0120120787
04-27-2012
Edwin J. Gautreaux, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Edwin J. Gautreaux,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120120787
Agency No. USGS-11-0119
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 1, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Laborer, WG-3502-03, at the Agency's National Wetlands Research Center, U.S. Geological Survey (USGS) in Lafayette, Louisiana. Complainant was in a Not-to-Exceed (NTE) appointment from December 6, 2009 to January 5, 2011, and his employment ended at the expiration of his NTE term.
On January 6, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of disability (lung disease) and age (over 40) when:
1. in October 2010, his claim for compensation (Form CA-7) was not completed by the Agency;
2. on March 9, 2010, he was denied permission to seek medical treatment for an on-the-job injury; and
3. on or about January 27, 2011, he was issued a letter from the U.S. Department of Labor, Office of Workers' Compensation Programs (OWCP) "threatening to cut off" his OWCP benefits.
On March 9, 2011, the Agency issued a partial dismissal. Therein, the Agency accepted claim 1 for investigation. The Agency, however, dismissed claim 2 on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on October 21, 2010, which was beyond the 45-day limitation period.
Further, the Agency dismissed claim 3 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency found that the instant formal complaint constituted an impermissible collateral attack on the OWCP process. According to the Agency, the matter was outside the Commission's jurisdiction and should have been raised with the Department of Labor.
After the investigation of claim 1, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on December 1, 2011, pursuant to 29 C.F.R. � 1614.110(b).
In its December 1, 2011 final decision, despite its prior investigation of claim 1, the Agency dismissed claim 1 for failure to state a claim, finding that it constituted an impermissible collateral attack on the OWCP process. The Agency nevertheless proceeded to address claim 1 on the merits, finding no discrimination. The Agency found that Complainant did not establish a prima face case of disability and age discrimination.1 The Agency further found that assuming arguendo Complainant established a prima facie case of disability and age discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext for discrimination.
The Program Manager (PM) of the Agency's Workers' Compensation Program stated that her role is to provide assistance "to agency personnel that are representing the agency and injured workers, whenever they inquire about injury-related questions." PM stated that the OWCP makes determinations "whether somebody has a medical condition that is compensable and whether medical treatment is compensable. They authorize treatment and benefits."
PM further stated that in October 2010, Complainant contacted her office and "he had some questions with regard to his claims. His claim for injury for the CA-1, which was . . . a hernia case. That was my first interaction with [Complainant]. He indicated that he was not able to receive the information he was looking for from either the Department of Labor or his agency. I gave him program information and advised on how to manage his case." PM stated that she instructed Complainant to submit his Form CA-7 to his Agency Human Resources Office.
PM stated that she instructed a named Human Resources Specialist (HRS) to complete Complainant's form and forward it to the OWCP. Specifically, PM stated that she instructed HRS to complete Complainant's form "because [Complainant] indicated there was a holdup. She was instructed by me to complete it and forward it to Office of Workers' Comp." PM stated that the only role "that the Agency plays is completing it, indicating that they acknowledge that [Complainant's] reporting his claim. And they submit it to OWCP for adjudication. We make no decisions as far as any type of claim."
PM stated that OWCP determined that Complainant was not eligible "for compensation payments, there's no wage loss associated with the claim, there's no wage loss indicated for his type of condition, but they do want to ensure that he is covered medically. So they've accepted his case for medical benefits only."
With respect to Complainant's assertion that PM told the Management Analyst (MA) not to cooperate in his efforts to complete his CA-7, PM denied it. Specifically, PM stated that Complainant's allegations are false because "I told [MA] to sign it and send it to the Office of Workers' Comp. We do not make decisions, so it doesn't rest with me. It doesn't rest with our agency. It doesn't rest with our department. The Office of Workers' Compensation reviews all information, adjudicates all claims and issues decisions."
Complainant's asserted that PM called him an "old fool" during a heated conversation in which Complainant accused PM of misrepresenting her attempts to obtain a medical referral for him. However, PM stated the allegations were "false, yet again. And I'm insulted by that." PM stated that during their conversation, Complainant became upset with her and he told her "'you must think I'm an old foolish Cajun. ..' That's his exact words. That's what he said." PM further stated that when Complainant "started talking like that, that's when I cut off conversation with [Complainant], because basically all I was doing was trying to tell him we had not received information that he said he had sent. He got belligerent, he got argumentative, and I had to cut off the conversation, because [Complainant] uses foul language."
MA stated that she assists employees with Form CA-7 which is a claim for compensation. MA stated that if an employee is injured on the job, she assists them filling out Form CA-1 "which is a Notice of Injury, that is forwarded electronically to the Department of Interior, Office of Workers' Comp. They, in turn, take over the case and then work with the claimant or employee to file - - or help them file any other claim with the Department of Labor." MA further states that employees are required to fill out CA-7 if they cannot return to work after 45 days and send it to Department of Labor's OWCP office. MA stated "as far as I know, it's Department of Labor that makes the decision based on the medical documentation from the employee's physician."
MA stated that she instructed Complainant "on to log into the system and make the claim and file the reports." MA stated while she did not help Complainant complete the CA-7, she referred him to a contact person "that had been assigned his case at the Department of Interior." Specifically, MA stated that Complainant contacted her late September or October 2010 and "I referred him to [named Program Manager] and [PM] "because they had an active case open. They were going to help him do whatever necessary to help him. So it wasn't for me to do it." MA further stated that she did not file anything for Complainant because "I really didn't have any information, enough to file a form for him. He would have to do that with [named Program Manager and PM].
With respect to Complainant's allegation that MA told him by telephone that PM told her not to complete his CA-7 or cooperate in the completion of the form, MA denied it. Specifically, MA stated that PM was handling Complainant's case and "taking care of his request. I know I told him that in so many words. I don't recall that she ever said not to do it. I told him that she could help him; he no longer needed to go through me."
S1 denied Complainant's allegation that he did not complete Complainant's CA-7. Specifically, S1 stated that Complainant never approached him with a CA-7 at any time and asked him to complete the management portion of the form. S1 further stated "based on the CA-7's that I make copies of, that went to either Office of Workman's Comp or [MA] here, the two CA-7 forms that [Complainant] signed and he dated, it was not turned in to me. Somebody else signed them. So in the instructions on filling out a CA-7, which comes with the form, it says the employee fills out their portion and submits it to the supervisor and then the supervisor submits it and turns it into Human Resources. But I never got the form. Somebody else signed them."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party 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 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).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as addressed above. Neither during the investigation nor on appeal has Complainant produced evidence that these proffered reasons were a pretext for unlawful discrimination. After a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision concerning claim 1 because the preponderance of the evidence of record does not establish that discrimination occurred.2
Because we affirm the Agency's finding of no discrimination concerning claim 1 as addressed above, we find it unnecessary to address these claims on alternative procedural grounds (i.e. failure to state a claim).
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
April 27, 2012
__________________
Date
1 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.
2 *On appeal, Complainant does not challenge the March 9, 2011 partial dismissal issued by the Agency regarding claims 2 and 3. Therefore, we have not addressed these issues in our decision.
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0120120787
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120787