Patsy A. Wright, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionMar 19, 2002
01A10122 (E.E.O.C. Mar. 19, 2002)

01A10122

03-19-2002

Patsy A. Wright, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.


Patsy A. Wright v. Department of Defense

01A10122

March 19, 2002

.

Patsy A. Wright,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

Agency.

Appeal No. 01A10122

Agency Nos. 98.128,

98.153.

Hearing No. 250998123X

DECISION

Complainant timely initiated an appeal from the agency's final decision

(FAD) concerning her equal employment opportunity (EEO) complaints of

unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant

alleges she was discriminated against on the bases of her race (Black),

religion (Methodist), and reprisal (filing her initial EEO complaint

under Title VII) when:

(1) She was no longer permitted to have a Monday through Friday set

schedule; and,

She was required to re-certify her medical condition, before being

granted leave under the Family Medical Leave Act (FMLA); and,

On July 9, 1998, she received a 3-day suspension; and,

On August 5, 1998, she was issued her Performance Evaluation Report

(PER).

For the following reasons, the Commission AFFIRMS the agency's final

decision.

The record reveals that, at all relevant times, complainant was employed

as a Senior Store Associate at the agency's Main Store, at the Little Rock

Post Exchange, in Arkansas. Complainant filed two formal EEO complaints

with the agency on July 13, 1998 and September 3, 1998, alleging

that the agency had discriminated against her as referenced above.

The complaints were subsequently consolidated, and at the conclusion

of the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

Following a hearing, the AJ issued a decision finding no discrimination.

The AJ concluded that, as to her schedule and suspension, complainant

failed to establish a prima facie case of reprisal because she failed

to demonstrate how the actions were related to any prior EEO activity

on her part. The AJ further concluded that the agency articulated

legitimate, nondiscriminatory reasons for its actions. The AJ found that

complainant was suspended for insubordination and unprofessional conduct.

The AJ additionally found that the agency articulated a legitimate,

nondiscriminatory reason for the change of schedule, i.e. that the

change was necessary because the busiest day of the week is Saturday,

and during the summer months many people were on vacation and she needed

complainant to cover the store.

The AJ found that complainant did not establish that more likely

than not, the agency's articulated reasons were a pretext to mask

unlawful discrimination or reprisal. In reaching this conclusion,

the AJ considered complainant's argument that the agency did not

follow its policy of progressive discipline, and should have begun

with an oral or written reprimand, if any discipline was required.

Although the AJ opined that the suspension did appear to be harsh, he

did not find that complainant met her burden. The AJ also considered

complainant's argument that the individuals who issued the suspension

failed to investigate the issue and simply accepted the allegation of

the supervisor (S1), without giving complainant an opportunity to present

her side of the story. The AJ determined that, in fact, complainant had

a full opportunity to present her side of the story, prior to when the

suspension was actually issued. The AJ noted that complainant introduced

no evidence to suggest that her race or religion were factors in the

actions taken against her. Virtually every management officially denied

having knowledge of complainant's religion. In sum, the AJ found that

complainant did not meet her burden of establishing pretext.

As to the PER, the AJ again determined that the agency articulated

legitimate, nondiscriminatory reasons for complainant's rating of

�Expected,� which she did not prove to be a pretext for discrimination

or reprisa. Finally, as to the denial of FMLA, the AJ found that while

the agency may have failed to respond as quickly, and as knowledgeably, as

it should have to complainant's request for FMLA leave, the uncontroverted

evidence was that complainant all FMLA to which the was entitled. The AJ

found that complainant failed to establish that the agency's actions

regarding the processing of the request for FMLA leave were based on a

discriminatory motive or in reprisal for her prior EEO activity.

On appeal, complainant, through her attorney, contends that the AJ

made an error of law when he gave virtually no weight to the fact that

complainant's schedule was changed only after a White, part-time employee

complained about complainant's schedule. Complainant further points

out that this same White employee then received an �Outstanding� PER,

which resulted in a pay raise, while complainant did not. Complainant

also reiterates the argument, previously raised at the hearing, that

a similarly-situated White employee also had a set schedule which was

not taken from him. Complainant also argues that requiring that she

obtain additional medical certification before she was granted FMLA

leave, was discriminatory. Additionally, complainant argues that the

refusal to accommodate her schedule preference constituted religious

discrimination, in that management was aware that the reason she could

not work Saturdays was because of ministry commitments, and yet they

required that she choose between her job and her ministry classes.

The agency requests that we affirm the FAD.

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).

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he 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). Once the agency

has met its burden, the complainant bears the ultimate responsibility

to persuade the fact finder by a preponderance of the evidence that

the agency acted on the basis of a prohibited reason. St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993).

