01a44501
01-14-2005
Mario Pinheiro, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Mario Pinheiro v. Department of Transportation
01A44501
January 14, 2005
.
Mario Pinheiro,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A44501
Agency No. 1-02-1012
Hearing No. 160-2002-08411X
DECISION
Complainant filed a timely appeal from an 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.
During the relevant time, complainant was an Air Traffic Control
Specialist at the agency's Albany Air Traffic Control Tower, in Latham,
New York. Complainant filed a formal EEO complaint on November 29, 2001.
Therein, complainant claimed that the agency discriminated against him
on the basis of national origin (Portuguese) when:
On July 13, 2001, his Operations Supervisor counseled complainant
regarding his use of sick leave. The Operations Supervisor issued a
memorandum memorializing the meeting and concluded that complainant did
not want to work weekends.
On November 7, 2001, complainant was placed on sick leave restriction
for six months, requiring a medical certificate for each absence.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
As an initial matter, the AJ set forth several �undisputed� facts.
On July 13, 2001, complainant was counseled about his sick leave use.
The purpose of the meeting was to inform complainant, and the union, that
management believed �a trend was developing� of possible sick leave abuse.
Complainant was also issued a memorandum memorializing the meeting.
In the memorandum, complainant's supervisor stated that when complainant
could not obtain annual leave on weekends he would call in sick. The AJ
further noted that air traffic controllers are required to work weekends,
and annual leave requests for those times are generally disapproved.
On September 7, 2001, complainant was placed on a six-month restriction
regarding his sick leave usage. Specifically, complainant was required
to provide medical certification for each absence. The AJ noted that
the restriction followed complainant's use of sick leave on August 26,
2001, after he was refused annual leave for his last day of work prior
to a two-week vacation.
The AJ determined that complainant was rendered �aggrieved� by the July
13, 2001 counseling and the September 7, 2001 sick leave restriction.
However, the AJ did not find that complainant was the victim of disparate
discriminatory treatment.
Specifically, the AJ did not find that complainant established a prima
facie case of discrimination. The AJ determined that complainant did
not show that other air traffic controllers outside his protected class
were similarly situated. The Report of Investigation reflects that three
other employees had taken sick leave after they were denied annual leave,
prior to July 2001. The record does not indicate whether the employees
were counseled; however, the AJ assumed that even if they had not been
counseled, these employees were not similarly situated because complainant
had not established that their sick leave pattern was similar or worse,
than his own usage.
Regarding the six-month restriction, the AJ noted that it was issued after
complainant called in sick the day before he was to leave for a two-week
vacation. Moreover, the AJ noted that this incident occurred only six
weeks after the counseling session regarding the appearance of using sick
leave to supplement annual leave. Therefore, the AJ determined that the
agency presented a legitimate, nondiscriminatory reason for its actions.
Finally, the AJ concluded that there was no evidence of discriminatory
animus regarding complainant's national origin. Complainant failed to
show that his national origin �had any bearing on the adverse actions
in this case.�
The agency's final order, dated July 8, 2004, implemented the AJ's
decision finding no discrimination.
On appeal, complainant argues that he �took the weekends off because I
was entitled to them due to seniority and because no one in the facility
requested the weekends off . . . .�
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. �1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is �genuine� if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
After a careful review of the record, the Commission determines that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. The AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. According
to complainant's supervisor, the �normal schedule� for air traffic
controllers is to work four weekends out of every six weeks. Complainant's
supervisor stated that complainant was counseled in July 2001, because
the days he called in sick were days that complainant had requested,
and been denied, annual leave. The record supports a determination that
this counseling was intended to correct the problem before it became more
serious. When asked whether he had ever issued a letter restricting
sick leave usage before, complainant's supervisor acknowledged that
he had not, but that in light of complainant's situation, as well as
indications that he did not want to work weekends, the supervisor found
that it was necessary. While complainant alleged generally that he was
the only employee counseled, he failed to show that any other employees
used sick leave in a similar manner. Finally, construing the evidence
to be most favorable to complainant, we note that complainant failed
to present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected classes
Accordingly, the agency's final order implementing the AJ's finding of
no discrimination was proper and 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
January 14, 2005
__________________
Date