Agency.

Equal Employment Opportunity CommissionMay 12, 2008
0220060015 (E.E.O.C. May. 12, 2008)

0220060015

05-12-2008

Agency.


Mark V. Pantaleo,

Grievant,

v.

Stephen L. Johnson,

Administrator,

Environmental Protection Agency,

Agency.

Appeal No. 02200600151

Agency No. 061004-50045-A

DECISION

Grievant filed a timely appeal with this Commission from an arbitration

decision dated July 17, 2006, denying his grievance alleging

unlawful 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 appeal is deemed timely and is accepted pursuant to 29

C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS

the arbitrator's decision.

The record reflects that grievant was hired in August 2003 as a Life

Scientist in the Watershed & Wetlands Branch of the Water Division

in Chicago, Illinois. Grievant was hired under the Federal Career

Internship Program (FCIP), a program created to recruit and attract

qualified individuals into the federal government. Grievant, like

other individuals hired into the program, received an appointment into

the excepted service for a temporary period not to exceed two years.

Grievant was informed when he was hired that he could be terminated at

any time during the two year period if a determination was made that his

conduct, suitability, or performance was "not acceptable." Grievant was

eligible for noncompetitive conversion to a career or career-conditional

appointment upon successful completion of the program.

In late August 2003, grievant became ill during training, and he was

diagnosed with diabetes. Grievant's supervisor stated in the record that

he discussed the diagnosis with grievant and asked him if he needed some

form of reasonable accommodation. The supervisor stated that grievant

informed him that he was under medical care and that, as long as he had

his medication, he should have no problem handling his job.

In May 2004, grievant's government travel card (GTC), which was issued for

use in connection with authorized travel, was suspended for non-payment.

Grievant and his supervisor discussed the matter, and grievant indicated

that he had obtained a loan to pay the bill. The supervisor stated

that he counseled grievant about the Employee Assistance Program (EAP)

and urged him to seek assistance with the EAP.

In April 2005, grievant's supervisor learned from the Comptroller's Office

that grievant had misused his GTC in December 2004, with nine identified

charges that were unrelated to government travel. The supervisor met with

grievant to discuss the charges. The supervisor stated that grievant

indicated that the charges could be attributed to his bipolar disorder,

which could cause him to spend uncontrollably. The supervisor stated that

he discussed the possibility of a reasonable accommodation to grievant,

but grievant responded that no accommodation would be necessary because

he was under the care of a psychologist, he was receiving medication,

and he had obtained assistance from a financial advisor. The supervisor

stated that he again suggested that grievant contact EAP if he needed

assistance and that he informed grievant that some form of disciplinary

action would have to be taken for his infractions.

After this meeting, grievant's supervisor asked the Comptroller's Office

to provide more information regarding grievant's GTC use. The supervisor

learned that grievant made eighteen additional unauthorized charges

from January to March 2005, which totaled $857.45. The supervisor

met with grievant regarding these charges. The supervisor suggested

that grievant relinquish his card, but grievant reiterated that he was

receiving medication and counseling and that he had locked his GTC in

his desk to avoid any future problems.

In May 2005, grievant attended a work-related training program at Michigan

State University. Grievant was unable to pay the bill for his lodging

while in Michigan because his GTC had been suspended due to non-payment.

Grievant's supervisor then arranged for the Comptroller's Office to

reinstate grievant's GTC so that he could return home.

On June 8, 2005, grievant was issued a written warning for misuse of

his GTC. Grievant was informed that the objective of the warning was

"corrective and rehabilitative and aimed at eliminating or preventing

situations which may result in disciplinary or other adverse actions."

Grievant was informed that he could be subject to progressive discipline

or adverse action "up to and including removal from Federal service"

for any future misconduct.

On June 16, 2005, grievant was informed that he would not be given

an excepted appointment as a Life Scientist. Grievant's supervisor

indicated that he made this decision after consulting with a Human

Resources officer primarily because the supervisor had concerns about

grievant's trustworthiness. Grievant was informed that he would be

terminated effective July 15, 2005.

In late June 2005, grievant spoke with an EEO Specialist while smoking

outside the agency facility. Grievant discussed his situation with

the EEO Specialist, and, in July 2005, the EEO Specialist set up a

meeting with management to discuss grievant's request for reasonable

accommodation. Grievant then submitted forms requesting an accommodation.

Shortly after this meeting, the supervisor went on vacation and returned

on July 25, 2005, two weeks after grievant's employment with the agency

had ended.

In July 2005, grievant filed a grievance alleging, in pertinent

part, that the agency failed to provide grievant with a reasonable

accommodation and terminated his employment due to disability (diabetes,

bipolar disorder) discrimination. The agency denied the grievance(s),

and grievant subsequently invoked arbitration. Following a hearing,

an arbitration decision was issued in July 2006. After finding that

the grievance was arbitrable, the arbitrator determined that the agency

had engaged in good faith efforts to provide grievant with a reasonable

accommodation for his disabilities, but grievant rejected the agency's

efforts to participate in the interactive process. The arbitrator further

found that "there is no basis for a finding that the [agency] failed to

comply with applicable laws, regulations or the collective bargaining

agreement with regard to Grievant's disabilities." The arbitrator noted

that the agency's action not to offer grievant a permanent position was

a non-disciplinary action taken "based on a determination of lack of

suitability for federal career or career-conditional employment."

