Colleen M.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jun 15, 2018

0120162121 (E.E.O.C. Jun. 15, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Colleen M.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120162121

Agency No. 2004-0603-2015102630

DECISION

On June 14, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
May 17, 2016, final decision concerning her 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mental Health
Associate in the Mental Health Service which is located at the Veterans Affairs (VA) Medical
Center in Louisville, Kentucky. The Mental Health Service is an inpatient mental health treatment
facility.

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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On April 21, 2015,2 Complainant filed an EEO complaint alleging that the Agency created a hostile
work environment, based on her disability (wrist injury and depression) and reprisal (prior
protected EEO activity) when:

(1) in January 2015, after a Human Resources Specialist from VA had contacted
Complainant’s medical doctor (P1), P1 informed her that he was terminating her as a
patient because he “did not want to be involved in what the VA had going on;”
(2) on February 21, 2015, a Supervisory Social Worker (SW), was hostile toward
Complainant when she called in to request leave and demanded that Complainant report to
work;
(3) on February 22, 2015, SW was hostile toward Complainant when she called in to
request leave and told her she was not approving her leave;
(4) on February 26, 2015, the Chief, Mental Health and Behavioral Sciences Service (S2)
sent Complainant an e-mail stating she was charging Complainant 16 hours Absent
Without Leave (AWOL) for February 21 and 22, 2015, and threatened to take disciplinary
action against Complainant;
(5) on February 26, 2015, Complainant’s first-line supervisor as of October 2014 (S1B)
issued Complainant a Notification of Continuation of Sick Leave Restriction;
(6) on March 11, 2015, Complainant was informed that a Weingarten Investigation would
be conducted into the events of February 21 and 22, 2015;
(7) on March 12, 2015, Complainant was charged AWOL;
(8) on March 19, 2015, Complainant was charged AWOL;
(9) on March 20, 2015, Complainant was informed that a Weingarten Investigation would
be conducted with respect to Complainant's use of leave on March 12 and 19, 2015;
(10) on March 26, 2015, Complainant discovered that management had charged her
AWOL on March 20, 2015, despite the fact that she had reported to work that day;
(11) on March 27, 2015, Complainant's leave that was entered in the system on August 17,
2014 was changed from eight hours of Annual Leave to Family Medical Leave Act
(FMLA) leave;
(12) on March 29, 2015, Complainant’s request for sick leave was denied, and she was
charged three hours of AWOL;
(13) on Apri1 20, 2015, management changed Complainant’s leave for March 29, 2015,
from AWOL to Leave Without Pay (LWOP) without informing Complainant first;
(14) on Apri1 30, 2015, management told Complainant she had to enter a corrected
timecard for March 29, 2015;
(15) on May 9, 2015, SW denied Complainant’s request for leave;
(16) on March 27, 2015, management changed Complainant’s leave that was entered in the
system on October 27 and 28, 2014, from 16 hours of LWOP to FMLA;

2 Complainant amended her Complaint on June 7, 2015, raising for the first time Claims 16, 17,
and 18. The Agency accepted those claims as part of Complainant’s harassment complaint but
dismissed such discrete disparate treatment claims in accordance with 29 C.F.R. § 1614.107(a)(2)
on the basis that such claims failed to meet the required time-frame set forth in 29 C.F.R.
§ 1614.105(a).
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(17) on March 27, 2015, management charged Complainant eight hours AWOL for
September 30, 2014; and
(18) on April 15, 2015, the Chief, Human Resource Management Service (HRC) informed
Complainant that her request for FMLA was approved; however, she does not have an
entitlement to use leave under FMLA before August 13, 2015.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge.
When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

FACTUAL BACKGROUND

The record shows that on June 19, 2014, Complainant’s first-line supervisor (S1A) placed her on
leave restriction due to a pattern of sick leave usage in the form of utilizing leave as soon as it is
accrued and in conjunction with weekends, holidays, and/or days off, as well as a high frequency
and/or amount of sick leave usage. According to S1A, the human resources department (HR)
requested that he provide time and attendance documentation pertaining to his staff (i.e., seven
employees) for review. HR reviewed the information and recommended placing Complainant and
one other employee on leave restriction at that time.

