0120091489
08-10-2012
Harold T. Dunn, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Harold T. Dunn,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120091489
Hearing No. 410-2007-000387X-LL
Agency No. 2007-21150-FAA-03
DECISION
On February 14, 2009, Complainant filed an appeal from the EEOC Administrative Judge's (AJ's) December 3, 2008, decision 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the AJ's decision.
ISSUES PRESENTED
The issue presented on appeal is whether the decision of the Administrative Judge, finding that Complainant did not establish his claims of race, sex, age, and reprisal discrimination, is supported by substantial evidence of record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Specialist at the Agency's Atlanta ARTCC facility in Atlanta, Georgia. In a formal EEO complaint dated March 5, 2007, Complainant alleged that the Agency discriminated against him on the basis of sex when his supervisor told him on February 6 and 8, 2007, that his yellow pants were inappropriate "business casual" attire. He subsequently alleged that the Agency subjected him to race, sex, and reprisal discrimination when his supervisor told him on other occasions that his attire was inappropriate. Complainant also subsequently alleged that the Agency discriminated against him on the bases of race (Caucasian), sex (male), and reprisal for prior EEO activity when it issued him a sick leave restriction letter, denied his request for administrative leave, and placed him in "absent without leave" (AWOL) status pending his submission of medical documentation. In addition, Complainant sent the Agency's Office of Civil Rights Regional Director several letters addressing a variety of other issues, including a reprimand for failing to comply with the Agency's dress code, sick leave and medical documentation matters, the denial of training and volunteer opportunities, and a performance appraisal rating that was lower than the highest rating.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on October 17, 2008, and issued a decision in favor of the Agency on December 3, 2008. When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).
The AJ defined the issues as follows:
1. whether the Agency discriminated against Complainant on the bases of sex and race by enforcing a dress code policy that was allegedly discriminatory on its face;
2. whether the Agency's act of issuing Complainant a sick leave abuse letter constituted age discrimination; and
3. whether the Agency's acts of issuing Complainant a sick leave abuse letter, denying Complainant administrative duties, and placing Complainant on AWOL were in retaliation for Complainant's prior EEO activity.
The AJ found that the Agency has a "business casual" dress policy. On February 6, 2007, Complainant's first-level supervisor (S1) told Complainant that his yellow dress pants and black polo-style shirt with yellow sleeves were not appropriate attire. Two days later, S1 told Complainant that his Hawaiian-style shirt and yellow pants were inappropriate, and Complainant changed his clothes. S1 issued Complainant a February 8, 2007, memorandum stating that he had reported for duty in inappropriate attire and that further failure to report for duty appropriately attired could result in disciplinary action. On March 6, 2007, S1 told Complainant that his orange dress pants were inappropriate and, on May 8 ,2007, S1 told Complainant that his green pants and green alligator shoes were inappropriate. Each time, Complainant asked what part of his clothing was inappropriate but was not given additional information. The Agency issued Complainant a July 26, 2007, reprimand for inappropriate attire and, after Complainant appealed, sustained the reprimand on September 7, 2007.
A Caucasian female co-worker (C1) who wore yellow Capri-style pants was not told that they were inappropriate, but she was told that her pants were too short and her Marine jacket was inappropriate. African-American males in Complainant's work area were allowed to wear yellow pants and green pants. An African-American male co-worker was not allowed to wear red pants, but Complainant was permitted to wear pants that color.
The AJ also found that the Agency reviews employees' sick leave once per quarter. The contract between the Agency and the union states that, when the Agency reasonably believes an employee may be abusing sick leave, it may require the employee to provide medical documentation to substantiate the use of sick leave. In those circumstances, any absence will be charged to AWOL until an acceptable medical certificate is submitted.
On March 13, 2007, S1 issued Complainant a sick leave abuse letter that noted that Complainant had used 138 hours of sick leave from February 19, 2006, through February 17, 2007. The letter stated that Complainant had used more sick leave than he had accrued during the relevant period, had used 16 full shifts of sick leave, and had used sick leave in conjunction with regular days off or other leave six times. At the time, Complainant had more than 1100 hours of accrued sick leave. His second-level supervisor (S2) told the EEO Investigator that Complainant's quantity and pattern of sick leave use indicated that Complainant may be abusing sick leave. S2 noted that Complainant used 108% of the sick leave he accrued between February 2006 and February 2007 and used approximately 64% of the sick leave on Tuesdays and Wednesdays. Twelve other employees also were issued sick leave abuse letters.
Around March 14, 2007, Complainant gave the Flight Surgeon an updated prescription list and was medically disqualified from work pending submission of a medical update. Complainant asked for administrative duties but did not receive any because there were none available between the time he was first in line for such duties and the time he was medically cleared to return to his regular duties. Complainant subsequently underwent a medical procedure as part of the medical update and requested sick leave in connection with the procedure. The Agency placed him on AWOL status pending receipt of medical documentation to substantiate the sick leave request and changed his status to approved sick leave after receipt of the documentation.
A 54-year-old male co-worker (C2) who received a sick leave abuse letter and underwent the same medical procedure initially was told that he would be placed on AWOL status but was given advanced sick leave after he asked the union to intercede on his behalf. The co-worker received administrative duties when he was medically disqualified for ten months.
