U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Breanne S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020001983 Agency No. 4E-680-0034-19 DECISION On December 14, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 12, 2019 final decision concerning her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed as a full-time Mail Processing Clerk at the Agency’s Downtown-Wichita Station in Wichita, Kansas. The record shows, on September 8, 2015, Complainant accepted “under total protest” a Modified Clerk position at the Downtown-Wichita Station. On September 15, 2017, the Agency abolished Complainant’s modified position at the Downtown-Wichita Station, making her an unassigned employee. Effective October 28, 2017, the Agency assigned Complainant as a Customer Care Agent to the Wichita Customer Care Center. 2 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. 2 We note, separately, Complainant alleged that the Agency breached an October 27, 2015 settlement agreement when it abolished her Downtown-Wichita Station modified position and 20200019832 On June 25, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (Anxiety, Depression, mental breakdown, back and knee on- the-job injuries) and reprisal for prior protected EEO activity (prior EEO complaints and grievances) when, approximately February 28, 2019, Complainant received a Notice of Removal for unacceptable attendance. The Agency accepted Complainant’s claim for EEO investigation. During the EEO investigation, Complainant stated that the Agency abolished her modified assignment and assigned her to a “high stress job” at the Customer Care Center. Complainant stated that her 79 absences were from the Customer Care Center and that she provided medical documentation to substantiate her absences. Complainant stated that management treated her disparately. The Downtown-Wichita Customer Service Supervisor (S1) stated that she is aware that Complainant has a medical condition that requires a modified job, but she is not privy to medical documentation regarding Complainant’s condition. S1 also stated that she is not aware of Complainant’s prior EEO activity, as she assumed the supervisory role at Complainant’s pay location in July 2018. S1 stated that the Agency used Complainant’s medical restrictions to create her modified assignment. S1 stated, on October 10, 2018, Complainant reported to the Downtown- Wichita Station Manager (S2) that she would not report to work. S1 stated that Complainant has not reported to work since the modified position was awarded in October 2018. S1 stated, on February 2, 2019, Complainant received a letter for an investigative interview scheduled for February 7, related to failure to report to work since October 15, 2018. S1 stated that Complainant did not attend the interview on February 7, and she and a union steward called Complainant but did not receive response. (S1 stated that the interview was Complainant’s opportunity to justify her absences.) S1 stated she made the decision to issue the Notice of Removal for absences between October 15, 2018 and February 6, 2019. She stated, the Agency’s utilization of progressive discipline (i.e., a Letter of Warning (LOW), 7-day Suspension, and 14-day Suspension) during 2018 meant removal was the next step. S1 stated that Complainant was on leave without pay (LWOP) between October 2018 and February 2019 and not under the Family and Medical Leave Act (FMLA). S1 stated that medical documentation is not provided to her directly as a supervisor, but rather to the Agency’s Human Resources Shared Service Center and its FMLA Coordinator. S1 stated that she never supervised the comparators Complainant cited as treated more favorably. assigned her to the Wichita Customer Care Center. On August 7, 2018, in a decision under EEOC Appeal No. 0120181412, the Commission found breach and ordered the Agency to reinstate Complainant with a “modified job offer” to its Downtown-Wichita Station. In EEOC Request No. 2019000626, the Commission denied the Agency’s request for reconsideration. The Commission’s compliance record shows that the Agency assigned Complainant to a modified position at Downtown-Wichita effective October 15, 2018, which is the position at issue herein. The record reflects further that Complainant applied for disability retirement on August 15, 2018. In a letter dated October 8, 2019, the Office of Personnel Management informed Complainant that her disability retirement application was withdrawn due to acceptance of permanent reassignment on January 16, 2019. 20200019833 The Downtown-Wichita Station Manager, S2, stated that Complainant began reporting to her in February 2016 and Complainant was already on her modified assignment at that time. S2 stated that Complainant was given a Modified Clerk position based on medical restrictions presented in 2015. S2 stated that she was aware of Complainant’s prior EEO activity. S2 stated that Complainant has not reported to work since September 17, 2017, and management issued progressive discipline in 2018 prior to resorting to the Notice of Removal. S2 stated that Complainant did not work the required 1250 hours for the year to qualify for FMLA leave. S2 stated that Complainant filed a grievance on the removal and the two parties agreed that Complainant would have 60 days to resign in lieu of termination. S2 concurred with Complainant’s removal. The record contains a Notice of Removal dated February 25, 2019, charging Complainant with “Unacceptable Attendance” between October 15, 2018 and February 6, 2019. The Notice mentioned Complainant’s missed opportunity to present her justification for irregular attendance at an investigative interview in early February. In addition, the record contains a LOW dated April 11, 2018, a 7-day suspension dated May 7, 2018, and a 14-day suspension dated July 30, 2018.3 Each disciplinary action alleged unsatisfactory attendance. Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency stated, “Complainant failed to refute evidence that she had not reported to work after being offered a modified duty assignment and that removal was the next step in the progression of discipline.” The instant appeal from Complainant followed. On appeal, Complainant stated that she never reported for the October 2017 modified assignment because she was “still under doctor care” and filed for disability retirement. Complainant stated, between October 2018 and February 2019, management improperly penalized her for absences across Headquarters (Customer Care Center) and a District Office (Downtown-Wichita), which is not allowed. Further, she stated that she used leave for said absences. 3 The EEOC Hearings database reflects active matters, identified as Hearing Nos. 560-2019- 00049X and 560-2019-00138X, for Complainant. The pending hearing requests pertain to Agency Nos. 4E-680-0005-18 and 4X-048-0044-18 - the September 30, 2017 abolishment of the Modified Clerk position/October 19, 2017 reassignment to the Customer Care Center and the July 30, 2018 14-day suspension, respectively. 20200019834 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). A claim of disparate treatment is examined under the three-part 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 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on disability or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for removing Complainant from Agency employment. The Agency stated that Complainant did not successfully refute its evidence that she was absent from work for 79 days between October 15, 2018 and February 6, 2019, after it offered her a modified duty assignment, and that removal was the next step in the progression of discipline. The record shows that Complainant did not participate in an investigative interview to justify her absences and she applied for disability retirement in 2018. We find further that Complainant failed to show, by a preponderance of the evidence, that the articulated reasons are a pretext for discrimination. 20200019835 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. 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). 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. 20200019836 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. 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 August 27, 2020 Date
