01A10067
04-09-2002
Donna Mauras, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Donna Mauras v. Social Security Administration
01A10067
April 9, 2002
.
Donna Mauras,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A10067
Agency No. 99-0052-SSA
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a GS-303-7, Management Services Assistant at the agency's Office of
Hearings and Appeals (OHA) facility in Tucson, Arizona. Complainant
sought EEO counseling and subsequently filed a formal complaint on
November 3, 1998, alleging that she was discriminated against on the
bases of sex (female) and reprisal (for being a non-member of the union)
when on or about August 10, 1998, she was denied advanced sick leave.
The record reflects that on August 5, 1998, complainant called the office
to report that she would not be at work due to a migraine headache.
The Hearing Office Clerk (HOC1) answered the phone, and complainant
asked to speak to another Hearing Office Clerk (HOC2). Instead of
speaking with HOC2, complainant was transferred to a Staff Attorney (SA)
and she told him that she would not be in and that she would be using
credit hours instead of leave. Later that evening, complainant received
a telephone call from management and was told that she was going to be
charged Absence Without Leave (AWOL) by the Acting Hearing Office Manager
(M1) because complainant failed to call her.
The record also reflects that on the morning of August 6, 1998,
complainant called the Hearing Office Chief Administrative Law Judge (ALJ)
and told him that she was home with an excruciating migraine headache due
to stress caused by HOC1. When complainant returned to work on August
10, 1998, she learned that M1 was not going to advanced her any leave.
The record establishes that complainant was told that when she got a
letter from her doctor, the ALJ would advance her leave. Later that day,
complainant went to her doctor and he gave her a letter to be out of the
office until the migraine was under control. Complainant was informed
that although advance sick leave was for emergencies and hospitalization,
she could request advanced annual leave. Complainant did not take
any time off, and worked the entire week even though she still had a
migraine headache.
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 failed to establish a
prima facie case of sex and reprisal discrimination. In particular, the
agency found that complainant produced no evidence that males, similarly
situated were treated more favorably under similar circumstances.
In regard to complainant's reprisal claim, the FAD noted that complainant
did not show any prior protected activity. Complainant raises no new
contentions on appeal. The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the
Commission agrees with the agency that complainant failed to establish
a prima facie case of sex or reprisal discrimination.
In reaching this conclusion, we note that complainant has presented no
evidence that her male co-workers in similar positions, were treated more
favorably under similar circumstances. The Commission also finds that
complainant's reprisal claim is based on her non-membership in the union.
Membership in a union, or the lack thereof, is not recognized as a
protected activity under Title VII. However, even assuming, arguendo,
that complainant did show a prima facie case of discrimination, the
agency articulated a legitimate, nondiscriminatory reason for its action.
Specifically, the conditions presented by complainant as requiring
three days advanced sick leave - a migraine headache - did not meet the
definition contained in the agency's policies permitting the granting
of advanced sick leave.
Under these circumstances, the Commission finds that complainant failed to
present sufficient evidence that any of the agency's actions were based
on discriminatory animus and/or retaliatory motive. Therefore, after
a careful review of the record, including complainant's contentions,
the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
April 9, 2002
__________________
Date