The record also shows that Complainant invoked her entitlement to FMLA leave commencing in
August 2014 related to wrist surgery and post-operative care initially for the period of August 20,
2014 through September 23, 2014. Thereafter, Complainant provided additional medical
documentation which met FLMA requirements for the additional period of September 23, 2014
through March 22, 2015. Aside from Complainant’s bare, uncorroborated assertions, the record
shows that Complainant used all 480 hours afforded to her under FMLA for the year (i.e., the
period between August 20, 2014 to August 19, 2015) by November 21, 2014. Complainant was
advised at that time that any future sick leave or LWOP would require supervisor approval in
accordance with Agency policy.

The undisputed record also shows that at the time that Complainant was close to using up her
allotted FMLA leave for the year (i.e., in or about late October 2014), the Supervisory Human
Resources Specialist in Employee Relations (SHRS) referred Complainant’s case to the Agency’s
Reasonable Accommodation Coordinator (RAC).3 On October 29, 2014, Complainant was
assigned to light duty in accordance with her physical restrictions.

3 Complainant does not allege that she was denied a reasonable accommodation and the EEO
investigative record does not contain information pertaining to Complainant’s accommodation
process.
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Claim 1 – HR’s Contact with Physician

Complainant alleges that in January 2015, someone from HR contacted her doctor and said
something to him to cause him to advise her that he no longer would treat her. The undisputed
record shows that Complainant had authorized HR to speak with her physicians through a signed
medical release form. According to SHRS, on December 12, 2014, someone from P1’s office (P2)
contacted one of the HR specialists (HR1). P2 was inquiring about the reasonable accommodation
form that Complainant had given P1 to complete and wanted clarification about what was needed
on the form. According to SHRS, P2 was specifically asking about what had already been written
on the form, and asked HR1 if she had written anything on the form. SHRS also explains that
HR1 told P2 that she had not, that it must have been filled-in by Complainant. HR1 further
explains that her office needed to have the doctor explain Complainant’s medical restrictions.
When P2 stated that her office did not know what Complainant’s job duties were, HR1 explained
them to her. SHRS also explains that HR1 was told that the doctor was concerned about what had
already been written on the form and about his ability to address what was being asked of him.

Claims 2, 3, 4, & 6 – February 21 and 22, 2015

The record shows that on February 21, 2015, Complainant had called-in around 5:30 a.m. to
request leave for her shift that day because her sister had unexpectedly died. That morning SW
was the call-in supervisor4 and denied Complainant’s request for leave because there was no one
to cover Complainant’s shift that morning and because Complainant did not have any leave
available.5 Complainant disregarded SW’s denial of her leave request and did not report to duty.
The record shows that SW does not work with Complainant and did not know much about her.
The following day, Complainant called-in and again reached SW. Complainant told her that she
had a funeral to go to and that she was not coming in. SW again denied Complainant’s request for
leave, noting that Complainant told her that she had a funeral to go to the day before. Nevertheless,
Complainant told SW that she was not coming in that day.

On February 26, 2015, Complainant was charged 16 hours of AWOL for the failure to report to
work on February 21 and 22, 2015. The record shows that S2 sent Complainant a standard email
with boilerplate language notifying her of the AWOL charges and that such charges may result in
disciplinary action. Following the email, since Complainant is a union member, a Weingarten
Investigation took place.6 After hearing both sides of the story, S1B and S2 decided to remove the
AWOL charges.

4 The Agency rotates supervisors to answer the call-in line during non-business hours.
5 SW also asserts that Complainant first told her she was having car trouble, then stated she had a
funeral to go to. SW states that Complainant was hostile on the phone call and told her that she
was not coming in. SW states that Complainant began yelling and cursing at her and slammed the
phone down. SW also states that Complainant did not tell her that her sister died.
6 During all Weingarten Investigations, a union representative and a union note taker are present.
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The 16 hours of AWOL were replaced with LWOP because Complainant did not have any other
leave available. S1B and S2 considered the mitigating fact that Complainant just lost her sister
unexpectedly and was understandably upset.

Claim 5 – Notification of Continuation of Leave Restriction

Complainant asserts that the Agency failed to review her June 2014 leave restriction within six
months and accordingly, it should have been dismissed. The record shows that on or about
February 26, 2015 (i.e., approximately eight months after the initial leave restriction), Complainant
received a Notification of Continuation of Sick Leave Restriction which she believes was issued
in retaliation for missing work on February 21 and 22, 2015.

