EEOC Appeal 2020001919

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Willia R., 1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 2020001919
Agency No. 4G-320-0141-19
DECISION
On December 26, 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 20, 2019, final decision concerning her equal employment opportunity (EEO)
complaint alleging 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
At the time of events giving rise to this complaint, Complainant worked as an Occupational Health
Nurse Administrator, Grade 18, at the Agency’s Jacksonville Processing and Distribution Center
facility in Jacksonville, Florida.
On June 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (Caucasian), national origin (not specified), sex (female), disability
(physical), and reprisal for prior protected EEO activity (asking for an accommodation) when, on
April 20, 2019, she was terminated from her position as an Occupational Health Nurse
Administrator during her probationary period.
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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The Agency accepted the complaint and conducted an investigation which produced the following
pertinent facts:
Complainant began working for the Agency on April 28, 2018, subject to a 1-year probationary
period. She was terminated on April 12, 2019 while still on probation.
Complainant had a chronic blood condition, essential thrombocytosis. A November 30, 2018 letter
from an Oncology Nurse states that Complainant was being treated for a blood disorder. It states
that she will require intermittent time off from work to attend office visits and get labs completed
and she may also require the use of sick days. It states that she may need to be off work 2 to 3
times monthly. On or about December 2018, Complainant provided this documentation to the
HRM Manager and requested a reasonable accommodation.
Complainant asserted that she was terminated because of her attendance, specifically her absence
following an on-the-job injury to her left thumb. She stated that she was out for 9 days while she
waited 	for 	an 	appointment 	with 	an 	orthopedic 	specialist. 	She 	believed 	she 	was 	being
accommodated for her medical condition, as no requested time off was ever denied.
A March 25, 2019 workers’ compensation form indicates that, on March 22, 2019, after filing
records, Complainant felt severe pain in her left thumb and had difficulty bending it. She claimed
medical treatment and continuation of regular pay but did not claim sick and/or annual leave. The
related Duty Status Report indicates that her left thumb was strained during filing and the diagnosis
was “game keeper’s thumb.” Regarding limitations, it indicates no work activity until cleared “by
ortho.” However, a Notice of Decision from the Department of Labor indicates that Complainant’s
workers’ compensation claim was denied.
The HRM Manager made the decision to terminate Complainant. She explained that Complainant
was terminated for attendance and performance issues. She further explained that, prior to
Complainant’s termination, she had the following official discussions with Complainant regarding
attendance and/or performance: (1) on September 24, 2018, she spoke to Complainant about a
requested schedule change; (2) on October 2, 2018, she spoke to Complainant about reviewing her
HRM files and making notes in the case files; (3) on October 12, 2018, she spoke to Complainant
about her leave requests and told her she needs to apply for FMLA when eligible and to try to
schedule appointments outside of work hours; (4) on November 27, 2018, she spoke to
Complainant about having coverage when she is off; and (5) on November 30, 2018, they
discussed Complainant’s doctor’s note. She also conducted an investigative interview prior to the
termination.
The HRM Manager explained that Complainant had 7 incidents of personal leave after bringing in
the November 30, 2018 note. She attested that Complainant was not taking leave for medical
appointments but for various other things related to her children and husband. She attested that she
explained to Complainant that personal leave could not be abused, and she needed to take care of
her personal issues outside for work hours. The HRM Manager explained that Complainant did
not improve with respect to personal leave requests and was not regular in attendance.

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She also explained that she did not foresee any improvement in her attendance or performance and
decided to separate her during her probation.
A Department of Labor FMLA form indicates that, on April 4, 2019, Complainant’s request for
FMLA leave was approved. It indicates that the amount of time that will be counted against
Complainant’s leave entitlement was intermittent leave 2 times per 1 month, 2 to 3 hours, or 1 day
per episode, and scheduled medical appointments.
An April 12, 2019 memorandum to Complainant from the HRM Manager indicates that
Complainant was separated, effective that day, for attendance and performance reasons. It provides
that Complainant’s appointment was with the provision that she demonstrates the ability to
satisfactorily perform the duties of her position and she failed to demonstrate the capacity to fulfill
the requirements of her position during the probationary period. It further provides that a basic
component of the employee-employer work relationship is that one demonstrates the ability to be
in regular attendance and, during Complainant’s probationary period, she had not been in regular
attendance in that she had multiple instances of unscheduled sick leave and multiple requests for
partial days as personal leave.
The memorandum also provides that some of the essential responsibilities of the position are to
provide guidance to injury compensation specialists, to serve as a liaison with OWCP, and to
monitor progress of limited duty employees with the goal of returning employees to work in a
timely fashion. It provides that Complainant failed to demonstrate the ability to meet these
essential requirements of the position.
Agency records of record include 14 leave requests for sick leave, medical appointments, and
personal time, documenting absences from July 2, 2018 to March 8, 2019.
A PS Form 50 indicates that Complainant was separated for failure to meet the requirements of
her position.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), 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 instant appeal followed. On appeal, Complainant submits numerous arguments, including
asserting that her performance review was positive; her leave was related to her disability; her
instances of personal leave were less than a full day and, of her 9 sick days, only 2 were full days;
she did not have an opportunity to correct any performance deficiencies; and she was granted a
reasonable accommodation and fired for it.

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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”).
Complainant has alleged that the Agency treated her disparately in terminating her. A claim of
disparate treatment is examined under the three-part analysis first enunciated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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 Constr. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993).
Even if we assume that Complainant established a prima facie case of discrimination, her claim
ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its 	actions. 	The Agency explained 	that 	Complainant 	was 	terminated 	for 	attendance 	and
performance reasons, as discussed above. We note that the HRM Manager spoke to Complainant
several times about her performance and attendance matters, including the Agency’s need for
coverage. We recognize that Complainant was absent for an extended period following a
workplace injury, however, the record shows that her attendance irregularities began before this
event. 	Although 	Complainant 	has 	alleged 	discrimination, 	she 	has 	not 	established 	by 	a
preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the
Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory
animus with respect to this claim.
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 decision.

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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. 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.

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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 3, 2020
Date