On appeal, through his representative, grievant argues that the arbitrator

erred in finding no discrimination. Specifically, grievant argues that

he was denied a reasonable accommodation because the agency "obstructed

and delayed the interactive process in bad faith." Grievant argues that

the agency was on notice of his disabilities but failed to provide him

with sufficient information about the agency's reasonable accommodation

policies. Grievant argues that he should not have been penalized for

his unauthorized GTC use, which occurred as a result of his disability.

Grievant further argues that the agency terminated him rather than

provide him with an appropriate reasonable accommodation.

In response, the agency urges the Commission to affirm the arbitrator's

decision because it was consistent with the facts and applicable laws,

rules, and regulations. The agency argues that the arbitrator properly

determined that grievant's non-conversion to a permanent position was

not due to discrimination but because of grievant's "lack of suitability

for the position and lack of candor with his supervisor." The agency

also argues that the arbitrator correctly determined that grievant did

not request a reasonable accommodation until after grievant found out

he would not be converted to a permanent position.

EEOC regulation 29 C.F.R. � 1614.401(d) provides that a grievant

may appeal to the Commission from a final decision of the agency,

the arbitrator, or the Federal Labor Relations Authority (FLRA) on a

grievance when an issue of employment discrimination was raised in a

negotiated grievance procedure that permits such issues to be raised.

The Commission will only review that portion of the decision which

pertains to the grievant's employment discrimination claim, as it does

not have jurisdiction over any alleged violations of the Collective

Bargaining Agreement. See 29 C.F.R. � 1614.301(a).

Under the Commission's regulations, an agency is required to reasonably

accommodate the known limitations of a qualified individual with a

disability, unless the agency can show that the accommodation would cause

an undue hardship. See 29 C.F.R. 1630.2(p); EEOC Enforcement Guidance

on Reasonable Accommodation and Undue Hardship under the Americans with

Disabilities Act, EEOC No. 915.002 (October 17, 2002).2 Moreover,

once an employer becomes aware of the need for an accommodation, the

employer has an obligation to engage in an interactive process with the

employee to identify and implement appropriate reasonable accommodations.

See 29 C.F.R. � 1630.2(o)(3).

Upon review, we concur with the arbitrator's determination that the

agency made a good faith effort to participate in the interactive process.

Grievant's supervisor testified that he inquired whether grievant required

an accommodation both when he learned that grievant was diagnosed with

diabetes in late August/early September 2003 and when grievant informed

his supervisor that he suffered from bipolar disorder, which grievant

alleged caused him to make unauthorized purchases with his GTC, in

April 2005. In both instances, grievant informed his supervisor that

he was under medical treatment and that no accommodations were needed.

While grievant refuted the supervisor's testimony at the hearing,

the arbitrator stated in his decision that he found the supervisor's

testimony that he had engaged in an interactive process with grievant more

credible than grievant's testimony. Therefore, we are not persuaded,

based on the record below, that grievant has proven that he was denied

reasonable accommodation.

We also concur with the arbitrator's determination that the agency did

not discriminate against grievant when the agency decided not to offer

grievant a permanent position. To prevail in a disparate treatment claim,

grievant must satisfy the three-part evidentiary scheme fashioned by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Grievant must initially establish a prima facie case by demonstrating

that he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. 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, grievant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

Assuming arguendo that grievant established a prima facie case of

disability discrimination, we find that grievant failed to establish that

the agency's legitimate, nondiscriminatory reasons for its actions were

pretextual. Grievant's supervisor testified at the arbitration hearing

that grievant was not offered a permanent position primarily because

he had concerns regarding grievant's trustworthiness. Additionally,

the supervisor indicated that he had some concerns with grievant's

recent work performance during the relevant time period. We note that,

while grievant's supervisor was troubled by grievant's unauthorized

GTC charges, the record reflects that the supervisor was more concerned

with grievant's failure to inform the supervisor about his GTC misuse.

For instance, grievant's supervisor testified that grievant had informed

him in April 2005 that all of his unauthorized GTC charges occurred in

December 2004. However, the Comptroller's Office subsequently informed

the supervisor that grievant had eighteen additional unauthorized charges

on his GTC between January and March 2005. Moreover, grievant did not

volunteer information to his supervisor regarding the non-payment of

his GTC bill in May 2005 until he needed his supervisor's assistance.

We conclude that complainant has failed to establish that the agency's

articulated reasons for refusing to offer grievant a permanent position

were a pretext for disability discrimination.

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, the arbitrator's

decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

The Commission may, in its discretion, reconsider the decision in this

case if the grievant 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), 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 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 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).

GRIEVANT'S RIGHT TO FILE A CIVIL ACTION (S0408)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from 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. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0408)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

May 12, 2008

Date

1 Due to a new data system, this case has been re-designated with the

above-referenced appeal number.

2 For purposes of this decision the Commission assumes without

finding that grievant is an individual with a disability. 29 C.F.R. �

1630.2(g)(1).

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0220060015

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0220060015