01970075
02-16-2000
Melvin M. Hayashida, Complainant, Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Melvin M. Hayashida v. Department of Transportation
01970075
February 16, 2000
Melvin M. Hayashida, )
Complainant, )
)
) Appeal No. 01970075
) Agency No. 94-0140
Rodney E. Slater, )
Secretary, )
Department of Transportation )
(Federal Aviation Administration), )
Agency. )
)
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from a final
decision of the agency concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. Accordingly, the appeal accepted
in accordance with EEOC Order No. 960.001.
ISSUE(S) PRESENTED
Whether complainant has proven, by a preponderance of the evidence,
that agency officials discriminated against him on the bases of race
(Japanese-American), national origin (Asian/Pacific Islander), and
reprisal (for writing to Hawaii's congressional delegation) when, (1)
his request for Leave Without Pay (LWOP) was denied until he had used all
of his annual leave; (2) there were different procedures established for
the approval of his request for leave; (3) his request for his annual
leave balance was denied; (4) his sick leave was monitored; and (5)
he was counseled on the use of sick leave.
BACKGROUND
The record reveals complainant filed an EEO complaint with the agency on
October 20, 1993, alleging discrimination as alleged above. The agency
originally dismissed this complaint on the grounds that complainant had
previously filed a grievance on the same matter. However, on appeal,
the Commission found that this complaint had been improperly dismissed
and reversed and remanded the complaint for further processing.
On remand, the agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, the
agency notified complainant of his right to a hearing before an EEOC
administrative judge (AJ) or a final agency decision (FAD) on the record.
Complainant requested a FAD. On June 2, 1995, the agency issued a
FAD finding no discrimination. In its FAD, the agency concluded that
complainant failed to establish a prima facie case of discrimination
on the bases of alleged because he failed to present evidence that he
was treated differently than similarly-situated individuals not in his
protected class under similar circumstances. The FAD also concluded
that the agency proffered legitimate, nondiscriminatory reasons for
its actions. It is from this decision that complainant now appeals.
Allegation (1): Complainant's request for Leave Without Pay (LWOP)
was denied until he used all annual leave.
Complainant is an FAA Air Traffic Control Specialist (ATCS), GS-2152-12,
at the Honolulu Flight Service Station located in Diamond Head Crater,
Hawaii. Complainant has approximately twenty-eight years of government
service. In March 1992, complainant provided Responsible Management
Official No. 1 (RMO1) (Caucasian), the Air Traffic Manager, with a
written series of hypothetical situations concerning annual leave,
sick leave, and LWOP usage during pay periods eight through twenty-six
of 1992, for his comments. The hypothetical scenarios contained two
sets of questions. The first set pertained to leave balances, loss of
compensatory time, and benefits. The second set pertained to whether all
annual leave would have to be exhausted before LWOP would be granted,
the mechanics of requesting LWOP, the parameters with regard to LWOP,
and leave earned while on LWOP. RMO1 responded to complainant's inquiry
in writing. The RMO1 responded that "based on LWOP usage as described
in your scenario, I would not require you to use all your annual leave
before considering LWOP requests." The response continued as follows:
You would request LWOP from an Area Supervisor on an APPLICATION FOR
LEAVE SF171 form. Parameters would be as follows: 1. LWOP will not
take priority over annual leave. 2. Approval of LWOP will be at the
discretion of the Area Supervisor on watch based on staffing and workload.
3. Overtime will not be used to cover LWOP.
Complainant then began to request and to be granted LWOP. On November
24, 1992, while complainant was assigned as the Controller-in-Charge<1>
for the evening shift, he approved his own leave for November 25 and 27,
1992. Complainant then requested that his approved leave be converted
to LWOP. However, on November 25, 1992, RMO1 disapproved complainant's
leave. RMO1 stated that it was inappropriate for complainant to approve
his own leave because a CIC is only authorized to approve leave requests
for the current and following day. Therefore, only the leave request for
November 25, 1992, was proper. The agency argued that there was an Area
Supervisor on duty who could have considered complainant's leave request.
