Ethelyn A. Collins, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 31, 2004
01A41035_r (E.E.O.C. Mar. 31, 2004)

01A41035_r

03-31-2004

Ethelyn A. Collins, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Ethelyn A. Collins v. Department of Veterans Affairs

01A41035

March 31, 2004

.

Ethelyn A. Collins,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A41035

Agency No. 200L-0629-2002101395

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his 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.

The record reveals that during the relevant time, complainant was employed

as a Patient Services Assistant, GS-6, at the agency's Ambulatory Process

Care of the New Orleans Medical Center in New Orleans, Louisiana.

Complainant sought EEO counseling and subsequently filed a formal

complaint on February 26, 2002, alleging that she was discriminated

against on the basis of reprisal for prior EEO activity when her request

for Family Medical Leave Act on or about November 1, 2001 was not approved

and communicated to her in a timely manner.

The record reveals that on November 1, 2001, complainant asked her

immediate supervisor if she could use her Family Medical Leave due to the

hospitalization of her mother; and that she was informed by her supervisor

that it was necessary to complete another leave form because it had been

over two years since complainant's last Family Medical Leave Request

had been approved.

The record further reveals that on or around December 4, 2001,

complainant turned in her request for Family Medical Leave. The record

reveals that on or around December 10, 2001, complainant's request was

returned to her because the agency determined that it was incomplete and

required an additional physician statement from her mother's physician.

On December 20, 2001, complainant returned the completed form to her

supervisor. The record reveals that on January 9, 2002, complainant

was notified that her Family Medical Leave request had been approved.

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. The record

reflects that complainant initially requested a hearing, but that the

request was subsequently withdrawn. The agency thereupon issued a FAD

finding no discrimination.

In its FAD, the agency concluded that complainant established a prima

facie case of reprisal discrimination. The agency further concluded,

however, that management articulated a legitimate, non-discriminatory

explanation for its actions. The agency found that complainant did

not establish that more likely than note, the management's articulated

reasons were a pretext to mask retaliation.

A claim of disparate treatment is examined under the three-part 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 case 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 Commission finds that the agency articulated legitimate,

non-discriminatory reasons for its employment actions, which we determine

were not persuasively rebutted by complainant. The record in this case

contains a copy of a transcript of an interview of complainant's second

level supervisor. Therein, the Supervisor stated that complainant's

Family Medical Leave request was �planned ahead of time� but that her

paperwork was not completed. The Supervisor further stated that approval

of an employee's Family Medical Leave request is through the agency's

personnel office, and not through agency managers. The Supervisor

further stated that she "would not support the denial of family leave

or family medical leave, because it's an entitlement." Furthermore,

the Supervisor stated that if an employee "calls in because they have a

sick family member, they have the option of requesting emergency annual

leave if they have not made provisions for the family leave. And if

they have not made the provisions and they come back from being off and

they have the documentation and they request family leave at that time,

I think most managers would cover it to family leave if the paperwork

was in order and substantiates."

The record also contains a copy of an interview transcript from

complainant's immediate Supervisor. Therein, the immediate Supervisor

testified that complainant's Family Medical Leave request was in

writing but that not all of the necessary information was provided.

The Supervisor further stated that complainant was told what was needed

on the request form from her physician and her mother's physician, and to

return it to have it completed. The Supervisor stated that complainant

returned her request form two weeks later. The Supervisor stated "if

a person needs to go out before it's approved and they ask to take the

time off, we go on and let them take the time off pending approval.

They can use their annual leave or their sick leave, whatever leave

they want to use that they have available." Furthermore, the Supervisor

stated that complainant did not make a request for time off.

Finally, the record contains a copy of a transcript of an interview with

the agency's Personnel Management Specialist. Therein, the Personnel

Management Specialist stated that she is the only agency official that

processes employees' Family Medical Leave requests. The Personnel

Management Specialist stated that there was a delay concerning the

processing of complainant's Family Medical Leave request form because

complainant signed the request form on December 3, 2001, and that her

supervisor signed it on December 20, 2001. The Personnel Management

Specialist further stated that because complainant's request form was

not stamped, she had no way of knowing precisely when it was forwarded to

her, and speculated that for some time period, it may well have been on

her own desk or in the Supervisor's office. Furthermore, the Personnel

Management Specialist stated that she was on leave from December 21,

2001 until January 8, 2002. The Personnel Management Specialist stated

that after she returned to the office when her leave ended, she checked

with Payroll and learned that they received complainant's request form

on January 8, 2002, and processed it immediately.

Upon review, we find that complainant has not demonstrated that

the agency's articulated reasons for its action were a pretext for

retaliation.

Accordingly, the agency's final decision finding of no discrimination

is AFFIRMED.

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

March 31, 2004

__________________

Date