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. �