01970159
04-25-2000
Paul E. Lietz, Complainant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.
Paul E. Lietz v. Federal Deposit Insurance Corporation
01970159
April 25, 2000
Paul E. Lietz, )
Complainant, )
)
v. ) Appeal No. 01970159
) Agency No. RTC-92-31
Donna A. Tanoue, )
Chairman, )
Federal Deposit Insurance Corporation, )
Agency. )
_______________________________________)
DECISION
On October 3, 1996, the complainant initiated an appeal from a final
decision of the agency dated September 6, 1996 concerning his complaint
of unlawful employment discrimination in violation of the Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and � 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. The
appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
as 29 C.F.R. � 1614.402(a)), and is accepted under 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified as 29 C.F.R. � 1614.401(a)).<1>
ISSUES PRESENTED
Whether the complainant was discriminated against on the bases of his sex
(male), physical disability (degenerative spinal disease), and reprisal
(EEO activity) when the agency allegedly (1) subjected him to repeated
incidents of harassment culminating in his constructive discharge,<2>
(2) submitted a false statement to the Texas Employment Commission
concerning his application for unemployment compensation, and (3)
delayed payments for his unused annual leave and relocation benefits.
BACKGROUND
The complainant filed an EEO complaint alleging the above issues.
Following an investigation, he requested a final decision without a
hearing, and the agency found no discrimination.
The complainant started working with the agency around 1984. In August
1989, he was assigned to work with the Resolution Trust Corporation (RTC),
but was still a permanent employee with the agency. At the time of his
June 17, 1992, resignation, the complainant was a Financial Institution
Specialist (Field), GG-12.
ANALYSIS AND FINDINGS
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) provides
the analytical framework for proving employment discrimination in
cases in which disparate treatment is alleged and no direct evidence
of discrimination has been presented. Although McDonnell Douglas is a
Title VII case, its analysis is also applicable to disparate treatment
cases brought under the Rehabilitation Act. See Prewitt v. U.S. Postal
Service, 662 F.2d 292, 305 n. 19 (5th Cir. 1981. McDonnell Douglas
requires the complainant to first establish a prima facie case. If the
complainant succeeds, the agency's burden then is to articulate some
legitimate, nondiscriminatory reason for its action in order to rebut
the prima facie case of discrimination. Finally, the complainant has
the opportunity to show, by a preponderance of the evidence, that the
agency's stated reason is a pretext for discrimination. The ultimate
burden of proof that discrimination took place is on the complainant.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981).
With regard to the complainant's disability claim, the record contains
medical documentation indicating objective abnormalities in his spine,
such as degenerative disk changes and an apparent impingement of the
nerve root. The complainant averred that when flair ups occur, his day
to day functioning is substantially impaired, and he must seek medical
treatment. The record shows that the complainant's physician prescribed
frequent physical therapy commencing June 1, 1992 to at least through July
15, 1992, and explicitly restricted the complainant from heavy lifting
for much of this time. Other than general information on heavy lifting
restrictions during flair ups, there is no information on the specific
nature of the complainant's restrictions, how often and long flair ups
occur, or in what manner the complainant was substantially limited.
Further, the record does not show that the complainant had a record of
a disability, nor whether the relevant managerial officials regarded
him as having a disability. Accordingly, we find the complainant
has not shown he is an individual with a disability under 29 C.F.R. �
1630.2(g).<3> Accordingly, the complainant is not within the coverage
of the Rehabilitation Act.
ALLEGATION 1--ALLEGED HARASSMENT & CONSTRUCTIVE DISCHARGE
The alleged harassment which is the subject of the instant complaint
commenced on April 29, 1992.
Federal Bureau of Investigation "Raid" of April 29, 1992
The complainant described the alleged FBI "raid" primarily in terms of
how FBI agents approached his home to ask him about a forgery at the RTC.
He stated the FBI agents said he did not make the forgery but wanted him
to look at it to see if he could identify the writing. The complainant
averred that in the middle of the night FBI agents sped to his home in
vehicles popping "wheelies," blocked access to his driveway by parking
crosswise in it, and raced to his door shouting FBI while waving their
badges. Once inside, the complainant stated he repeatedly requested to
call RTC officials and advise them of the forgery, and the FBI agents told
him that doing so could result in a charge of obstructing justice. The
complainant contended that at the end of the interview, FBI agents said
they took this action at the instruction of the Vice President of the
Dallas Office, RTC and the Director of Assets and Management, Southwest
Region, RTC, Dallas, Texas.
The Vice President and Director denied any involvement with the FBI
"raid." Further, FBI Agent 1, who participated in the visit to the
complainant's home, denied that there was a raid and affirmed that the
Vice President and Director did not ask for one. We find the agency
was not involved in the FBI action. Accordingly, we do not find
discrimination on any basis.
