[Redacted], Alicia F., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionMar 8, 2021Appeal No. 2020004540 (E.E.O.C. Mar. 8, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alicia F.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2020004540 Hearing Nos. 430-2017-00147X, 430-2016-00371X & 430-2016-00507X Agency Nos. ARBRAGG16APR01221, ARBRAGG15AUG03417 & ARBRAGG16JAN00282 DECISION On August 11, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s two final decisions concerning her three equal employment opportunity (EEO) complaints alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decisions. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Assistant, NF-0303-02, at the Agency’s Prager Child Development Center (PCDC) in Fort Bragg, North Carolina. On October 29, 2015, March 11, 2016, and June 14, 2016, Complainant filed EEO complaints cumulatively alleging that the Agency discriminated against her on the bases of disability (Obsessive Compulsive Disorder, Attention Deficit Hyperactivity Disorder, Asthma, and 1 This 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. 2020004540 2 Persistent Sleep Insomnia) and reprisal for prior protected EEO activity (prior EEO complaints) when: (1) on July 28, 2015, when Complainant returned to work from leave related to mental health issues, her immediate supervisor (S1) told her to collect her personal belongings and leave the building, and she later learned the Agency removed her from employment, citing abandonment of position; (2) since November 28, 2015, she has been denied unemployment benefits because she has not received termination paperwork, such as DA form 3434 (Notification of Personnel Action) or Standard Form 8 (Unemployment Compensation Notice); (3) from September 2015 to November 2015, Complainant was denied the opportunity to explain her mental health conditions and participation in the Agency’s Exceptional Family Member Program to justify her absences that resulted in her termination from employment; (4) from November 2015 to present, Agency management denied Complainant’s benefits of employment such as leave under the Family and Medical Leave Act, leave without pay, or the Employee Assistance Program, for her mental health conditions; (5) as of March 2016, the only copy of DA form 3434 Complainant received was during mediation conducted on February 25, 2016 and it did not include the day Complainant worked on July 28, 2015; and (6) since September 29, 2015, management failed to remove a Memorandum of Record containing false allegations of counseling from Complainant’s personnel record and used it to help justify her removal. Claim (1) was docketed under Agency No. ARBRAGG15AUG03417 (03417); claims (2) through (5) were identified under Agency No. ARBRAGG16JAN00282 (00282); and claim (6) was docketed under Agency No. ARBRAGG16APR01221 (01221). The Agency conducted EEO investigations of the complaints. During EEO investigation, Complainant stated that the PCDC Assistant Director, S1, did not inform her that she was terminated and that a Personnel Specialist (P1) verbally informed Complainant’s union representative of her removal later that day. However, Complainant stated that she was never out-processed and still has her badge, bank key, etc. Complainant stated that her doctor’s office faxed over medical documentation to justify her absences and she was not cleared to return to work until July 27. Complainant stated that management discriminated against her further because it did not ensure that she received the appropriate paperwork regarding her removal so that she could appeal the adverse action. S1 stated that he was not aware that Complainant was on leave for mental health issues, but he knew that Complainant requested leave for July 20 - 21, 2015 related to an overnight sleep study. 2020004540 3 S1 stated that management terminated Complainant’s employment, effective July 25, 2015, for “job abandonment” because she failed to inform the Agency of her whereabouts for three consecutive days (July 22 through July 24, 2015). S1 stated that Army Regulation 215-3 (AR 215-3) allows for removal for abandonment of position with three consecutive failures to report and does not require notice beforehand.2 S1 stated that he informed Complainant that the Civilian Personnel Advisory Center (CPAC) would send her the Notification of Personnel Action effective July 25, 2015. S1 stated that he expected Complainant back to work on July 22, 2016 and when she reported back on July 28, 2016, he asked to speak with her and Complainant refused to do so without union representation. S1 stated that Complainant could have explained her reasons for the nonscheduled, unreported absences then, although he is unsure if it would have changed the removal action. S1 stated that the Agency paid Complainant for the time she worked on July 28, 2015, but he was unsure if he needed to change the effective date on her DA 3434. The CPAC Representative, P1, stated the DA 3434 was sent to Complainant’s last known address of record. P1 stated that it was an administrative error if Complainant was paid for July 28 because the effective date of her removal was July 25. P1 stated that Complainant did not follow up with Personnel regarding her removal or benefits. Following the EEO investigations, the Agency provided Complainant with a copy of the applicable report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). For 01221, the assigned AJ issued a summary judgment decision finding no discrimination and, on October 17, 2018, the Agency issued a final decision affirming the AJ’s finding. Complainant initially requested a hearing for 03417 and 00282, but the assigned AJ later remanded the matter back to the Agency for processing. Subsequently, on November 9, 2018, the Agency issued a final decision finding no discrimination. For 03417 and 00282, the Agency found that Complainant failed to provide management with notice of her absences for July 22 through July 24, 2015 and that was the reason for her removal from the Administrative Assistant position. The Agency found that management’s actions were in compliance with Agency policy - AR-215-3. The Agency stated that the Rehabilitation Act does not require an employer to excuse poor performance or misconduct if it would not do so for an employee outside of Complainant’s protected classes. 