EEOC Appeal 2020000018

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Martine L.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 2020000018
Agency No. 4J-630-0010-18
DECISION
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 September 5, 2019 final
decision 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 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 worked as a full-time Sales Services Distribution
Associate, PS 06 at the Agency’s Saint Charles Post Office in Saint Charles, Missouri.
On February 23, 2018, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against her based on sex (female), color (white), and age (YOB: 1958) when:
on September 20, 2017, Complainant was issued a Letter of Removal.
After the investigation of the accepted claim, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an EEOC
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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Administrative (AJ) or a final decision within thirty days of receipt of the correspondence.
Complainant withdrew the initial request for a hearing.
On September 5, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
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 a complainant to prevail,
he or 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). Once the agency has
met its burden, a 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).
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, nondiscriminatory 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).
Our review of the record reflects that the Agency provided legitimate, non-discriminatory
reasons for Complainant’s removal.
Complainant’s first level supervisor (“S1”) 	issued Complainant the Letter of Removal because
Complainant failed to maintain a regular work schedule. 	S1 denied that Complainant’s color,
sex, or age was a factor in her determination to remove Complainant. Instead, S1 acknowledged
that Complainant’s removal was warranted given the progressive discipline she had previously
issued Complainant.

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Specifically, S1 explained that she provided Complainant attendance discussions on February 4,
2016, March 1, 2016, August 16, 2016, December 6, 2016, and January 25, 2017. S1 stated that
she issued Complainant a letter of warning on June 28, 2016,2 a seven-day suspension on
October 22, 2016,3 and a fourteen-day suspension on January 11, 2017,4 all for failure to
maintain a regular work schedule. 	S1 also indicated that she conducted a pre-disciplinary
interview (“PDI”) on September 2, 2017 before she issued the Letter of Removal.
S1 acknowledged that Complainant was approved for Family Medical Leave Act (“FMLA
leave” from May 11, 2016 to January 6, 2017. 	However, S1 explained that Complainant was
approved to use FMLA for one day each week, and Complainant was further required to
maintain 1250 work hours to qualify for and remain in FMLA leave status. 	S1 indicated,
however, that Complainant fell under 1250 work hours on July 23, 2016 and did not achieve the
1250 work hours until September 23, 2017. 	S1 further clarified that the absences referenced in
the Letter of Removal were not FMLA approved absences, as Complainant’s approved FMLA
agreement ended on January 5, 2017.
Complainant’s manager (“M1”) concurred with S1’s issuance of the proposed Letter of Removal
in light of Complainant’s prior discipline and given that Complainant had not worked enough
hours for FMLA approval. Specifically, M1 noted that from 2016 to 2017, Complainant called in
for FMLA leave more than the approved one FMLA absence a week which resulted in her
having 291 calls for absences.
Complainant 	asserted 	that 	her 	attendance 	improved 	after 	January 	12, 	2017. 	However,
Complainant’s Postmaster indicated that Complainant had 29 instances of unscheduled leave
after this date. Like S1 and M1, the Postmaster explained that Complainant’s removal was based
on her excessive use of unscheduled leave, and the removal was the next step in progressive
discipline after Complainant had been previously disciplined for failure to maintain a regular
work schedule.
A copy of the September 26, 2017 Letter of Removal indicates that Complainant was removed,
effective October 27, 2017, for failure to maintain a regular work schedule. The letter indicates
that Complainant had several unscheduled absences from December 28, 2016 through August
31, 2017. 	The letter further indicates that a PDI was conducted on September 2, 2017 and
Complainant indicated during the PDI that she took leave in August 2017 because she “could not
face the customers.” 	Finally, the letter references Complainant’s prior disciplinary actions
including a June 2016 Letter of Warning, an October 2016 seven-day suspension, and a January
2017 fourteen-day suspension, all for failure to maintain a regular work schedule.
2 A copy of the letter of warning in the record is dated June 27, 2016.
3 A copy of the seven-day suspension in the record is dated October 3, 2016.
4 A copy of the fourteen-day suspension is signed by M1 on January 12, 2017.

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We conclude that neither during the investigation nor on appeal has Complainant proven, by a
preponderance of the evidence, that these proffered reasons for the disputed actions were a
pretext for unlawful discrimination based on Complainant’s sex, color, and age.
CONCLUSION
We 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 (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).

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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. 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 17, 2020
Date