[Redacted], Buster D., 1 Petitioner,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 23, 2021

Petition No. 2021001399 (E.E.O.C. Sep. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Buster D.,1 Petitioner, v. Christine Wormuth, Secretary, Department of the Army, Agency. Petition No. 2021001399 MSPB No. DC-0752-20-0221-I-1 DECISION On December 2, 2020, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. ISSUE PRESENTED The issue presented is whether the MSPB Administrative Judge properly found that Petitioner did not establish that the Agency discriminated against him on the basis of disability when it removed him from federal employment. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Human Resources (HR) Specialist, Employee Relations/Labor Relations, GS-0201-12, at the Agency’s Southeast Atlantic Civilian Personnel Advisory Center in Wilmington, North Carolina. On August 1, 2019, Petitioner’s supervisor served him with a Notice of Proposed Removal (Notice), based on a charge of absence without leave (AWOL), which included 15 specifications. 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2021001399 2 The Notice stated that even after a five-day suspension for AWOL in November 2018, Petitioner continued to engage in attendance-related misconduct, including failing to adhere to established time, attendance, and leave procedures, and multiple incidents of AWOL, totaling over 401.5 hours, through the date of the Notice. Petitioner responded on September 11, 2019, stating that he suffered from major depressive disorder, which interfered with his ability to attend work.2 Petitioner provided medical documentation indicating that he was receiving treatment for major depressive disorder and might have up to three episodes a year until his condition stabilized. Specifically, Petitioner provided medical documentation, dated February 21, 2019 and July 2, 2019. In the February 21, 2019 documentation, Petitioner’s treatment provider had requested that the Agency excuse Petitioner’s recent absences. The treatment provider went on to state that Petitioner would likely need to be out of work approximately two weeks. Then Petitioner would have regular follow- ups while decompensated and every three months while in remission. He concluded that Petitioner might have up to three episodes per year. In the July 2, 2019 documentation, he noted that Petitioner’s condition might cause periods of poor mental health that could prevent him from functioning in his job or completing most tasks of daily living. As a result, Petitioner’s treatment provider stated that it was recommended that Petitioner not return to work until his mental health stabilized. On November 7, 2019, the Agency upheld Petitioner’s removal, which Petitioner appealed to the MSPB. In his MSPB appeal, Petitioner alleged that the Agency discriminated against him on the basis of disability (major depressive disorder) when, effective November 8, 2019, the Agency removed him based on 15 specifications of AWOL. The record reflects that the parties stipulated that Petitioner was absent from work on the days identified in the 15 instances of AWOL that made the basis of his removal. A hearing was held and, thereafter, an MSPB Administrative Judge (AJ) issued an initial decision upholding the removal. The MSPB AJ found that the Agency proved the charge of AWOL by a preponderance of the evidence, as Petitioner did not deny being absent on the charged dates. The MSPB AJ further determined that the Agency established a nexus between Petitioner’s misconduct and the efficiency of the service. Moreover, the MSPB AJ found, Petitioner failed to show that he was discriminated against based on his disability. The MSPB AJ reasoned that Petitioner failed to properly request a reasonable accommodation while employed and even if Petitioner had done so, he failed to establish that he was a qualified individual with a disability. In doing so, the MSPB AJ noted that Petitioner did not establish by a preponderance of the evidence that he could perform the essential functions of his position with or without reasonable accommodation. 2 Petitioner’s documentation is dated July 2, 2019 in response to a May 17, 2019 Notice of Proposed Removal, which the Agency cancelled and rescinded on August 1, 2019 for technical reasons. The Agency reissued the May 17, 2019 Notice of Proposed Removal on August 1, 2019. 2021001399 3 Finally, with respect to disparate treatment, the MSPB AJ stated that Petitioner failed to provide examples of similarly situated employees who were not removed. Petitioner then filed the instant petition. ARGUMENTS ON PETITION In his petition for review, Petitioner asserts that the MSPB AJ erred in finding that the Agency was not obligated to assess whether a reasonable accommodation was needed after Petitioner provided information about his disability to the proposing and deciding officials. Petitioner states that he submitted medical records to the Agency to engage management in a conversation about a reasonable accommodation, such as a different assignment, but the Agency failed to meet its obligation under the Rehabilitation Act. He adds that he is a qualified individual with a disability because he met the prerequisites for his position and could perform the essential functions when he was in attendance. The Agency argues that the petition for review does not show that the MSPB incorrectly interpreted any provision of any law, rule, regulation, or policy directive, or that the decision of the Board is not supported by the evidence in the record as a whole. The Agency asserts that the MSPB did not err in finding that it had no obligation to accommodate a disability that it had no knowledge of until after Petitioner engaged in 15 instances of AWOL for which he was removed, and after his removal had already been proposed. The Agency notes that the only relevant medical documentation submitted by Petitioner prior to his removal indicated that he could not perform the