01A23179
03-18-2003
Jimmie L. Miller, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Jimmie L. Miller v. Department of Veterans Affairs
01A23179
March 18, 2003
.
Jimmie L. Miller,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23179
Agency No. 200L2067
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 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 WG-3566-2 Housekeeping Aid in the Environmental Management Section of
Facility Management Service at the VA Medical Center, located in Memphis,
Tennessee. Complainant sought EEO counseling and subsequently filed a
formal complaint on March 15, 2001, alleging that he was discriminated
against and harassed on the bases of disability (10% disability in
shoulder, back condition, heart condition, bone disease, lung cancer),
age (D.O.B. July 14, 1953), and reprisal for prior EEO activity when: (1)
on January 22, 2001, he was put on medical certification for sick leave
abuse;<1> and, (2) On May 12, 2001, complainant was told his duty hours
would be changed to 7:30 a.m. to 4:30 p.m. due to his sick leave abuse.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of age discrimination in that he failed to show that a
similarly situated, younger employee, was treated more favorably under
similar circumstances. The FAD further found that complainant failed
to establish a prima facie case of reprisal discrimination in that the
record is devoid of any evidence which creates an inference of reprisal.
As to disability, the FAD first found that complainant was qualified for
his job and could perform its essential functions. Further, the FAD
noted that management was aware of complainant's medical conditions.
The FAD further found, however, that complainant's conditions do not
amount to a disability under the Rehabilitation Act. Additionally,
complainant failed to identify any similarly situated, non-disabled
co-worker who was treated more favorably under similar circumstances.
The FAD concluded that complainant failed to establish a prima facie
case of disability discrimination.
The FAD further found that the agency articulated legitimate,
nondiscriminatory reasons for its actions; namely, complainant was
placed on medical certification due to his excessive use of sick leave
and his failure to provide medical documentation. The Section Chief
(C1) noted that once complainant presented management with appropriate
medical documentation, in or about June 2001, the actions were rescinded.
As to issue (2), the Chief Facility Management Service (F1) stated that
the proposed change in complainant's tour was �a kind of tool� that they
use to correct attendance problems of night shift employees.<2>
On appeal, complainant contends that a proper investigation of his
complaint was not conducted. Complainant also raises a new allegation
of discrimination concerning over time work. The agency requests that
we affirm the FAD.<3>
As an initial matter we note that, as this is an appeal from a FAD issued
without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's
decision is subject to de novo review by the Commission. 29 C.F.R. �
1614.405(a). To prevail in a disparate treatment claim such as this,
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant is an individual with a disability,
and that he established a prima facie case of discrimination on all of
the alleged bases, we find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions; namely, complainant had a
record of excessive sick leave usage. Despite complainant's challenges
to the agency's reasons, he has not persuaded the Commission, by a
preponderance, of the evidence, that the agency's reasons were pretexts
for discrimination based on age, reprisal or disability. In so finding,
we note that the record reveals that numerous other co-workers, not
in complainant's protected classes, have also been placed on medical
certification for excessive sick leave usage.
Complainant additionally contends in his affidavit that management's
requirement that he submit medical certification each time he used sick
leave constituted retaliatory harassment for his prior EEO activity.
Harassment of an employee that would not occur but for the employee's
protected activity under the anti-discrimination statutes is unlawful,
if it is sufficiently patterned or pervasive. McKinney v. Dole, 765
F.2d 1129, 1138-1139 (D.C. Cir. 1985). In order to prove a case of
harassment, the complainant must establish, by a preponderance of
the evidence, the existence of five elements: (1) he is a member of a
statutorily protected group; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
group; (3) the harassment complained of was based on the statutorily
protected group; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with her work environment and/or creating an intimidating, hostile, or
offensive work environment; and (5) that there is a basis for imputing
liability to the employer. McLeod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999). The record is devoid of
evidence that management's actions were based on complainant's membership
in a protected class. Therefore, after a careful review of the record,
we affirm the agency's final decision.
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 18, 2003
__________________
Date
1 The memorandum notifying complainant that he was being placed on
medical certification stated that complainant was required to present
medical documentation stating that he was sick and incapacitated for
duty to substantiate any request for sick leave, regardless of the
length of absence. The memorandum stated that complainant's failure
to present the required certification within five (5) working days of
his return to duty would result in a charge of Absent Without Leave
(AWOL). The memorandum further stated that at the end of six (6) months
complainant's sick leave record would be reviewed to determine whether
the requirement would be waived.
2 The record indicates that complainant's schedule was never actually
changed.
3 The Commission's regulations allow a complainant to amend a complaint
at any time prior to the conclusion of the investigation to include
issues or claims like or related to those raised in the complaint.
29 C.F.R. � 1614.106(d). However, the regulations do not permit a
complainant to raise a new claim on appeal. Therefore, even assuming,
arguendo, that complainant's allegations are related to his instant claim,
it would be inappropriate for the Commission to address the allegation
on appeal. Singleton v. Social Security Administration, EEOC Appeal
No. 01984784 (April 13, 2001).