01A13324
07-16-2002
Richard Becker, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Richard Becker v. Department of Veterans Affairs
01A13324
July 16, 2002
.
Richard Becker,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A13324
Agency No. 99-3442
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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 GS-4 Nursing Assistant at the agency's Veterans Affairs Medical
Center in Northport, New York. Complainant sought EEO counseling and
subsequently filed a formal complaint on August 1, 1999, alleging that
he was discriminated against on the bases of sex (male) and reprisal
for prior EEO activity when:
(A) on May 10, 1999, he received a counseling letter for sick leave
usage, and
on August 2, 2000, he received a written counseling letter dated April
20, 2000, for sick leave usage.<1>
Complainant has a history of EEO complainant activity which extends back
to 1993. On May 10, 1993, the Patient Care Coordinator (RMO1) issued
complainant a letter of counseling for sick leave abuse. Complainant
received the letter even though he had over 200 hours of sick leave and
provided management with doctor's notes covering the period of his sick
leave usage. On August 2, 2000, complainant's current supervisor (RMO2)
also issued him a letter of counseling for sick leave usage. RMO1 states
that it is the agency's policy to issue letters of counseling, regardless
of gender or previous EEO activity, to any employee who has a pattern
of calling in sick before or after scheduled time off. RMO2 denied
any knowledge of complainant's EEO activity at the time she issued
him the letter of counseling for sick leave abuse on August 2, 2000.
RMO2 indicates that she issued discipline to complainant because he
took unscheduled sick leave more than three times in a quarter year.
RMO2 referenced agency sick leave policy which provides that calling in
for unscheduled sick leave more than three times in one quarter is the
criteria used for issuing written counseling. (Exhibit B3, page 5-6).
Regarding complainant's claim that he had medical justification for
using leave, the agency points out that agency rules provide that the
existence of medical documentation is not the determinative factor on
whether discipline should be issued for sick leave abuse.
When complainant received the letters of counseling for sick leave abuse,
he contacted an EEO counselor who conducted an investigation. At the
conclusion of the investigation, complainant was informed of his right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. Complainant requested that
the agency issue a final decision. In its FAD, the agency concluded,
inter alia, that complainant failed to prove pretext in that he failed to
present evidence, direct or indirect, that discriminatory motives were
involved in his receipt of counseling for sick leave abuse. It is from
this FAD that complainant now appeals. On appeal, complainant relies
on arguments he previously advanced. The agency requests that we affirm
its FAD.
As this is an appeal from a FAD 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). 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 Construction Co. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since 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);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
In this case, the agency has articulated a nondiscriminatory reason for
issuing complainant letters of counseling; namely, RMO1 and RMO2 believed
that complainant abused sick leave. Having met its burden of producing
a nondiscriminatory reason, the burden now shifts to complainant to
establish that the agency's reason is a mere pretext for discrimination.
At first glance, it is difficult to understand why the agency prohibits
the use of unscheduled sick leave even when the legitimate use of that
leave is corroborated by a doctor's verification. Upon further review,
it is clear that the agency applied an inflexible interpretation of its
sick leave policy. It is not our role to evaluate the policy itself.
Complainant has not provided evidence that his prior EEO activity or
his sex motivated the issuance of the letters of counseling. Notably,
RMO2 previously issued letters of counseling to one female and two male
employees (prior EEO activity unknown) for sick leave abuse. Apparently,
in issuing the letters of counseling, the agency intends to discourage
employees from extending scheduled leave with unscheduled sick days.
In pursuit of this aim, the record reveals that agency managers routinely
monitor sick leave use. Complainant does not contest the agency's
assertion that during the relevant periods he called in sick before
and after scheduled days off. Complainant has failed to establish by a
preponderance of the evidence that his race and/or his prior EEO activity
motivated the agency's decision to issue him the letters of discipline for
sick leave abuse. Moreover, a review of the record reflects that there
is insufficient to support a claim of harassment. See Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
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
July 16, 2002
__________________
Date
1 The written counseling letter was
erroneously dated August 2, 2000.