Valentine F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

2019001859 (E.E.O.C. Sep. 11, 2019)

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

Valentine F.,1
Complainant,

v.

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

Appeal No. 2019001859

Hearing No. 410-2017-00121X

Agency No. 1K-302-0039-16

DECISION

On December 8, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 8, 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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the relevant period, Complainant worked as an Electronic Technician at the Agency’s
Atlanta Processing and Distribution Center in Atlanta, Georgia.

On June 6, 2016, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against him based on race (Black), disability and in reprisal for prior EEO
activity when:

1. from February 9, 2016 to February 14, 2016, his requests for annual leave were
denied and he was charged with Leave Without Pay (LWOP);

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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2. his requests for annual leave and sick leave were denied, and he was subsequently
charged LWOP for January 9-13 and 24-31, 2016, February 9-18, 2016, May 1 and
20, 2016, July 1, 17, and 28 2018;

3. he was assigned to work on the Delivery Bar Code Sorter (DBCS) and he was not
included in the rotation to work other equipment; and

4. he had been assigned duties which he believes exceeded his work restrictions.

After an investigation of the complaint, 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 a Decision Without a Hearing. On November 1, 2018, the AJ issued a decision
by summary judgment in favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the formal complaint:

Complainant suffers from chronic osteoarthritis in his left hip, left hip join pain, and left rotator
cuff syndrome since around 2011.2 Shortly before the events at issue, Complainant was on leave
pursuant to the Family and Medical Leave Act (“FMLA”) to care for his impairments and
returned to work with medical documentation identifying his work restrictions.3 During the
relevant period, Complainant reported to several supervisors (all African American).

Complainant alleged that on a number of identified occasions his requests for paid leave (annual
or sick) were denied and he was charged with being on leave without pay (LWOP). Two of
Complainant’s supervisors at the time explained that Complainant's requests for paid leave were
denied because he either did not provide appropriate documentation to justify the leave or he did
not show up for work and did not call the Agency to inform management that he would be absent
from work.

Complainant also asserted that he was assigned to work on the Delivery Bar Code Sorter
(DBCS) and not included in the rotation to work other equipment.

Supervisor 1 and Supervisor 2 explained that there is no rotation for the Delivery Bar Code
Sorter and Complainant is not assigned to only DBCS and assignments are based on business
needs and employees’ skill levels.

2 For purposes of this analysis, we assume, without so finding, that Complainant was an
individual with a disability.

3 However, in his affidavit given during the investigation, Complainant indicated that “there are
no medical restrictions that hinders me from performing my job duties.”
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Finally, although Complainant included in his complaint that he was required to work outside his
medical restrictions (claim 4), during the investigation he, in effect withdrew the claim by
indicating “N/A [not applicable]” by the questions pertaining to this claim. Therefore, we will
not address this claim any further.

Based on this evidence, the AJ concluded no discrimination or unlawful retaliation was
established. The Agency issued its final action adopting 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). 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).
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Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. In
sum, Complainant's requests for paid leave were denied because he did not provide appropriate
documentation to justify the leave or he did not show up for work and did not call the Agency to
inform management that he would be absent from work. With regard to his assignment to the
DBCS, the supervisors said assignments were based on business needs and employees’ skill
levels.

Complainant did not prove, by a preponderance of the evidence, that these proffered reasons
were a pretext designed to mask discrimination or unlawful retaliation.

We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing,
finding no discrimination.4

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.
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).

4 On appeal, Complainant does not challenge the June 21, 2016 partial dismissal issued by the
agency regarding one other claim (that he was discriminated against on the bases of disability
and in reprisal for prior EEO activity when on February 9 - 14, 2016 and on specified dates, his
request to have his absences covered under the FMLA have been denied). Therefore, we have
not addressed this issue in our decision.

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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 11, 2019
Date