Edgardo D.,1 Complainant, v. Robert A. McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120120189 Hearing No. 480-2010-00256X Agency No. 200P-0600-2009102900 DECISION Complainant timely filed an appeal from the Agency's September 20, 2011, decision which adopted the August 24, 2011, summary judgment of the EEOC Administrative Judge (AJ) finding no discrimination. The appeal concerns Complainant's equal employment opportunity (EEO) complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission VACATES the Agency's decision and REMANDS the complaint for a hearing. ISSUE PRESENTED Are there genuine issues of material fact concerning Complainant's claims of a discriminatory hostile work environment and leave disapproval such that the grant of summary judgment was improper? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse II in L1, the Locked Psychiatric Unit at the Agency's Medical Center in Long Beach, California. Complainant was supervised by the Nurse Manager commencing November, 2003. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Caucasian/Hispanic)2, age (52), and reprisal for prior protected EEO activity when: 1. On April 29, 2007, the Nurse Manager told Complainant that he could turn in his resignation at any time because she had hired three Asian/Pacific Islanders for the night shift. The Nurse Manager also stated that Complainant was protecting two Nurse's Aides who were African-American and was unable to understand why Complainant chose to associate with people like them. 2. On May 5, 2007, the Nurse on Duty (NOD), told Complainant that Complainant was being targeted for removal at the Nurse Manager's request. 3. On November 21, 2007, Complainant received a report of contact or written counseling for having his eyes closed with his head on the desk during duty hours. 4. On August 28, 2008, Complainant's request for sick leave was denied. 5. On August 29, 2008, the Nurse Manager denied Complainant's request for sick leave, called him a liar, and told the NOD to place him on Absent without Leave (AWOL) if he tried to call in for leave. 6. On September 11, 2008, the day Complainant's mother passed away, the Nurse Manager overtly chastised Complainant and charged him AWOL. 7. On October 7, 2008, Complainant's request for sick leave was denied. 8. On October 7, 2008, Complainant was unable to take his 15-minute breaks due to lack of relief coverage, and the Nurse Manager commented that he is not entitled to a lunch break. 9. On November 13, 2008, Complainant was charged AWOL. 10. On November 16 through 18, 2008, Complainant was charged AWOL. 11. On December 4, 2008, Complainant's request for sick leave was denied. 12. On December 5, 2008, the Nurse Manager denied Complainant's request for sick leave for December 7, 8, and 9, 2008. 13. On December 7, 2008, a co-worker who was a registered nurse, mockingly told Complainant, "You are not man enough to stop me from leaving the unit" and "I know how to keep the patients in line." 14. On February 26, 2009, the Nurse Manager called Complainant a liar, threatened that he was not going to let Complainant take family leave, and told him he could turn in his resignation at any time. 15. On February 27, 2009, Complainant was assigned to one-on-one care of a violent, self-injurious patient, as well as assigned to make patient safety/medication rounds on the entire unit at the same time. 16. On February 27, 2009, the Nurse Manager called Complainant a liar and threatened that Complainant was not going to be able to take family leave. 17. On March 5, 2009, the Nurse Manager told Complainant that he could turn in his resignation any time because three of "her" Asian/Pacific Islanders were hired for the night shift. 18. On July 26, 2009, the Nurse Manager appeared unhappy with Complainant because he had reported that three patients had complained of patient abuse. 19. On August 12, 2009, the Nurse Manager and staff members were upset with him because he made note of some unmarked tardiness for some of them.3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and a notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency's motion for summary judgment and concluded that the Agency had not discriminated against Complainant. The Agency adopted the AJ's decision. In his decision, the AJ concluded that claims 4, 5, 6, 9, 10, 11, 16, 17, 18 and 19 (or 10 claims) did not occur as alleged; that there was no basis for imputing liability regarding claims 2, 8, 13, and 15 (or four claims); and the Agency had articulated a legitimate, nondiscriminatory reason for its action in claim 3. Regarding claims 4, 5, 6, 9, 10 and 11, the AJ noted that on those specific days when Complainant alleged that he was denied leave or charged AWOL, Complainant was granted leave or his absence was otherwise approved. With respect to claim 16, wherein Complainant alleged that the Nurse Manager called Complainant a liar and threatened to disapprove his Family Medical Leave Act (FMLA) leave request, the leave request was approved and the Nurse Manager denied calling Complainant a liar. Regarding claim 17, the allegation that the Nurse Manager told him that he could turn in his resignation on March 5, 2009, a document written by Complainant acknowledges that the Nurse Manager did not make the statement on that date. With regard to Claims 18 and 19, allegations that the Nurse Manager was upset with him on two dates, the AJ found that records, undisputed by Complainant, establish that the Nurse Manager was not present at the Agency facility on those dates and did not speak to Complainant on either date. With respect to four other claims (2, 8, 13, and 15), the AJ determined that there was no basis for imputing liability, because the employees alleged to be responsible for the incidents were nonsupervisory employees and Complainant did not identify any evidence that the Nurse Manager or any Agency manager was involved. The