Complainant argues that there was none. Nevertheless, RMO1 alleged that
he reconsidered his decision to disapprove complainant's leave in light
of the conflicting directions in the guidelines. Therefore, on December
10, 1992, RMO1 approved complainant's leave and request to convert the
leave to LWOP. Concurrently, he issued a memorandum to complainant
regarding his pattern of requesting annual leave and allegedly expecting
the approved annual leave to be converted to LWOP. RMO1 stated that this
pattern was unfair to the other employees. The RMO1 further stated that
the possibilities of doing this had not been a part of the March 1992
hypothetical posed to him about LWOP. In conclusion, RMO1 stated in the
memorandum that effective December 13, 1992, all LWOP requests would be
considered "in accordance with the provisions of 3600.4, Absence and Leave
Handbook, Chapter 5, Absence Without Pay." RMO1 stated that to preclude
further misunderstandings concerning the procedure for processing LWOP
requests on the part of the workforce, the facility was notified of Order
3600.4 via a memorandum that was placed in the "Read and Initial" binder.
RMO1 stated in his affidavit that "[m]y decision that all future LWOP
requests would be handled in accordance with . . . 3600.4 was based on
[complainant's] non-compliance with the previously agreed upon procedures
and the potential unfair impact on the rest of the workforce. . .."
RMO1 stated, "[the complainant was] correct in his perception that the
LWOP agreement was between he and I, his absence from duty due to LWOP
and subsequent actions outside the agreement affected all employees."
The RMO1 failed to specifically state to what he was referring when he
stated complainant performed "subsequent actions" outside of his alleged
agreement with complainant.
Order 3600.4, reads in pertinent part:
Leave Without Pay (LWOP) is temporary nonpay status and absence from duty,
granted upon the employee's request, or is a temporary nonpay status and
absence from duty as a result of administrative discretion of authorized
agency officials. .
GRANTING LEAVE WITHOUT PAY (LWOP). Normally, employees must exhaust all
annual leave before LWOP is granted. Exceptions may be authorized in
individual cases of a meritorious nature. a. Administrative Discretion.
The authorization of LWOP is a matter of administrative discretion.
An employee cannot demand that he/she be granted LWOP as a matter of
right, except in cases of (1) Disabled Veterans . . . [and] Reservists
and National Guardsman. . . .
Thereafter, interpretation of the phrase " . . . of a meritorious nature"
became an issue between the parties. Complainant asked Responsible
Management Official No. 2 (RMO2)(Caucasian), Area Supervisor, to define
"meritorious" and cites examples of such. RMO2's definition followed:
". . . unless the applicant has a �meritorious' situation, which I
[interpret] to be one being significantly out of the norm, all annual
leave must be exhausted prior to granting of LWOP." The RMO2 referenced
one employee who's son was born with a cleft palate, and she herself went
through extensive treatment to fight cancer. Both conditions drained
her leave balances; however, she requested and was granted LWOP.
Complainant stated in his affidavit that ". . . I had borrowed all the
leave that I would have accrued through the end of the leave year and
complied with [RMO2's] requirement. [RMO2] also required a reason for
requesting LWOP and I complied. . .." As a reason for requesting LWOP
complainant wrote, " . . . because I have personal matters that need my
attention . . . if the above reason is not good enough, please advise what
type of reason would you need to grant LWOP." At the bottom of the page,
RMO2 wrote, "BONAFIED [sic] & VERIFIABLE EMERGENCY TO BE APPROVED." The
RMO2 stated in the Counselor's Report that, "[t]he region had given an
interpretation . . . that granting of LWOP would be based on �meritorious
performance or a bonefide [sic] and verifiable emergency." The RMO2
stated that the regional interpretation was verbal.
On appeal, complainant argues that the EEO Counselor's statement that:
"miscommunication appeared to have been a problem" and that "in fact,
management had two criteria. This information/interpretation was not
relayed to [complainant] until after depleting his annual leave," assessed
his entire situation. Complaint argues that he was deliberately misled
by RMO1 and RMO2 into believing that once he had exhausted his annual
leave that LWOP would be granted.
Allegation (2) There were different procedures established for the
approval of complainant's request for leave.
The following facts are revealed in chronological order. The record
reflects that on February 12, 1993, complainant requested leave for
February 17, 1993. February 13-14, 1993, complainant was on regularly
scheduled leave. RMO2 denied this request on February 13, 1993, based
on operational staffing on that date. The original leave request
was allegedly placed in the supervisor's in-basket in order to inform
complainant when he returned to duty on February 14, 1993. RMO1 issued a
grievance decision finding that "[s]ometime during the period 2/13-15/93,
[complainant's] leave request was removed from the supervisor's in-basket
to the clerical assistant's in-basket. Why this was done and by whom
could not be determined. This whole incident revolves around a simple
administrative oversight which could have been prevented had [complainant]
simply handed [his] leave request to the supervisor for action before
his watch ended."
