0120111228
06-07-2011
Jeff Perez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Jeff Perez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120111228
Hearing No. 550-2009-00018X
Agency No. 4F-940-0081-08
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s November 12, 2010 final order 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., 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
During the period at issue, Complainant was employed as a Distribution
Window Clerk, PS-05, at the Agency’s San Francisco, California Air
Mail Center.
On April 18, 2008, Complainant filed the instant formal complaint.
Therein, Complainant claimed that the Agency discriminated against him on
the bases of race (Asian/Pacific Islander), national origin (Hispanic),
sex (male), disability (diabetes, hepatitis, “veracies”, herniated
disc, tendonitis, psoriasis, alcoholism, depression and anxiety), age
(over 40), and in reprisal for prior protected activity when:
1. on November 19, 2007, he was issued a Notice of Removal effective
January 11, 2008;
2. on March 14, 2008, he was issued a Notice of Removal effective April
21, 2008; and
3. on April 30, 2008, he was informed he was not eligible to be enrolled
in a Federal Employee Health Benefit (FEHB) plan.1
Following the investigation into his formal complaint, Complainant
requested a hearing before an EEOC Administrative Judge (AJ). On November
8, 2010, the AJ issued a decision by summary judgment in favor of
the Agency.
The AJ found that the investigative record established the following
facts. When Complainant was at work, he was able to perform the essential
functions of his position without accommodation other than taking his
medication and being “cautious” at work. Over a period of years,
Complainant was warned that his attendance problems would result in
disciplinary action. Other than his irregular attendance, Complainant
was considered a good employee when at work.
On October 5, 2006, Complainant was issued a Notice of Removal for
irregular attendance and for being Absent Without Official Leave
(AWOL). Complainant filed a grievance concerning the October 2006 Notice
of Removal. On November 1, 2006, Complainant’s grievance was settled
with the parties agreeing that the Agency would reduce the Notice of
Removal to a seven-day suspension and Complainant would report to an
EAS employee whenever he knew he was not going to be able to come to work.
On March 1, 2007, Complainant was issued another Notice of Removal for
irregular attendance. He again filed a grievance over the removal and the
Agency agreed to reduce the Notice of Removal to a seven-day suspension.
On March 13, 2007, Complainant was issued yet another Notice of Removal
for irregular attendance. Complainant again grieved the matter and the
removal was reduced to a fourteen-day suspension “no time off.”
On August 4, 2007, Complainant retired from Agency employment. However,
the record reflects that on October 15, 2007, Complainant returned
to work.
Regarding claim 1, the record reflects on November 19, 2007, the
Supervisor, Customer Services (SCS) issued Complainant another Notice
of Removal, with an effective date of January 11, 2008, for irregular
attendance. Specifically, SCS stated that Complainant “had been
absent from duty in an AWOL status from October 22, 2007 and failed
to provide acceptable medical documentation or any other documentation
to substantiate his absence. The Complainant was sent a letter dated
October 29, 2007 instructing him to return to work immediately or
provide justification or evidence to support his continued absence.
Complainant failed to respond to this letter.”
The record reflects that Complainant filed a grievance concerning his
November 2007 grievance. As a result, the Notice of Removal was reduced
to a thirty-day “Last Chance” suspension, after which Complainant
was allowed to return to work. Complainant did not return to work after
February 13, 2008, as required by the grievance settlement. Complainant
also did not call to inform his supervisors he would not be at work and
he did not submit any medical documentation to support his absences.
The Manager, Customer Service (MCS) stated that she was the concurring
official concerning Complainant’s November 19, 2007 Notice of Removal.
MCS stated that during the relevant time, Complainant had been absent
from duty in an AWOL status from October 22, 2007 and “failed to
provide acceptable medical documentation or any other documentation to
substantiate his absence. The Complainant had a history of disappearing
for big blocks of time and not notify anyone or provide documentation.
The Complainant had a prior removal from March 2007 that was reduced to
a thirty-day suspension. The next step in the progressive disciplinary
process after a thirty-day suspension is a removal.”
Regarding claim 2, the record reflects that on March 3, 2008, SCS issued
Complainant a letter inquiring about his AWOL status and FMLA notification
based on his absence since February 25, 2008. Complainant was instructed
to complete forms and return them to SCS by March 6, 2008 to avoid
further disciplinary action. Complainant failed to do so. On March 14,
2008, SCS issued him another Notice of Removal, effective April 21, 2008,
for irregular attendance and failure to follow instructions. SCS stated
that Complainant’s attendance record “required me to issue Notice of
Removal dated March 14, 2008. He never reported back to work after his
prior removal letter which was reduced to the thirty-day Suspension.”