AJ also found that Complainant did not report any of the alleged incidents to management. Addressing claim 3, the AJ found that Complainant was given the Counseling Memorandum because he was asleep on duty. When questioned about the incident, he did not deny sleeping but stated that he had not received his 15-minute break or lunch break. Regarding the remaining claims, 1, 7, 12, and 14, the AJ found that Complainant failed to identify any similarly-situated employee who was substantially younger or of a different national origin who was treated more favorably than he was or identify any bias regarding the Nurse Manager. The AJ found that, with respect to claim 1, Complainant did not identify the ages of the employees; there was no record of their ages in evidence; and the Nurse Manager denied any knowledge of Complainant's age. He also found that there was insufficient evidence to establish bias on the part of the Nurse Manager. The AJ noted that, several months following the alleged statement by the Nurse Manager, that official gave Complainant a highly positive proficiency report and a highly positive annual performance review. Regarding the leave denials, the AJ noted that, although the two were denied, the Nurse Manager had approved at least eight requests for leave both before and after the denied leave requests. Concerning the Nurse Manager's alleged remark, the AJ also reasoned that even if the remark were made, it was a stray remark which Complainant failed to link to discriminatory animus. Regarding reprisal, the AJ concluded that Complainant failed to establish a prima facie claim regarding any of the claims. He found that Complainant engaged in protected activity when he met with an Agency EEO Counselor in 2008 but that the alleged responsible employees had no knowledge of Complainant's contact. The AJ also found that Complainant met with an EEO Counselor on May 5, 2009, but that only claims 18 and 19 occurred after his EEO Counselor contact and the alleged incidents described in claims 18 and 19 did not occur as alleged. CONTENTIONS ON APPEAL Complainant argues that issues of material fact remain in dispute concerning the existence of a hostile work environment and, that there is sufficient evidence in the record to support his claim of a hostile work environment. Complainant asserts that whether a particular incident is part of a hostile work environment is a fact-specific determination and, as such, claims of a hostile work environment are inappropriate for summary judgment. Complainant also contends that his own first-hand observations, even without corroboration, can be used to create issues of material fact and should be deemed sufficient to forestall the grant of summary judgment. Complainant also argues that the Agency relies overwhelmingly on declarations and affidavits of witnesses whom Complainant has identified as having created the hostile environment. These statements, he maintains, cannot be credited because he contradicted them and also because contradictions should be interpreted in his favor. Complainant also contends that, although some of the claims do not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the Commission has held that the claims survive if sufficiently severe or pervasive to alter the conditions of employment. In response, the Agency argues that the record is devoid of evidence that could support a claim of harassment because a reasonable trier of fact would not conclude that the alleged incidents amounted to discriminatory harassment or created a hostile work environment. The Agency asserts that, while Complainant's brief sets forth the applicable law, it fails to offer any facts or material evidence which supports his position that a hearing is warranted. The Agency further asserts that Complainant's appeal offers nothing more than conclusory statements, unsupported by factual evidence, and that Complainant cannot rest upon mere allegations, denials, or conclusory statements. The Agency argues that Complainant failed to go beyond pleadings to support his contentions. ANALYSIS AND FINDINGS It is well-settled that harassment based on an individual's sex, age, disability and prior protected activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, a complainant must show that: (1) the complainant belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) the complainant was subjected to unwelcome conduct related to membership in those classes and prior EEO activity; (3) the harassment complained of was based on sex, age, disability and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with the complainant's work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915002 (Mar. 8, 1994), The Commission's regulations allow an AJ to grant summary judgment when the AJ finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Anderson, 477 U.S. at 255. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon determining that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). An AJ's decision to issue a decision without a hearing is subject to a de novo review. The case is looked at with fresh eyes. The Commission is free to accept, if accurate or reject, if erroneous, the AJ's, factual conclusions and legal analysis, including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. Central to the complaint is Complainant's claim of a hostile work environment and disparate treatment. Complainant asserts that the Nurse Manager, who was Vietnamese, treated Asians and Pacific Islanders more favorably than other employees and created a hostile workplace. Upon a de novo review, the Commission finds that the grant of summary judgment was not proper because there exist genuine issues of material fact and the investigative record is inadequate. We find that the AJ accepted the Agency's assertions in their entirety, making findings on disputed issues of fact and the absence of discriminatory animus. Although