0120102146
08-20-2012
Eusebio Arroyo, Jr., Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Eusebio Arroyo, Jr.,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102146
Agency No. NY-09-0609-SSA
DECISION
On April 21, 2010, Complainant filed an appeal from the Agency's April 16, 2010, final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Service Representative at the Agency's Laconia Avenue Field Office facility in Bronx, New York. On September 19, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of his national origin (Hispanic), sex (male), disability (hypertension), and in reprisal for prior protected EEO activity when: (1) on June 12, 2009, management did not give him a recognition of contribution (ROC) award; and (2) on May 15, 2009, management refused to grant him leave without pay (LWOP) without additional medical documentation.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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. Complainant makes no arguments on appeal.
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").
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). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995).
Here, we find that assuming, arguendo, Complainant established a prima facie case of sex, disability, national origin, and reprisal discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with respect to claim (1), the record shows that ROC awards are given to employees with annual appraisal ratings of 4.0 or higher. The record further shows that Complainant's 2008 appraisal rating was 3.5 and that he was, therefore, not eligible for an ROC award. Complainant has not proffered any evidence beyond his mere assertions that he was entitled to a higher rating. As such, we find that Complainant has not shown that the Agency's articulated reasons for not giving him an ROC award were pretextual.
As to claim (2), the record shows that Complainant submitted two Family and Medical Leave Act (FMLA) forms to the Agency from his physician. The first, dated April 23, 2009, states that Complainant would need to take leave for one day approximately every two months. The second, dated May 21, 2009, states that Complainant would need two days of leave approximately twice per month. The record shows that Complainant did not report to work from May 5-9, 2009, and requested leave without pay under FMLA. Complainant's supervisor informed him that, in accordance with Agency leave policy, he would need to submit medical documentation to support an absence of more than three days. Further, his supervisor states that the FMLA certification submitted by Complainant could not be used to support the absences in question as the certification states that the duration of Complainant's absences would be two days and Complainant was requesting leave for a longer period. We find that Complainant has not shown that the Agency's articulated reasons are a pretext for national origin, disability, sex, or reprisal discrimination.1
CONCLUSION
Based on a thorough review of the record we AFFIRM the Agency's final decision.
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
August 20, 2012
__________________
Date
1 Additionally, we find that, to the extent Complainant is alleging that the request for additional medical documentation to support his leave without pay request constitutes a denial of reasonable accommodation, we note that the medical documentation provided by Complainant did not support his request for more than two consecutive days of LWOP. As such, we find that Complainant has not shown that the Agency's request was a violation of the Rehabilitation Act.
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0120102146
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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