S2 explains that Complainant’s leave restriction was on hold during her FMLA entitlement period
since the leave used by Complainant during that period was protected by Federal law and could
not be considered by management when evaluating whether Complainant had complied with the
leave restrictions placed upon her in June 2014. S2 also explains that the leave restriction was
extended because Complainant continued to call-in sick (often without providing a doctor’s note)
and continued to attempt to use FMLA leave even though she had exhausted both her FMLA and
sick leave.

Claims 7-9 – Leave for March 12 and 19, 2015

The record shows that Complainant called-in on March 12 and March 19, 2015 and requested
FMLA leave. The undisputed record also shows that Complainant was notified that she had
exhausted her FMLA leave and that she could take sick leave instead. Complainant disagreed that
she had no more FMLA leave and refused to request any other type of leave. HR and S2 conducted
an audit of Complainant’s FMLA usage which involved reviewing the attendance book (where the
supervisors wrote contemporaneous notes pertaining to each leave request) to see if such
information was correctly input to the VA’s Time and Attendance System. The audit confirmed
that Complainant had exhausted all her FMLA leave for the year. Since Complainant would not
request any other leave, she was charged AWOL for March 12 and 19, 2015.

Print-outs of the VA’s Time and Attendance System Leave Requests (TA) show that with respect
to March 12, 2015, Complainant’s leave was marked as “WP LWOP” with “AWOL” below the
main line. The following comment was also added: “per [S1B].” With respect to March 19, 2015,
Complainant’s leave was marked as “WP LWOP” with “AWOL” below the main line. The
following comment was also added: “per supervisor.” A different print-out of the TA shows that
on March 19, 2015 Complainant requested FMLA leave without pay that was not approved and
that Complainant’s supervisor “charged [her] AWOL - FMLA hours not available.”

Claim 10 – Improperly Charged AWOL

Complainant alleged that she was charged AWOL for March 20, 2015, even though she worked
the entire day.
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She states that even though the AWOL was eventually rescinded, she was not paid for working
that day. S1B and S2 each deny knowledge of or involvement in this event. Complainant’s TA
records show that she was charged AWOL for March 20, 2015 but the TA record was corrected
on April 7, 2015, to show that she worked that day. In addition, the following was added to the
corrected TA record: “Corrected Remarks: Posted in error.” Aside from Complainant’s bare
assertions, the record is devoid of evidence that Complainant was not paid for March 20, 2015.

Claim 11 – August 17, 2014 Leave was Changed in March 2015

Complainant alleges that she took annual leave for Sunday, August 17, 2014, but on March 27,
2015, her leave was changed from Annual Leave to FMLA. S2 reviewed Complainant’s timecards
and explains that for Sunday, August 17, 2014, it shows that Complainant used LWOP/FLMA.
Moreover, S2 found nothing in Complainant’s timecards indicating that anything had been
changed. S2 also notes that on Saturday, August 16, 2014, Complainant’s timecards show Annual
Leave/FMLA. S1B and S2 explain that FMLA leave is not its own category of leave which
Complainant appears confused about. Under FMLA, an employee is entitled to use up to 480
hours of Annual Leave, Sick Leave or LWOP during any one-year period.

Print-outs of the TA show that Complainant’s leave pertaining to August 17, 2014 were
“corrected” as follows: (1) on March 27, 2015, “AL ANNUAL LV” was added where no leave
type was noted previously and “CALL IN - FMLA” was added in the comment section; (2) on
April 7, 2015, Complainant’s TA was “corrected” by replacing “AL ANNUAL LV” with “WP
LWOP” and the comment “CALL IN - FMLA” was unchanged. However, a new comment was
added as follows: “Change Remarks: lwop not entered.”

Claims 12 - 14 – March 29, 2015 Complainant Charged AWOL

On March 29, 2015, Complainant was not feeling well and left work early. She alerted her former
supervisor that she needed to leave work. Complainant’s former supervisor told her that she was
on sick leave restriction and was required to bring in a doctor’s note. Complainant did not bring
in the note until several days later and the note was not for March 29, 2015, nor did it indicate that
Complainant was ill on March 29, 2015. A Weingarten Investigation over this leave usage
occurred on May 1, 2015. HR did not find the doctor’s note to be acceptable and recommended
an AWOL charge instead of the requested Sick Leave.

Complainant asserts that she could not bring in a doctor’s note for the day she left early because
she did not have sufficient money to pay for a doctor’s visit that day. Complainant also states that
S1B told her that since she did not have any leave available that she had to change her time-card
to reflect LWOP. Complainant refused because she knew she had leave available. Complainant
also asserts that S1B directed the time-keeper to correct her time-card. According to Complainant,
by correcting her time-card, the time-keeper was engaging in illegal activity by falsifying a
government document.

