0120120064
09-06-2013
Robert L. Johnson, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Robert L. Johnson,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120120064
Agency No. 201123601FAA06
DECISION
On September 28, 2011, Complainant filed an appeal from the Agency's September 16, 2011, 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. The appeal is and accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented on appeal is whether the Agency's Final Decision (FAD) properly found that Complainant was not subjected to discrimination based on reprisal when on or about October 4, 2010 he was issued a leave abuse memorandum.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Airway Transportation Specialist, FV-2101-H at the Agency's Northern California Terminal Radar Approach Control facility in Mather, California. On nine separate occasions between February 2, 2010 and September 22, 2010, Complainant took sick leave the day before, or the day after, a regular scheduled day off, scheduled annual leave, or scheduled travel days. Upon consultation with, and on the recommendation of, the Agency's Office of Labor Relations and pursuant to the contractual requirements of the Collective Bargaining Agreement (CBA), on October 4, 2010, Complainant's first level supervisor (S1) issued Complainant a sick leave memorandum which stated that if he continued his "pattern of sick leave use, a medical certificate may be required for each subsequent use of sick leave."
On December 1, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when S1 issued the leave abuse memorandum as articulated above. 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). In accordance with Complainant's request, the Agency issued a final decision (FAD) 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. While finding that Complainant established a prima facie case of discrimination based on retaliation, the FAD determined that the Agency met its burden of articulating a legitimate, non-discriminatory reason for issuing the leave abuse memorandum, specifically that in September 2010 management noticed a troubling pattern with Complainant's sick leave usage. The FAD found that Complainant failed to establish that the Agency's asserted reason for issuing the memorandum was a pretext for discrimination.
STANDARD OF REVIEW
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. (Nov. 9, 1999) (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").
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must 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. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
We assume for the purposes of this analysis that Complainant established a prima facie case of discrimination based on reprisal, however, we find that the Agency successfully articulated a legitimate, non-discriminatory reason for issuing the leave abuse memorandum. Additionally, we find that Complainant failed to demonstrate that any conduct on the part of the Agency was based in discriminatory animus.
The record reflects nine separate instances between February 2, 2010 and September 22, 2010, when Complainant took sick leave the day before, or the day after, a regular scheduled day off, scheduled annual leave, or scheduled travel days. Record testimony indicates that the CBA requires that employees be advised in writing of reasons that a medical certificate may be required. The record is void of evidence that any part of the action taken by the Agency could be attributed to discriminatory animus. Complainant's pattern of sick leave usage raised a red flag with management, and a decision was made to consult with the Office of Labor Relations. Management was subsequently advised that compliance with the CBA required that if there was any concern that Complainant may be asked to substantiate his sick leave usage that he be issued a warning memorandum.
We find Complainant's argument during the EEO formal complaint process that in 2008 and 2009 he used more sick leave than he did in 2010, and that he was not issued the memorandum until after he filed 14 union grievances within two months, irrelevant in the instant appeal. Management's concern was not the amount of sick leave Complainant was using, but his pattern of using sick leave the day before, or the day after, a regular scheduled day off, scheduled annual leave, or scheduled travel days.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's FAD finding that Complainant failed to establish that he was discriminated against as alleged.
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
_9/6/13_________________
Date
2
0120120064
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120064