Ike D.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionSep 17, 20190120181797 (E.E.O.C. Sep. 17, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ike D.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120181797 Hearing No. 16-00242-01049 Agency No. DON150024602692 DECISION On May 4, 2018, 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 April 2, 2018, final 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED Whether Complainant was discriminated against on the bases of disability (physical) and reprisal when, on January 26, 2016, he was issued a three (3) day suspension from February 9, 2016 to February 11, 2016. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Marine Machinery Mechanic, WG-5534-10 at the Agency’s Regional Port Operations, Navy Region Southwest facility in San Diego, California. On March 9, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical) and reprisal for prior protected EEO activity when he was suspended for three absences that took place on October 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. 0120181797 2 19, 2015, November 12, 2015, and November 13, 2015. Complainant’s suspension was handled by S2, his second level supervisor, and by S3, the Regional Marine Maintenance Manager.2 In regard to his suspension in February 2016, Complainant asserted that although he was unable to provide medical documentation to support his absences on October 19, 2015, November 12, 2015, and November 13, 2015, he called S2 as required. Complainant maintained that when he was absent, it was due to taking narcotics such as pain medication and muscle relaxants to treat his pain. Complainant explained that when he took the medication, he was unable to operate a motor vehicle. Complainant asserted that he was also unable to drive to his doctor’s office to obtain medical documentation to support his absences on October 19, 2015, and November 12, 2015. However, he subsequently provided S2 with medical documentation for his absence of November 13, 2015, but not when it was requested. Complainant maintained that he felt it was inappropriate that a September 2015 Letter of Requirement resulted in discipline and obligated him to obtain documentation to support his absence because he could not drive to the doctor’s office. The evidentiary record included Complainant’s Letter of Requirement, dated September 9, 2015, issued by S2, which indicated, in relevant part, that Complainant’s attendance was unsatisfactory, as most of the leave he took was unscheduled. Complainant was advised that the failure to improve his attendance could result in his removal from employment. Complainant was instructed to provide medical documentation for all requests for sick leave and directly contact S2 within two (2) hours after the beginning of his shift for absences due to emergency illness. The record included Complainant’s Notice of Proposed Five (5) Calendar Day Suspension, dated December 1, 2015, issued by S2, which indicated that on October 19, 2015, November 12, 2015, and November 13, 2015, Complainant called out on sick leave and was instructed to submit required medical documentation. However, as of the date of the proposed suspension, the record indicates that Complainant had not complied; therefore, he was charged as being Absent Without Leave (AWOL) for the dates at issue. S2 cited the Civilian Human Resources Manual, Subchapter 752, Disciplinary Actions, and the September 9, 2015, Letter of Requirement as references. The record also included the Decision on Proposed Suspension, dated January 26, 2016, issued by S3, which indicated in relevant part that he reduced the five (5) day proposed suspension to three (3) days, and indicated that Complainant would be suspended from February 9, 2016, through February 11, 2016. S3 noted that during Complainant’s January 14, 2016, oral reply to the proposed suspension, he provided medical documentation partially supporting his absence on November 13, 2015; however, he did not provide any additional information as to why he continued to fail to adhere to the leave procedures in requesting, reporting and documenting leave taken. 2 Complainant’s immediate supervisor was not involved in this matter. 0120181797 3 Complainant also provided statements to S2 and S3 regarding his belief that other employees took time off to address personal medical issues. S2 and S3 stated that the individuals identified by Complainant were not similarly situated to his situation because those individuals provided medical support for each absence. S2 and S3 also cited employees who had excessive absences but who were issued Letters of Warning (LOW). Both indicates that those employees addressed their absences and eliminated the need for management to take further action. S2 and S3 stated that no other employee had an amount of absences equal to Complainant. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing request and remanded the complaint to the Agency to issue a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Although Complainant was given an extension of time to file a statement or brief in support of his appeal, no such statement was ever filed. The Agency also did not submit a statement. 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”). Disparate Treatment To prevail in a disparate-treatment claim, 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. 0120181797 4 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). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511. Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability and reprisal, we find that the Agency presented legitimate, nondiscriminatory reasons for its actions with regard to Complainant’s suspension because of his excessive absences and failure to timely provide medical support for the three absences at issue. Complainant did not provide persuasive evidence that the Agency’s reasons were a pretext for discrimination. Accordingly, we do not find that Complainant was discriminated against based on disability and/or reprisal. CONCLUSION 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. 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. 0120181797 5 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. 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 17, 2019 Date Copy with citationCopy as parenthetical citation