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S1B did not specifically remember the March 29, 2015 incident, but does remember attempting to
assist Complainant with choosing the appropriate leave so that she did not have to get charged
AWOL. According to S2, Complainant’s time/leave records indicate that the leave for March 29,
2015 was changed from LWOP to AWOL. S2 further states that she did not make the decision to
charge Complainant with AWOL but once the decision was made she may have passed it on to
Complainant. S2 also testified that she did not tell Complainant to make any corrections.

Print-outs of the TA show the following with respect to Complainant’s March 29, 2015 leave
usage: (1) on March 29, 2015, three hours of Sick Leave were “Disapproved;” (2) on April 3, 2015,
a comment was added that states: “insufficient MO note – charged AWOL”; (3) April 20, 2015 a
correction was made changing “SL SICK LV” to “WP LWOP” and adding the following: “Change
Remarks: wp not sl”; and (4) on April 30, 2015 “WP LWOP” was “corrected” by adding the
following: “AWOL”; “Change Remarks: dr’s excuse not excepted;” and “WP not Requested.”

Claim 15 – May 9, 2015 Leave Denied

On May 9, 2015, Complainant requested leave pertaining to a second sister. Complainant received
a call from the hospital on May 9, 2015 informing her that her sister was going to be taken off life-
support and that she needed to get to the hospital. Complainant stated that she asked SW to take
leave since S1B was not at work that day. SW denied Complainant’s request because Complainant
did not have someone to cover her shift. Complainant left anyway. SW states that she informed
Complainant’s supervisor as to what occurred but that Complainant was not charged AWOL
because SW was able to work out coverage for Complainant’s absence.

Claim 16 – October 27 and 28, 2014 Leave Changed on March 27, 2015

Complainant testifies that after she requested HR to review the records of Complainant’s FMLA
usage to ensure the calculations were accurate, the Agency began to go back and change her leave.
According to Complainant, on March 27, 2015, management changed her leave that was in the
system for October 27, 2014, from Annual Leave to FLMA to make it look like she had used more
FMLA leave than what she had used. Complainant testified that she was not sure about October
28, 2014.7 As noted above, S1A and S1B testify that Complainant incorrectly believed that FMLA
leave was a separate category of leave that could be used in addition to Sick Leave and Annual
Leave. However, all sick and annual leave that Complainant used for the related FMLA medical
condition during the FMLA entitlement period is FMLA leave. In other words, if Annual Leave
was used for the FMLA-related medical condition such leave would be referred to as Annual Leave
under FMLA. According to S1B, it does not make sense to change the October 27, 2014 leave
from LWOP to FMLA because FMLA is not a leave status but just a comment to explain the leave
taken. Rather, S1B asserts that it should be “[LWOP] under FMLA.”

Upon review of Complainant’s time records, S2 testifies that Complainant was charged four hours
of “some type of FMLA leave” on October 27, 2014, and no leave was charged on October 28,
2014.

7 The record is devoid of evidence to indicate that Complainant used leave on October 28, 2014.
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S2 also explains that after reviewing the attendance book and timecards, she discovered one
instance where Complainant called-in for FMLA leave and it posted as LWOP but without any
FMLA notation. However, since the FMLA request was in the handwritten notes that were taken
at the time of the request, the timecard was changed to LWOP/FMLA. S2 was not sure if this is
the change that Complainant is asserting in Claim 16 because she did not have the record in front
of her during her testimony. The record indicates that after making this correction, HR’s new
calculation was that Complainant received eight additional hours of FMLA leave than previously
calculated.

Claim 17 – On March 27, 2015 Complainant was Charged AWOL for September 30, 2014

Complainant contends that she was charged eight hours AWOL for September 30, 2014 which
should have been FMLA approved leave because it was about a week after her surgery. S1B
denies knowledge of this event. S2 also denies knowledge of this event and testifies that the TA
records do not indicate that Complainant was ever charged AWOL for September 30, 2014. The
record is devoid of testimonial or documentary evidence to support Complainant’s assertion.

