0120131165
05-19-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120131165
Agency No. 200P05312012100976
DECISION
On January 25, 2013, Complainant filed an appeal from the Agency's January 16, 20131, final decision (FAD) 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Clerk at the Agency's Medical Administration Services, Medical Center facility in Boise, Idaho.
On February 22, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), disability (Post Traumatic Stress Disorder and Irritable Bowel Syndrome), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On September 15 and 16, 2011, Complainant was not provided assistance in the mail room;
2. On February 23, 2012, and ongoing, Complainant's Supervisor (S: White, no claimed disability) denied Complainant's Family Medical Leave Act (FMLA) requests;
3. On February 23, 2012, Complainant was placed on Sick Leave Certification; and
4. On March 19, 2012, S questioned Complainant regarding his whereabouts.
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 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.
Specifically, the Agency found that the Agency articulated legitimate nondiscriminatory reasons for its actions and that Complainant failed to establish that these reasons were a pretext for discrimination. The Agency further found that Complainant failed to establish that he was subjected to harassment under the law.
ANALYSIS AND FINDINGS
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. (November 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").
Disparate Treatment.
Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is Complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established his prima facie case of discrimination.
With regard to Complainant being denied help in the mailroom, S averred that this was due to a "misunderstanding" about when and how a coworker (CW: race and disability unknown) assigned to help Complainant in the mailroom was supposed to provide such help. See Report of Investigation (ROI) Exhibit B2, p. 7. Specifically S averred that Complainant was expecting CW to come and check and see if Complainant needed help while CW was expecting Complainant to call and ask for help if he needed it. See id. Furthermore, to the extend Complainant was claiming that S failed to take any action against CW, S averred that she did take action by telling CW that, in the future he should check in on Complainant rather than waiting to be called. See id., p. 8.
With regard to Complainant being denied FMLA leave, S averred that Complainant's medical documentation "did not support" his request "so we needed further clarification, what the doctor wrote did not match basically. It was not enough to approve FMLA from what the doctor wrote. So we just sent him a letter saying we needed additional medical documentation to support his FMLA request." Id. p. 9. S averred that "There were things in there that he needed to care for family members, but we did not get medical information about the family members on why they needed care." Id. S said that Complainant then supplied additional documentation but that it still did not meet the requirements so "we let him know that we still needed clarification. And I did not get anything further from him regarding that." S further averred that Complainant had previously asked for the same dates off as vacation time but that he had used up a lot of his annual leave by calling in sick throughout the year and that S suspected that Complainant was requesting FMLA leave because "he was out of vacation time." Id., p. 11.
With regard to Complainant being placed on Sick Leave Certification, S expanded on her previous comments about Complainant's use of leave. S stated that together with the Human Resources department they:
ran a report of his leave usage over the last year. When he calls in if he is out of sick leave he was having to use his vacation time, his annual leave. So we ran a report based on how much he had used. And in our service, . . . if we see a pattern of leave abuse, if they are calling in and they don't have enough sick leave and they start having to use from their annual leave pot frequently, we do let them know that we are not going to do that any longer, that they can only use sick leave.
Id., pp, 12-13.
Finally, with regard to Complainant being asked his whereabouts, S averred that Complainant had a habit of disappearing from his work area for long periods and so on this occasion after Complainant had been gone for 45 minutes S questioned him about his absence when he returned to his work area. See id., pp. 15-16.
The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts to Complainant to demonstrate by a preponderance of the evidence that the Agency's actions were based on prohibited considerations of discrimination, that is, its articulated reasons were not the true reasons but were a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. Following a review of the record we find that Complainant has failed to meet this burden. While Complainant disagreed with the Agency's actions and feels that his leave usage and work breaks were legitimate, he has not addressed the Agency's articulated reasons for its actions, nor has Complainant shown that Agency officials harbored any animus towards his protected bases. We therefore find that Complainant has not shown that he was subjected to disparate treatment based on his protected bases.
Harassment
To the extent that Complainant is alleging that he was subjected to a hostile work environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has failed to meet his burden of establishing, by a preponderance of the evidence, that discrimination occurred and we AFFIRM the FAD.
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
May 19, 2015
__________________
Date
1 We note that the FAD is dated January 16, 2012 but various events in the FAD post-date that date and the Agency has not claimed that the appeal is untimely. We therefore conclude the correct date is January 16, 2013.
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0120131165
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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