On appeal, the complainant contends that the EEO investigation was
inadequate because the investigator did not review the notes of FBI Agent
1 which contained the name of an independent witness, nor interview this
witness. The complainant asked in his investigative affidavit, however,
that witnesses to the "raid" not be interviewed. The investigation was
sufficient, in any event.
Instructed to Resign Collateral Duty as an EEO Counselor on May 26, 1992
The complainant was asked to divest himself of his EEO duties by his
supervisor. The complainant opined that his sex was unrelated to this
matter. Since the agency articulated a legitimate, nondiscriminatory
reason for this action, as set forth below, we may proceed directly
to whether the complainant showed by a preponderance of the evidence
that the agency's reason was merely a pretext to hide discrimination.
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983).
The supervisor explained that the Dallas Consolidation Office was
undergoing a massive reorganization, and all GG employees were being
reassigned to a Special Projects Group in Addison, Texas while awaiting
return to the FDIC. According to the Supervisor, the Deputy Regional
Director gave an instruction that all GG employees were to divest
themselves of any and all responsibilities related to the Dallas
Consolidation Office.
The complainant argued this reason was pretextual. He reasoned that he
was asked to resign by managers who were not involved in the appointment
or functioning of EEO counselors, that this was inappropriate, and
he refused to resign. The complainant averred that EEO counselors
switched between RTC and FDIC. The supervisor affirmed, however, that
to his knowledge no other employee who was moving was an EEO counselor,
and the complainant did not indicate any problems with divesting his
collateral EEO counselor duty. The complainant's arguments of pretext
are not persuasive and he has failed to meet his burden of proving
discrimination on any basis. Further, contrary to the complainant's
claim, the investigation of this matter was sufficient.
On June 16, 1992, Ordered to Change Duty Hours, Submit a Doctor's Orders
for Physical Therapy, and Use Leave for Medical Treatments
The complainant was prescribed daily physical therapy by his physician
commencing Monday, June 1, 1992. On Thursday, June 4, 1992, the
physician prescribed continued daily physical therapy. On June 12,
1992, the physician reduced the physical therapy to three times a week.
The complainant had early morning physical therapy appointments.
Commencing on Monday, June 1, 1992, the complainant normally took two
hours of sick leave before coming to work each morning. The next week
he took one hour of sick leave each morning. The complainant explained
on appeal that he was able to take one hour of leave because he worked
through lunch. On his last three work days the complainant took two
hours of annual leave before coming to work on two mornings because he
had a negative sick leave balance.
On June 16, 1992, the complainant was instructed by his supervisor to
change his duty hour start time commencing the next day from 7:00 a.m. to
8:00 a.m. and to bring in doctor slips documenting the need for leave.
The complainant resigned the next day.
The complainant's supervisor stated that the complainant's two second
level supervisors wanted the change in duty hours. The supervisor
indicated that a later start time would result in less use of leave
and more time on the job, and averred the complainant was contributing
less and missing deadlines. He added that the complainant stated he did
not have a problem with the change and concurred he would save an hour
of leave with the adjustment. The supervisor stated that he requested
doctor slips because anytime an employee has frequent or recurring sick
leave, documentation of the need for leave is requested. The supervisor
stated the complainant provided doctor slips. Each slip in the record
covered about a week. There is no indication the supervisor required that
documentation only cover weekly intervals. The complainant saw the doctor
weekly for new assessments of how much physical therapy was required.
The complainant countered that when he was told to change his duty
hours, the supervisor acknowledged that there was little work in the
complainant's group. The complainant contended that due to traffic,
the change in start time would actually result in additional leave taken.
He contended that while he worked through lunch, others in his group took
lunches of two hours or more, read newspapers all morning, and socialized.
The complainant averred that he performed as well as others and denied
missing deadlines.
He denied stating he did not have a problem with changing his duty
hours and denied concurring that this would save him leave.
The complainant's arguments of pretext are unpersuasive. It was
reasonable and within the agency's interest to ask him to start work
an hour later so he would use less recurring leave and be at work more.
The complainant had a low sick leave balance. His argument that the change
would result in more leave usage does not make sense. Except for his last
day of work, the complainant's request for leave slips indicate that he
reported to work at 8:00 a.m. and 9:00 a.m. on different days. Since he
was not asked to change the time of his physical therapy appointments,
it is not clear why traffic was an issue.
On appeal, the complainant contends that he was "forced" to work through
lunch. There is no evidence of this. Rather, it appears the complainant
chose to work through lunch to save leave. Also, the complainant's
contention that he worked through lunch is contrary to his argument that
he had little work to do.
