0120080149
01-10-2008
David L. Kelso, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
David L. Kelso,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120080149
Agency No. EEODFS-07-0152-M
DECISION
Complainant timely initiated an appeal from the agency's August 30, 2007 final decision concerning his equal employment opportunity (EEO) complaint claiming 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
During the period at issue, complainant was employed as a Customer Service Representative, GS-0962-08 at the agency's Wage and Investments Division Service Centers in Dallas, Texas.
The record reflects that complainant suffered constant back pain due to a work-related injury. The record further reflects that complainant was provided a chair that assists him to properly support his back while on the job; a long telephone cord so he can get up to stretch and move around while answering taxpayers' inquiries; and an Alternate Work Schedule. Complainant also requested frequent breaks, occasionally extended breaks, liberal leave and leave without pay. Complainant also requested permission to occasionally lie down to relieve pressure and pain in his back. On April 14, 2003, the agency granted complainant's request to take frequent breaks, to take walks and go lie in the health unit because of his back pain.
On March 13, 2006, complainant's first-level supervisor (S1) requested updated medical information to support the agency's April 2003 action, discussed above. The record reflects that by letter dated April 10, 2006, complainant's physician submitted a letter indicating that complainant had chronic low back and neck pain, cervical fusion and chronic recurrent pancreatic, resulting in his inability to sit or stand for prolonged periods and requiring lying down for 10 to 15 minutes frequently. The physician was in agreement that complainant's current arrangement would allow him to perform the essential elements of his duties. The record reflects that following a discussion with complainant's physician about complainant's condition, a physician with the Federal Occupational Health Services (FOHS) sent a letter to the reasonable accommodation coordinator stating that it was his opinion that complainant is not disabled as defined under the American With Disabilities Act. The FOHS physician recommended that the agency allow complainant to alternate sitting and standing while performing his tasks as "productivity tools" rather than as a disability accommodation.
On January 9, 2007, complainant filed the instant EEO complaint. Therein, complainant claimed that he was discriminated against on the bases of disability (back condition) and in reprisal for prior EEO activity when:
1. he was suspended for 15 days effective October 31, 2006.
By letter dated March 13, 2007, complainant requested that his formal complaint be amended to include the following claim, of discrimination on the basis of reprisal:
2. on February 1, 2007, his sick leave request for January 29 - 31, 2007 was denied.
On March 20, 2007, the agency granted complainant's request to amend his formal complaint to include claim 2.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant failed to prove that he was subjected to discrimination as alleged.
In its August 30 final decision, the agency found no discrimination. Regarding claim 1, the agency determined that complainant did not show that he is an individual with a disability under the Rehabilitation Act because he did not show his impairments substantially limited any major life activity.1 The agency further determined that assuming for the sake of argument that complainant is an individual with a disability, management nevertheless articulated legitimate, nondiscriminatory reasons for its actions, which complainant did not prove were pretext for discrimination.
Regarding claim 1, the record reflects that on July 28, 2006, S1 issued complainant a Proposed Notice of Suspension for 30 days for being tardy on May 26 and 31, 2006 and June 15, 2006; being placed in AWOL status on October 25 and 28, 2005, November 7, 2005, February 1, 2006 and May 23, 2006 for failure to submit medical documentation to support absences; and failing to follow a management directive when on May 25, 2006, he did not adhere to 15 minutes for breaks and 30 minutes for lunch. S1 further stated that she took into consideration complainant's June 2003 and November 2003 suspensions in her determination to propose that complainant be suspended for 30 days. The record further reflects that on October 23, 2006, S1 issued complainant a Notice of Suspension notifying him that he would be suspended for 15 days effective October 30, 2006.
Complainant's third-level supervisor (S3) stated that she was the recommending official that complainant be suspended. Specifically, S3 stated that the suspension was based on complainant's tardiness and AWOL charges. S3 stated "the suspension had nothing to do with his claimed physical disability and/or prior EEO activity." S3 stated that "I felt that 30 days was excessive and recommended that it be reduced to 15 days."
The Senior Human Resources Specialist (Specialist) stated that complainant was suspended for 15 days because of his "tardiness, AWOL, and failure to follow a management directive. He also had two prior suspensions which were considered." The Specialist stated that complainant was directed to adhere to 15 minutes for breaks and 30 minutes for lunch but "he failed to do so." The Specialist further stated that management followed the penalty guide in its determination to suspend complainant. Specifically, the Specialist stated that "first offense is an admonishment to a 5 day suspension and he received a 3 day. Second offense is 5 to 14 day suspension and he received a 3 day suspension. Third offense is removal and he received a 15 day suspension." Furthermore, the Specialist stated had management followed the penalty guide, they would have proposed that complainant be removed from agency employment.
Regarding claim 2, the agency dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically, the agency found that evidence in the record reflects that complainant initially submitted medical documentation but was temporarily placed in an AWOL status, which is not a disciplinary action, until he submitted acceptable medical documentation; and he was then immediately placed in an approved leave status.
Assuming for the sake of argument that complainant stated a claim, the agency proceeded to analyze claim (2) on the merits. The agency ultimately determined that complainant failed to establish a prima facie case of reprisal discrimination. Specifically, the agency found that complainant did not establish a nexus between the prior protected activity and the alleged adverse action identified herein. The agency nevertheless found that management articulated legitimate, nondiscriminatory reasons for its actions, which complainant did not prove were pretext for reprisal discrimination.
Complainant's manager stated that he did not deny complainant's sick leave request for January 29, 2007 through January 31, 2007. The Manager stated "I explained that I would need for the medical documents to state specific information before I would accept them...According to Article 34 Section 3C of the National Agreement..." The Manager stated that complainant later provided medical documentation to support his absence.
S2 stated that complainant was not denied sick leave. Specifically, S2 stated that acceptable medical documentation is original documentation, with a prognosis, diagnosis and a signature. I believe [S1] spoke to me about this stating that the medical documentation received did not meet the criteria for acceptable medical documentation. I told [S1] to give the complainant a timeframe to allow him to bring in the documentation."
The record contains a copy of Article 34, Section 3C of the National Agreement between the union and agency. Therein, Article 34 provides "where the Employer has reasonable grounds to question whether an employee is properly using suck leave (for example, when sick leave is used frequently or in unusual patterns or circumstances), the Employer may inquire further into the matter and ask the employee to explain ... If reasonable grounds continue to exist for questioning an employee's use of sick leave, the Employer may request that the employee provide a doctor's certificate from the employee's physician."
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions which complainant did not prove were a pretext for discrimination, and that complainant has not demonstrated that these reasons were a pretext for discrimination.
After a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.2
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 10, 2008
__________________
Date
1 For purposes of analysis only, the Commission assumes, without finding, that complainant is an individual with a disability.
2 Because we affirm the agency's finding of no discrimination concerning claim 2 for the reasons stated herein, we find it unnecessary to address the alternative disposition of this claim on procedural grounds.
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0120080149
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080149
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