01985488
06-13-2001
Bernadette D. Martin, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Bernadette D. Martin v. Defense Commissary Agency
01985488
June 13, 2001
.
Bernadette D. Martin,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01985488
Agency No. ATL-97-CA-0511-E
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that she was discriminated against based on race (Black) and
disability (injury resulting in shoulder/arm pain and restrictions)
when she was terminated on July 23, 1996.
The record reveals that on October 30, 1995, complainant commenced
employment as a probationary Store Worker, WG-4, at the agency's Fort
Gillem Commissary in Fort Gillem, Georgia. Complainant worked as a
"night stocker." Following an injury in May, 1996, complainant was
on sick leave beginning June 4, which was granted on a daily basis
when she telephoned a supervisor to request it. On June 8, 1996,
complainant was scheduled to begin work at 2200 hours. Instead, she
went to the Commissary at approximately 1530 hours to present the day
shift supervisor with a doctor's statement indicating that she needed
"light duty" as an accommodation because she could not lift more than
five pounds until she had an appointment with an orthopedic specialist.
Complainant contends that the day shift supervisor advised complainant
that he was unaware of her injury and that she needed to contact her
night shift supervisor. The day shift supervisor contends that he
advised her in addition to report to work for the night shift and she
would be given light duty.<1> Complainant returned to the Commissary
at 2030 hours, presented the night shift supervisor with the doctor's
statement, and told him that she would be unable to work until after
her appointment with an orthopedist the following Tuesday. The night
shift supervisor contends that he granted this request for continued
sick leave, but then subsequently learned from the day shift supervisor
that he had instructed complainant to report for the night shift and she
would be assigned light duty. The night shift supervisor concluded that
complainant had lied to him by stating that the day shift supervisor had
approved sick leave, so he placed her in an Absent Without Leave status
for June 8, 1996. Complainant subsequently returned to work on July 3,
1996, and signed in as having arrived at 1130 hours even though it was
actually 1137 hours when she signed in. Complainant contends that her
sign-in time was correct because she arrived at the facility at 1130,
but the door was locked to the room where the sign-in sheets were kept,
so she had to look for another way to document her arrival, and went to
several offices before ultimately signing in at the cashier's office.
The agency contends that complainant instead should have reported to her
duty station and advised her supervisor why she could not sign herself in.
The agency subsequently removed complainant, citing the June 8 and July 3,
1996 incidents, as well as a history of prior tardiness.
Believing her termination was discriminatory, complainant sought EEO
counseling and subsequently filed a formal complaint on May 13, 1997.
At the conclusion of the investigation, complainant was informed
of her right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision. In its FAD, the
agency concluded that complainant had not established that the agency's
proffered reasons for her termination were a pretext for discrimination.
On appeal, complainant contends that she did not submit her doctor's
statement to the day shift supervisor on June 8 for the purpose
of returning to work on light duty, but rather for the purpose of
documenting her need for continued sick leave pending an appointment
with an orthopedist. She asserts that this is supported by the day
shift supervisor's affidavit stating that complainant was not dressed for
work when she arrived, and is also supported by the fact that she still
had 100 hours of sick leave accrued on which she could draw. She also
contends that the time and attendance records do not indicate that she was
tardy as claimed by the agency. Further, she contends that her mid-year
performance evaluation indicates that she was an excellent employee.
Finally, she contends that five other Black employees were terminated
during the same period, whereas two White employees with allegedly
inferior attendance records were retained. The agency requests that we
affirm its FAD.
In reviewing the instant claims, we do not reach the issue of whether
or not complainant is an individual with a disability within the meaning
of the Rehabilitation Act. Rather, we find that even assuming arguendo
complainant is an individual with a disability, she has not satisfied
her burden of proof to establish that the agency's proffered reasons for
her termination were a pretext for discrimination on any alleged basis.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), and Prewitt v. United States Postal Service, 662
F.2d 292, 310 (5th Cir. 1981), the Commission agrees with the agency
that complainant failed to establish that the agency's proffered reasons
for her termination were a pretext for discrimination. In reaching this
conclusion, we note that the two White comparators cited by complainant
are not similarly situated to her, inasmuch as one was not a probationary
employee, and although both were charged with unauthorized absence for
tardiness, neither was charged with such absence for an entire shift
as complainant was. Moreover, complainant does not contend that either
was found to have lied to their supervisor. Further, while complainant
asserts on appeal that when she presented her doctor's statement to
the day shift supervisor on June 8, 1996, she was not requesting to
return to work on light duty, but rather to obtain continued sick leave,
this statement is directly contradicted by her investigative affidavit.
In her affidavit, she states that she went to the Commissary on June 8 to
present her doctor's statement to the day shift supervisor, even though
she was not scheduled to work until 2200 hours, because she believed the
specific accommodations she needed were only available on the day shift,
and she sought to work the light duty for which she had been cleared
by her doctor. We find complainant's contrary contentions on appeal in
this regard are not credible. Moreover, while complainant contends that
the time and attendance records do not support the conclusion that she
was tardy, we note that the records contain her hand -written arrival
and departure times, not time stamped entries recorded by machine,
and thus do not definitively establish whether or not complainant was
tardy as alleged, where several supervisors have attested that she was
in fact counseled about repeated tardiness, but it continued. While the
evidence is therefore contradictory on this point, we note that even
assuming arguendo complainant established that one of management's
proffered reasons for her termination was pretextual, she must also
establish that the real reason was discrimination, and this burden has
not been met on the instant record. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993).
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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 13, 2001
__________________
Date
1Complainant states in her investigative affidavit that the day shift
supervisor also advised her that she would not be granted light duty
because her injury was off-the-job rather than on-the job. The day shift
supervisor does not include this statement in his affidavit description
of their conversation. Although we find that the preponderance of the
evidence does not establish that the day shift supervisor made this
statement, the agency may wish to conduct appropriate training to ensure
that all its supervisors and managers are aware that "an employer may not
avoid its obligation to accommodate an individual with a disability simply
by asserting that the disability did not derive from occupational injury."
Bradley v. United States Postal Service, EEOC Appeal No. 01962747
(October 22, 1998). See also EEOC Enforcement Guidance on Workers'
Compensation and the ADA (September 3, 1996), at questions 27-28.