Claim 18 – FMLA Approved on April 15, 2015 to Commence on August 13, 2015

The record shows that Complainant was diagnosed as clinically depressed in March 2015. The
undisputed record shows that, in or about April 2015, Complainant provided sufficient medical
documentation to substantiate entitlement to FMLA leave. However, the Agency notified
Complainant that her entitlement to FMLA leave could not commence before August 13, 2015
because she had used all available FMLA leave for the year. Complainant contends that the
Agency was manipulating her FMLA leave balance and she had not used all available FMLA leave
for the year.

Management officials assert that since Complainant had already used the entirety of her FMLA
entitlement for her other medical conditions prior to the time HR approved the new FMLA medical
condition (i.e., clinical depression), she was not entitled to use any more FMLA leave until August
13, 2015, (i.e., the date that marked the start of a new 12-month period and entitlement to another
480-hours of FMLA leave usage). SHRS notes that this was explained to Complainant on multiple
occasions but Complainant insisted that she was entitled to 480 hours for each covered medical
condition.

ANALYSIS AND FINDINGS

As this is an appeal from a decision 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).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
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previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

It is well-settled that harassment based on an individual’s disability, and prior EEO activity is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a
claim of harassment under the basis of disability, the complainant must show that: (1) she is a
qualified individual with a disability covered under the Rehabilitation Act and/or engaged in prior
EEO activity; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was
based on her disability and/or prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance and/or creating an intimidating, hostile, or
offensive work environment; and (5) there is a basis for imputing liability to the employer. See
Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v.
General Motors Corp., 247 F.3d 169 (4th Cir. 2001). The harasser’s conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

Complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request
No. 05960403 (Dec. 6, 1996). Specifically, in a reprisal claim, and in accordance with the burdens
of proof set forth in McDonnell Douglas Corp. v. Green. 411 U.S. 792. 802 (1973); Hochstadt v.
Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976); and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov.
20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) she
engaged in a protected activity; (2) the agency was aware of the protected activity; (3)
subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between
the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal
No. 01A00340 (Sept. 25, 2000).

The Commission’s policy on retaliation prohibits any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter a complainant or others from engaging in a
protected activity. See EEOC Enforcement Guidance on Retaliation and Related Issues, No.
915.004 (August 25, 2016). A violation will be found if an agency retaliates against a worker for
engaging in protected activity through threats, harassment in or out of the workplace, or any other
adverse treatment that is reasonably likely to deter protected activity by a complainant or other
employees. Id.

A claim of retaliatory hostile work environment is analyzed under the standards set forth in in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) (See also Enforcement Guidance on Harris v.
Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994)). It is well-settled that
harassment based on an individual's prior EEO activity is actionable. Roberts v. Dep't of Transp.,
EEOC Appeal No. 05970727 (Sept. 15, 2000). Whether the harassment is sufficiently severe to
trigger a violation must be determined by looking at all the circumstances, including the frequency
of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a
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mere offensive utterance, and whether it unreasonably interferes with an employee’s work
performance. See also Lamar D. v. Dep’t of Transportation, EEOC Appeal No. 0120180677 (Jan.
26, 2018).

We assume for the purposes of this decision that Complainant presented a prima facie case of
reprisal and that she is an individual with a disability, within the meaning of the Rehabilitation
Act. We also find that the Agency articulated legitimate non-discriminatory explanations for its
management decisions and that Complainant failed to establish pretext or otherwise show that that
any responsible management official was motivated by Complainant’s disabilities or protected
EEO activity.

We find insufficient evidence in the record to establish that any improper communications
occurred between any HR representative and Complainant’s physician. With respect to the claims
pertaining to Complainant’s February 21 and 22, 2015 leave, we find that the record supports the
conclusion that management officials followed standard leave procedures.8

Aside from Complainant’s bare uncorroborated assertions, the record is devoid of evidence to
refute the Agency’s explanation pertaining to the continuation of Complainant’s leave restriction.
The undisputed record shows that Complainant was placed on leave restriction in June 2014 due
to a history of sick leave abuses. The record further shows that management officials delayed the
review of Complainant’s leave restriction because the Agency could not properly review any leave
usage during Complainant’s FMLA entitlement period which took place between late August 2014
and late November 2014, since the leave usage during that time was statutorily protected.
Accordingly, the Agency needed additional time to properly assess whether Complainant’s leave
usage had improved. Management officials also explained that in late February 2015
Complainant’s leave restriction was extended because Complainant’s non-FMLA leave usage
reflected a failure to consistently adhere to the rules of the leave restriction. Management officials
also concluded that Complainant made numerous improper attempts to use FMLA leave when no
such leave was available.