SCS further stated, “I did not receive any phone calls in 2008 from
the Complainant for his absences. I did not receive any documentation
in 2008.” Complainant filed another grievance, which was settled
with the agreement that he could retire instead of being terminated.
Complainant’s retirement became effective on April 30, 2008.
Regarding claim 3, the Personnel Processing Specialist (S1) stated
that she was the deciding official to not to enroll Complainant in
the FEHB plan because he missed his sixty-day window to reinstate his
benefits. Specifically, S1 stated that Complainant’s FEHB benefits
were terminated, “because he was in a non-pay status over 365 days.
That is an automatic termination. This policy is in the ELM and Guide to
Benefits Booklet sent to all employees during open enrollment season.”
S1 further stated that on November 26, 2007, Complainant contacted
the HRSCC and “he was instructed to have the Supervisor return a
LWOP Return to Duty Worksheet. The system shows he spoke to [a named
specialist] on that date. The system does not show that a LWOP Return
to Duty Worksheet was ever returned by the Complainant’s supervisor.”
Further, S1 stated that Complainant was advised that he had sixty days
from the date he returned to work to reinstate his benefits. S1 stated
that, “returning to work after being in a LWOP status for more than 365
days is called a ‘qualifying event.’ Employees have sixty days to
submit their request and forms to have their health benefits reinstated
after a qualifying event. This was explained to the Complainant over the
phone and it is in the employee benefit guidebook all employees receive
each year.” S1 stated that Complainant was also told that “he had
to submit a request for the reinstatement of his benefits through a
PostalEase Worksheet in addition to having his supervisor complete the
LWOP Return to Duty Worksheet.”
S1 stated that on January 17, 2008, Complainant contacted a different
specialist and was told that HRSCC never received his LWOP Return to Duty
Worksheet or his PostalEase Worksheet and that he missed his sixty-day
window to reinstate his benefits. S1 noted that Complainant, “stated he
thought it would be automatically reinstated once the Supervisor returned
the LWOP Return to Duty Worksheet, which is not correct.” S1 stated
that on February 20, 2008, Complainant submitted a PostalEase Worksheet,
but she returned it to him “because the Complainant did not indicate
what he was trying to do on the form.” Specifically, S1 stated “the
insufficient PostalEase form was returned to the Complainant on March
5, 2008. On March 11, 2008, the Complainant called to check the status
of his request. [A named specialist] told the complainant the worksheet
was returned because he did not put any information on it.”
In her decision, the AJ found no discrimination. The AJ found that
Complainant did not show by a preponderance of the evidence that
he was discriminated against on the bases of race, national origin,
sex, disability, age and retaliation.2 The AJ further concluded that
Complainant did not prove, by a preponderance of the evidence, that
the Agency’s proffered reasons for its actions were a pretext for
discrimination.
The Agency fully implemented the AJ's decision in its final order.
The instant appeal followed.
ANALYSIS AND FINDINGS
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Complainant has failed to identify any material facts in dispute that
require resolution through a hearing. Therefore, the AJ did not err
in deciding this case through summary judgment. The weight of the
evidence of record supports that AJ’s findngs that the Agency’s
management witnesses articulated legitimate, nondiscriminatory
reasons for the actions taken as detailed above. The record further
supports the AJ’s conclusion that Complainant failed to prove, by a
preponderance of the evidence, that the Agency’s proffered reasons
were a pretext for discrimination. Complainant had a long history of
attendance problems and a series of progressive disciplinary actions
leading up to the removals at issue. The Agency attempted to correct
Complainant’s attendance issues for over two years before finally
removing him. We further note that Complainant has not alleged that his
attendance problems were directly related to his alleged disabilities,
or that he requested reasonable accommodations that were not provided.
Complainant identified several comparators who he alleges were treated
more favorably, but the record does not establish that they were similarly
situated in terms of having similar attendance problems, similar failures
to provide requested medical documentation to support absences, or a
similar history of past disciplinary actions.
Therefore, 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 order because the Administrative Judge’s issuance of a decision
without a hearing was appropriate and a preponderance of the record
evidence does not establish that unlawful 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
June 7, 2011
__________________
Date
1 The record reflects that claim 3 was later amended to the instant
complaint.
2 For purposes of this analysis, we assume without finding that
Complainant was a qualified individual with a disability.
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0120111228
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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