James Henderson v. Navy
03A00113
July 5, 2002
.


James Henderson,
Petitioner,

v.

Gordon R. England,
Secretary,
Department of the Navy,

Appeal No. 03A00113

MSPB No.  AT-0752-0479-I-1

DECISION

INTRODUCTION

James Henderson (petitioner) timely filed a petition with this Commission
for review of a final decision of the Merit Systems Protection Board
concerning an allegation of discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
The Board found that the agency had not engaged in discrimination as
alleged by petitioner.  For the following reasons, the Commission concurs
with the Board's decision.

ISSUE PRESENTED

The issue presented herein is whether the Board's determination that
petitioner failed to prove that the agency discriminated against him on
the bases of race (Black), sex (male), age (forty-six at the time of
the alleged discriminatory events), disability (psychological stress,
migraine headaches), and reprisal (prior EEO activity) constitutes
a correct interpretation of the applicable laws, rules, regulations,
and policy directives, and is supported by the record as a whole.

BACKGROUND

Petitioner, employed by the agency as a Supervisory Police Officer
(GS-8), was removed from the agency, effective April 16, 1999.  Petitioner
contends that the removal was based on race, sex, age, disability, as well
as retaliation for prior EEO activity.  The agency, however, contends
that the removal was based on charges of excessive absences without
approved leave (AWOL) and failure to follow proper leave procedures.


Evidence in the record indicates that on December 10, 1998, petitioner
submitted forms to the agency by facsimile requesting time off from
work because he was suffering from a traumatic injury (psychological
stress resulting in headaches, anxiety, mental anguish, muscle tension,
and emotional pain).  Petitioner also requested continuation of pay.<1>
The next day, petitioner's supervisor contacted him by telephone to inform
him that he had submitted the wrong forms.  Petitioner was not at home so
the supervisor left a message indicating that the wrong forms had been
submitted.  The supervisor also sent petitioner the appropriate forms.
Petitioner called back and left a voice-mail message for his supervisor
indicating that he had a doctor's appointment on  December 14, 1998,
and that he would not be reporting to work.  He also sent her a faxed
message indicating that he had completed the proper forms.

On December 15, 1998, petitioner's supervisor left him a message that he
would not be receiving continuation of pay benefits and that he had to
request sick leave, annual leave, or leave without pay.  Petitioner never
responded.  Three days later, petitioner's supervisor called petitioner
again and left a message indicating that if she did not hear from him
regarding the type of leave he was seeking for his absences, he would
be charged AWOL.  Again, petitioner never responded.

On January 7, 1999, the Deputy Security Officer (DSO), petitioner's
second-level supervisor, sent petitioner a letter advising petitioner
that since continuation of pay had not been granted, he had to request
some type of leave.  The DSO also advised petitioner of the proper
procedures to follow if he wanted to obtain leave pursuant to the Family
Medical Leave Act (FMLA).  In response to the DSO's letter, petitioner
submitted a request for leave form in which he requested the maximum
amount of advanced sick leave.  Because petitioner's request was not
accompanied by the required medical documentation, the DSO informed
petitioner that his request was inadequate and that he had to submit
medical documentation containing information as to when he could return
to work.  Petitioner never responded.

On January 29, 1999, the Office of Workers' Compensation (OWCP) denied
petitioner's claim for traumatic injury.  About a month later, still not
having received a response to the DSO's last request for information,
the agency proposed petitioner's removal.

During the notice period,<2> petitioner requested to be placed in the
leave donation program, or  advanced 240 hours of sick or annual leave.
Accompanying this request were several medical documents signed by
petitioner's doctor.  One of the documents had previously been submitted
to the OWCP.  The other two documents stated that petitioner should
not work due to his “perception of unfair treatment at work.”  Later, a
fourth document was submitted in which petitioner's doctor restated that
petitioner should not work due to his “perception of unfair treatment.”
None of the documents indicated when petitioner could return to work.
A decision was issued on April 12, 1999, advising petitioner that his
removal would become effective on April 16, 1999.

Petitioner filed an appeal with an MSPB administrative judge (AJ)
alleging, in relevant part, that the removal constituted unlawful
employment discrimination.  On September 23, 1999, the AJ issued a
decision finding no discrimination.  Specifically, the AJ found that
petitioner failed to make out a prima facie case of race discrimination
because, although he compared himself to White employees who had
received OWCP benefits and were not removed, he was not similarly
situated to those employees because his claim for OWCP benefits was
denied.<3>  The AJ also found that petitioner failed to prove his claim
of sex discrimination because he did not identify any female employees
who were similarly situated to himself and allowed to use sick leave.
Regarding the reprisal claim, the AJ found that petitioner failed to
establish the necessary link between the protected EEO activity and the
adverse employment action, and therefore failed to establish a prima
facie case.  Finally, the AJ found that petitioner could not prevail on
his disability claim because he failed to produce medical documentation
indicating that his impairments constituted a disabling condition.
Petitioner appealed the AJ's findings to the full Board.  On June 1,
2000, the Board issued a decision upholding the AJ's findings.  It is
from that decision that petitioner appeals.