Also in February 1993, complainant submitted two leave requests for
November and December 1993. In the grievance decision dated July
29, 1993, RMO1 stated that the watch schedule had not been posted.
Complainant submitted three leave requests for leave in August, September,
and October. Apparently, the watch schedules for those periods were not
posted until July 14, 1993. Two requests were submitted in April 1993
for leave in November and December 1993. Similarly, the RMO1 stated
because the watch schedule had not been posted it would not have been
practical for RMO2 to process complainant's leave requests.
On March 11, 1993, RMO1 issued another grievance decision finding that
after being denied unscheduled annual leave for that day, complainant
requested a copy of the Personnel Log. The decision found that complainant
had not cited a reason for wanting a copy of the log; therefore, the
agency denied this request citing employees' privacy. Complainant argued
that the log was displayed for public viewing and that it is casually
viewed by employees on a daily basis. The grievance decision denied this
request stating that viewing and copying were two different things.
Complainant stated that he was subjected to continued acts of reprisal
because he wrote to his congressperson, in an undated letter, about
discrimination. As an example, complainant stated in an attachment
to the Counselor's Report that, " . . . special procedures have been
specifically set up in my case, i.e., an Oriental Supervisor is supposedly
in charge of leave, however, in my case, it was transferred to a Caucasian
Supervisor." He further stated in his affidavit, "I was informed by
Supervisor A (retired supervisor of Japanese descent like myself) that
[RMO2] had volunteered to 'handle' me . . .."
On March 30, 1993, a congressional inquiry was made to the agency, on
behalf of complainant. In response, the agency reported that it was
policy to rotate supervisors within a two-three year period. However, no
evidence of this purported policy was provided. During this particular
rotation, the agency responded to the congressional inquiry by reporting
that new supervisor-employee assignments were made by having a union
member pull the names out of a hat for each supervisor.
On May 4, 1993, Supervisor A (Japanese) had a discussion with complainant
about his 1992 annual rating and he told complainant that he was using his
annual leave quickly. Complainant was informed that if he expected to
use LWOP when his leave was depleted, there was no promise or guarantee
that LWOP would be authorized. He also reminded complainant that LWOP
requests would be reviewed according to the Order. Supervisor A stated
that complainant responded by stating he would get his annual leave back
when he won his cases.
Also, in May 1993, complainant submitted to RMO2 a request for LWOP for
June 3 and 11, 1993, and a memorandum stating that he had used all the
annual leave he would have accrued through 1993. Complainant specified
that the LWOP request was for personal reasons and if his reason was
insufficient to be granted LWOP, then he wanted to know what type of
reason was necessary. On June 2, 1993, RMO2 denied complainant's request
and in a memorandum stated that a bona fide and verifiable emergency would
be the type of reason acceptable for approving his request for LWOP.
In December 1993, Supervisor A retired. In his post-retirement affidavit,
Supervisor A stated that he had been aware of an agreement between
complainant and RMO1 regarding the use of LWOP. However, he was not aware
that the agreement expired at the end 1992. Supervisor A stated that as
a result of granting one of complainant's leave requests for LWOP that
RMO1 lowered his (Supervisor A's) performance evaluation. Supervisor A
stated that during the previous supervisory rotation, he was assigned as
complainant's rating supervisor based on the assumption that he was the
only one who could handle complainant. Supervisor A stated that management
felt complainant was a troublemaker and that RMO1, RMO2, and Supervisor B
(Chinese) would not got as many grievances if he remained his supervisor.
During the next supervisory rotation in April or May 1993, however, RMO2
was assigned as complainant's rating supervisor. Supervisor A stated
that after informing RMO2 about complainant's LWOP requests that RMO2
responded that he would "handle him." Supervisor A stated that he was
told by RMO2 that he was not afraid of complainant; that complainant's
performance ratings and other evaluations would be lowered; he would
handle any of complainant's LWOP requests by denying them; and he would
and could stop any grievances that complainant might file.
Supervisor A further stated that RMO1 had the mind set that no matter what
complainant did it was not good enough; therefore, RMO1 felt complainant
could not be trusted. Supervisor A felt RMO1 showed prejudice towards
complainant. As an example of his prejudice, RMO1 told Supervisor A that
complainant's 1992 performance appraisal of "Exceptional" was undeserved
and was given just to pacify complainant. However, Supervisor A affirmed
that complainant's performance appraisal was deserved and added that
RMO2 had similarly given complainant an "Exceptional" rating during an
earlier rotation of supervisors.
