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