0120110019
05-18-2011
Oscar W. Miller, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Oscar W. Miller,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120110019
Agency No. 4H300014210
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s September 2, 2010 final decision 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Part-Time Regular Mail Processing Clerk at the Agency’s Atlanta
Central City Carrier Annex facility (CCCF) in Atlanta, Georgia.
On March 26, 2010, Complainant filed a formal EEO complaint alleging
that the Agency discriminated against him on the bases of sex (male),
disability (military service-connected and workers’ compensation
injuries), age (53), and reprisal for prior protected EEO when, on January
8 and February 13, 2010, he was charged with being Absent Without Official
Leave (AWOL).
The Agency conducted an investigation into the complaint. At the
conclusion of the investigation, Complainant was provided with a copy
of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge. Complainant requested a
final decision pursuant to 29 C.F.R. § 1614.110(b).
The evidence gathered during the investigation revealed the following
facts. It is undisputed that Complainant did not report for work on the
two dates in question. However, Complainant alleges he could not speak
personally to a supervisor to report his absences because the station he
reports to failed to open by his reporting time. However, Complainant
asserted that he called into the automated call-in service and received
a confirmation of his call-in on one of the two days, February 13, 2010.
Complainant averred that when he returned to work on January 11, 2010,
and February 14, 2010, after his absences on January 8th and February
13th, he submitted the appropriate leave request forms to management.
The evidence of record includes a PS Form 3971, Request for or
Notification of Absence, submitted by Complainant for the period January
8 through 11, 2010, dated January 13, 2010. The form requested "other"
leave for 18 hours during those dates, and Complainant noted on the
form that the CCCF was closed. The Acting Manager (AM) disapproved
the request, noting “station open, no call, no show.” The record
also includes an unsigned PS Form 3971 for February 13, 2010, with
the comments, “NOT 100, NOT FMLA, No call received.” The time and
attendance report for Complainant shows his normal start time was 4:00
a.m. and he was scheduled for a six-hour shift. Complainant was charged
6 hours of leave without pay (LWOP) on January 8, 2010, 6 hours of AWOL
on January 9, 2010, and 6 hours of AWOL on January 11, 2010. On February
13, 2010, Complainant was charged 6 hours of LWOP.
Complainant alleged that the AM intentionally discriminated against
him. Complainant stated that in August 2009 he had filed a prior EEO
complaint, case number 4H-300-0214-09, also involving leave usage.
He said that the AM was the acting manager at the time of the prior
complaint and was aware of his EEO activity.
Complainant further stated that he has a degenerative joint disease which
affects his legs, feet, and spine, and is permanent. He further stated
that he has had the condition for 21 years, and he has flare ups and
everyday joint stiffness that limit his ability to engage in walking,
cooking, shopping, dressing, bathing and sitting. Complainant asserted
that heavy lifting, stooping and repetitive bending at work had caused
an increase in the degenerative changes in his joints and back. He also
asserted that management was aware of his condition because he provided
documentation to them in June 2009. When asked to provide documentation
of his alleged disability, Complainant submitted two one-page letters
from a physician at the Veteran's Administration Clinic, dated September
6, 2007, and September 11, 2008. The letters stated that Complainant
has a history of degenerative spine disease, with chronic cervical and
lumbar pain and degenerative joint changes bilaterally in both knees
with associated pain. The letters stated Complainant's job duties
contributed to the progressive deterioration and pain in his back and
knees. The September 6, 2007 letter stated that Complainant should avoid
heavy lifting, stooping, and repetitive bending, but the September 11,
2008 letter did not mention those restrictions. The letters were not
accompanied by reports of examination or laboratory findings.1
In its final decision, the Agency found no discrimination. The Agency
determined that management had recited legitimate, nondiscriminatory
reasons for its actions. Specifically, the AM stated that Complainant
failed to show up for work on January 8, 2010, and February 13, 2010,
which were snow days and employees were allowed two hours to get in
to work. The AM further stated that the facility was not closed on
either day, and there was no notice in the news indicating that the
facility would be closed. She asserted that Complainant failed to call
in or show up for work on January 8, 2010, and she did not hear anything
from him until the following Tuesday, January 12, 2010, when he reported
to work. The AM further asserted that Complainant was also scheduled to
work on both Saturday, January 9, 2010, and Monday, January 11, 2010,
but did not call in or report to work on those days either. She also
stated that Complainant did call in on February 13, 2010, but did not
show up for work.
The AM further stated that Complainant was charged with AWOL when he
failed to call in and failed to report to work. She further maintained
that she relied upon the Agency’s written attendance policies in
charging Complainant AWOL. The AM stated that Complainant's sex and age
were not factors in his receiving AWOL for January 8, 2010, and February
13, 2010, and that she did not know his age but guessed that he might be
in his late 40s or early 50s. She also stated that she was not aware of
Complainant having engaged in prior EEO activity. Additionally, the AM
testified that she did not know what condition, if any, Complainant had.
She averred that she believed Complainant had a lifting limitation which
he worked around. The AM maintained that she has not received any medical
documentation concerning a medical condition, and Complainant was able
to perform all of his job duties and was not on any type of limited or
light duty. The AM asserted that any medical condition/limitations were
not a factor in Complainant being charged AWOL on January 8, 2010 and
February 13, 2010.
The Agency, in its final decision, then concluded that Complainant had
failed to prove, by a preponderance of the evidence, that management’s
articulated reasons for its actions were a pretext for discriminatory
or retaliatory motivations. The instant appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999). (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”).
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). He
must generally 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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant
must prove, by a preponderance of the evidence, that the agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
On appeal, Complainant mainly challenges the credibility of Agency
witnesses in this matter. However, beyond his bare assertions,
Complainant has not produced evidence to show that the Agency’s
explanations for its actions are a pretext for discrimination.
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.
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
May 18, 2011
__________________
Date
1 There is no indication that Complainant is alleging a denial
of reasonable accommodation for his asserted disability in this
case. Therefore, we will analyze this case solely as a claim of disparate
treatment. For purposes of this analysis, we assume, without finding,
that Complainant was a qualified individual with a disability.
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0120110019
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110019