Supervisor A also stated that complainant declared that he was filing
so many grievances in the hopes that RMO1 would be so busy responding
to them that he would unable to operate effectively. Complainant also
hoped that RMO1 would be removed. RMO1 and RMO2 stated that management
had been lenient regarding granting leave to complainant until such
time that he began to violate the leave agreement. They further stated
that complainant told management that he would bury them in a barrage
of grievances and other types of complaints.
On appeal, complainant added that when he was denied leave he was never
given a reason as required on the leave form. Complainant stated that
when he asked for an explanation he was repeatedly told by RMO1 and RMO2
he needed a "bonafide and verifiable emergency." However, complainant
argues, the words "bonafide and verifiable emergency" are no where to
be found in Order 3600.4.
Allegation (3) Complainant's request for his annual leave balance was
denied.
Complainant alleged that at the beginning of May 1993, he made a
written request to his supervisor for his annual leave balance which was
refused. In July 1993, complainant found a letter in his mail drawer from
RMO2 along with copies of disapproved annual leave forms. The letter
was dated July 8, 1993, and referred to a conversation between RMO2 and
complainant concerning complainant's lack of available leave. However,
complainant claims this conversation never took place, and that he was
not working on the day referred to in the letter, and that he never
received the information he requested. After an informal discussion
with a union representative, RMO2 admitted the date he referred to in
the letter was incorrect and he alleged that he never received a request
for information from complainant.
However, the record reveals that RMO2 stated in a grievance decision
that he found complainant's request for his leave status for May through
June, 1993 in his distribution box on May 29, 1993. Even though the
leave balances are routinely provided to employees on the bi-weekly
Statement of Earnings and Leave form, RMO2 stated he researched and
verbally provided this information to complainant on June 2, 1993.
On June 3, 1993, complainant filed a union grievance claiming that
RMO2 failed to respond to his request for his annual leave balance.
On July 29, 1993, RMO1 denied complainant's grievance based on the fact
RMO2 already provided the information to complainant.
Allegations (4) and (5) Complainant's sick leave was monitored; and
complainant was counseled on the same.
Complainant alleged disparate treatment in the ". . . monitoring [of]
my sick leave usage in conjunction with my days off, without tracking
the sick leave usage of others in the facility." In the FAD, RMO2 stated
that in reviewing the attendance records, complainant's record showed a
pattern in which sick leave was used on five occasions in conjunction
with his days off for the period July 1 through September 1, 1993.
RMO2 asked complainant whether he had a recurring medical condition
to which complainant responded in the negative. On October 1, 1993,
RMO2 stated that he counseled complainant in the presence of a union
representative and issued a memorandum to him stating that his sick leave
usage would be monitored and medical documentation would be required if
his sick leave usage did not improve significantly. RMO2 stated that
complainant was counseled according to the guidelines of the Order,
and that following the counseling, complainant's sick leave pattern
disappeared and all references to this action were expunged from his
record. However, in the EEO Counselor's Report, RMO2 stated that since
May 27, 1993, complainant had exhibited a pattern of sick leave abuse.
On appeal, complainant alleges that May 27, 1993, was the day that his
facility contacted the regional office upon learning that complainant had
written to his congressional representative. Complainant alleges that
his facility sought regional interpretation of the Order with regard to
the LWOP policy. In RMO2's affidavit he cites complainant's sick leave
abuse from July 1, 1992 to September 1, 1992. However, in a letter to
complainant dated October 1, 1993, RMO2 refers to sick leave usage from
the same month and day but in 1993. Complainant argues that RMO2 cited
May 27, 1993, as the date he exhibited a pattern of sick leave abuse, not
September through October or when a pattern could have been established.
It should be noted that in June 1994, this particular agency facility
changed the LWOP policy stating the following: " . . . we are eliminating
the requirement that employee's annual leave must be exhausted prior to
approval of request for LWOP. We encourage supervisors to approve requests
for LWOP when operational requirements permit and when additional costs
. . . would not result."