ANALYSIS AND FINDINGS

In the absence of direct evidence, a claim of employment discrimination is
examined under the three-part analysis originally enunciated in McDonnell
Douglas Corporation v. Green.  411 U.S. 792 (1973); Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979) (applying McDonnell Douglas to age cases);
Norcross v. Sneed, 755 F.2d 113 (8th Cir. 1985) (applying McDonnell
Douglas to disability cases); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases).  For petitioner to prevail, he 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 action.  Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).  Once the agency
has met its burden, the petitioner bears the ultimate responsibility to
persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason.  St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).

Race, Sex, Age, and Reprisal Claims

Although the initial inquiry in a discrimination case usually focuses
on whether the petitioner has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions.  See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the petitioner has
established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination.  Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its action.  Specifically,
the agency stated that petitioner was removed due to excessive absences
without approved leave and for failure to follow proper leave procedures.

Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, petitioner now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination.  Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996).  Petitioner can do this by
showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
We find that he failed to meet this burden.  In attempting to meet his
burden, petitioner asserted that the medical documents he submitted to
justify his absences were the same or similar to the medical documents
submitted by employees outside of his protected groups.  He did not,
however, present proof supporting this assertion.  For that reason, we
find that petitioner failed to prove that the agency's stated reasons
were a pretext for race, sex, age, or reprisal discrimination.

Disability Claim

To establish a prima facie case of disability discrimination under a
disparate treatment and/or a failure to accommodate theory, petitioner
must demonstrate that: (1) he is an "individual with a disability"
as defined in 29 C.F.R. § 1630.2(g); (2) he is a "qualified individual
with a disability" as defined in 29 C.F.R. § 1630.2(m); and (3) he was
subjected to an adverse personnel action under circumstances giving rise
to an inference of disability discrimination and/or denied a reasonable
accommodation.  Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).

An individual with a disability is defined as one who: 1) has a physical
or mental impairment that substantially limits one or more of that
person's major life activities, 2) has a record of such impairment,
or 3) is regarded as having such an impairment. EEOC Regulation 29
C.F.R. § 1630.2(g).   Major life activities include the functions
of caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.  EEOC Regulation
29 C.F.R. § 1630.2(h)(2)(i).

To support his assertion that he is an individual with a disability,
petitioner provided the Commission with two medical statements from
his doctor; one indicating that petitioner had been referred to a
psychologist for evaluation and should not return to work until after
the evaluation,<4> the other indicating that petitioner should not return
to work because his “perception of unfair treatment at work” had caused
stress and anxiety to build to a degree that resulted in an increase
in migraines.  Neither statement, however, provides this Commission
with enough evidence to determine how and to what extent complainant
was substantially limited in a major life activity.  For example, one of
the medical statements provided indicated that petitioner's impairments
were triggered on November 11, 1998, approximately one month before
his string of unapproved absences began.  But there is no evidence in
the file that indicates that complainant's impairments were of long
or permanent duration.  See Interpretative Guidance on Title I of the
American with Disabilities Act § 1630.2(j) (stating that temporary,
non-chronic impairments of short duration, with little or no long term
permanent impact, are usually not disabilities).  The Commission notes
that petitioner was given ample opportunity to provide the agency with
adequate medical documentation concerning his impairments, but did not
do so.  The Commission also notes that there is nothing to suggest that
petitioner's condition prevented him from providing the needed medical
documentation to the agency.  Furthermore, there is no evidence in the
file which indicates that the agency regarded petitioner as disabled or
that he had a record of a disability.  As such, we find that petitioner
has failed to establish a prima facie case of disability discrimination.

CONCLUSION

Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the Board's final
decision of no discrimination.  The Commission finds that the Board's
decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.


STATEMENT OF RIGHTS - ON APPEAL

PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)

This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision.  You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of the date that you receive this decision.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.

    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:


______________________________
Frances M. Hart
Executive Officer
Executive Secretariat

July 5, 2002
__________________
Date























1A federal employee who sustains a traumatic injury is normally paid
his regular salary by his agency for a period of 45 days while awaiting
a decision from the Office of Workers' Compensation.

2In the notice proposing petitioner's removal, complainant was given a
certain period of time in which to respond to the agency's proposal.

3The Commission notes that, in this case, petitioner did not allege that
the denial of OWCP claim was discriminatory.

4There is nothing to suggest petitioner was ever evaluated by a
psychologist.

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