0120152237
06-08-2017
Roman G.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Roman G.,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120152237
Hearing No. 443-2014-00127X
Agency No. 413413012F15
DECISION
On June 26, 2015, Complainant filed a premature appeal with the Equal Employment Opportunity Commission (EEOC or Commission) before receiving the September 2, 2015 final Agency decision (FAD) on 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. Since Complainant's appeal was pending when the Agency issued its FAD, his appeal is accepted pursuant to 29 C.F.R. �1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Industrial Equipment Mechanic, WG-11 at the Agency's Air National Guard, National Guard Bureau, Civil Engineering Technical Services Center in Minot, North Dakota.
On October 14, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his race (African-American/Black), color (Dark Brown), and reprisal for prior protected EEO activity under Title VII when on August 14, 2014, S1, who served as both his first and second line supervisor, denied his request for 56 hours of leave without pay (LWOP) from August 20 - 28, 2013, which forced him to take annual leave.
Following an investigation, the Agency provided Complainant with a copy thereof. Shortly prior to receiving the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ), then withdrew his request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b). The Agency found no discrimination.
In July 2013, Complainant informally asked S1 for about four weeks off from work by taking 110 hours of LWOP. Because there was an intermittent furlough at the time, this would cover about four weeks. S1 approved Complainant's formal request for 64 hours of LWOP to cover two weeks from August 5, 2013 - August 16, 2013. S1 denied the remaining 56 LWOP hours Complainant later formally requested to cover the immediately following approximately two weeks from around August 19, 2013 to August 30, 2013.
Complainant told S1 that he wanted to be off work to supervise contractors repairing his home because when he was away they did not do things correctly. The repairs were for damage caused by a flood in June 2011. Complainant had a large annual leave balance. He told S1 he preferred to take LWOP so he would have annual leave available, including use or lose, to take at the end of the year to spend time with his family and for any emergencies. Complainant later stated that for the past 17 years he carried 240 hours of annual leave over to the next year (the maximum permitted) to use for emergencies and time with his family at the end of the year.
On August 14, 2013, S1 denied Complainant's request to take LWOP beyond the 64 hours already taken. He explained that there are several reasons for approving LWOP, and retaining regular leave was not one of them. By email, Complainant asked S1 to further explain or clarify. By email on September 4, 2012, S1 responded to Complainant as follows. There was Agency work that needed to be done by him, and work was not accomplished while he took 64 hours of LWOP. Complainant currently had a balance of 254 hours of annual leave, 94 of which was use or lose, so he had enough leave available to do whatever he needed to accomplish outside work. Granting LWOP in this case was discretionary, and given the above, he decided to deny it. However, if an unforeseen situation arose, he would consider any additional request for LWOP at that time.
After the LWOP was denied, Complainant put in for annual leave which S1 approved.
In his declaration, S1 specified the additional work that needed to be done, indicating it was pressing, and stated that Complainant already had a lot of time away from work in 2012, stating the amounts which were significant. He observed that Complainant carried over 240 hours of annual leave into 2014.
Citing case law, the Agency explained that in cases where management has provided a legitimate nondiscriminatory explanation for its actions, whether a complainant properly made out a prima facie case is no longer relevant, and the inquiry focuses on whether he proved that management's explanation was pretext to mask discrimination. Citing reasons above, the Agency found that management articulated legitimate, nondiscriminatory reasons for denying Complainant's request for additional LWOP. The Agency found that Complainant did not prove pretext.
On appeal, Complainant argues that he proved discrimination, and points to two comparative employees he raised before who he alleges were favorably treated.
ANALYSIS AND FINDINGS
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 in this case, however, since 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). 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).
We find, for the same reasons as the Agency, that management articulated legitimate, nondiscrimination reasons for denying Complainant additional LWOP.
Attempting to show pretext, Complainant disputed in a variety of ways S1's explanation that the workload was pressing. We are not persuaded by Complainant's statements and arguments on this. He argues that the Agency's regulation on LWOP provides that an employee does not have to exhaust annual leave before requesting LWOP. While this is true, the regulation also provides in the same paragraph that LWOP is designed for situations when an employee has insufficient annual or sick leave, or compensatory time to cover an approved absence. Complainant has not shown it was improper for S1 to take his leave balance into account in denying his request for LWOP. Complainant also argued that that he was disparately treated. We find that Complainant's circumstances are so different from the two comparative employees he discusses on appeal that the alleged treatment they received does not undermine S1's explanations. For example, one routinely took leave arising from his diabetes.
Complainant has failed to prove pretext or otherwise prove discrimination. The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
June 8, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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