ANALYSIS AND FINDINGS
Allegations of disparate treatment are analyzed under the tripartite
scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under
that analytical framework, complainant must present sufficient evidence
to raise an inference of discrimination, i.e., a prima facie case of
discrimination. At that point, the agency must articulate a legitimate,
nondiscriminatory reason for its actions to rebut the inference of
discrimination. Complainant then must show, by preponderant evidence, that
the agency's stated reason was a pretext for discrimination. Complainant
has the ultimate burden of showing that discrimination occurred. Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
As noted above, the FAD found that complainant failed to establish a
prima facie case on any of the bases alleged because he was unable to
show that he was treated differently from similarly-situated individuals
not in his protected class. However, it is well established that while
comparative evidence is usually used to establish disparate treatment,
complainant need only set forth some evidence or facts from which, if
otherwise unexplained, an inference of discrimination can be drawn. See
Scura v. U.S. Postal Service, EEOC Request No. 01965021 (October 8,
1998) (citing Furnco Construction Corp. v. Waters, 438 U.S. 567, 576
(1978)). Thus, the failure to establish a specific element of a prima
facie case may be overcome if complainant sets forth some evidence of
agency actions from which, if otherwise unexplained, an inference of
discrimination can be drawn.
In the instant case, we find that complainant has established the
required inference of discrimination based, inter alia, on Supervisor
A's post-retirement affidavit, as well as the numerous inconsistencies
with which the leave policies were applied to complainant. For example,
Supervisor A's (Japanese) affidavit stated that he felt RMO1 (Caucasian)
harbored prejudice against the complainant. We find most compelling,
however, Supervisor A's statement that RMO2 (Caucasian) lowered his
(Supervisor A's) performance appraisal because he gave complainant an
"Exceptional" rating. Supervisor A also stated in his affidavit that
RMO2 told him that he was not afraid of complainant; that complainant's
performance ratings and other evaluations would be lowered; he would
handle any of complainant's LWOP requests by denying them; and he would
and could stop any grievances that complainant might file. In this
regard, the record reflects that all of complainant's grievances against
RMO1 and RMO2 were self-investigated and dismissed by these two same
officials. We also note that the EEO Counselor stated in her report
that information with regard to the interpretation of the policy on
LWOP was not relayed to complainant until after he had depleted his
annual leave. We also find it interesting that the LWOP policy was
reverted back to the original 1992 policy after a congressional inquiry
concerning the policy was made on complainant's behalf. In June 1994,
this particular agency facility changed the LWOP policy stating: "
. . . we are eliminating the requirement that employee's annual leave
must be exhausted prior to approval of request for LWOP. We encourage
supervisors to approve request for LWOP when operational requirements
permit and when additional costs . . . would not result." In light of
the above, we find that the record, evaluated as a whole, supports an
inference of discrimination in this case.
In considering whether the agency's proffered reason was a pretext for
discrimination, we note that with regard to allegation (1), the agency
stated that complainant's request for LWOP was denied until he had used
all of his annual leave because of a facility-wide procedural change
in policy. The policy indicated that normally employees must exhaust
all annual leave before LWOP is granted. With regard to allegation (2),
the agency stated that based on the process of rotating supervisors within
a two-three year period, complainant's assignment to RMO2 was determined
by a union member drawing his name out of a hat. Therefore, in essence,
complainant was required to follow different procedures established by
his new supervisor for the approval of leave. With regard to allegation
(3), the agency stated that complainant's request for his annual leave
balance was not denied. RMO2 found complainant's request on May 29,
1993, and after researching the records, verbally provided the requested
information to complainant on June 2, 1993. With regard to allegations
(4) and (5), the RMO2 stated complainant's sick leave was monitored and
he was counseled on the same only after a pattern of sick leave abuse
became apparent.
However, the record demonstrates striking inconsistencies in the responses
to the agency stated reasons for its actions. The most salient example
of this is the RMO2's consistent interchanging of the year from 1992 to
1993 on the documentation of record. As previously noted, the RMO2's
affidavit cited complainant's sick leave abuse from July 1, 1992 to
September 1, 1992. However, in a letter to complainant dated October
1, 1993, RMO2 refers to sick leave usage from the same month and day
but in 1993. However, the record is devoid of any sick leave requests
establishing this alleged sick leave abuse during either of the years in
question.<2> Then, in the EEO Counselor's report, the RMO2 states that
complainant's sick leave abuse began in May 27, 1993, not during the time
when a pattern could have been established; but, conspicuously enough
after a congressional inquiry had been made on complainant's behalf.
