01A10122
03-19-2002
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.