01990022
08-08-2002
Ginger Terrazas, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.
Ginger Terrazas v. Department of Justice
01990022
August 8, 2002
.
Ginger Terrazas,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Immigration and Naturalization Service),
Agency.
Appeal No. 01990022
Agency Nos. DoJ 187-4-684; INS I-94-6381
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,<1>
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the final
agency decision.
During the relevant time, complainant was employed as a Special Operations
Inspector at the agency's Paso Del Norte Bridge Port of Entry facility
in El Paso, Texas.<2> Complainant sought EEO counseling on December 3,
1993, and subsequently filed a formal complaint on January 26, 1994,
alleging that she was discriminated against on the bases of sex (female),
disability (Diverticulitis, hypertension and respiratory allergies),
and age (date of birth: October 28, 1938) when, on November 3, 1993, the
Assistant Port Director (APD) (male, age 45, no disabilities) gave her
a written memorandum (the Memorandum) requiring her to provide medical
documentation from a physician to support her use of sick leave.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially responded by requesting a hearing. However, on August 8,
1998, after complainant rescinded her hearing request, the agency issued
its FAD.
The record reveals that the Memorandum complainant received on November
3, 1993, required her to submit medical documentation to support the
use of sick leave. The Memorandum stated that in December 1992, the
APD, and two Supervisory Immigration Inspectors (both females, age 41
and 47, no disabilities) had discussed with complainant her �[use of]
an excessive amount of sick leave in a pattern that suggests sick leave
abuse.� Because complainant's �sick leave pattern has not shown an
improvement,� complainant was instructed that, effective immediately, she
was required to support any use of sick leave with medical documentation
from a licensed medical practitioner.
Complainant stated that the Memorandum constituted an accusation of
engaging in a pattern of sick leave abuse. She further stated that, as
part of a harassment scheme<3> by management, she was given the Memorandum
despite the fact that her supervisors had knowledge that she had been
diagnosed with Diverticulitis in January 1993, which caused her severe
lower abdominal pain, and that she had been granted a non-competitive
transfer to El Paso, Texas in 1981, after her physicians wrote that
her �allergic rhinosinusitis ... would benefit� from a move to El Paso.
In addition, her supervisors knew that prior to January 1993, complainant
had a medical excuse which limited her to working 40 or fewer hours
per week.<4>
Complainant further asserted that she does not abuse her sick leave, but
only called in sick when she was legitimately ill. Complainant contended
that she was never counseled regarding the allegations of sick leave abuse
prior to her receipt of the Memorandum. Complainant further stated that
other agency employees suspected of leave abuse were counseled prior to
being given any memorandum. Complainant declared that there are other
Inspectors (male and younger) who have taken as much or more sick leave
than she has, but have not received a similar memorandum.
The APD denied discriminating against complainant under any protected
basis. He stated that he ordered an audit be performed of the District
records regarding leave usage by agency employees. While noting that he
instructed another Port Director (now retired) to submit the Memorandum
to complainant, the APD testified that he �audited every employee.�
He further stated that as a result of the audit, several employees,
including complainant, within the District were suspected of abusing
their leave privileges. The APD stated that these employees were warned
of this and told to correct the situation. With respect to complainant,
particularly, he noted that she was specifically verbally warned in
December 1992, yet she still continued to use sick leave in a pattern
suggesting abuse. This, the APD declared, is what caused management
to submit the Memorandum to her in November 1993. He further declared
that complainant was not singled-out. Additionally, the APD noted that
prior to submitting the Memorandum to complainant, he was aware that
she could only work 40 hours per week according to her doctor's orders.
However, he had determined that complainant nonetheless appeared to
be abusing her leave while working a 40 hour week. In this respect,
the agency's timekeeper testified that complainant's attendance records
illustrate that complainant often uses sick or annual leave either before
or after her designated days off. He further testified that complainant
continuously had a low or zero balance of her sick and annual leave.
All three of complainant's supervisors testified that complainant was not
singled-out and that they concurred with the issuance of the Memorandum.
Further, two of these supervisors testified that they were both present
in the December 1992 session where complainant was counseled for abuse of
her sick leave. The Union president stated that he, too, was present at
the December 1992 meeting where complainant was informed by her superiors
of suspected leave abuse. He also stated that management acknowledged
in that meeting that it had documentation indicating that complainant
had various ailments, but that her use of sick leave warranted further
documentation.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of sex, age or disability discrimination because
she presented no evidence that similarly situated individuals not
in her protected classes were treated differently under similar
circumstances. The agency then concluded that it had articulated
legitimate, nondiscriminatory reasons for its actions, namely, that
because complainant's attendance did not improve in response to the
December 1992 counseling, management justifiably presented complainant
with the Memorandum.