it is appropriate for the AJ to ferret out undisputed issues of material fact, it was not within the province of the AJ to make findings on disputed material facts without a hearing. Material factual disputes exist concerning leave denial, issuance of discipline, existence of a hostile workplace, and disparate treatment. In addition, the inadequacy of the record also makes the grant of summary judgment inappropriate. Complainant claimed that the way discipline was administered constituted disparate treatment. Complainant was issued counseling for sleeping on duty. Complainant identified a nurse from the Philippines, who, he claimed, had slept on duty. In a March 2009 account of the incident, Complainant alleged that the Nurse Manager had found the nurse sleeping with the door shut, lights off, and using a blanket. He stated that he and two Nurse Aides working with him had observed the Nurse Manager when she bolted out of the room after seeing the sleeping nurse. There is no evidence that indicates that the nurse was disciplined. Although the Nurse Manager provided an affidavit, she was not asked about the incident. Records obtained by Complainant under a Freedom of Information Act request do not identify any employee having been disciplined for sleeping on duty. Complainant also identified a staffer who boasted of taking three-hour breaks, a nurse who fell asleep at the nursing station, and another staffer who worked on external business payroll matters while he was to be watching patients. The Nurse Manager was not asked about these incidents and whether discipline was issued. Concerning the adequacy of the record on the discipline issue, we find that, although the Nurse Manager provided an affidavit during the investigation, no question was asked of her regarding whether incidents identified by Complainant had occurred and whether any discipline was imposed. The Nurse Manager was also not asked whether there were any guidelines or written policy regarding discipline and how the policy was administered. We find that, without any evidence concerning disciplinary procedure, the record is inadequate to make a finding regarding whether Complainant was treated disparately regarding discipline. Also concerning discipline, the Commission notes that the investigative record contains an illegibly signed handwritten document which discloses that documents consisting of eight disciplinary actions were removed from the records by the team leader. If these records could have established the absence or presence of disparate issuance of discipline, then they could be materially relevant to Complainant's claim of disparate discipline. However, the team leader is not identified and the only explanation for the removal of the document is the conclusory one in the document itself by an unidentified signer that the removed documents were not relevant to Complainant's discrimination claim. Complainant has identified other incidents which, he alleges, subjected him to disparate treatment and created a hostile work environment. Among the incidents of hostility, Complainant alleged denial of leave in claims 4, 5, 6, 9, 10, and 11. The AJ found that on those specific days when Complainant alleged that he was denied leave or charged AWOL, Complainant was granted leave or his absence was otherwise approved. In so finding the AJ relied on the Nurse Manager and records she provided. However, Complainant countered the evidence in his opposition to summary judgment and addressed each denial of leave claim individually. Regarding claim 5, for example, which was a leave request in September 2008, Complainant stated that he called the Nurse Manager on August 28, 2008, when he was at a medical facility for a heart issue to request leave.4 The Nurse Manager told him that he could not take leave and advised the Nurse on Duty to mark him AWOL. Complainant stated that although he worked, he did so fearing further adverse actions by Nurse Manager. The Nurse Manager could not recall if Complainant had contacted her on August 28, 2008 to request leave for September 1 through September 5, 2008. A Bi-Weekly Time Schedule purportedly for the period August 17, 2008 through August 30, 2008 is incomplete. Only the schedule from August 17 until August 26 is provided. The remaining dates are not part of the copy provided in the record, including August 28, the date in contention. Further, there is no evidence regarding any leave request policy and whether a request could be made orally and denied orally which would leave no record that a request was made. Also, there is no statement provided by the Nurse on Duty or any explanation for its absence. Regarding claim 6, Complainant stated that he asked for Federal Employees Family Friendly Leave Act (FFLA) leave on September 11, 2008, when his mother passed away. Complainant also stated that the Nurse Manager chastised him and charged him AWOL pending medical certification. An electronic mail message from the Nurse Manager indicated that Complainant would be charged AWOL because he did not explain the reason why he needed the night off nor inform her who was the family member involved. Complainant stated that he had told the Nurse Manager on multiple occasions of the terminal condition of his mother. He also stated that he informed the Nurse on Duty on the night shift of September 10 of his need for leave. As a matter of standard policy, he stated that the Nurse on Duty had to notify the Nurse Manager of requests submitted during the night shift. Complainant also stated that he was guaranteed five days of FFLA leave and invoking use of this leave under FFLA was not discretionary nor did it require a medical certificate. The Agency did not present any documentation concerning the process, if any, regarding FFLA leave requests and how they were either granted or denied.5 Regarding claims 9 and 10, alleged AWOL charges in November 2008, Complainant