0120123280
03-17-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123280
Agency No. 2003-0580-2011104060
DECISION
Complainant filed an appeal from the Agency's July 18, 2012, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aide at the Agency's DeBakey VA Medical Center facility in Houston, Texas.
On October 22, 2011, Complainant filed a formal EEO complaint alleging, according to the Agency, that he was discriminated against on the bases of disability and age (54) when:
1. he was reprimanded for absence without leave (AWOL) after he received 23 charges of AWOL during the period of January through April of 2011; and
2. on June 7, 2011, the Medical Center Director sustained Complainant's removal from service, effective June 10, 2011.
The Agency dismissed Complainant's claim 1 (AWOL claims) on the basis of untimely EEO contact. The Agency accepted and investigated claim 2 (Complainant's removal.
The pertinent record includes Complainant's testimony, during his deposition, averring that he has a "20 percent service related disability." Deposition Transcript at 79. Complainant testified that management was made aware of his disability when it hired him.
Complainant named four responsible officials, including the Environmental Management Services Manager (Supervisor) and the Medical Center Director (Deciding Official). Of the four named responsible management officials, only one (his Supervisor) testified that he was aware of Complainant's age and medical conditions. Complainant acknowledged that he had not met the other three decision-makers.
Complainant was a full-time, permanent career employee "until he injured himself on the job" six months prior to his removal. According to his complaint, after he suffered an on-the-job injury, the Agency permitted him to work weekends only. Complainant claimed that he was given a disproportionate amount of work to do, as compared to younger workers who worked the weekends, although did not identify any specific comparators. Complainant requested relief from the heavy workload. The record does not show that Complainant ever requested a reasonable accommodation under the Rehabilitation Act based on his medical condition. His Supervisor averred in his deposition that he was "short" on staff and did not have anyone to assign to do some of the job that Complainant performed.
After Complainant raised concerns with his Supervisor regarding his disproportionate work load, Complainant claims that "his AWOL became a problem." Complainant maintains that he was charged with AWOL on some days when he was actually present, but he does not dispute that he was out on AWOL for many of the instances that the Agency stated he was absent without approved leave.
On May 4, 2011, Complainant was issued a Notice of a "Proposed Removal" based on 23 incidents of AWOL and a prior reprimand in 2010. Complainant did not provide a written response to the proposal to remove him.
The Deciding Official averred that he removed Complainant based on the documented 23 instances of AWOL and his failure to contact his supervisor when he did not report for duty. The record also shows that the Agency had charged Complainant with AWOL on at least one occasion (August of 2010) prior to his injury and prior to the time that Complainant raised concerns about his disproportionate workload.
Complainant maintains that he never received the proposed termination letter or an opportunity for rebuttal. Complainant concedes that he did not make timely EEO contact regarding the AWOL charges because he "did not take the AWOL charges seriously." He also acknowledged that he "never complained" about his situation.
The Agency Decision
The Agency determined that Complainant failed to establish a prima facie case of discrimination because there was no evidence supporting his claim that he was a individual with a disability within the meaning of the Rehabilitation Act, or that most of the responsible management officials knew him personally or were aware of his age. However, the Agency went on to conclude that even if he had raised an initial inference of discrimination, responsible management official successfully rebutted that inference with an articulation of legitimate, none-discriminatory reasons for the actions taken. The Agency reasoned that "Complainant cannot establish that he was performing duties at a level which met management's legitimate expectations as he was absent most of the time from December 2010 to May 2011 and did not call his supervisor to request leave." The Agency referenced management's testimony that Complainant's removal was sustained because management had documentation supporting 23 charges of AWOL and Complainant's failure to follow proper leave requesting procedures. The Agency found that Complainant failed to show pretext because "he has provided no justification for his unexcused absences."
The Agency concluded that Complainant failed to demonstrate by a preponderance of the evidence that he was discriminated against on the bases alleged.
This appeal followed.
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").
Untimely EEO Contact - AWOL Charges
The Agency dismissed claim 1 concerning the 23 incidents of Complainant being charges with being AWOL because he did not seek EEO counseling until more than 45 days had elapsed since the most recent AWOL charge occurred. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
While it is clear that the AWOL charges are directly related to the Agency's decision to remove Complainant, the Agency has correctly dismissed them as an independent claim. The Supreme Court has held that that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). Therefore, while we find that the AWOL charges should appropriately be used as background evidence concerning the removal issue, they are untimely as an independent claim.
Disparate Treatment - Removal
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. See 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. See 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. See 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. See U.S. Postal Service Board 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 for purposes of analysis that Complainant established a prima facie claim of age or disability discrimination, we find that the Agency articulated legitimate reasons for its actions. His supervisor does not dispute that Complainant, who worked weekends, may have had a heavier workload than some other employees. However, he testified that he was not able to provide assistance, because he did not have sufficient staff to provide Complainant further relief. The supervisor averred that he needed Complainant to perform and his actions were based solely on the Complainant's unexcused absences. While it may be debatable whether there were others who were available to relieve Complainant, the record does not show that the Agency denied Complainant's request for help due to his age or any disability, or denied Complainant a disability-related reasonable accommodation to which he was entitled under the Rehabilitation Act. The termination was based on Complainant's undisputed frequent incidents of being AWOL and failing to follow the procedures for approved leave.
Moreover, the record does not show that others with a similar record of AWOL incidents, who were younger or had no disability, were retained under similar circumstances. There is also no other evidence of pretext or evidence that Complainant sought reinstatement, which the Agency denied. For all of these reasons, we find that there is insufficient evidence to establish that the Agency's stated reasons were a pretext for unlawful animus.
Therefore, we find that the Agency's decision is supported by a preponderance of the record.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision for the reasons stated herein.
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 tends 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
March 17, 2015
__________________
Date
2
0120123280
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123280