0120120611
06-20-2013
Jacqueline Thompson, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Jacqueline Thompson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120611
Hearing No. 420-2011-00026X
Agency No. ARANAD10APR01585
DECISION
On August 9, 2011, Complainant filed an appeal from the Agency's July 13, 2011, final decision concerning her 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a painter at the Agency's Anniston Army Depot facility in Anniston, Alabama.
On May 17, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity when:
a. on March 31, 2010, she was notified by the Agency's Compensation Program Specialist, that she was to return to work in her full-duty capacity on March 22, 2010;
b. her supervisor charged her with 36 hours of Absence Without Leave (AWOL) for her absence during the period March 22, 2010 to March 31, 2010;
c. on March 31, 2010, she was given a Form CA-16 signed by an Agency official indicating that he did not believe that Complainant's injuries were job-related despite having a doctor's note indicating otherwise; and
d. on April 19, 2010, she did not receive workers' compensation pay and her supervisor again charged her as AWOL.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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 her to discrimination as alleged.
The instant 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").
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of discrimination on any alleged basis, we concur with the Agency's conclusion that the responsible agency officials articulated legitimate, nondiscriminatory reasons for the disputed actions. The record in this matter indicates that on March 2, 2010, Complainant was taken to the hospital when she experienced dizziness, headache and chest pain after being exposed to chemicals at work. Initially, Complainant returned to work on March 8, 2010, but because medical documentation she provided to her supervisor did not release Complainant to return to duty, Complainant was directed to go to the Agency's medical facility. In turn, the Agency's medical facility referred Complainant back to her personal physician. In correspondence dated March 8, 2010, Complainant's physician indicated that Complainant could not tolerate exposure to certain chemicals and ordered that she remain off work until further testing could be performed. Complainant's physician also completed a note regarding Complainant's condition as part of her workers' compensation claim. Therein, Complainant's physician repeated her instruction that Complainant remain off work until testing by a cardiologist could occur. Complainant's physician provided March 22, 2010, as the date that Complainant could return to work.
The record further indicates that Complainant failed to report to work on March 22, 2010. According to the Agency, when Complainant failed to report to work on March 22, 2010, as her physician had indicated, Complainant's supervisor attempted twice to call Complainant at home on March 24, 2010, but because Complainant's voice mailbox was full, was unable to leave a message or speak with Complainant. The Agency further indicates that on March 31, 2010, Complainant came in to the office and was questioned about her failure to report to work on March 22, 2010.
On March 31, 2010, Complainant's supervisor completed Form CA-16 concerning her workers' compensation claim, and checked the box indicating that he did not believe that Complainant's injuries were job-related. Complainant's supervisor testified that he reached this conclusion because documentation provided by Complainant regarding her March 2, 2010 visit to the emergency room failed to mention chemical exposure or mention that Complainant suffered from a respiratory illness. As a result of Complainant's failure to return to work from March 22 to March 31, 2010, or to contact the Agency regarding her expected return to duty Complainant was charged with 36 hours of AWOL. Agency management witnesses further indicated that when Complainant came in to the workplace on April 19, 2010 to discuss her ability to request leave without pay until she could return to work because her continuation of pay benefits were ending, she was advised to hand carry her LWOP request to her supervisor for approval. However, Complainant apparently never spoke with her supervisor about her request. Consequently, Complainant was charged with AWOL for her failure to work on April 19, 2010, or to request leave without pay.
Based on this evidence, Complainant failed to prove, by a preponderance of the evidence, that the reasons for the disputed actions articulated the responsible management officials are pretext for discrimination. Complainant failed to establish that the Agency's actions were based on discriminatory motives.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the final agency decision finding no discrimination.
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
June 20, 2013
__________________
Date
2
0120120611
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120611