Paul E. Lietz, Complainant,v.Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity CommissionApr 25, 2000
01970159 (E.E.O.C. Apr. 25, 2000)

01970159

04-25-2000

Paul E. Lietz, Complainant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.


Paul E. Lietz v. Federal Deposit Insurance Corporation

01970159

April 25, 2000

Paul E. Lietz, )

Complainant, )

)

v. ) Appeal No. 01970159

) Agency No. RTC-92-31

Donna A. Tanoue, )

Chairman, )

Federal Deposit Insurance Corporation, )

Agency. )

_______________________________________)

DECISION

On October 3, 1996, the complainant initiated an appeal from a final

decision of the agency dated September 6, 1996 concerning his complaint

of unlawful employment discrimination in violation of the Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and � 501

of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. The

appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified

as 29 C.F.R. � 1614.402(a)), and is accepted under 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified as 29 C.F.R. � 1614.401(a)).<1>

ISSUES PRESENTED

Whether the complainant was discriminated against on the bases of his sex

(male), physical disability (degenerative spinal disease), and reprisal

(EEO activity) when the agency allegedly (1) subjected him to repeated

incidents of harassment culminating in his constructive discharge,<2>

(2) submitted a false statement to the Texas Employment Commission

concerning his application for unemployment compensation, and (3)

delayed payments for his unused annual leave and relocation benefits.

BACKGROUND

The complainant filed an EEO complaint alleging the above issues.

Following an investigation, he requested a final decision without a

hearing, and the agency found no discrimination.

The complainant started working with the agency around 1984. In August

1989, he was assigned to work with the Resolution Trust Corporation (RTC),

but was still a permanent employee with the agency. At the time of his

June 17, 1992, resignation, the complainant was a Financial Institution

Specialist (Field), GG-12.

ANALYSIS AND FINDINGS

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) provides

the analytical framework for proving employment discrimination in

cases in which disparate treatment is alleged and no direct evidence

of discrimination has been presented. Although McDonnell Douglas is a

Title VII case, its analysis is also applicable to disparate treatment

cases brought under the Rehabilitation Act. See Prewitt v. U.S. Postal

Service, 662 F.2d 292, 305 n. 19 (5th Cir. 1981. McDonnell Douglas

requires the complainant to first establish a prima facie case. If the

complainant succeeds, the agency's burden then is to articulate some

legitimate, nondiscriminatory reason for its action in order to rebut

the prima facie case of discrimination. Finally, the complainant has

the opportunity to show, by a preponderance of the evidence, that the

agency's stated reason is a pretext for discrimination. The ultimate

burden of proof that discrimination took place is on the complainant.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981).

With regard to the complainant's disability claim, the record contains

medical documentation indicating objective abnormalities in his spine,

such as degenerative disk changes and an apparent impingement of the

nerve root. The complainant averred that when flair ups occur, his day

to day functioning is substantially impaired, and he must seek medical

treatment. The record shows that the complainant's physician prescribed

frequent physical therapy commencing June 1, 1992 to at least through July

15, 1992, and explicitly restricted the complainant from heavy lifting

for much of this time. Other than general information on heavy lifting

restrictions during flair ups, there is no information on the specific

nature of the complainant's restrictions, how often and long flair ups

occur, or in what manner the complainant was substantially limited.

Further, the record does not show that the complainant had a record of

a disability, nor whether the relevant managerial officials regarded

him as having a disability. Accordingly, we find the complainant

has not shown he is an individual with a disability under 29 C.F.R. �

1630.2(g).<3> Accordingly, the complainant is not within the coverage

of the Rehabilitation Act.

ALLEGATION 1--ALLEGED HARASSMENT & CONSTRUCTIVE DISCHARGE

The alleged harassment which is the subject of the instant complaint

commenced on April 29, 1992.

Federal Bureau of Investigation "Raid" of April 29, 1992

The complainant described the alleged FBI "raid" primarily in terms of

how FBI agents approached his home to ask him about a forgery at the RTC.

He stated the FBI agents said he did not make the forgery but wanted him

to look at it to see if he could identify the writing. The complainant

averred that in the middle of the night FBI agents sped to his home in

vehicles popping "wheelies," blocked access to his driveway by parking

crosswise in it, and raced to his door shouting FBI while waving their

badges. Once inside, the complainant stated he repeatedly requested to

call RTC officials and advise them of the forgery, and the FBI agents told

him that doing so could result in a charge of obstructing justice. The

complainant contended that at the end of the interview, FBI agents said

they took this action at the instruction of the Vice President of the

Dallas Office, RTC and the Director of Assets and Management, Southwest

Region, RTC, Dallas, Texas.

