0120122968
09-09-2014
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120122968
Hearing No. 420-2012-00087X
Agency No. 11-00204-02357
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 9, 2012, final order concerning his 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. For the following reasons, the Agency's final order which fully implemented the Administrative Judge's (AJ) decision without a hearing which found Complainant failed to show that he was discriminated against or subjected to a hostile work environment as alleged is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory, Work and Family Life Specialist, GS-112 at the Agency's Work and Family Life Branch in Pensacola, Florida. On April 28, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of race (African-American) and reprisal when:
1. On February 25, 2011, his supervisor (A-1) required him to provide additional medical documentation to support his leave request;
2. On October 28, 2011, he received a faxed letter from A-1 proposing to remove him from his position based on excessive approved absences; and
3. On October 28, 2011, A-1 provided him with a Family Medical Leave Act (FMLA) form.1
Following an investigation by the Agency, Complainant requested a hearing before an AJ. Upon receipt of a motion for summary judgment from the Agency and a response from Complainant, the AJ determined that there were no material facts at issue. The record showed that Complainant was transferred back to the Pensacola office in January 2011 and was to report on February 13, 2011, almost immediately thereafter Complainant requested sick leave. On February 2, 2011, Complainant forwarded an email to A-1, requesting sick leave from February 14-16, 2011. On February 8, 2011, A-1 forwarded Complainant an email informing him that she would approve the three days of leave (February 14-16, 2011). She would approve additional leave beyond the three days, pending receipt of medical documentation from Complainant's doctor, indicating his diagnosis, prognosis and expected date of return to full duty.
A note from Complainant's medical doctor, dated February 15, 2011, indicated Complainant would require indefinite medical leave. On February 16, 2011, Complainant requested sick leave from February 17, 2011 through April 1, 2011. On February 16, 2011, A-1 requested that Complainant provide medical documentation from his medical doctor concerning his diagnosis, prognosis, and expected date of return. She informed Complainant that she would approve his leave as soon as the requested medical documentation was received. Complainant contacted the Human Resources (HR) office to get information about the Agency's sick leave policy. He was told that medical documentation was needed beyond three days.
On April 15, 2011, Complainant submitted medical documentation which indicated he was being treated for anxiety, and he requested sick leave from April 18, 2011 to May 18, 2011. Complainant thereafter requested sick leave on multiple occasions for his anxiety. He had been on approved sick leave status for the aforesaid medical condition, from April 18, 2011 until February 3, 2012. Complainant was issued a duty status letter, dated October 28, 2011 and signed by A-1. The letter indicated Complainant had been on continuous approved sick leave status since February 14, 2011, and his position had been filled by a temporary employee; the Agency could no longer permit "the drain on manpower and fiscal resources to occur." Therefore, if Complainant was unable to return to work on a regular basis by November 14, 2011, his removal for excessive approved absence would be proposed. There was no record provided by the Agency that indicated Complainant had returned to work since he was issued the duty status letter.
The AJ found that the available evidence did not demonstrate that Complainant had been harmed by the conduct attributed to the Agency. Consequently, he could not establish a prima facie case of discrimination on any of his claims.
CONTENTIONS ON APPEAL
On appeal, Complainant contends among other things that the AJ should have removed himself from this case because the AJ has a bias against African Americans. Further he asserts that he established a prima facie case of both discrimination and harassment. He explains that there is a history of harassment that he has suffered from A-1 that was not considered by the AJ. Complainant argues that the claims that were procedurally dismissed show the pattern of harassment. He also asserts that he had thousands of hours of sick leave banked so it did not make sense that he could not use them.
In response, the Agency among other things requests that the AJ's decision be affirmed because the record clearly shows that harassment and/or discriminatory animus was not considered with respect to the claims in this case.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final order. We find that even if we assume arguendo that Complainant established a prima facie case of reprisal and race discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant was simply asked to provide medical documentation to support his need for sick leave. With regard to claim two, Complainant was issued a letter of proposed removal based on excessive approved absences because the office did not have the resources to indefinitely continue coverage of his position. Regarding claim three, Complainant asserts that he was harassed when A-1 gave him a FMLA form; we find that the record does not support this. On the contrary, the evidence indicates that discriminatory animus was not involved as A-1 tried to assist Complainant by giving him the form.
Moreover, with regard to Complainant's harassment claim, we find that even when considering these incidents as true and in a light most favorable to Complainant, including the dismissed incidents, the allegations are not severe or pervasive enough to establish that Complainant was subjected to a hostile work environment.
With respect to Complainant's contentions on appeal, the Commission notes that other than Complainant's conclusory statements he has not presented any evidence that race or reprisal were involved in this complaint. We note, that while it is true that Complainant had substantial sick leave accumulated, the record shows that the office had a sick leave policy which required that medical documentation be provided for extended leave use. Complainant has not produced any evidence which suggests that other employees were allowed to function outside of this policy. We also find it telling that all of Complainant's sick leave was approved which again demonstrates no indication of discriminatory bias or harassment. Accordingly we find the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
The Agency's final order which found that Complainant failed to show that he was subjected to discrimination or harassment is AFFIRMED.
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
__9/9/14________________
Date
1 Complainant also alleged three other claims which were procedurally dismissed by the Agency and affirmed by the AJ. The claims dismissed were: 1. Was Complainant discriminated against based on race (African American) and reprisal (prior EEO complaint activity) on December 22, 2010, when A-1 asked him to leave the Fleet and Family Support Center (FFSC) because he was disturbing the workplace? This claim was dismissed for failure to timely make EEO counselor contact. 2. Was Complainant discriminated against based on race (African American) and reprisal (prior EEO complaint activity) when on March 30, 2011, his appointment with his second level supervisor, was canceled? This claim was dismissed because the alleged action did not subject Complainant to a direct, personal deprivation at the hands of the employer that adversely affected a term, condition or privilege of his employment. 3. Was Complainant subjected to harassment and a hostile work environment based on race (African American) when on February 25, 2011, A-1 required him to provide additional medical documentation to support his leave requests? This claim was dismissed because it did not rise to the level of harassment. Complainant argues on appeal, that these claims should have been accepted because they show the continuing harassment that he faced. We find that the Agency correctly dismissed these claims; however, these claims should have been considered in Complainant's harassment claim and will be considered in the instant decision.
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0120122968
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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