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request was subsequently withdrawn.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