2 AR 215-3, Section 2-19.e states: Employees may be separated from the rolls upon a determination that they have abandoned their positions. An employee who fails to report for duty and is carried in an absent without leave (AWOL) status for 3 consecutive scheduled workdays may be determined to have abandoned his or her position regardless of any expressed intent to return to duty at a subsequent date. No advance notice is required prior to effecting the separation action. Such separations are not grievable and are taken without prejudice to reemployment. The DA Form 3434 effecting the separation will be mailed to the employee’s last known address. The effective date of the separation will be the day following the last day the employee was in a duty or approved leave status. 2020004540 4 Management gave Complainant an opportunity to discuss the matter but she stated she would not do so without a union representative and left the building. The Agency stated that, if Complainant did not receive the necessary paperwork, she could have visited CPAC and that CPAC tried to schedule with her to discuss benefits. The Agency found that Complainant failed to show that its actions were motivated by discriminatory factors. The Agency held that Complainant failed to show that the legitimate, nondiscriminatory reasons articulated by the Agency are pretext. The instant appeal from Complainant followed. In opposition to Complainant’s appeal, the Agency stated that Complainant’s appeal was untimely for both final decisions, but if found procedurally sufficient, she failed to establish discrimination.3 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she 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. See 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 3 The record suggests Complainant was medically incapacitated and/or incarcerated some of the time between issuance of the final agency decisions and the filing of her appeal. 2020004540 5 Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on disability or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Management stated that Complainant was on requested leave for July 20 and July 21, 2015, but, without notice, Complainant did not report to work July 22 to July 25, 2015. Complainant stated that her doctor’s office faxed over medical justification for her absences. Management stated, when Complainant reported to work on July 28, her supervisor attempted to speak with her but she stated that she did not talk to management without union representation and left. Management stated that it removed Complainant for “job abandonment” because she failed to inform the Agency of her whereabouts for three consecutive days and its action complied with Army Regulation 215-3, Section 2-19.e. Management stated that AR 215-3 does not require notice before removal in the instance of job abandonment. Management stated that Personnel sent Complainant’s Notification of Personnel Action to her last known address of record and that Complainant did not seek to meet with Personnel about her removal or her benefits and did not respond when it reached out. Management stated that the Agency paid Complainant for the time she worked on July 28, 2015, but it was unsure if it needed to change the effective date of July 25, 2015 on her DA 3434. We find that Complainant failed to show that the Agency’s actions were based on discriminatory motives. The bulk of the actions alleged surround Complainant’s removal from employment and the Agency stated that it removed Complainant because she failed to inform it of her absences for three consecutive days. The Agency stated that Complainant abandoned her job. The Agency cited written Agency policy to support its action. Assuming without finding that Complainant is an individual with a disability, we agree with the Agency that an employer does not have a duty to excuse an employee's misconduct as a form of reasonable accommodation to that employee's disability where such misconduct would result in discipline or discharge if committed by another employee. See Martinez v. General Services Administration, EEOC Appeal No. 0120122326 (November 15, 2012); Stallworth v. Dep't of Veterans Affairs, EEOC Appeal No. 01893705 (January 24, 1990), req. to reconsider den. EEOC Request No. 05900416 (August 2, 1990). There is no evidence in the record that individuals who do not have disabilities were not held responsible for similar misconduct. 2020004540 6 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decisions finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020004540 7 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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 (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 Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 8, 2021 Date Copy with citationCopy as parenthetical citation