0120114134
12-08-2011
Rodney K. Tadlock, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Rodney K. Tadlock,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01-2011-4134
Hearing No. 560-2009-00189x
Agency No. 200821790FAA04
DECISION
On August 17, 2011, Complainant filed an appeal from the Agency's July 14, 2011 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Specialist at the Agency's Kansas City Air Route Traffic Control Center in Olathe, Kansas. On January 15, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity under the Rehabilitation Act of 1973 when:
1. on October 17, 2007, his request to work the 6:00 a.m. shift was denied;
2. on November 19, 2007, he received a request for numerous medical documents; and
3. he was forced to retire on December 28, 2007.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the agency concluded that Complainant failed to establish he failed to raise an inference of discrimination. The agency also found that it articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the agency maintained that it denied Complainant's shift request because it would have resulted in an overtime situation. The agency's Flight Surgeon averred that he requested medical documentation from Complainant after he learned that Complainant suffered from a cerebrospinal fluid (CSF) leak, and because he was taking an aero medically unacceptable medication. Complainant refused to provide the complete medical documentation that was requested, and was found incapacitated from safety-related duties, pending receipt of the documentation. The agency found Complainant failed to provide evidence that would prove the agency's reasons for its actions were a pretext for retaliation.
Finally, the agency found Complainant failed to establish he was subjected to a constructive discharge. Rather, instead of requesting administrative leave after his incapacitation, he used up his remaining sick leave and submitted a voluntary retirement. The decision concluded that Complainant failed to prove that the Agency subjected him to retaliation as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that it is not true that his shift change request could not have been approved. He maintains that the agency often works with a reduced staff without incurring overtime. He argues that his supervisor was aware of his prior EEO activity, despite his claim to the contrary. Complainant argues that the Flight Surgeon requested his medical documentation because the Legal Office asked the Flight Surgeon to get it after he filed a formal EEO complaint. Finally, Complainant states once he was declared incapacitated, his only option was to retire, as his sick leave had been exhausted. The agency asks that we affirm its final decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
After a review of the entire record, we find the preponderance of the evidence supports the agency's reasons for its actions. Complainant failed to present evidence that would establish, more likely than not, that the agency refused his requested shift change, and required medical documentation in reprisal for his prior EEO activity. Furthermore, the record does not support Complainant's contention that his work conditions were so intolerable that he had no choice but to retire. Complainant did not address the agency's suggestion that he could have worked administrative duties while obtaining the medical documentation. We find insufficient evidence in the record to support Complainant's claim that Legal Office requested the medical documentation in retaliation for his prior EEO activity, nor do we find any other evidence of retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
12/8/11
Date
1 The record reveals by prior final decision dated October 2, 2008, the agency found no discrimination in this complaint. The agency also dismissed Issue 1 for untimely EEO Contact, which Complainant appealed to the Office of Federal Operations. Issues 2 and 3 were appealed to the Merit Systems Protection Board (MSPB). The MSPB then found it had no jurisdiction over the claims and remanded them to the agency for processing. In the meantime, the Office of Federal Operations reversed the dismissal of Issue 1 and remanded it to the agency for investigation. All three claims were ultimately consolidated for a hearing, which Complainant cancelled.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
01-2011-4134
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114134