0120082163
09-19-2008
Sabrina A. Wilson, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Sabrina A. Wilson,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120082163
Agency No. AAFES07.071
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 10, 2008 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. Complainant,
an assistant restaurant manager, alleged that the agency discriminated
against her on the basis of reprisal for prior protected EEO activity
when:
1. from March 15 to 23, 2007, she was considered absent without leave
(AWOL),
2. on April 4, 2007, she was issued a letter of reprimand,
3. on May 2, 2007, she was issued an unfavorable performance and
potential appraisal for managers for covering the period of February 1,
2006 to January 31, 2007,
4. from May 15 to 17, 2007, she was considered AWOL, and
5. from May 18 to 19, 2007, she was sent home and without pay
(charged leave without pay - LWOP).
Following an investigation, complainant was notified of her right to
request a hearing, and did not do so. Thereafter, the agency issued a
final decision finding no discrimination.
Turning to claim 1, on March 23, 2007, complainant's second line
supervisor issued her a letter that she was AWOL from March 15, 2007
to March 23, 2007. It explained that complainant was not approved for
vacation leave and had not been certified by "managed disability" for
sick leave. The second line supervisor stated complainant was charged
AWOL because to the best of his knowledge she made no attempt to tell
him or her first line supervisor her reasons for not coming to work,
payroll was to be entered on March 23, 2007, and he had not heard from
her or got doctor notes. In response to other questions, the second
line supervisor stated that to the best of his knowledge, complainant did
not request leave prior or during her absence. He believed complainant
provided a doctor's note to someone on Saturday (March 24 2007), after
payroll was entered. He stated there were several illegible notes,
and complainant failed to comply when asked to provide a legible copy.
He stated that during each of complainant's absences, she did not wish
to discuss why she was off, saying it was personal and felt he did not
need to know.
Complainant's first line supervisor stated that the human resource
manager decided to charge AWOL. She stated that through March 19, 2007,
complainant called her at home each evening saying she would not come in,
and believed she called the store thereafter while the supervisor was off.
She stated complainant was asked to bring in a doctor's note excusing her
absence, but she never brought a note to her. The first line supervisor
stated that if a note came in, it went to the human resource manager.
She stated complainant always informed her that her illness was personal
and would not tell her why she was out sick. The general manager stated
that complainant was charged AWOL because she did not come to work,
and did not call in her status and follow proper call in procedures.
When asked about her knowledge of complainant's EEO activity, the human
resource manager stated that on or about March 15, 2007, she received a
document request. The EEO investigator did not ask her about the leave
claims. The record contains a March 15, 2007, email by the human resource
manager that complainant called in that day and said to another that she
could not mentally go back to work and was not AWOL, and when she was put
on hold for the human resource manager to pick up, complainant hung up.
It contains a reply email the same day by the second line supervisor
indicating that he was suspicious of complainant's reason for being out,
saying he believed she was taking off to interfere with the leave of
others (apparently managers), and had done this in the past. According to
complainant, on the day she received the AWOL paperwork, she talked to
"managed disability" and was told the human resources manager had the
doctor's note and unsuccessfully tried to get confidential medical
information from the health service provider. The record contains a
cryptic doctor's note provided by complainant stating she was seen in
the office on March 15, 2007, and would not be able to work until March
19, 2007. The name of the provider is difficult to discern.
The record on claim 1 contains varying accounts. We find that the
record shows complainant was charged AWOL because of her insufficiently
explained absence, not reprisal discrimination. The AWOL letter stated
complainant was not certified by "managed disability" for sick leave, the
circumstance of her absence was suspicious to management, and the doctor's
note she submitted for the record contained little information, and was
likely partially illegible. While the second line supervisor believed
complainant did submit a doctor's note after payroll was submitted,
it is unclear as to when she did, if ever, because the human resources
manager was not asked. But given her knowledge of complainant's EEO
activity consisted of a document request, she had little motive to engage
in reprisal.
Regarding claim 2, complainant was issued the reprimand by her first
line supervisor. It recounted, for example, that on February 25,
2007, complainant was insubordinate when she walked out of a meeting
with the supervisor, and did not stop walking when asked to return;
and that during this meeting, complainant was insubordinate when she
questioned the supervisor's right to assign her work, refused to listen
to the supervisor, and said the supervisor's work directives were
"garbage." Complainant did not deny that these things occurred. She
contended that the supervisor belittles her. The charges were supported
by the affidavit of complainant's supervisor. We find the reprimand
was issued for the reasons charged, not reprisal for EEO activity.
Regarding claim 3, complainant's first line supervisor, who rated
complainant, explained, among other things, that complainant did not
run her shift, resulting in mass confusion, had no sense of urgency
in taking care of the customer, would not take advantage of training,
often left her work for someone else to do, did not make sure the store
was ready and clean for the next day, if something broke on her shift
she would not call maintenance, did not work on the line with crew,
and did not motivate crew, many of whom refused to work on her shift.
A co-worker of complainant stated that complainant did not run her shift,
that her work habits were a mess, half her paperwork could not be found,
and when the store manager would leave complainant would go inside the
office, take off her shoes, and communicate with family on the telephone
or on the internet. Report of Investigation, Exhibit. F-9. Complainant
denied little of the specific assessments. We find the appraisal was
unfavorable for the reasons stated, not reprisal for EEO activity.
Turning to claim 4, complainant's first line supervisor indicated that the
human resources manager decided to charge complainant AWOL because she
did not timely submit a doctor's note covering her absence after being
asked for one. When asked if complainant requested leave, the first
line supervisor wrote complainant did not do so from her. The general
manager stated complainant was charged AWOL because she did not submit a
doctor's note when she returned to work, which was documented procedure.
Regarding this AWOL charge, the general manager added that complainant
admitted to her that she did not follow proper call in procedures, nor
present her supervisor with a doctor's note since she was embarrassed
because they were by a psychiatrist. The record contains an undated
doctor's note submitted by complainant that she was absent from work
due to illness from May 15 to 17, 2007, and it was being sent after an
unspecified error the doctor's part. Complainant stated that when she
returned to work on May 18, 2007, she told her first line supervisor that
she was giving her medical notes to the EEO counselor, who said she would
give them to the general manager. Based upon a review of the record, we
find complainant was charged AWOL because she did not properly request
leave and did not timely submit a doctor's note covering the leave,
not reprisal for EEO activity.
Turning to claim 5, complainant's first line supervisor stated that
the human resources manager decided that complainant should be sent home
after reporting to work on May 18 and 19, 2007, because she did not submit
required medical documentation. The general manager stated complainant
was sent home after reporting to work on May 18 and 19, 2007, because
she did not submit a doctor's note authorizing her return in accordance
with documented policy. She believed the first line supervisor decided
to send complainant home. We find complainant was sent home after
reporting to work on May 18 and 19, 2007, because she did not submit
required medical documentation, not reprisal for EEO activity.
The agency's final decision finding no reprisal discrimination is
affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
September 19, 2008
__________________
Date
2
0120082163
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082163