01A32233
04-28-2004
Elizabeth Ortiz, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Elizabeth Ortiz v. Department of the Treasury
01A32233
April 28, 2004
.
Elizabeth Ortiz,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A32233
Agency No. TD00-4143R
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 Secretary GS-318-7 at the agency's Criminal Investigation Division,
Central District, Internal Revenue Service Fresno, California facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on March 3, 2000, and an amendment to the complaint, alleging
that she was discriminated against on the bases of her race (Hispanic)
and reprisal for prior EEO activity when:
(1) she was charged as being absent without official leave (AWOL)
from September 27, 1999 through November 5, 1999; and
she was charged as being AWOL from March 5, through June 30, June 2000.
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. Complainant
initially requested a hearing but later withdrew her request and asked
that the agency issue a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of discrimination based on reprisal because she engaged in
protected EEO activity, her supervisors were aware of her protected
EEO activity and subsequently, she was charged with being AWOL.
Complainant also alleged the agency discriminated against her in its
decisions about leave because she was the only Hispanic female in her
group and was the only person being harassed before, during and after
she filed an EEO complaint.
The agency concluded however, that it had legitimate reasons for placing
complainant on AWOL based on complainant's failure to sufficiently
document the reasons for her absences and her failure to report to
work when instructed to do so by her first line supervisor (S1).
Although complainant claimed that she provided medical documentation
to support her continued absence, the agency concluded that her
documentation was vague and did not contain a diagnosis or prognosis
for her condition. Additionally, the agency found that complainant's
doctor's notes always released her to return to work without restrictions
but that complainant would obtain another extension as soon as she was
scheduled to return. The agency concluded that there was no connection
shown between complainant's protected activity and its placement of
complainant on AWOL. Instead, the agency found that complainant had
exceeded the maximum ceiling for the use of Leave Without Pay (LWOP)
and did not adequately justify additional requests for LWOP.
Addressing the period of time of March 5 through June 30, 2000, the agency
concluded that it had legitimate reasons for its actions during this time.
The agency contends that complainant was not listed as AWOL from March 5
to March 19 because she was in a pay status in the Examination Division.
The agency stated that complainant was initially charged with being AWOL
from March 20 to May 5, 2000, because she failed to report back to work
for S1 after being on detail. After it was determined that complainant
had filed a worker's compensation claim, the agency stated it adjusted
complainant's leave records to reflect LWOP. The agency concluded it
was not clear that complainant had filed such a claim because she had
been working without incident in the Examination Division. The agency
concluded that complainant did not establish these reasons could not be
believed or that they were a pretext for retaliation.
On appeal, complainant argues that she demonstrated pretext by showing
that LWOP could be granted beyond the ceiling of 240 hours and when she
offered to use her own existing leave, but was turned down. Complainant
contends there was no reason for the agency to deny her leave because
she was in compliance with all existing agency regulations related to
granting LWOP. As further evidence of pretext, complainant points to
the agency's decision to revert some periods where she was marked AWOL
to reflect LWOP.
The agency reiterated that S1's decision to mark complainant AWOL was
based on the advice of the Labor Relations Office and the need for
complainant to be at work since she was the only administrative support
employee in the office. The agency argued that S1's initial decisions
regarding leave actually pre-dated complainant's protected EEO activity
and the later denial of LWOP when complainant had filed a worker's
compensation claim was an innocent error, not intentional discrimination.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with when the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981). Hochstadt v. Worchester 425 F.Supp. 318,aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases) 324, and Coffman v. Department of Veteran Affairs, EEOC Request
No. 05960473 (November 20, 1997).
The Commission's policy on retaliation prohibits any adverse treatment
that is based on a retaliatory motive and is reasonably likely to
deter the complainant or others from engaging in a protected activity.
EEOC Compliance Manual Section 8, �Retaliation� No. 915.003 at p 8-13
(May 20, 1998). See also Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000).
Based on a review of the record, the Commission concludes that complainant
failed to establish the agency's reasons for charging her AWOL were
a pretext for retaliation. The record reflects that shortly after S1
raised questions about complainant's work performance in July 1999,
complainant took leave from her position for most of the month of
August 1999. After repeated attempts to get complainant to return
to work, S1 issued complainant a letter informing her that no further
leave would be approved and she should report to work. Although this
closely coincided with complainant's contact with an EEO counselor, we
conclude S1's actions were more likely due to complainant's failure to
adequately substantiate the need for additional leave. Complainant failed
to demonstrate that the S1's actions were in retaliation for her protected
activity and not because complainant had already reached the maximum level
of LWOP S1 could approve without more substantial medical justification.
At the time of S1's actions, complainant had used 273 hours of LWOP all
approved by S1 with little or no discussion with complainant.
Turning to complainant's request for leave in March 2000, we are not
persuaded that the agency's actions were in retaliation for complainant's
protected EEO activity. Rather, complainant had been detailed to another
unit and was slated to return back to S1's supervision. The record
reflected that S1 acted on the advice of the Labor Relations Office
that she should require complainant to report or be marked as AWOL.
The fact that the advice S1 received was in error and violated worker's
compensation rules surrounding LWOP requests, does not prove by a
preponderance of the evidence that she acted with the intention to
retaliate against complainant. There is no evidence that S1, a new
supervisor, was aware of these provisions and acted with discriminatory
animus.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, 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 28, 2004
__________________
Date