As for complainant's disparate treatment claims based upon age and
sex, we find that complainant failed to establish a prima facie case
of discrimination because she was either not similarly situated to
her comparators or was not treated less favorably, and the evidence
does not lead to an inference of age or sex discrimination. Regarding
complainant's disability claim, we do not reach the issue of whether
complainant is a "qualified individual with a disability" within the
meaning of the Rehabilitation Act. Based on our review of the record,
we find that even assuming arguendo complainant is a "qualified individual
with a disability," we discern no basis to disturb the agency's ultimate
conclusion that complainant failed to establish that the issuance of
the Memorandum was motivated by discriminatory animus. Specifically,
we find that complainant failed to establish a nexus between her alleged
disabilities and the issuance of the Memorandum. See Visage v. Department
of the Air Force, EEOC Request No. 05940993 (July 10, 1995).
Insofar as complainant asserted that the Memorandum was part of
management's campaign of harassment against her based upon her membership
in protected classes, the Commission finds that since she failed to
refute the legitimate, nondiscriminatory reasons proffered by the
agency for its actions, she also failed to establish that such actions
were taken on the basis of her membership in the protected classes.
Accordingly, complainant failed to establish that she was subjected
to prohibited harassment. See Bennett v. Department of the Navy, EEOC
Request No. 05980746 (September 19, 2000); Wolf v. United States Postal
Service, EEOC Appeal No. 01961559 (July 23, 1998).
We note that the only issue accepted by the agency for investigation
was the issuance of the Memorandum. See Report of Investigation,
Exhibit 4. Moreover, while the EEO Counselor's Report indicates that
complainant discussed several matters with the EEO Counselor (including
her non-selection for an examiner position on two occasions in the past
three years and her failure to secure a �compassionate transfer� to
Fabens), she did not specifically raise an issue regarding a denial of
reasonable accommodation. Finally, we note that at the time complainant
filed the instant complaint continuing through the issuance of the FAD,
the Commission had not yet issued its current regulations which now
permit a complainant to amend a complaint at any time prior to the
conclusion of the investigation to include issues or claims like or
related to those raised in the complaint. 29 C.F.R. � 1614.106(d) (1999).
Nevertheless, in its FAD, the agency noted that on January 25, 1994,
the day before complainant filed her instant complaint, complainant
submitted a two-line note from her physician which stated that her
Diverticulitis, hypertension and respiratory allergies had worsened,
and that �it would be advisable for [complainant] not [to] work the
bridges.� The record does not clearly establish what, if any, actions
were taken by the agency in response to this note. The FAD also noted
that in her affidavit, complainant specifically stated that she wanted
to be transferred away from the ports of entry into an office position
with the agency, contending that her respiratory conditions would improve
if she were not working on the bridge where she is exposed to car fumes.
In its FAD, the agency contends that inasmuch as complainant had submitted
a medical release in 1993 permitting her to work more than of 40 hours
per week (see n. 4, supra), the January 1994 note was insufficient to
suggest that she was unable to perform her assigned duties. The agency
found that complainant was not denied reasonable accommodation of
her disabilities, reasoning that: 1) complainant never asked agency
officials to provide an accommodation in order for her to complete her
job duties when at work; 2) there was no evidence that complainant was
in fact unable to perform the duties assigned; and 3) the January 1994
note from her physician only recommended that complainant be reassigned
to not work the bridge, but did not state why she should not work
the bridge or what medical reason prevented her from performing the
essential functions of a bridge assignment. The agency concluded that
other supplemental medical documentation in the record was generated
long after complainant's complaint had been filed and was, therefore,
not relevant or probative as to the agency's actions in 1993 and 1994.<5>
However, for the reasons noted above, we find that any issue regarding
whether the agency has reasonably accommodated complainant is not properly
before the Commission at this time. The scope of the instant complaint
is limited to issuance of the Memorandum.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD insofar
as it determined that complainant was not subjected to discrimination
when the agency issued the Memorandum in November 1993.
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
August 8, 2002
__________________
Date
1 The 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.
2 The duties of complainant's position were generally to identify,
investigate, apprehend and assist in the prosecuting of aliens who are
attempting illegal entry into the United States.
3 Complainant contends that as a former union president, she is disliked
because she has won several cases against management.
4 In January 1993, complainant had submitted a note from her physician
releasing her to work more than 40 hours per week.
5 The record reflects that complainant underwent surgery in February
1996 and was off work until approximately May 1996; that she was placed
on light duty at some point, and that in notes dated October 24, 1996,
and January 2, 1997, her physician stated that while her condition is
good, she should remain on light duty. Further, although the instant FAD
was issued in August 1998, the record contains a copy of a letter dated
November 9, 1998, in which the agency advised complainant that because
of her placement on light duty for an extended period, she needed to
submit a current assessment of her medical condition. That letter also
advised complainant that if she believed that she cannot perform all
aspects of her position, additional information was needed concerning
any medical restrictions. The record does not contain a copy of any
response to this letter. Finally, the record submitted by the agency
reflects that complainant filed another EEO complaint on March 15, 2000
(Agency No. 1-00-C0063). The Commission's records do not reflect that
complainant has any other appeal currently pending before the Commission.