0120090880
04-14-2009
Rodney K. Tadlock, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Rodney K. Tadlock,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120090880
Agency No. 2006-20771-FAA-04
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's October 2, 2008 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as an Air Traffic Control Specialist (ATCS), ATC-11, at the Kansas City Air Route Traffic Control Center in Olathe, Kansas.
On November 18, 2006, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the bases of disability (chronic sinusitis) and age (48) when:
on August 6, 2006, he was issued a Medical Certificate Requirement memorandum that suggested that he was abusing sick leave and required that he submit a medical certificate to substantiate his use of sick leave for the following six month time period.
At the conclusion of investigation, complainant was provided with a copy of the report of the investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, complainant subsequently withdrew his request. Consequently, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its December 4, 2008 final decision, the agency found that complainant did not establish a prima facie case of disability and age discrimination.1 The agency nonetheless found that management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
The Front Line Manager (M1) stated that on August 6, 2008, he issued complainant a memorandum advising him that a medical certificate would be required to substantiate his use of sick leave for a period of six months. Specifically, M1 stated that he issued complainant "this memorandum based on his use of sick leave and his inability per my request to provide appropriate supporting documentation regarding his sick leave usage. As [complainant's] Front Line Manager, it was my opinion, and that of my management team, that [complainant] was using excessive amounts of sick leave." M1 stated that he issued complainant the memorandum in accordance with FAA/National Air Traffic Controllers Association (NATCA) collective bargaining agreement. M1 further stated that complainant "was not the only employee that I issued a similar Sick Leave Memorandum sick leave letter to; I also gave this Memorandum letter to another employee during this time period, such as [an identified employee]." M1 stated that prior to issue complainant the subject memorandum, he gave complainant "an opportunity to provide documentation from his doctor or medical practitioner; however, he failed to provide any legitimate documentation to support his sick leave."
Furthermore, M1 stated that he did not discriminate against complainant based on his disability and age. Specifically, M1 stated that during the relevant time he was not aware of complainant's age and whether complainant "has some type of impairment or disability. If [complainant] does have some type of impairment or disability, he never brought it to my attention."
With respect to complainant's argument that the agency was attempting to get rid of him because he is a higher paid employee and can be replaced with a younger employee at a much lower salary, M1 denied such an assertion. M1 stated "I do not recall initially any type of administrative or disciplinary action to remove [complainant] from his position of Certified Professional Controller. Point in fact; [complainant] is a very good air traffic controller."
The record contains a copy of Section 5 of Article 25 "Sick Leave" of the NATCA/FAA collective bargaining agreement. Therein, Section 5 provides that "in individual cases, where there is just and sufficient cause to believe an employee may be abusing sick leave, the employee may be given advance written notice, indicating the reason(s) that he/she will be required for a period of time, not to exceed six (6) months, to furnish a medical certificate for each subsequent absence. When it has been determined by the Employer that the requirement is no longer necessary, the employee shall be notified and the previous notice(s) shall be removed from the records and all copies shall be returned to the employee."
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for its actions. We further find that complainant has not demonstrated that these reasons were a pretext for discrimination.
After a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 14, 2009
__________________
Date
1 For purposes of analysis only, and without so finding, the Commission presumes that complainant is an individual with a disability within the meaning of the Rehabilitation Act.
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0120090880
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090880