[Redacted], Lynette B., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Oct 7, 2021

Appeal No. 2021002308 (E.E.O.C. Oct. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lynette B.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency. Appeal No. 2021002308 Agency No. 54-2020-00072 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 3, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Computer Operator, ZT-0332-III, at the Agency’s Office of Satellite and Product Operations, National Environmental Satellite, Data and Information Service in Silver Spring, Maryland. On November 21, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her in reprisal for prior protected EEO activity (prior complaints and instant complaint)2 when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 Complainant stated that since 2004, she has filed four EEO complaints. 2021002308 2 1. Complainant’s first level supervisor (S1) rejected her doctor’s note for September 3 - 6, 2019 and placed her on absent without leave (AWOL) for 35 hours; and 2. S1 issued Complainant a leave warning letter, dated September 19, 2019. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant initially requested a hearing but subsequently withdrew her request. On February 3, 2021, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant, through counsel, argues that management retaliated against her when the Agency determined that her doctor’s note was insufficient to remove the AWOL charge, and denied Complainant’s request for Family & Medical Leave Act (FMLA) leave. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2021002308 3 Our review of the record supports a determination that the management witnesses for the Agency articulated legitimate, non-discriminatory reasons for the decision to place Complainant on AWOL status and issue her a leave warning letter. The record reflects that Complainant verbally requested from S1, as early as August 31, 2019, to take leave from September 3 - 6, 2019 to perform volunteer disaster response activities in Florida during Hurricane Dorian. Because S1 was attending a convention at the time Complainant made her initial request and had poor reception, S1 directed Complainant to contact her second level supervisor (S2) or the Polar Operational Environmental Satellite Engineer Lead (POESE Lead). S1 also requested that Complainant coordinate with her co-worker (CW1) to ensure that there would be adequate coverage during Complainant’s absence, and S1 requested that Complainant email him, S2, and POESE Lead a short description of her volunteer hurricane relief activities. However, on the following day, September 1, 2019, Complainant sent S1 a text message indicating that she no longer needed the requested leave and that she would report to the office on Tuesday, September 3, 2019. Despite this text message, Complainant ultimately did not report to work, as she said she would. S1 testified that S2 informed him on Friday, September 6, 2019 that Complainant had not submitted her weekly report due the previous day. S1 further testified that CW1 confirmed that Complainant had not reported to her duty station that week, CW1 had tried to contact Complainant via cell phone call and text messages, and Complainant eventually contacted CW1 and indicated that she was having car trouble in North Carolina on her way back home from Florida. CW1 eventually relayed this contact to S2. S1 noted that Complainant emailed him on September 10, 2019 acknowledging that she did not have authorized leave and that she could have handled the situation better. Specifically, Complainant stated, in pertinent part: I did not have to go to Florida; this trip was not required of the US-VRC. I should have called you and [S2] on Tues. morning for approval for this trip. . . . Tues. was a very stormy day into the hurricane at that time and there was limited use of Wi-Fi and Cellular phone use in Florida. I could have used someone else’s phone if needed to call NSOF. I had no trouble with texting at all. Both S1 and S2 explained that because Complainant did not have authorized leave, and that Complainant had failed to report to work during a normally scheduled work week, Complainant was placed on AWOL status for the period she was absent. S1 and S2 further explained that Complainant was issued the September 19, 2019 leave warning letter to create a record of unauthorized absence, provide guidance for future unplanned leave requests, and elicit compliance with leave policies. Consequently, S1 and S2 clarified, and the Human Resources (HR) Specialist confirmed, that the warning letter was not disciplinary in nature. Neither S1, S1, or the HR Specialist indicated that they were unaware of Complainant’s prior EEO activity at the time Complainant’s was placed on AWOL status and issued the warning letter. 2021002308 4 The record further indicates that when Complainant returned to the office on September 9, 2019, Complainant requested annual leave for her absence from September 3 - 6, 2019. This request, however, was denied. Complainant then requested FMLA leave for care of a family member (her husband) which was also not approved. Finally, Complainant requested Sick Leave for care of a family member, which also was denied. However, Complainant referenced her FMLA request in a September 18, 2019 email and in response to this email, S1 requested that Complainant submit medical documentation by September 30, 2019, demonstrating that her husband had a serious health condition which required Complainant’s care. A copy of the October 2, 2019, doctor’s note indicates that Complainant’s husband experienced “a serious exacerbation of previously controlled respiratory conditions” during the period Complainant and her husband were in Florida from September 3 - 6, 2019. The letter explains that Complainant was her husband’s only caretaker during this time because they had limited access to urgent care centers or hospitals due to the hurricane. Although Complainant used this doctor’s note in support of her request for FMLA leave covering her September 2019 absence, the Agency properly denied Complainant’s request. The regulation at 5 C.F.R. § 630.1203(b) states that an employee may not retroactively invoke his or her entitlement to family medical leave. Here, Complainant’s FMLA request is retroactive because she requested FMLA leave after she had provided medical care for her husband. Additionally, Complainant’s request for FMLA leave appears to be more of a last attempt to avoid being charged AWOL after her request for annual leave was denied. Therefore, the Agency properly denied this request and charged Complainant AWOL for her absence as she was not on approved leave during this time. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s reprisal for prior protected EEO activity. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2021002308 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021002308 6 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 7, 2021 Date