pointed to Bi-weekly Schedule documents obtained by him under a Freedom of Information Act request. Complainant asserts that entries for the biweekly schedule were altered. It appears that leave could have been altered on November 13, 2008, to reflect sick leave just as alterations for stricken AWOL entries appear for November 16, 17, and 18. Questions concerning leave denials, the absence in the record of the Agency's procedure regarding leave, and inconsistencies in the record between Complainant's statements and those of the Nurse Manager, warrant a hearing and rigorous cross examination. Accepting the Nurse Manager's statements regarding leave denials which contradict Complainant's statements and documentation he provided constituted error on the part of the AJ. Further, the leave documents themselves are unclear in some ways because designations appearing on them, which are obviously familiar to the Agency, are unexplained to the reviewer of the evidence. Complainant also claimed that the Nurse on Duty had told him that he was being targeted for removal at the Nurse Manager's request and also told him that he was being scrutinized, at the Nurse Manager's request, by the Nurse on Duty while another registered nurse not in Complainant's protected group was not similarly scrutinized. The Nurse on Duty was not called as a witness during the investigation. Although he provided an affidavit after the motion for summary judgment, the questions were limited to his knowledge of Complainant's prior protected activity. Complainant has also alleged that the ethnic composition of his office reflected the Nurse Manager's bias. Despite Complainant's allegation of disparate treatment, the organizational charts and a listing of staff for 2007-2009 produced for the record do not provide profiles for any of the staff. Complainant has alleged that the Nurse Manager was biased in favor of Asians and Pacific Islanders and that they were the groups whom she treated favorably. Work force evidence may be relevant regarding discriminatory animus on the part of the Nurse Manager and that of Complainant's second level supervisor who was a Pacific Islander. As additional evidence of discriminatory hostility in the workplace, Complainant also pointed to a March 2, 2009 e-mail from the Nurse Manager concerning the schedule she had posted for the staff which disclosed that he had been placed on leave without pay. The e-mail also noted that neither leave nor leave without pay would be approved for Complainant from March 15 to March 28, 2009. Complainant indicated that he had hundreds of hours of leave and this evidence was not contradicted by the Nurse Manager nor had she indicated that Complainant had a leave abuse problem. Complainant has gone beyond mere assertions and provided proof to support his facts. At the summary judgment stage, we must construe the evidence in the light most favorable to the Complainant.6 Accordingly, where, as here, genuine issues of material facts are in dispute and, also, the record is not adequately developed, the grant of summary judgment was not proper. CONCLUSION Concluding that the grant of summary judgment was improper, the Commission VACATES the Agency's finding of no discrimination and REMANDS the matter to the Agency in accordance with this decision and the Order below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations 11-17-2015 __________________ Date 1This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2Under the statutes and regulations enforced by the Commission, the term "Hispanic" denotes a national origin. We note that the same analytical framework is used for claims of both race discrimination and national origin discrimination. 3 Although not referenced in the AJ's decision, the complaint initially consisted of 25 claims as enumerated in the October 20, 2009, Partial Acceptance of Complainant's complaint. The Agency accepted the 19 re-numbered claims, as set forth above and as similarly set forth in the AJ's decision. The dismissed claims were identified in the Partial Acceptance as claims then numbered 4, 14, 19, 21, 22, and 23. The dismissed claims consisted of a failure to promote in November 2007; a proposed reprimand for sleeping on duty on December 7, 2008; a change in Complainant's tour of duty; a reprimand on April 30, 2009; and a written counseling replacing the reprimand. The claims were dismissed either on the grounds of untimely EEO Counselor contact or because the matter was raised in a negotiated grievance procedure. In the Acknowledgment and Order, the Supervisory AJ gave notice to the parties that if the dismissal of the claims were not opposed, the opportunity to have the dismissal reviewed by the AJ would be deemed waived. There is no record that Complainant opposed the Agency's dismissal while the matter was pending before the AJ. Further, Complainant did not challenge any of the dismissed claims on appeal. 4 There is a record from a Kaiser medical facility indicating that Complainant was seen on August 28, 2008. 5 In his opposition to summary judgment, Complainant copied information from a link to the Office of Personnel Management's website. The information indicates that FFLA extended the family friendly concept by letting federal employees use sick leave to provide care to a family member. Family members included spouses, parents, children, siblings and their spouses and any individual related by blood or affinity whose relationship to the employee was the equivalent of a family relationship. 6 Although we have reviewed the evidence carefully, viewing the material presented in the light most favorable to Complainant, we express no opinion concerning the accuracy of Complainant's allegations nor their sufficiency in the face of any conflicting testimony. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120120189 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120120189