03A10013
07-17-2001
Paul T. Coles, Petitioner, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Paul T. Coles v. Department of the Navy
03A10013
July 17, 2001
.
Paul T. Coles,
Petitioner,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Petition No. 03A10013
MSPB No. DC-0752-00-0021-I-1
DENIAL OF CONSIDERATION
On September 21, 2000, Paul T. Coles (hereinafter referred to as
petitioner) filed a petition with the Equal Employment Opportunity
Commission (EEOC) asking for review of the Merit Systems Protection
Board's (MSPB) final decision issued on his case. In that decision,
MSPB found that petitioner was not discriminated against because of his
race (black), sex and and disability (stress, anxiety), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. (1994 & Supp. IV 1999) and � 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. (1994 & Supp. IV 1999)
when on September 8, 1999 he was discharged. The Commission accepts
this petition in accordance with the Civil Service Reform Act of 1978,
Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in various sections
of 5 U.S.C.) and EEOC regulations at 29 C.F.R. � 1614.303 et seq..
ISSUE PRESENTED
Whether the Board's determination that the agency did not discriminate
against petitioner on the bases of his race and disabilities constitutes
a correct interpretation of the applicable laws, rules, regulations and
policy directives, and is supported by the record as a whole.
BACKGROUND
Petitioner was formerly employed as a military personnel clerk, GS-204-05
in the Separation Section, Separation and Retirement Branch, Personnel
Management Division, Manpower and Reserve Affairs Department, Marine Corps
Base, Quantico, VA. On May 18, 1999, petitioner's supervisor issued to
petitioner a �letter of requirement� which recited unauthorized absences
from January - May, 1999, and which restricted petitioner's ability
to be placed in an approved sick leave status by requiring petitioner
to certify absences due to illness by a physician. On July 20, 1999,
petitioner's supervisor proposed his removal from the agency for excessive
unauthorized absence from June 24, 1999 to July 20, 1999, and for failure
to abide by the requirements of the May 18, 1999 letter of requirement.
Petitioner responded to the notice of proposed removal on September 7,
1999, arguing that when he reported to work on June 24, 1999, he had a
stress attack, occurring in part because of race and sex harassment by his
supervisor. As evidence of harassment, petitioner cited his supervisor's
failure to excuse his justifiable tardiness (caused by traffic delays,
car trouble); failure to schedule his �off day� on a Monday or Friday,
thereby depriving him of long weekends; and treatment of petitioner like
a slave by �starting confusion� after previously granting petitioner
permission to nap at his desk during lunch breaks. Petitioner asserted
that upon arrival at work on June 24, 1999, he immediately left work and
reported to his health care facility for treatment. Petitioner asserted
that he again sought treatment from a mental health care facility on
August 16, 1999. On September 8, 1999 the agency removed petitioner
from its roles for excessive unauthorized absence and failure to abide
by the requirements of leave restriction. The September 8, 1999 removal
letter cited petitioner's absence from the workplace since June 24,
1999 and his failure to support his absence with medical documentation.
ANALYSIS AND FINDINGS
The Commission must determine whether the MSPB's decision with respect
to petitioner's allegations of discrimination constitutes a correct
interpretation of the applicable laws, rules, regulations and policy
directives, and is supported by the evidence in the record as a whole. See
29 C.F.R. � 1614.305(c). The Commission finds that the Board's decision
constitutes a correct interpretation of the laws governing the matter
at issue, and is supported by the record as a whole. Therefore, for the
reasons outlined below, the Commission Concurs with the Board's findings.
Disability Claim
As a threshold matter, one bringing a claim of discrimination on the
basis of disability must show that he is an individual with a disability.
Under 29 C.F.R. � 1630.2(g) an individual with a disability is defined as
one who (1) has a physical or mental impairment that substantially limits
one or more major life activities, (2) has a record of such an impairment
or (3) is regarded as having such an impairment. The determination
of whether an individual has a disability is not necessarily based
on the name or diagnosis of the impairment that the person has, but
rather on the effect of that impairment on the life of the individual.
29 C.F.R. Pt. 1630, App. Temporary, non-chronic impairments of short
duration with little or no long term or permanent impact are usually
not disabilities. Id.
The record showed no evidence that petitioner was an individual with a
disability within the meaning of the regulations. The MSPB administrative
judge (AJ) ordered petitioner to identify whether he met the definition
of a disability; petitioner failed to do so. While petitioner asserted
that his medical impairments were anxiety, depression and mental stress,
he failed to show, either empirically or with objective medical evidence,
that he was diagnosed with anxiety and depressive disorders. Petitioner
showed that he experienced anxiety and depression from May 18 - May 24,
1999. However, no evidence showed that the anxiety and depression lasted
beyond this seven day period. Petitioner provided one other health care
statement regarding his mental health, which diagnosed him with �PFTKA.�
No explanation of this diagnosis accompanied petitioner's evidence.
The MSPB AJ correctly concluded that petitioner failed to show adequate
evidence of his disability.
Harassment Claim
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently patterned or pervasive. Hurston
v. United States Postal Service, Appeal No. 01986458 (Jan. 19, 2001),
citing Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998). To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. 29 C.F.R. � 1604.11.
Petitioner adduced no evidence that his supervisor's failure to
excuse his tardiness, failure to schedule his �off day� at a time most
convenient for petitioner and alleged reversal of her position to allow
petitioner to sleep during his lunch break constituted anything more than
supervisory discretion in the workplace. The MSPB AJ found no evidence
that petitioner was the subject of unwelcomed conduct because of his
race or sex, and correctly concluded that petitioner cannot prevail.
Disparate Treatment Claim
The MSPB AJ found that petitioner failed to establish a prima facie
case because he failed to show that he was treated differently than
any similarly situated employee outside his class. We note that to
establish a prima facie case, petitioner must only present evidence which,
if unrebutted, would support an inference that the agency's actions
resulted from discrimination. Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). It is not necessary for petitioner to rely
strictly on comparative evidence in order to establish an inference
of discriminatory motivation necessary to support a prima facie case.
O'Connor v. Consolidated Coin Caters Corp., 517 U.S. 308, 312-13 (1996);
Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp., EEOC
Notice No. 915.002, n.4 (September 18, 1996); Carson v. Bethlehem Steel
Corp., 82 F.3d 157, 159 (7th Cir. 1996). Here however, petitioner's
proof failed to present any evidence, comparative or otherwise, from
which an inference of discrimination could reasonably be drawn.
CONCLUSION
For the reasons as set forth above, the Commission CONCURS with the MSPB's
finding that petitioner failed to show that the agency discriminated
against him on the bases of his race, sex and disabilities when he was
removed from agency employment on April 29, 1999.
PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. You have the
right to file a civil action in an appropriate United
States District Court, based on the decision of the Merit Systems
Protection Board, WITHIN THIRTY (30) CALENDAR DAYS of 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.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
July 17, 2001
__________________
Date