Eduardo F. Gadia v. United States Postal Service
01A51701
May 4, 2005
.


Eduardo F. Gadia,
Complainant,

v.

John E. Potter,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 01A51701

        Agency No. 4J-460-0174-03
DECISION

On November 1, 2003, complainant filed a formal EEO complaint in which
he claimed that the agency discriminated against him on the bases of
his race (Asian), sex (male), national origin (unspecified), and age
(dob 11/23/49), when on August 29, 2003, he was terminated from his
position as a Distribution Window Clerk, PS-5.

The agency accepted the complaint for investigation.  Subsequent to the
investigation, complainant was notified that he had the right to request
either a hearing before an EEOC Administrative Judge or an agency final
action without a hearing.  Complainant did not submit an election for
either option.

By final action dated November 22, 2004, the agency issued a final action
wherein it determined that no discrimination occurred.  The agency stated
that complainant failed to establish a prima facie case of discrimination
on all of the alleged bases.   Assuming arguendo, that complainant had
established a prima facie case of discrimination on the alleged bases,
the agency determined that it articulated  legitimate, nondiscriminatory
reasons for its action.  The agency stated that complainant's employment
was terminated because he was absent without leave (AWOL) and he provided
false statements during his investigative interview.  The Manager,
Customer Services stated in her affidavit that complainant was absent
from work from June 7, 2003 - June 17, 2003, without permission and he
failed to submit documentation that adequately explained why he was absent
without prior permission or granted leave.  Complainant had previously
been approved leave from April 18, 2003 through June 6, 2003, due to
the statement of complainant's physician that he needed to be off work
because complainant had increasing pain in his right shoulder that was
aggravated by work activities.  The agency determined that complainant
failed to establish by a preponderance of the evidence that the agency's
articulated reasons were not credible or were a pretext to mask prohibited
discrimination.  Thereafter, complainant filed the instant appeal.

In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
See also Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a
showing that age was a determinative factor, in the sense that “but
for” age, complainant would not have been subject to the adverse action
at issue).   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.
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, nondiscriminatory reason for its actions.  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 pretextual.  Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).

To establish a prima facie case of age discrimination, a complainant
must show that he was over forty years of age, that he was subjected to
an adverse employment action, and that he was treated less favorably
than other similarly situated employees younger than himself, i.e. he
was accorded treatment different from that given to persons who are
considerably younger than he.  See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996).

This 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.  United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).

For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of race, national origin, sex and age
discrimination.  Next, we shall consider whether the agency articulated a
legitimate, nondiscriminatory reason for its action.  The agency stated
that complainant was terminated because he was absent without leave
from June 7, 2003 - June 17, 2003, without permission and complainant
failed to submit documentation that adequately explained why he was absent
without prior permission or granted leave.  The agency further stated that
complainant was terminated because complainant provided false statements
during his investigative interview.  We find that the agency articulated
legitimate, nondiscriminatory reasons for complainant's termination.

A review of the record reveals that complainant has not established that
the agency's stated reasons were pretext intended to mask discriminatory
intent.  Complainant claimed that he requested emergency annual leave
due to his inability to return home on May 30, 2003, as a result of a
typhoon in the Philippines and his lack of the $150 that he needed to
change his flight.  According to complainant, he called the Supervisor,
Customer Services, on June 7, 2003, and told him about the typhoon
and that he would be flying home on June 11, 2003.  Complainant stated
that he reported to work on June 12, 2003, and management sent him home
because he needed medical clearance.  Complainant asserted that his
physician was out of town and it took him some time to find another
physician to clear him to return to work.  Complainant contended that
other clerks generally were not asked to bring in medical documentation
when they called in sick.  Complainant noted, however, that one other
male employee was treated in a similar fashion.  Complainant stated that
he was charged absent without leave even though he called in each day.
The Station Manager stated that the circumstances involved here had not
occurred in the past and therefore she could not name any comparative
employees.  The Station Manager further stated that in contrast to
complainant's story during his investigative interview about his inability
to leave the Philippines, she learned from an airline ticket agent that
complainant's originally scheduled flight on May 30, 2003, departed as
scheduled  and that complainant requested on May 23, 2003, that his return
flight be changed to June 11, 2003.  According to the Station Manager,
she was also informed by the ticket agent that complainant would not have
incurred a $150.00 charge had the flight change been weather-related.
Complainant has not established that the agency unjustifiably declared
him absent without leave during the relevant time period.  Complainant
also has not refuted the agency's position that he was untruthful during
his investigative interview. We find that complainant has not submitted
persuasive argument or evidence to show that the agency's termination
of him was for discriminatory purposes rather than the reasons set forth
by the agency.

After a review of the record in its entirety, it is the decision of
the Equal Employment Opportunity Commission to AFFIRM the agency's
final action finding no discrimination, because a preponderance of the
record evidence does not establish that race, sex, national origin or
age discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 19848,
Washington, D.C. 20036.  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 (S0900)

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 (Z1199)

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 that the Court
appoint an attorney to represent you and that the Court 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 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

May 4, 2005
__________________
Date









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