The Vice President and Director denied any involvement with the FBI

"raid." Further, FBI Agent 1, who participated in the visit to the

complainant's home, denied that there was a raid and affirmed that the

Vice President and Director did not ask for one. We find the agency

was not involved in the FBI action. Accordingly, we do not find

discrimination on any basis.

On appeal, the complainant contends that the EEO investigation was

inadequate because the investigator did not review the notes of FBI Agent

1 which contained the name of an independent witness, nor interview this

witness. The complainant asked in his investigative affidavit, however,

that witnesses to the "raid" not be interviewed. The investigation was

sufficient, in any event.

Instructed to Resign Collateral Duty as an EEO Counselor on May 26, 1992

The complainant was asked to divest himself of his EEO duties by his

supervisor. The complainant opined that his sex was unrelated to this

matter. Since the agency articulated a legitimate, nondiscriminatory

reason for this action, as set forth below, we may proceed directly

to whether the complainant showed by a preponderance of the evidence

that the agency's reason was merely a pretext to hide discrimination.

United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-714 (1983).

The supervisor explained that the Dallas Consolidation Office was

undergoing a massive reorganization, and all GG employees were being

reassigned to a Special Projects Group in Addison, Texas while awaiting

return to the FDIC. According to the Supervisor, the Deputy Regional

Director gave an instruction that all GG employees were to divest

themselves of any and all responsibilities related to the Dallas

Consolidation Office.

The complainant argued this reason was pretextual. He reasoned that he

was asked to resign by managers who were not involved in the appointment

or functioning of EEO counselors, that this was inappropriate, and

he refused to resign. The complainant averred that EEO counselors

switched between RTC and FDIC. The supervisor affirmed, however, that

to his knowledge no other employee who was moving was an EEO counselor,

and the complainant did not indicate any problems with divesting his

collateral EEO counselor duty. The complainant's arguments of pretext

are not persuasive and he has failed to meet his burden of proving

discrimination on any basis. Further, contrary to the complainant's

claim, the investigation of this matter was sufficient.

On June 16, 1992, Ordered to Change Duty Hours, Submit a Doctor's Orders

for Physical Therapy, and Use Leave for Medical Treatments

The complainant was prescribed daily physical therapy by his physician

commencing Monday, June 1, 1992. On Thursday, June 4, 1992, the

physician prescribed continued daily physical therapy. On June 12,

1992, the physician reduced the physical therapy to three times a week.

The complainant had early morning physical therapy appointments.

Commencing on Monday, June 1, 1992, the complainant normally took two

hours of sick leave before coming to work each morning. The next week

he took one hour of sick leave each morning. The complainant explained

on appeal that he was able to take one hour of leave because he worked

through lunch. On his last three work days the complainant took two

hours of annual leave before coming to work on two mornings because he

had a negative sick leave balance.

On June 16, 1992, the complainant was instructed by his supervisor to

change his duty hour start time commencing the next day from 7:00 a.m. to

8:00 a.m. and to bring in doctor slips documenting the need for leave.

The complainant resigned the next day.

The complainant's supervisor stated that the complainant's two second

level supervisors wanted the change in duty hours. The supervisor

indicated that a later start time would result in less use of leave

and more time on the job, and averred the complainant was contributing

less and missing deadlines. He added that the complainant stated he did

not have a problem with the change and concurred he would save an hour

of leave with the adjustment. The supervisor stated that he requested

doctor slips because anytime an employee has frequent or recurring sick

leave, documentation of the need for leave is requested. The supervisor

stated the complainant provided doctor slips. Each slip in the record

covered about a week. There is no indication the supervisor required that

documentation only cover weekly intervals. The complainant saw the doctor

weekly for new assessments of how much physical therapy was required.

The complainant countered that when he was told to change his duty

hours, the supervisor acknowledged that there was little work in the

complainant's group. The complainant contended that due to traffic,

the change in start time would actually result in additional leave taken.

He contended that while he worked through lunch, others in his group took

lunches of two hours or more, read newspapers all morning, and socialized.

The complainant averred that he performed as well as others and denied

missing deadlines.

He denied stating he did not have a problem with changing his duty

hours and denied concurring that this would save him leave.

The complainant's arguments of pretext are unpersuasive. It was

reasonable and within the agency's interest to ask him to start work

an hour later so he would use less recurring leave and be at work more.

The complainant had a low sick leave balance. His argument that the change

would result in more leave usage does not make sense. Except for his last

day of work, the complainant's request for leave slips indicate that he

reported to work at 8:00 a.m. and 9:00 a.m. on different days. Since he

was not asked to change the time of his physical therapy appointments,

it is not clear why traffic was an issue.

On appeal, the complainant contends that he was "forced" to work through

lunch. There is no evidence of this. Rather, it appears the complainant

chose to work through lunch to save leave. Also, the complainant's

contention that he worked through lunch is contrary to his argument that

he had little work to do.

