0120122504
10-24-2012
Ronald L. Gary, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Ronald L. Gary,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120122504
Agency No. 1G-336-0001-12
DECISION
On May 21, 2012, Complainant filed an appeal from the Agency's April 16, 2012, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Processing and Distribution Center facility in Tampa, Florida.
Complainant has sarcoidosis. Due to Complainant's condition, he experiences chronic obstructive pulmonary disease (COPD), headaches and uveitis. Complainant indicated that he needed intermittent time off because of his condition. Complainant's condition worsened which lead Complainant to file for disability retirement on May 17, 2011. Complainant completed his disability retirement application and provided it with supporting medical documentation to the Agency for completion. The Agency then forwarded the application to the Office of Personnel Management in June 2011.
Complainant was sent home from work on July 29, 2011. Complainant also provided medical documentation from his physician (Physician) to the Agency. The record showed that the Manager issued Complainant a memo stating that Complainant was on Sick without Pay (SWOP) and that he would be expected to return to work after September 2, 2011. Complainant requested that the reasonable accommodation in the form of excused absences continue from September 3, 2011 through October 3, 2011, based on his medical documentation. The Agency decided to place Complainant in Absent Without Official Leave (AWOL) status starting September 2, 2011. On September 16, 2011, Complainant was given a telephonic Letter of Warning (LOW), which was finalized in a physical copy on September 29, 2011. The LOW was issued based on his unscheduled absences and the AWOL charges in September 2011. The LOW was issued by a supervisor (Supervisor 1). The Physician issued another medical note stating that Complainant was advised not to return to work until December 3, 2011.
On October 6, 2011, Complainant contacted the EEO counselor regarding the LOW. On November 16, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected activity when, on September 29, 2011, Supervisor 1 issued a LOW.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, the Agency's final decision found that Complainant failed to establish a prima facie case of reprisal. The Agency noted that Complainant had filed a prior EEO complaint. However, the Agency noted that the investigation of the prior complaint had occurred in May 2011, some four months before the LOW was issued in September 2011. Therefore, the Agency found that Complainant failed to establish a causal connection between the LOW and the protected EEO activity.
For purposes of analysis, the Agency's final decision assumed Complainant established his prima facie case of discrimination. The Agency found that the responsible management officials provided legitimate, nondiscriminatory reasons for the LOW. Supervisor 1 averred that Complainant work status was AWOL pending disability retirement. He also noted that Complainant had been absent from work since July 23, 2011, due to his medical condition and that Complainant could not work. Based on Complainant's inconsistent attendance, he was issued the LOW. Complainant's direct supervisor (Supervisor 2) affirmed Complainant's status as AWOL pending the disability retirement. Further, Supervisor 2 indicated that Complainant was issued the LOW because of his failure to be regular in attendance. The Manager averred that Complainant had not been granted a disability retirement so Complainant was not excused from his absences. The Agency found that the management officials had provided sufficient, legitimate, nondiscriminatory reason for the LOW. The Agency turned to Complainant to show that the Agency's reason was pretext for discrimination. The Agency noted that Complainant merely disagreed with management's action which is not sufficient to establish pretext. As such, the Agency found that Complainant failed to show that the LOW constituted unlawful retaliation.
Complainant appealed the Agency's final decision. On appeal, Complainant asserted that he had requested a reasonable accommodation in the form of excused absences following the submission of his disability retirement application. The disability retirement application and Complainant's medical documentation stated that, due to his medical condition, he would not be able to work from September 3, 2011 to October 3, 2011. Despite the documentation and the retirement application, Complainant was issued the LOW for being in AWOL status and his attendance issues. Complainant argued that the Agency's action constituted retaliation for his protected activity, namely requesting a reasonable accommodation and his prior EEO activity.
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").
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case 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. 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. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
In a reprisal claim, according to the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Found. for Exper. Biol., Inc. 425 F.Supp. 318 (D. Mass. 1976), aff'd. 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to claims of reprisal), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in protected activity; (2) the Agency was aware of his protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse action. Any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the complainant or others from engaging in a protected activity is prohibited. EEOC Compliance Manual Section 8, "Retaliation" No. 915.003 at p 8-13 (May 20, 1998). See also Whitmire, v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
Upon review of the record, we find that Complainant has established a prima facie case of reprisal. We note that Complainant engaged in prior protected activity when he requested a reasonable accommodation in the form of excused leave, as well as his prior EEO complaint. Further, the responsible management officials were aware of Complainant's prior EEO activity as early as March 2011. The record included a memo from the Senior Manager to Complainant granting Complainant's request for leave without pay status in August 2011 to September 2, 2011. Following these events, Complainant was issued the LOW on September 29, 2011. Upon review, we find that Complainant has established a temporal nexus between the LOW and both Complainant's prior EEO activity and request for reasonable accommodation. Based on our review of the record, Complainant established a prima facie of reprisal.
The burden shifts to the Agency to articulate legitimate, nondiscriminatory reasons for its action. The management officials indicated that Complainant was issued the LOW because of his attendance issues. They noted that Complainant had been absent and in AWOL status starting on September 3, 2011. As such, management issued the LOW.
The ultimate burden returns to Complainant to prove, by a preponderance of the evidence, that the Agency's proffered reasons for issuing the LOW were pretext for unlawful retaliation. Upon, we find that Complainant has done so. We note that the record clearly showed that management was aware of Complainant's condition and its impact on his ability to perform his position. The record indicated that in May 2011, Complainant submitted an application for disability retirement which the Agency provided to the Office of Personnel Management in June 2011. Further, it was management that sent Complainant home from work in July 2011, because of his medical condition. The record also included medical notes Complainant provided to the Agency that showed he could not work in August and September, 2011, due to his medical condition pending the determination on his disability retirement. Therefore, the evidence shows that management was clearly aware that when it issued the LOW that Complainant had been out due to his medical condition pending the outcome on his disability retirement application. Despite his requests to be on leave without pay, and medical documentation provided confirming his absence from work was related to his medical condition, the Agency issued the LOW. As such, we conclude that it is more likely than not that the LOW was issued in retaliation for Complainant's request for reasonable accommodation (that his medically related absences be excused) rather than Complainant's willful failure to come to work that required disciplinary action. See Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000) (finding that a prima facie case of discrimination, combined with evidence to find that an employer's reasoning is false, is sufficient to support a finding of discrimination).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (D0610)
The Agency is ordered to take the following remedial action:
I. The Agency shall remove the LOW from Complainant's personnel record.
II. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. � 1614.110.
III. The Agency is directed to conduct training for the Management officials who was found to have violated the Rehabilitation Act. The Agency shall address these employees' responsibilities with respect to retaliation.
IV. The Agency shall consider taking disciplinary action against Supervisor 1 and 2. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
V. 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 shall include supporting documentation of the Agency's calculation of compensatory damages and other benefits due Complainant, including evidence that the corrective action has been implemented.
VI. The Agency shall complete all of the above actions within 120 calendar days from the date on which the decision becomes final.
POSTING ORDER (G0610)
The Agency is ordered to post at its Processing and Distribution Center facility 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 ensure 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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
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 (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
October 24, 2012
__________________
Date
2
0120122504
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122504