Donna Mauras, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionApr 9, 2002
01A10067 (E.E.O.C. Apr. 9, 2002)

01A10067

04-09-2002

Donna Mauras, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.


Donna Mauras v. Social Security Administration

01A10067

April 9, 2002

.

Donna Mauras,

Complainant,

v.

Jo Anne B. Barnhart,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A10067

Agency No. 99-0052-SSA

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her 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-303-7, Management Services Assistant at the agency's Office of

Hearings and Appeals (OHA) facility in Tucson, Arizona. Complainant

sought EEO counseling and subsequently filed a formal complaint on

November 3, 1998, alleging that she was discriminated against on the

bases of sex (female) and reprisal (for being a non-member of the union)

when on or about August 10, 1998, she was denied advanced sick leave.

The record reflects that on August 5, 1998, complainant called the office

to report that she would not be at work due to a migraine headache.

The Hearing Office Clerk (HOC1) answered the phone, and complainant

asked to speak to another Hearing Office Clerk (HOC2). Instead of

speaking with HOC2, complainant was transferred to a Staff Attorney (SA)

and she told him that she would not be in and that she would be using

credit hours instead of leave. Later that evening, complainant received

a telephone call from management and was told that she was going to be

charged Absence Without Leave (AWOL) by the Acting Hearing Office Manager

(M1) because complainant failed to call her.

The record also reflects that on the morning of August 6, 1998,

complainant called the Hearing Office Chief Administrative Law Judge (ALJ)

and told him that she was home with an excruciating migraine headache due

to stress caused by HOC1. When complainant returned to work on August

10, 1998, she learned that M1 was not going to advanced her any leave.

The record establishes that complainant was told that when she got a

letter from her doctor, the ALJ would advance her leave. Later that day,

complainant went to her doctor and he gave her a letter to be out of the

office until the migraine was under control. Complainant was informed

that although advance sick leave was for emergencies and hospitalization,

she could request advanced annual leave. Complainant did not take

any time off, and worked the entire week even though she still had a

migraine headache.

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge

or alternatively, to receive a final decision by the agency. When

complainant failed to respond within the time period specified in 29

C.F.R. � 1614.108(f), the agency issued a final decision.

In its FAD, the agency concluded that complainant failed to establish a

prima facie case of sex and reprisal discrimination. In particular, the

agency found that complainant produced no evidence that males, similarly

situated were treated more favorably under similar circumstances.

In regard to complainant's reprisal claim, the FAD noted that complainant

did not show any prior protected activity. Complainant raises no new

contentions on appeal. The agency requests that we affirm its FAD.

Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222

(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the

Commission agrees with the agency that complainant failed to establish

a prima facie case of sex or reprisal discrimination.

In reaching this conclusion, we note that complainant has presented no

evidence that her male co-workers in similar positions, were treated more

favorably under similar circumstances. The Commission also finds that

complainant's reprisal claim is based on her non-membership in the union.

Membership in a union, or the lack thereof, is not recognized as a

protected activity under Title VII. However, even assuming, arguendo,

that complainant did show a prima facie case of discrimination, the

agency articulated a legitimate, nondiscriminatory reason for its action.

Specifically, the conditions presented by complainant as requiring

three days advanced sick leave - a migraine headache - did not meet the

definition contained in the agency's policies permitting the granting

of advanced sick leave.

Under these circumstances, the Commission finds that complainant failed to

present sufficient evidence that any of the agency's actions were based

on discriminatory animus and/or retaliatory motive. Therefore, after

a careful review of the record, including complainant's contentions,

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

April 9, 2002

__________________

Date