0120131645
07-01-2015
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120131645
Hearing No. 430-2011-00414X
Agency No. ATL-11-0346-SSA
DECISION
On March 30, 2013, Complainant filed an appeal from the Agency's February 28, 2015 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. The Commission accepts the appeal 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 is whether Complainant established that the Agency discriminated against him on the bases of race (Caucasian) and disability (back injury) in connection with his assignment of duties, his Family and Medical Leave Act (FMLA) leave, and his termination during his probationary period.
BACKGROUND
Beginning on March 14, 2010, Complainant worked as a GS-5 Service Representative (SR) Trainee at the Agency's field office in Reidsville, North Carolina. Complainant was hired under a Veterans' Recruitment Appointment as a disabled veteran and was required to serve a two-year probationary period. Complainant's supervisor was the District Manager (S1 - Hispanic, disability status unknown).
In August 2010, Complainant completed SR classroom training but S1 did not give him an "alpha" assignment. According to Complainant, another SR (CW - African-American, disability status unknown) who was hired in October 2009 received an "alpha" assignment from S1 after completing SR classroom training in March 2010.
On September 30, 2010, S1 issued Complainant a new hire/trainee performance discussion. In the area of "engages in learning," the performance discussion stated the following:
You have completed classroom training and are currently being closely mentored during your on the job training ... We have discussed that your attendance has had an adverse impact on your test scores as well as the amount of time you have been able to dedicate towards your on the job training ... I would like to re-emphasize that you have to be at work to be able to learn the work and demonstrate your ability to perform the job.
On November 1, 2010, S1 gave Complainant a rating of "successful" in his new hire/trainee performance appraisal for 2010. In the area of "engages in learning," the performance appraisal stated the following:
We have discussed your attendance and it continues to be the biggest thing standing in your way. Your health issues and resulting numerous doctors' appointments have been such that you have missed a substantial amount of work. This slows down your training and your ability to learn. I would continue to emphasize that to learn the job and do the work you have to be at work. You currently have no leave and have had to take some leave without pay. I need to see improvement in this area. Being able to be here more regularly would allow you to demonstrate progress towards independent completion of work.
On November 10, 2010, S1 provided Complainant with a letter to take to his physician at the Department of Veterans Affairs (VA). The letter requested information about Complainant's medical condition, his ability to perform the duties required in his position, his ability to be regular in attendance, and whether his medical condition warranted any reasonable accommodation. On December 9, 2010 and January 5, 2011, S1 sent additional copies of the letter to the VA. S1, however, never received any information from Complainant's physician in response to the letter.
On January 4, 2011, S1 issued Complainant a notice of termination, effective January 17, 2011. Specifically, the notice stated that Complainant's absences and unavailability made it impossible for him to perform the duties of the position for which he was hired. In addition, the notice stated that Complainant had been absent from his training nearly 25 percent of the total time. According to Complainant, he was absent for medical reasons and S1 did not terminate CW, who also had numerous absences.
On January 7, 2011, Complainant emailed S1 requesting to use FMLA leave. Specifically, the email stated that Complainant was not aware that he was eligible for FMLA leave and would like to have FMLA leave applied to all of his 2010 leave used. Later that day, S1 emailed Complainant stating that employees ordinarily may not invoke FMLA leave retroactively. According to Complainant, management erroneously told him during the hiring process that he was not eligible for FMLA leave until he had worked for the Agency for one year, but he later discovered that he was eligible due to his military status.
On March 21, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and disability (back injury) when:
1. S1 not give him an "alpha" assignment after he completed SR classroom training in August 2010;
2. S1 did not allow him to use FMLA leave for his absences even though he was eligible to do so; and
3. S1 terminated him from his SR position, effective January 17, 2011.
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. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision analyzed Complainant's claims under a disparate treatment framework and concluded that he did not prove that the Agency discriminated against him as alleged. Complainant then filed the instant appeal.1 We will address Complainant's contentions on appeal below.
ANALYSIS AND FINDINGS
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 EEO MD-110, at Ch. 9, � VI.A (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 absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing 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 Constr. 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, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of race and disability discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Regarding claim 1, S1 averred that an "alpha" assignment meant a SR would be able to work on a full range of cases that came in. In addition, S1 averred that she did not give Complainant an "alpha" assignment because, due to his numerous absences, he had not progressed far enough with his training to have sufficient exposure to the different types of cases.
Regarding claim 2, S1 averred that Complainant first requested FMLA leave in January 2011 and she told him she could not retroactively apply it. In addition, S1 averred that she did not recall any conversations with Complainant about FMLA leave prior to January 2011 and that she did not know he was eligible for FMLA leave until she did some research after his request in January 2011.
