01A23798
03-17-2003
Gerald A. Rather, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Gerald A. Rather v. Department of Agriculture
01A23798
03-17-03
.
Gerald A. Rather,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A23798
Agency No. 950316
Hearing No. 370-99-X2497
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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 order.
The record reveals that complainant, a Zone Manager, GS-09 at the agency's
Shasta/Trinity National Forest facility, filed a formal EEO complaint
on March 9, 1995, alleging that the agency had discriminated against
him on the bases of race (Caucasian) and sex (male) when:
(1) his request on October 3, 1994 for approximately five months of
sick leave for the period from September 28, 1994, to March 31, 1995,
was denied; and
he was temporarily charged with annual leave instead of sick leave for
a six week period during approximately November to December 1994.
The record reveals that in September 1994, complainant saw his
doctor regarding stress that he was experiencing. Complainant's doctor
recommended that complainant seek counseling and provided a note, dated
September 8, 1994, excusing complainant from work due to medical illness
from September 8, 1994 through September 25, 1994. Complainant also
sought assistance from the Concern Program, a program designed to help
agency employees. Complainant went on extended sick leave for stress
and depression on October 3, 1994. The record reflects that complainant
requested 1,000 hours of sick leave in order to improve his health.
Complainant was told that because his request was for more than three days
leave, he would have to submit medical documentation from a physician.
Complainant submitted a note from a clinical psychologist. Complainant was
informed that the procedures for extended sick leave did not recognize the
recommendation from a clinical psychologist and that he would need a note
from a medical doctor. Complainant was evaluated by a psychiatrist on
December 8, 1995. During this time, complainant noticed, while reviewing
his payroll slip, that he was being charged annual leave instead of sick
leave. On December 15, 1994, complainant sent a letter to the agency
pointing out the leave mistake. He also submitted additional medical
documentation which excused him from work for medical reasons for the
six weeks that he had been charged annual leave. On December 20, 1994,
complainant received a letter which indicated that his leave had been
changed to sick leave.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to established a prima facie
case of race and sex discrimination as to all claims because he did not
show that similarly situated employees, not in his protected classes,
were treated differently when requesting sick leave. The AJ found that
complainant presented no evidence that any female or non-white employee
who had also requested such an unusually large amount of sick leave was
allowed to take it without first presenting documentation from a medical
doctor covering the entire duration of the requested sick leave period.
Nevertheless, the AJ found that the agency articulated legitimate,
non-discriminatory reasons for its action, namely, that the agency
required all employees to submit medical documentation for extended
sick leave. The AJ found that complainant failed to show that the
agency's articulated reason was pretext. Therefore, the AJ found that in
the absence of any evidence of pretext, the complainant had not met his
burden of persuasion with respect to issue #1. With respect to issue #2,
the AJ found the agency had articulated a legitimate, non-discriminatory
reason for its action, namely, that as soon as it received documentation
from complainant's physician for that time period, complainant's annual
leave was converted to sick leave. The AJ again found that complainant
failed to show that the agency's reasons were pretext to mask unlawful
discrimination
The agency's final order implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
He also contends that he has located in the warehouse a few records that
the agency denied having. Complainant maintains that he is certain
that women have been granted extended leave and leave without pay.
He indicates that they may not have taken 1,000 hours of sick leave
because they did not have 1,000 hours of sick leave to use. He contends
that he should not be penalized. Finally, complainant contends that the
agency's regulations were in direct conflict with The Family Medical Leave
Act (FMLA), with respect to the definition of a health care provider.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's race or sex.
We also find that complainant failed to show how the documentation that he
allegedly found proves that the agency discriminated against him. We also
find that complainant failed to show that the agency's regulations were
different for women than for men. Further, we note that based on the
record, all employees were required to provide medical documentation
to support an extended leave request. Finally, we find that other
than complainant's mere assertion regarding the agency's regulation,
he failed to provide any evidence of how the agency's regulation is
in conflict with the FMLA. As such, we discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the agency's final order.
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
_____03-17-03_____________
Date