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
Construction 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 Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
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Once the agency has met its burden, the 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 Center v. Hicks, 509 U.S. 502 (1993).

Regarding claim 1, Complainant asserted that on July 22, 2015, he was not allowed to work on
his non-scheduled day.

The AJ noted that during the relevant period, Complainant was on the Overtime Desired List.
Complainant was scheduled to work on July 20 and 21, 2015. The AJ noted, however, on those
two days Complainant called the Agency’s automated employee absence reporting telephone
number to request unscheduled sick leave and did not report to work.

On July 22, 2015, Complainant reported to work on his non-scheduled day and the Manager,
Customer Services (“Manager”) did not allow him to work that day. According to the Manager
(African-American female, year of birth 1958), she stated that because Complainant called in
sick on July 20 and 21, 2015 (including one day that fell on his birthday), management was
unprepared for him to arrive on his off day willing to work. Furthermore, the Manager stated
that she was not aware of any employee who called in sick when scheduled to work but reported
to work on his or her off day and was allowed to work.

Regarding claim 2, Complainant alleged that he was issued a Notice of Suspension for
attendance.

The record reflects that in his decision, the AJ dismissed claim 2 pursuant to 29 C.F.R. §
1614.107(a)(2) for untimely EEO Counselor contact. Specifically, the AJ found that
Complainant’s initial EEO Counselor contact on August 14, 2018, was beyond the time
limitations established by EEOC regulations.

Further, the AJ stated even assuming Complainant’s claim regarding the Notice of Suspension is
construed as timely raised with an EEO Counselor, Complainant nevertheless “has failed to
establish as a matter of law drawing all inferences from the undisputed materials facts in his
favor that the responsible management officials took the actions of which [he] complaints in this
case on the bases of his race, sex, and age, under either a harassment or disparate treatment.”

Complainant was scheduled to work on Saturday, May 23, 2015, which was his designated
holiday for Memorial Day holiday. However, Complainant took unscheduled leave on that day
and did not report for work.

On June 11, 2015, the Supervisor, Customer Service (“Supervisor”) issued Complainant a Notice
of 14-Day Suspension for Unacceptable Attendance/Absence Without Leave. The record
contains a copy of the June 11, 2015 Notice in which the Supervisor placed Complainant on
notice that he would be issued 14 days no-time-off suspension for not reporting to work on May
23, 2015.

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The Supervisor asserted that on May 28, 2015, Complainant was “given an opportunity to
explain your actions in the presence of your union representative and you stated, ‘I did not see
the schedule.’ Your explanation has been noted and is unacceptable. You failed to give any
acceptable mitigating reason as to why you failed to provide any documentation and/or call the
eRMS call in center to notify your supervisor of your inability to work.”2

Further, the Supervisor stated that Complainant was in violation of the following sections of the
Employee and Labor Relations Manual: 511.41 “Unscheduled Absence,” 511.43 “Employee
Responsibilities,” and 513.362 “Over Three Days.” The Supervisor also noted Complainant was
issued a 7-Day Suspension dated January 29, 2015.

Moreover, the Supervisor stated that Complainant’s race, sex and age were not factors in her
decision to issue him a 14-day suspension.

Based on this evidence, the AJ concluded the responsible management official articulated
legitimate, non-discriminatory reasons for its actions. Our independent review of the evidence of
record, fully supports the AJ’s conclusions. We again note that Complainant failed to raise any
arguments on appeal.

We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing,
finding no discrimination.3

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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.

2 The term eRMS is an abbreviation for Enterprise Resource Management System.

3 Because we affirm the AJ’s finding of no discrimination concerning claim 2 for the reason
stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. untimely EEO
contact).

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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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.
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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 13, 2019
Date