Regarding claim 3, S1 averred that she terminated Complainant because his attendance impeded his progress as a SR. In addition, S1 averred that, although the work Complainant was able to perform was at an acceptable level, his absences kept him from progressing as quickly as he should and from being introduced to new work items. Further, S1 averred that Complainant was not at work often enough to perform his job. Moreover, S1 averred that CW's leave usage - while excessive - did not approach the same level of severity as that of Complainant's because: (a) during their first 22 pay periods of employment,2 CW used 207.50 hours of leave whereas Complainant used 287 hours of leave; and (b) during SR classroom training, CW was absent 33.50 hours whereas Complainant was absent 91.75 hours.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were pretextual. On appeal, Complainant requested that we reverse the Agency's final decision and find discrimination. Complainant did not specifically raise any arguments regarding claim 1. Regarding claim 2, Complainant argued that S1 did not inform him about his eligibility for FMLA leave until after she had issued him the notice of termination. Regarding claim 3, Complainant argued that S1 approved the leave he used, that he earned the majority of the leave he used, that the Agency did not provide evidence that his absences affected the operation or his progress as a SR, and that CW had a lower leave balance than he did for the March 14, 2010 to January 17, 2011 period.
Upon review of the record, we find that Complainant did not prove that the Agency's reasons were a pretext for race or disability discrimination.
Regarding claim 2, we find that Complainant did not show that S1's actions related to his FMLA leave were motivated by his race or disability. Although S1 may have been previously mistaken about Complainant's eligibility for FMLA leave, we note that an employer's business decision cannot be found discriminatory simply because it appears that the employer acted unwisely, or that the employer's decision was in error or a misjudgment. See EEOC Compliance Manual Section 15, "Race and Color Discrimination," No. 915.003, � 15-V.A.2 (Apr. 19, 2006) (Manual). Moreover, the record reflects that S1 acted in conformance with Section 3.3 of Personnel Policy Manual S630-4 when she informed Complainant that he could not invoke FMLA leave retroactively.
Regarding claim 3, we find that S1 expressed her concerns about the impact of Complainant's absences on his progress as a SR in the September 30, 2010 new hire/trainee performance discussion and in the November 1, 2010 new hire/trainee performance appraisal. Moreover, we find that Complainant did not show that CW was similarly situated. Identification of persons who are similarly situated to the complainant should be based on the nature of the allegations, the alleged nondiscriminatory reasons, and other important factors suggested by the context. See Manual, � 15-V.A.2. For example, if an employee alleges that his race was a reason he was discharged for misconduct, similarly situated employees should be identified who engaged in misconduct of comparable seriousness. See Manual, n.50. Here, because Complainant/CW did not begin working for the Agency at the same time and because S1's alleged nondiscriminatory reason for terminating Complainant was that his attendance impeded his progress as a SR, we find it relevant to compare their attendance during their first 22 pay periods of working as SRs (including their attendance during SR classroom training) rather than their attendance during Complainant's employment at the Agency (March 14, 2010 to January 17, 2011). According to S2's affidavit testimony, Complainant used almost 40 percent more leave than CW during their first 22 pay periods of employment and Complainant was absent almost 275 percent more than CW during SR classroom training. Therefore, while both Complainant and CW had attendance issues, we find that their issues were not of comparable seriousness during the relevant time period.
Reasonable Accommodation
We assume, without so finding, that Complainant is an individual with a disability under the Rehabilitation Act. An agency is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. See 29 C.F.R. � 1630.9. Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the American with Disabilities Act, No. 915.002, Types of Reasonable Accommodations Related to Job Performance (as revised Oct. 17, 2002) (Guidance). When an employee requests reasonable accommodation, an employer may ask the employee for reasonable documentation - i.e., documentation that is needed to establish that the employee has a disability under the Rehabilitation Act, and that the disability necessitates a reasonable accommodation. See Guidance, Question 6.
On appeal, Complainant argued that S1 knew about his back injury. In addition, Complainant argued that S1 "continually asked [him] to identify with specificity his disability" and "went beyond her right and [his] right to disclose his disability."
Upon review of the record, we find that the Agency did not deny Complainant a reasonable accommodation. Here, the record does not establish that Complainant's use of leave was necessitated by his back injury. Specifically, Complainant averred that "many of the absences were because of illness and hospitalization" and "because I had MRSA (staph infection)." In addition, S1 averred, "As I recall, most of [Complainant's] absences were not related to his back. He was pretty free with telling everyone what was going on with his health issues - he was out for bronchitis, stomach virus, psychological exams through the VA, sleep study through [the] VA, MRSA (in his elbow), and a possible blood clot in his lungs." As to S1's November 10, 2010 letter to Complainant's VA physician requesting additional information, the contents of the letter reflect that she sought information about Complainant's medical condition, Complainant's ability to perform the duties required in his position, Complainant's ability to be regular in attendance, and whether Complainant's medical condition warranted any reasonable accommodation. We find that S1 was seeking reasonable documentation from Complainant's VA physician about whether Complainant had a disability under the Rehabilitation Act and whether the disability necessitated a reasonable accommodation.
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 (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
__7/1/15________________
Date
1 On appeal, Complainant submitted the following documents that were not previously part of the record: (1) CW's leave report for the December 6-19, 2009 pay period; (2) Executive Order No. 5396, signed in July 1930; (3) an email from Human Resources to S1 on January 7, 2011 at 10:50 a.m.; (4) Complainant's SR ePAD proficiency update; and (5) emails between S1 and Human Resources on December 20, 2010. As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.A.3 (Nov. 9, 1999). Because Complainant did not make such a showing, we decline to consider those documents on appeal.
2 This was the length of time Complainant was employed by the Agency.
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0120131645
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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