In her decision, the AJ found that Complainant had not proved that the Agency discriminated against him on the basis of race, sex, age, or reprisal. With respect to the Agency's dress code policy, the AJ found that Complainant had not established a prima facie case of discrimination and that the Agency had articulated a legitimate, nondiscriminatory reason for the policy. Noting that Agency officials had admonished a white female and black male about their attire, the AJ found that Complainant had not shown he was treated less favorably than individuals outside his protected class. In addition, citing Commission precedent, the AJ noted that minor sex-based distinctions in dress code standards do not violate Title VII. She concluded that, although the Agency's implementation of the policy may have been unfair, it was not discriminatory.
With respect to the sick leave abuse letter, the AJ found that Complainant had not shown that he was treated less favorably than similarly situated employees and had not shown that the Agency was motivated by discriminatory or retaliatory animus. The AJ noted that 12 other employees received sick leave abuse letters. She concluded that S1 and S2 followed the policy set forth in the contract between the Agency and union when issuing the letters.
In addition, the AJ concluded that the Agency had not subjected Complainant to retaliation when it denied his request for administrative duties. She noted that Complainant had not disputed the Agency's statement that administrative duties were unavailable at the time he requested them. Finally, the AJ found that the Agency had not discriminated against Complainant when it placed him on AWOL status. Complainant's sick leave abuse letter stated that AWOL would be charged if an absence was not substantiated with medical documentation, and the AJ found that the Agency charged Complainant with AWOL after he failed to follow the procedures outlined in the letter.
CONTENTIONS ON APPEAL
On appeal, Complainant argues, among other things, that the Agency maintained a gender/race dress code and that he was the only person at his facility who received a letter of reprimand for dress code issues. He also argues that older workers on his team received sick leave abuse letters while younger workers did not. He states that he had more than eleven years' worth of accrued sick leave and asserts that no one whose sick leave usage was similar to his received a letter. With respect to the AWOL charge, Complainant asserts that he submitted the same paperwork that C2 submitted and that, contrary to the AJ's determination, the Agency did not state that Complainant had failed to follow procedures.
Complainant also asserts that the AJ did not address all of his complaints. In that regard, he refers to the September 2007 letter of reprimand for failure to follow directions related to the dress code. He argues that he was the only person at his facility who received a letter of reprimand even though he had fewer dress code problems than other employees had. Finally, Complainant raises new allegations of discrimination concerning several matters, including special duty, detail assignments, and medical documentation for his return to work after a medical procedure.1
The Agency raises no arguments on appeal.
STANDARD OF REVIEW
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. National Labor Relations Board, 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. See 29 C.F.R. � 1614.405(a). 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 EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that the AJ's decision that the Agency did not discriminate against Complainant is supported by substantial evidence of record. We assume for purposes of analysis, without so finding, that Complainant has established prima facie cases of race, sex, age, and reprisal discrimination.
Substantial evidence of record supports the AJ's determination that the Agency did not discriminate against Complainant with respect to the dress code. The record establishes that the Agency had a "business casual" dress code and that Agency officials admonished men and women, including employees of different races, concerning their attire. Further, as the AJ noted, minor sex-based differences in dress and grooming codes do not violate Title VII. See Baker v. USPS, EEOC Request No. 05910402 (June 21, 1991); Henderson v. USPS, EEOC Request No. 05910228 (Apr. 11, 1991). Although Complainant alleges that he was the only employee to receive a letter of reprimand, he has offered no evidence that any other employee had the same number of dress code transgressions that he had. The evidence of record does not establish that the Agency discriminated against Complainant with respect to dress code matters.
In addition, substantial evidence of record supports the AJ's conclusion that the Agency did not discriminate against Complainant when it issued the sick leave abuse letter. Although Complainant asserts that the Agency issued letters only to older workers, he has not identified any younger worker who exhibited a sick leave pattern similar to Complainant's but did not receive a letter. Further, his assertion that he had accrued more than eleven years' worth of sick leave does not negate S2's statement that Complainant's quantity and pattern of sick leave use in 2006-2007 indicated that he might be abusing sick leave. There is no evidence that employees not of Complainant's protected groups engaged in similar sick leave use but were not issued letters.
There also is no evidence that administrative duties were available during the time Complainant was medically disqualified and first in line for such duties. Further, the evidence does not establish that the Agency discriminated against him when it placed him on AWOL status pending receipt of medical documentation. The sick leave abuse letter notified Complainant that absences for medical reasons would be charged to AWOL until he submitted an acceptable medical certificate to substantiate any use of sick leave. S1 testified that all employees who received a letter would be placed on AWOL until they submitted medical documentation and then the AWOL charge would be changed to sick leave. The evidence of record shows that the Agency charged Complainant with being AWOL until it received adequate documentation and then removed him from AWOL and placed him on approved sick leave. The evidence does not support Complainant's assertion that he had submitted adequate documentation prior to being placed on AWOL. Moreover, even if Complainant had submitted adequate documentation, the evidence does not establish that the Agency initially placed him on AWOL status because of his membership in a protected group.
Finally, we note that, on appeal, Complainant raises new allegations of discrimination. It is not appropriate to raise these new claims on appeal. Should Complainant wish to pursue these claims, he should initiate EEO Counseling on them. For timeliness purposes, the date of initial contact is deemed to be the date on which the instant appeal was filed, unless Complainant can show that he initiated counseling on the claims at an earlier date.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ's findings of no 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
August 10, 2012
Date
1 Complainant asserts that the Agency's EEO office did not issue a decision concerning his complaint of race discrimination, but he does not identify the matter raised in the complaint. In this decision, we address whether the Agency subjected Complainant to race discrimination with respect to the dress code, sick leave abuse letter, denial of administrative leave, and AWOL status.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120091489
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091489