EEOC Appeal 2020000589

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Buck H.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 2020000589
Hearing No. 570-2018-00078X
Agency No. 4K-200-0067-17
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 19, 2019,
final order concerning his 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. For the following reasons, the Commission AFFIRMS the
Agency’s final order.
ISSUE PRESENTED
The issue is whether the Administrative Judge properly issued a decision without a hearing finding
that Complainant did not establish that the Agency discriminated against him based on disability
when his request for annual leave was denied and he was charged leave without pay; and he was
allegedly sent home prior to the end of his tour.
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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BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the
Agency’s Washington, D.C. Post Office. Complainant stated that on March 14, 2017, he called to
request annual leave due to a flare-up of his back stemming from an on-the-job injury he sustained
on February 20, 2007. Report of Investigation (ROI) at 56. On March 17, 2017, Complainant
submitted a leave request for 16 hours of annual leave for “OWCP” (Office of Workers’
Compensation Program) for March 14, and 15, 2017, which was disapproved due to “no supported
medical.” ROI at 196. Complainant stated that on March 18, 2017, his first-line supervisor (S1)
informed him that she placed him on leave without pay (LWOP) for March 14, and 15, 2017,
because he did not have an on-the-job injury on file. ROI at 57.
Complainant stated that on March 20, 2017, a different supervisor (S2) asked him to have his
doctor complete a “CA-17” form and sent him home at the start of his tour. ROI at 60. Complainant
filed a grievance, which was resolved on June 1, 2017. Complainant’s managers were instructed
to change the LWOP for March 14, and 15, 2017, to either annual leave or OWCP leave, if there
was an active case and the leave pertains to that case. ROI at 70-3.
EEO Complaint
On June 9, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him based on disability (shoulder, legs, and back) when:
1. 	on March 14-15, 2017, his request for annual leave was denied and his time was
changed to LWOP; and
2. 	on March 20, 2017, he was sent home prior to the end of his tour.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to
the case granted the Agency’s August 19, 2019, motion for a decision without a hearing and issued
a decision without a hearing on September 16, 2019.
The AJ noted that a prima facie inquiry may be dispensed with because the Agency articulated
legitimate, nondiscrimatory reasons for its actions. The AJ found that Complainant was denied
OWCP leave because he failed to provide appropriate documentation. In addition, the AJ noted
that Complainant’s current supervisors were not aware of his 2007 OWCP claim, and that
Complainant had not provided information regarding any ongoing restrictions or limitations for
his job. The AJ then determined that Complainant did not present any evidence that management’s
classification of his leave as LWOP, after his failure to provide information to verify that it was
OWCP leave, was pretext for discrimination.

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For claim 2, the AJ found that Complainant did not provide evidence that the Agency’s legitimate
reason for seeking additional information, after he requested time off for a 2007 injury, was pretext
for discrimination. The AJ noted that Complainant’s bare allegations of discrimination were not
sufficient to bar summary judgment. The AJ concluded that Complainant did not establish genuine
issues of material facts or credibility, which require a hearing, and she granted the Agency’s
motion for a decision without a hearing.
The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant
appeal and submitted a brief in support of his appeal.2 The Agency opposed Complainant’s appeal.
CONTENTIONS ON APPEAL
Complainant’s contentions
Complainant argues that S1 provided false statements and that her credibility was in question. For
example, Complainant notes that S1 stated that she requested medical information from
Complainant, but that he left a message on March 14, 2017, and did not speak with S1.
Complainant also asserts that S1 falsely stated that Complainant did not provide medical
documentation, and that he provided medical documentation to the Family Medical Coordinator
Specialist for his Family and Medical Leave Act (FMLA) entitlement.
Agency’s contentions
The Agency argues that claim 1 is moot and should be dismissed because it was resolved through
a grievance and presents no lingering effects. The Agency states that Complainant did not establish
a prima facie case of disability discrimination because based on his testimony, he is not disabled.
The Agency also argues that Complainant cannot rebut the Agency’s legitimate, nondiscriminatory
reasons for its actions. The Agency notes that Complainant requested OWCP leave, and that his
managers were not aware of his OWCP claim and requested supporting documentation. In
addition, when Complainant stated that he could not work on March 20, 2017, due to his OWCP
injury from ten years ago, a supervisor requested updated medical restrictions. The Agency states
that Complainant did not provide the requested medical information and returned to work the
following day. The Agency requests that the Commission uphold the AJ’s decision.
2 Complainant requested, and was granted, an extension to file his appeal brief. Complainant and
the Agency subsequently filed timely briefs.

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ANALYSIS AND FINDINGS
Standard of Review
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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual
conclusions 	and 	legal 	analysis 	– 	including 	on 	the 	ultimate 	fact 	of 	whether 	intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (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”).
Decision without a hearing
We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for 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 “material”
fact has the potential to affect the outcome of a case.
An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, Complainant only makes
bare assertions that S1 was not truthful, but he did not provide any evidence to show a genuine
dispute of any material facts.

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We note that mere allegations, speculations and conclusory statements, without more, are
insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security,
EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal
No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914
(Oct. 1, 2001). As such, we find that the AJ properly issued a decision without a hearing.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 	Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he 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. Furnco Constr.
Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that the claims are not moot, and that Complainant established a prima facie
case of disability discrimination, we find that the Agency proffered legitimate, nondiscriminatory
reasons for their actions. S1 stated that Complainant requested OWCP leave, which she denied
because there was no supporting documentation for his claimed injury. S1 stated that she requested
documentation to support the leave, but nothing was provided. ROI at 78-80. For claim 2, S2 stated
that Complainant arrived at work on March 20, 2017, and stated that he could not do his route
because of his restrictions from a previous injury. S2 stated that Complainant “ended his own time”
when he stated that he could not work. S2 added that when a carrier states that he has restrictions,
documentation is requested, and Complainant responded that he would go to his doctor. ROI at
136-7.
We find that Complainant has not shown that the proffered reasons were pretext for discrimination.
Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the
Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally
find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No.
0120060802 	(Nov. 	20, 	2007) 	(finding 	that 	the 	agency’s 	explanations 	were 	confusing,
contradictory, and lacking credibility, which were then successfully rebutted by the complainant),
request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal,
Complainant alleges that S1 was not truthful; however, he did not provide any evidence to prove
that she made false statements.

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While Complainant alleges that S1 falsely stated that he did not provide medical documentation,
we note that Complainant states that he provided medical documentation to the Family Medical
Coordinator Specialist for his FMLA leave, and not to S1 for his request for OWCP leave. As
such, we find that Complainant has not shown pretext for discrimination.
In addition, Complainant alleged that S2 sent him home on March 20, 2017, while S2 stated that
Complainant ended his own tour. Complainant bears the burden to prove, by a preponderance of
the evidence, that the alleged discriminatory acts occurred, and when the evidence is at best
equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Security, EEOC
Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made
false statements where he withdrew his request for a hearing and credibility determinations were
unable to be made); Brand v. Dep’t of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23,
2012) (complainant failed to establish that his coworker made offensive comments in a “he said,
she said” situation where complainant requested a final decision and an Administrative Judge did
not make credibility determinations). Complainant did not provide any other evidence to show that
S2 instructed him to leave. Accordingly, we find that Complainant has not shown that he was
discriminated against based on his disability when his request for annual leave was denied and he
was charged LWOP; and he was allegedly sent home prior to the end of his tour.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order adopting the AJ’s decision
without a hearing finding that Complainant did not establish that the Agency discriminated against
him based on disability.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within 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).

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Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. 	Any supporting documentation must be submitted together with the 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
November 10, 2020
Date