This established 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. U.S. Postal

Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Assuming, arguendo, that complainant established her prima facie case

of discrimination based on the alleged purviews, the Commission turns

to the agency to articulate legitimate, nondiscriminatory reasons

for its actions. As to the removal of her set schedule, S1 asserted

that as summer approached, more and more individuals would be taking

vacations, and therefore, there would be a need for complainant to work

some Saturdays, which is the busiest day of the week. For this reason,

her schedule could not remain as it had formerly been. As to the FMLA,

the Human Resources Manager (HRM) testified that complainant was the

first and only employee who had ever requested FMLA leave while she had

been in that position. HRM stated that she was not familiar with how the

FMLA was administered, and, although she admits that complainant should

not have had to submit additional medical documentation, complainant did

get every hour of FMLA to which she was entitled. The 3-day suspension,

which was reduced from a 5-day suspension, was issued as a result of

communication between complainant and S1, in which complainant asked S1

whether schedules were changed based on whether one was Black or White,

hung up the telephone on S1, and stated �You haven't seen harassment

yet.� See Record of Investigation (ROI), Affidavit of S1, at p. 5.

Finally, as to complainant's PER, both S1 and S2 testified that, although

complainant's work was good, she was performing only the minimum amount of

work required. The rating of 10 out of a possible score of 18 accurately

reflected complainant's work. We find that the agency has articulated

legitimate, nondiscriminatory reasons for its actions.

The burden returns to complainant to show that the agency's reasons were

pretext for discrimination or reprisal. As to the change of schedule,<1>

complainant contends that in a meeting with S1 and S2 about changing her

schedule, S2 yelled at her, told her that there was something �fishy�

about her request, and suggested that if she felt so strongly about doing

God's work, then maybe she should quit. Complainant contends that S1

then also suggested that maybe she should quit. S1 and S2 deny having

made such statements, however, even assuming that S1 and S2 did make

such statements, this does not lead to the conclusion that they sought

to change complainant's schedule based on an animus toward her religion.

Complainant has presented no evidence to suggest that the agency officials

lied when they asserted that during summer there was a greater need for

complainant to work Saturdays. Complainant also argues that her schedule

was only changed after a White co-worker complained about complainant's

schedule. She notes that the employee later received a better PER than

complainant, which resulted in a pay increase for her. Even assuming

the truth of such contention, we do not find that this is indicative

of a discriminatory or retaliatory animus on the part of management.

It may simply have alerted management to the inequity that existed

given that complainant had a set Monday to Friday schedule for several

years, while the other similarly-situated Senior Store Associates had

unpredictable schedules, that often included work on Saturdays.

Nor are we persuaded that management's manner of dealing with

complainant's request to use FMLA was based on discrimination or reprisal,

or any factor other than their ignorance about the procedure.

As to the suspension, complainant has not denied making the statements

for which she was suspended. She simply argues that the agency did not

follow its usual progressive discipline policy. Even assuming the truth

of such contention, we are not persuaded that management's reason for

disciplining complainant so harshly was because of her race, religion

or prior EEO activity.

As to the PER, complainant has not presented any evidence to refute

management's contention that she was doing no more work than the minimum

amount required. She has merely stated that her work was outstanding, and

that she had received better ratings in the past. There is no evidence

that the motivation behind complainant's rating was an intent discriminate

against her or subject her to reprisal for her prior EEO activity.

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present evidence that any of the agency's actions were in

retaliation for complainant's prior EEO activity or were motivated by

discriminatory animus toward complainant's race or religion. We discern

no basis to disturb the AJ's decision. Therefore, after a careful

review of the record, including complainant's contentions on appeal,

the agency's response, and arguments and evidence not specifically

addressed in this decision, we affirm the agency's final decision.

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

March 19, 2002

__________________

Date

1 We have also considered complainant's argument that the removal

of her set schedule constituted a denial of religious accommodation.

To establish a prima facie case of discrimination where refusal to

accommodate one's religious practices is at issue, a complainant must

demonstrate that (1) she or he has a bona fide religious belief that

conflicts with an employment requirement; (2) she or he informed

the agency of the belief; and (3) the agency nevertheless enforced

its requirement against her or him. Cardona v. U.S. Postal Service,

EEOC Request No. 05890532 (October 25, 1989). Here, complainant has

satisfied the first and second requirements. However, the record reveals

that complainant told management that in order to fully accommodate her

needs she merely needed to be off work on the first and third Saturday

of each month, since her ministry class met only on those particular

days. The record reveals that the agency agreed to this condition, and

executed it. We find, therefore, that complainant has not established

a prima facie case of denial of religious accommodation.