Therefore, based on the above, including factors not specifically
mentioned herein, the Commission finds that the record supports a finding
that complainant was a victim of discrimination as alleged. The Commission
finds that based on the entire record, particularly the inconsistent
documentation and statements provided by the RMOs in support of their
employment decisions, as well as Supervisor A's post-retirement affidavit,
that the agency's stated reason for its actions were pretextual. Thus,
we find that complainant has shown, by a preponderance of the evidence,
that the agency discriminated against him on the bases of alleged.
CONCLUSION
Accordingly, we REVERSE the agency's finding of no discrimination and
REMAND this matter to the agency to comply with the order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. Within sixty (60) calendar days of the date this decision becomes
final, the complainant will notify the agency in writing of his intention
to pay back to the agency all of the annual leave he was required to
exhaust in 1993, prior to having his LWOP requests considered, in order
to avoid double recovery. Complainant has already been paid for the
annual leave utilized during this period in question. Therefore, once
complainant has paid back all of the annual leave he has already been
paid, the agency shall take the necessary steps to convert that annual
leave to LWOP for 1993; otherwise, complainant would be paid twice for
the annual leave. The agency must attach all documentation utilized in
determining the exact of amount of annual leave complainant exhausted
as result of unlawful discrimination. The agency will also provide
complainant with a copy of the report and ensure that he is provided all
forms concerning his absences during this period. Should complainant
choose not to pay back to the agency any of the annual leave in order
to have it converted to LWOP, complainant will state so in writing and
provide the appropriate agency officials, as well this office, with
his statement. Complainant's failure to timely notify the agency of his
intention will be deemed a decision not to pay back his annual leave.
2. The agency will take corrective, curative and preventive action to
ensure that discrimination does not recur, including but not limited to
providing training to the responsible official(s) at the Federal Aviation
Administration, Honolulu Flight Service Station located in Diamond Head
Crater, Hawaii, in the law against employment discrimination. Within
thirty (30) calendar days of the date the training is completed, the
agency shall submit to the compliance officer appropriate documentation
evidencing completion of such training.
3. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant, through
counsel, shall submit a request for attorney's fees and costs in
accordance with the Attorney's Fees paragraph set forth below. No later
than sixty (60) days after the agency's receipt of the attorney's fees
statement and supporting affidavit, the agency shall issue a final
agency decision addressing the issues of attorney's fees, costs, and
compensatory damages. The agency shall submit a copy of the final
decision to the Compliance Officer at the address set forth below.
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report will include supporting documentation of the
agency's calculation of benefits due complainant, including evidence
that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at the Federal Aviation Administration,
Honolulu Flight Service Station located in Diamond Head Crater, Hawaii,
copies of the attached notice. Copies of the notice, after being signed by
the agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to insure that said
notices are not altered, defaced, or covered by any other material. The
original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. ��1614.407, 1614.408), and 29 C.F.R. �
1614.503(g).<3> Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
Feb. 16, 2000
DATE Carlton Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Federal Aviation Administration, Honolulu Flight Service Station,
Diamond Head Crater, Hawaii, supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law.
The Federal Aviation Administration, Honolulu Flight Service Station,
Diamond Head Crater, Hawaii has been found to have discriminated on
the bases of race, national origin, and reprisal with regard to leave
policies. The Federal Aviation Administration, Honolulu Flight Service
Station, Diamond Head Crater, Hawaii, has been ordered to give complainant
an opportunity to repay the annual leave taken in lieu of LWOP and have
the agency adjust its leave records accordingly. The Federal Aviation
Administration, Honolulu Flight Service Station, Diamond Head Crater,
Hawaii will also take corrective action in the form of training for the
responsible official(s). The Federal Aviation Administration, Honolulu
Flight Service Station, Diamond Head Crater, Hawaii will ensure that
officials responsible for personnel decisions and terms and conditions of
employment will abide by the requirements of all federal equal employment
opportunity laws.
The Federal Aviation Administration, Honolulu Flight Service Station,
Diamond Head Crater, Hawaii will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 16141 The agency contends that the Controller-in-Charge
(CIC) position did not meet the criteria for an Absence and Leave
Approval Official. However, CICs did have the authority to approve
leave for the current and following day.
2 We note that the only leave requests of record with regard to the
year 1992 denote requests for LWOP on 11/25/92 and 11/27/92. In 1993,
the record contains one request for annual on 2/17/93, which was denied
by RMO2 stating operational needs, and two requests for LWOP on 7/3/93
and 7/11/93, both of which were denied by RMO2.
3 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.