Jeri Ygnatowiz, Complainant, Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 7, 2000
01973785 (E.E.O.C. Mar. 7, 2000)

01973785

03-07-2000

Jeri Ygnatowiz, Complainant, Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Jeri Ygnatowiz v. Department of Agriculture

01973785

March 7, 2000

Jeri Ygnatowiz, )

Complainant, )

) Appeal No. 01973785

) Agency No. 950130

)

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

basis of age (DOB: 11/22/42), in violation of Title VII of the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq.<1> Complainant alleges she was discriminated against when

she was placed on AWOL status despite submission of her leave request.

The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37, 659

(1999) (to be codified at 29 C.F.R. � 1614.405). For the following

reasons, the Commission AFFIRMS the FAD.

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

as a computer assistant, at the agency's Butte Ranger District facility.

Complainant alleged discrimination as referenced above when the agency

required detailed medical information to justify her request for extended

sick leave. Believing she was a victim of discrimination, complainant

sought EEO counseling and, subsequently, filed a complaint on November 2,

1994. At the conclusion of the investigation, complainant requested that

the agency issue a FAD.

The agency concluded that complainant failed to establish a prima

facie case of age discrimination because she presented no evidence

that similarly situated individuals, not in her protected class, were

treated differently under similar circumstances. On appeal, complainant

contends that the agency failed to consider a number of her arguments.

The agency requests that we affirm its FAD.

ISSUE PRESENTED

The issue presented herein is whether complainant established that she

was discriminated against when her third level supervisor (RMO: DOB:

10/6/54) refused to accept her medical documentation for sick leave

purposes and placed her on AWOL status.<2>

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973). See Loeb v. Textron, 600 F.2d 1003 (1st

Cir. 1979) (applying McDonnell Douglas to age cases). First, complainant

must 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. McDonnell Douglas, 411 U.S. at 802. Next,

the agency must articulate a legitimate, nondiscriminatory reason(s)

for its actions. Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). If the agency is successful, then the complainant

must prove, by a preponderance of the evidence, that the legitimate reason

proffered by the agency was a pretext for discrimination. Id. at 256.

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case,

following this order of analysis is unnecessary when the agency has

articulated a legitimate, nondiscriminatory reason for its actions. See

Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,

1990). In such cases, the inquiry shifts from whether the complainant

has established a prima facie case to whether she has demonstrated by

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

Since the record shows that complainant belongs to a statutorily

protected class, employees over 40 years of age, and since the agency

has articulated legitimate, nondiscriminatory reasons for its actions,

the Commission here considers whether complainant demonstrated by

a preponderance of the evidence that the agency's reasons for its

actions are merely a pretext for discrimination. The agency contends

that complainant was charged AWOL from September 26, 1994 until October

11, 1994 because she failed to provide detailed medical information to

substantiate her sick leave request.

Complainant maintains that she was treated differently when her

application for sick leave was denied because it lacked detail. However,

complainant failed to make a comparison with a similarly situated

co-worker and fails to rebut the agency's contentions that her request

for sick leave was vague and generalized. The agency contends that

it required more specific information from the complainant because she

was requesting extended leave (approximately three months) and because

she used excessive sick leave in the past. RMO, by her letter of

September 8, 1994, set out the agency's expectations for an acceptable

leave request. We note that the RMO gave the complainant two weeks sick

leave from, September 8, 1994 until September 16, 1994, in which to

provide Management with more detailed medical information. The request

for more detailed medical information was not isolated to complainant.

The record indicates that the agency requested similar information from

other employees. Complainant fails to establish any evidence of age

discrimination when the agency requested detailed information in order

to process her leave request.

Complainant also alleges that she was discriminated against when RMO

refused to convert her leave from AWOL to sick leave. Complainant

indicates that agency management converted the leave of two coworkers from

AWOL to sick leave.<3> These comparisons fail to provide any indication

of discriminatory motivation. While the agency did originally deny

complainant conversion to sick leave status, the agency subsequently

offered to convert the leave in settlement of complainant's EEO claim.

Upon our review of the record, the agency treated complainant and her

comparison coworkers identically. According to the record, complainant's

coworkers were initially placed on AWOL, their leave was converted only

in settlement of their administrative complaints. We further note that

complainant rejected the agency's offer to convert her leave, while

her colleagues accepted the offer. Moreover, complainant has failed to

establish that she was treated differently because of her age when the

agency initially refused to convert her AWOL status to sick leave.

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 FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

3/7/2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

______________________ ____________________________

Equal Employment Assistant Date

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 The Commission notes that complainant does not allege discrimination

on the basis of disability.

3According to the record the coworkers were 52 and 35 years old.