With respect to Claim 10, the record shows that Complainant was improperly charged AWOL for
March 20, 2015. However, the improper AWOL charge was removed within a couple of weeks.
The record is devoid of evidence to establish that the AWOL charge was anything more than an
innocent mistake. Moreover, since the documentary evidence shows that Complainant’s time-card
was corrected, there is no reason to believe that she did not get paid for March 20, 2015.9

With respect to Claim 11, the record indicates that on April 7, 2015, Complainant’s August 17,
2014 leave changed from Annual Leave/FMLA to LWOP/FMLA. The timing of this change
coincides with the Agency’s audit of Complainant’s FMLA leave usage.

8 We generally agree with the Agency’s finding that management properly denied Complainant’s
various leave requests and properly amended her TA records where necessary to properly show
the correct type of leave Complainant was entitled to use.
9 The record is devoid of any such evidence.
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It is notable that both versions of the August 17, 2014 leave indicate that FMLA was the reason
for the leave. However, the FMLA entitlement notices indicate that Complainant was not
approved for FMLA leave until August 20, 2014. Accordingly, it appears that the FMLA
designation was incorrect in both the original format and the later correction.10 However, even if
the FMLA classification was incorrect, the error did not deny Complainant any FMLA leave that
she would have been entitled to during the 12-month period since the undisputed record establishes
that the audit discovered that the Agency afforded Complainant eight additional FMLA hours than
she was entitled to during that period.

With respect to Claims 12-14, aside from Complainant’s bare, uncorroborated assertions, the
record shows that she failed to follow the rules of her leave restriction. In addition, the record is
devoid of evidence that Complainant had leave available during the relevant time-frame. Lastly,
while S1B had no specific recollection, it appears from Complainant’s own assertions that he was
attempting to help her avoid an AWOL charge.

With respect to Claim 15, the undisputed record shows that SW followed standard leave
procedures in denying Complainant’s May 9, 2015 leave request. Moreover, Complainant did not
suffer any consequences for leaving work without prior approval because SW ultimately found a
replacement for her shift.

With respect to Claim 16, the evidence shows that in late March 2015, following the audit of
Complainant’s FLMA usage, her TA records pertaining to October 27, 2014 were amended by
adding a FMLA designation. The record supports the conclusion that the FMLA designation
served to clarify that the leave used on October 27, 2014 was for FMLA purposes. We note that
the record is devoid of evidence to suggest that any leave that was taken during the FMLA
entitlement period was taken for a non-FMLA purpose. We also find the record devoid of evidence
that Complainant used leave on October 28, 2014 or that it was changed in any manner. The
documentary evidence indicates that Complainant was to return to work on October 28, 2014. In
addition, the TA records do not indicate that any leave was taken on that day. Accordingly, the
record does not support Complainant’s assertion that her leave was changed or that the Agency’s
conduct was inappropriate with respect to this claim.

With respect to Claim 17, Complainant contends that she was charged eight hours of AWOL for
September 30, 2014 which should have been FMLA approved leave because it was about a week
after her surgery. S1B and S2 each denied knowledge of and involvement in this event. Moreover,
S2 testified that when she reviewed the records she did not find anything to indicate that an AWOL
charge was issued on September 30, 2014. Complainant failed to produce evidence that she was
in fact charged AWOL on this date. Accordingly, we find insufficient evidence in the record to
support this claim.

10 However, other evidence in the record indicates that Agency officials believed the 12-month
FMLA period commenced on August 14, 2014.
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With respect to Claim 18, we find the record devoid of evidence to show that in April 2015, after
Complainant established a new medical condition and entitlement under the FMLA, she had
FMLA leave available to use that was improperly denied by the Agency. Rather the record
supports the conclusion that Complainant had used all FMLA leave she was entitled to use during
the 12-month period between August 2014 and August 2015.

Based upon the above, we find insufficient evidence that the legitimate, non-discriminatory/non-
retaliatory reasons for the Agency actions set forth in Claims 1-18 were a pretext for
discrimination. Further, we note that the conduct alleged is insufficiently severe or pervasive to
constitute a violation of Title VII. We note that none of the events are reasonably characterized as
denigrating, offensive, abusive or physically threatening. More importantly, we find the record is
devoid of evidence to support the conclusion that any responsible management official’s conduct
was motivated by discriminatory or retaliatory animus.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision concluding that
Complainant failed to establish discrimination or retaliation as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request 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.
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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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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 15, 2018
Date