We also find that the agency's request that the complainant provide
documentation of the need for sick leave was reasonable in light of his
frequent use of it. This is different in nature from occasional use of
sick leave.
Finally, the complainant argued that Comparison 1 (female) was allowed
to go for medical treatment and not charged leave. The complainant and
the comparative employee had different first level supervisors, and the
complainant's second level supervisors affirmed they had no knowledge
of the comparison's attendance and did not supervise her. On appeal,
the complainant contends that because his second level supervisors were
involved in changing his schedule, which shows a hands on approach to
management, the Commission should look to them in assessing whether
he was similarly situated to Comparison 1. But the second level
supervisors affirmed they were unaware of Comparison 1's absences.
The second level supervisor's involvement in changing the complainant's
reporting time because he started to often come in late does not indicate
these supervisors were aware of all staff employees daily leave usage.
Moreover, there was a period of time the complainant frequently went to
physical therapy and was permitted not to use leave time if he worked
through lunch. The complainant does not contend that Comparison 1 was
frequently absent for medical appointments, and she also could have been
working through lunch to avoid taking leave. The complainant has not
established discrimination with regard to being required to use leave
for medical appointments.
Constructive Discharge
The complainant contended that he was forced to resign to continue
receiving medical treatment and escape discrimination and harassment,
as outlined above. To make a case of constructive discharge, the
complainant must show that: (1) a reasonable person in his position would
have found working conditions intolerable, (2) conduct that constituted a
prohibited discriminatory act created the intolerable working conditions,
and (3) his resignation resulted from the intolerable working conditions.
Taylor v. Army and Air Force Exchange Service, EEOC request No. 059600630
(July 20, 1990).<4> The complainant has failed to meet any of these
elements, and hence we find he was not constructively discharged.
We note that after the complainant resigned, he applied for unemployment
compensation with the State of Texas. The application was approved.
In approving the application, the Texas Employment Commission Appeal
Tribunal noted the complainant's contention that the agency changed his
start time which made it difficult for him to get treatment, and that he
was required to take leave for medical appointments while others were not
so required. The agency did not appear at the hearing. The complainant
argues that the unemployment compensation decision constitutes a finding
of discrimination with regard to the matters in his complaint, and the
agency is bound by this. We disagree. Constructive Discharge was not at
issue in the unemployment compensation decision, nor was discrimination
on any protected basis.
ALLEGATION 2--FALSE INFORMATION SUBMITTED TO THE TEXAS EMPLOYMENT
COMMISSION.
This allegation regards the agency's submission to the Texas Employment
Commission which included a statement that the complainant resigned
for "personal reasons." The complainant contends this was false.
This allegation fails to state a claim as it constitutes an impermissible
collateral attack on another forum's proceeding, e.g., the unemployment
compensation process. The proper forum for challenging the statement
in the unemployment process was in that process, not the federal sector
EEO forum. Conley v. Navy, EEOC Request No. 05970402 (February 11, 1999).
Further, even if allegation 2 stated a claim, the complainant failed to
prove discrimination as he was not forced to resign due to discrimination.
ALLEGATION 3--DELAYED PAYMENTS
An agency Payroll Personnel Clerk explained that the payment of unused
annual leave to the complainant in late August 1992 was well within the
norm. There is no evidence to the contrary. Further, agency officials
explained that the delay in the payment of relocation benefits, i.e.,
Mortgage Interest Differential Allowance was due to administrative
problems, caused in part by the complainant's late application and
failure to submit a separate voucher. The complainant has failed to
show this explanation is pretextual nor proven discrimination.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission to AFFIRM the final decision of the
agency which found that the complainant was not discriminated against
with regard to various actions.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
April 25, 2000
_________ _________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The complainant affirmed that his disability basis was unrelated to two
alleged incidents of harassment, i.e., the Federal Bureau of Investigation
(FBI) "raid" and direction to resign from his collateral duty as an EEO
counselor, and that his sex was unrelated to the latter incident.
3The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
4The Merit Systems Protection Board (MSPB) has jurisdiction over mixed
case complaint allegations which allege discrimination based, among other
things, on sex, reprisal and disability with regard to a constructive
discharge if the MSPB finds a separation was a constructive discharge
(5 C.F.R. � 1201.3). The agency's final decision provided appeal rights
to the EEOC, not the MSPB. Since the complainant's complaint has been
pending in the EEO process for over seven years, the Commission will
assume jurisdiction over his case. The complaint is firmly enmeshed
in the EEO forum, and it would better serve the interests of judicial
economy to address his complaint at this time rather than remand it
for consideration to the MSPB process. See Burton v. Department of
Agriculture, EEOC Appeal No. 01932449 (October 28, 1994).