0120100927
09-18-2012
Ahleshia R. Crouch, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Ahleshia R. Crouch,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120100927
Hearing No. 430200900115X
Agency No. 086141400115
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal from the Agency's final action1 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., the Pregnancy Discrimination Act (PDA),
42 U.S.C. � 2000e(k) (1978), and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency's NAS Oceana Station in Virginia Beach, Virginia. Complainant alleged that the Agency discriminated against her on the bases of sex (female) and disability (pregnancy) when, on or about October 30, 2007, it denied her request for 180 hours of advanced sick leave.
After an August 27, 2009 hearing, the AJ issued a decision finding that Complainant failed to prove that the Agency discriminated against her as alleged. The AJ only analyzed Complainant's complaint on the basis of sex. In doing so, the AJ noted that under the PDA, discrimination on the basis of "pregnancy, childbirth or related medical conditions" constitutes sex discrimination under Title VII. In addition, the AJ noted that pregnancy is not a "disability" for purposes of the Rehabilitation Act, and employment discrimination claims based on pregnancy are covered by Title VII. The Commission, however, recognizes that there are circumstances under which pregnancy complications can substantially limit a major life activity and therefore rise to the level of a disability. See Stewart v. U.S. Postal Serv., EEOC Request No. 05960071 (Dec. 18, 1006); 29 C.F.R. Pt. 1630, App. � 1630.2(h); EEOC Compliance Manual Section 902, "Definition of the Term Disability," 902-9 (Mar. 14, 1995). Medical documentation dated October 11, 2007 indicated that Complainant was "on complete bedrest until her delivery due to complications in pregnancy." For the purposes of analysis only, and without so finding, we will presume that Complainant was an individual with a disability. In addition, the Commission notes that claims brought under the PDA are examined using the traditional disparate treatment analysis. Bernardi v. U.S. Postal Serv., EEOC Appeal No. 01954090 (Aug. 21, 1997).
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � VI.B. (Nov. 9, 1999).
Upon review, we find that substantial evidence in the record supports a finding that the Agency did not discriminate against Complainant on the bases of sex and disability when, on or about October 30, 2007, it denied her request for 180 hours of advanced sick leave.
The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions. In so finding, the AJ relied on the testimony of the Deputy Director of Security (D1) that the Security Department adhered to an oral policy established by his predecessor to generally deny requests for advanced sick leave.2 Hearing Transcript (Hr'g Tr.), at 80, 106, 111-13, 122. In addition, the AJ relied on D1's testimony that he considered the significant amount of time it took to repay advanced sick leave.3 Id. at 80, 91, 110, 117, 122. Further, the AJ relied on D1's statement provided during the EEO investigation that he only approved advanced sick leave when required to do so in a collective bargaining agreement (CBA). Report of Investigation (ROI), at 97.
The AJ found that Complainant failed to show that the Agency's legitimate, nondiscriminatory reason was a pretext for discrimination. Although Complainant testified that the Precinct Commander (P1) told her that D1 "said he doesn't do it for pregnancy" (approve requests for advanced sick leave), the AJ found that no discriminatory intent existed. In so finding, the AJ relied on the testimony of D1 and P1 that they did not make or hear such a statement. Hr'g Tr., at 93, 149. In addition, the AJ found that D1 approved 27 hours of advanced sick leave in July 2007 for Complainant's pregnancy and 40 hours of advanced sick leave in July 2005 for a non-pregnant female employee in the same office to recover from an injury. ROI, at 102; Agency's Exhibit E. Further, the AJ found that Complainant was not similarly situated to employees in the New Jersey office for whom D1 had granted advanced sick leave, because those employees operated under a CBA that required the approval of advanced sick leave and Complainant did not.4 Hr'g Tr., at 89; ROI, at 251-73. Finally, the AJ found that, during her pregnancy, the Agency liberally approved Complainant's requests for accrued sick leave, accrued annual leave, and leave without pay, and that Complainant received additional leave during the Agency's leave donor program. ROI, at 104-06, 108-11, 131.
On appeal, Complainant argued that we should reverse the AJ's decision because D1's policy of denying all requests for advanced sick leave has a disparate impact on pregnant females. Complainant did not put forth any arguments regarding her disparate treatment claim or the AJ's analysis of it. In opposition to the appeal, the Agency asserted that it was improper for Complainant to raise her disparate impact claim for the first time on appeal and that she produced no evidence of a statistical disparity associated with D1's policy.
To the extent Complainant is alleging that she was subjected to disparate impact, we note that such a claim was not accepted for processing by the Agency. ROI, at 49. In addition, we note that Complainant failed to notify the Agency that she believed the accepted claim was incorrectly identified. Further, we note that Complainant did not attempt to amend her complaint at any time prior to the conclusion of the investigation or file a motion to amend with the AJ after requesting a hearing. See 29 C.F.R. � 1614.106(d). Moreover, we note that Complainant first raised her claim of disparate impact during her oral closing argument. Hr'g Tr., at 174-77. Based on the above, we find that any disparate impact claim is not part of Complainant's instant complaint and decline to address it on appeal. See Tuttle v. Dep't of the Army, EEOC Appeal No. 0120091975 (Sept. 17, 2009); Mitchell v. U.S. Postal Serv., EEOC Appeal No. 0120071375 (May 14, 2009) (declining to address on appeal complainant's disparate impact claim because the agency did not accept it for processing and complainant did not challenge the definition of the accepted claims).
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency's final action because substantial evidence in the record supports the AJ's ultimate finding that Complainant did not prove, by the preponderance of the evidence, unlawful employment discrimination.
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
_____9/18/12_____________
Date
1 When the Agency did not issue a final order within 40 days of receipt of the EEOC Administrative Judge's (AJ) decision, the decision of the AJ became the final action of the Agency. 29 C.F.R. � 1614.109(i).
2 The AJ, however, noted that it was unwise for the Agency to routinely deny requests for advanced sick leave without consideration of individual circumstances. AJ Decision, at 8.
3 According to the manual for the Human Resources Office in Norfolk, Virginia (HRO Manual), employees accrue 13 days of sick leave a year and it takes approximately two years and four months to repay a 30 day sick leave advance. ROI, at 207.
4 The HRO Manual states that sick leave not to exceed 30 days may be advanced to employees. ROI, at 207.
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0120100927
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100927