We also find that the agency's request that the complainant provide

documentation of the need for sick leave was reasonable in light of his

frequent use of it. This is different in nature from occasional use of

sick leave.

Finally, the complainant argued that Comparison 1 (female) was allowed

to go for medical treatment and not charged leave. The complainant and

the comparative employee had different first level supervisors, and the

complainant's second level supervisors affirmed they had no knowledge

of the comparison's attendance and did not supervise her. On appeal,

the complainant contends that because his second level supervisors were

involved in changing his schedule, which shows a hands on approach to

management, the Commission should look to them in assessing whether

he was similarly situated to Comparison 1. But the second level

supervisors affirmed they were unaware of Comparison 1's absences.

The second level supervisor's involvement in changing the complainant's

reporting time because he started to often come in late does not indicate

these supervisors were aware of all staff employees daily leave usage.

Moreover, there was a period of time the complainant frequently went to

physical therapy and was permitted not to use leave time if he worked

through lunch. The complainant does not contend that Comparison 1 was

frequently absent for medical appointments, and she also could have been

working through lunch to avoid taking leave. The complainant has not

established discrimination with regard to being required to use leave

for medical appointments.

Constructive Discharge

The complainant contended that he was forced to resign to continue

receiving medical treatment and escape discrimination and harassment,

as outlined above. To make a case of constructive discharge, the

complainant must show that: (1) a reasonable person in his position would

have found working conditions intolerable, (2) conduct that constituted a

prohibited discriminatory act created the intolerable working conditions,

and (3) his resignation resulted from the intolerable working conditions.

Taylor v. Army and Air Force Exchange Service, EEOC request No. 059600630

(July 20, 1990).<4> The complainant has failed to meet any of these

elements, and hence we find he was not constructively discharged.

We note that after the complainant resigned, he applied for unemployment

compensation with the State of Texas. The application was approved.

In approving the application, the Texas Employment Commission Appeal

Tribunal noted the complainant's contention that the agency changed his

start time which made it difficult for him to get treatment, and that he

was required to take leave for medical appointments while others were not

so required. The agency did not appear at the hearing. The complainant

argues that the unemployment compensation decision constitutes a finding

of discrimination with regard to the matters in his complaint, and the

agency is bound by this. We disagree. Constructive Discharge was not at

issue in the unemployment compensation decision, nor was discrimination

on any protected basis.

ALLEGATION 2--FALSE INFORMATION SUBMITTED TO THE TEXAS EMPLOYMENT

COMMISSION.

This allegation regards the agency's submission to the Texas Employment

Commission which included a statement that the complainant resigned

for "personal reasons." The complainant contends this was false.

This allegation fails to state a claim as it constitutes an impermissible

collateral attack on another forum's proceeding, e.g., the unemployment

compensation process. The proper forum for challenging the statement

in the unemployment process was in that process, not the federal sector

EEO forum. Conley v. Navy, EEOC Request No. 05970402 (February 11, 1999).

Further, even if allegation 2 stated a claim, the complainant failed to

prove discrimination as he was not forced to resign due to discrimination.

ALLEGATION 3--DELAYED PAYMENTS

An agency Payroll Personnel Clerk explained that the payment of unused

annual leave to the complainant in late August 1992 was well within the

norm. There is no evidence to the contrary. Further, agency officials

explained that the delay in the payment of relocation benefits, i.e.,

Mortgage Interest Differential Allowance was due to administrative

problems, caused in part by the complainant's late application and

failure to submit a separate voucher. The complainant has failed to

show this explanation is pretextual nor proven discrimination.

CONCLUSION

Based upon a review of the record, and for the foregoing reasons, it

is the decision of the Commission to AFFIRM the final decision of the

agency which found that the complainant was not discriminated against

with regard to various actions.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

April 25, 2000

_________ _________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

1On 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.

2The complainant affirmed that his disability basis was unrelated to two

alleged incidents of harassment, i.e., the Federal Bureau of Investigation

(FBI) "raid" and direction to resign from his collateral duty as an EEO

counselor, and that his sex was unrelated to the latter incident.

3The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.

4The Merit Systems Protection Board (MSPB) has jurisdiction over mixed

case complaint allegations which allege discrimination based, among other

things, on sex, reprisal and disability with regard to a constructive

discharge if the MSPB finds a separation was a constructive discharge

(5 C.F.R. � 1201.3). The agency's final decision provided appeal rights

to the EEOC, not the MSPB. Since the complainant's complaint has been

pending in the EEO process for over seven years, the Commission will

assume jurisdiction over his case. The complaint is firmly enmeshed

in the EEO forum, and it would better serve the interests of judicial

economy to address his complaint at this time rather than remand it

for consideration to the MSPB process. See Burton v. Department of

Agriculture, EEOC Appeal No. 01932449 (October 28, 1994).