essential functions of his job. Finally, the Agency contends that the MSPB AJ correctly determined that Petitioner did not establish that he was a qualified individual with a disability. STANDARD OF REVIEW EEOC regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. § 1614.305(c). ANALYSIS AND FINDINGS Failure to Accommodate An agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p); Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with 2021001399 4 Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice 915.002 (Oct. 17, 2002); Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). A request for modification or change at work because of a medical condition is a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 1. After receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. pt. app. § 1630.9. Thus, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability…[to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. pt. 1630 app. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Question 5. To establish a denial of reasonable accommodation, Petitioner must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 16302(m); and (3) the Agency failed to provide a reasonable accommodation. A “qualified individual with a disability” is one who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental duties of a job, that is, the outcomes that must be achieved by someone in that position. Gwendolyn G. v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). When the disability and/or the need for accommodation is not obvious, the agency may ask the employee for reasonable documentation about his/her disability and functional limitations. Enforcement Guidance on Reasonable Accommodation, at Question 6. With respect to Petitioner’s argument that he provided medical documentation subsequent to the Notice, which placed the Agency on notice that he required a reasonable accommodation, we note that Petitioner already had engaged in the conduct that the Agency deemed worthy of removal. Petitioner did not request reasonable accommodation during the relevant period and did not submit medical documentation until after the incidents at issue in the complaint. The Agency was not required to excuse the conduct or to mitigate the penalty as a form of reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation, at Question 36. To the extent that Petitioner maintained that he was denied a reasonable accommodation, we, like the MSPB AJ, find that he was not a qualified individual with a disability in light of his medical documentation indicating that he should not return to work until he “stabilized.” Petitioner provided medical documentation in September 2019 to avoid removal. However, the medical documentation, which was dated several months earlier, stated that his condition prevented him from functioning in his job and completing most tasks of daily living. 2021001399 5 Petitioner never provided updated medical documentation indicating that he stabilized to the point where he could return to work. Petitioner informed the Agency that he was “willing to take on any different role” or move to a different station but noted that he was “still working on [his] recovery and stabilizing [his] current medical condition….” He asserted that he could perform his duties with a “structured last chance agreement and a defined mission.” However, he never provided updated medical documentation to substantiate his belief. Therefore, Petitioner failed to demonstrate that he was able to perform the duties of his position with or without reasonable accommodation. While Petitioner asserted that he requested a reassignment following the Notice, his treatment provider never indicated that Petitioner could return to work. Further, Petitioner has not identified any vacant, funded position that he could have performed with or without reasonable accommodation. In litigation, an employee seeking reassignment as a reasonable accommodation generally must make a facial showing that there existed a vacant, funded position whose essential functions the employee could perform. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002) (complainant can establish that vacant, funded positions existed by producing evidence of particular vacancies or by showing that s/he was qualified to perform a job or jobs that existed at the agency and there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period); compare id. with Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016) (during investigative stage of federal administrative process, agency has obligation to develop adequate investigative record and obtain information about availability of vacant, funded positions). Although Petitioner had a full opportunity to present his case during the hearing on his appeal, he offered no evidence that a suitable vacancy existed. Accordingly, Petitioner has not shown that he could have performed the essential functions of the position held or desired with or without reasonable accommodation. Therefore, we concur with the MSBP AJ that the Agency did not violate the Rehabilitation Act regarding his claim of denial of a reasonable accommodation. Disparate Treatment To prevail in a disparate treatment claim, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Petitioner 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. 2021001399 6 At all times, Petitioner retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). In the instant case, we find that even if we assume, arguendo, that Petitioner established a prima facie case of disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as the parties stipulated, Petitioner was removed based on the 15 specifications of AWOL. Having reviewed the record, we find no evidence to suggest that Petitioner's removal was for any reason other than his excessive absences. The Commission has long held that an agency has broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan 16, 1997). Accordingly, the Commission agrees with the MSPB’s ultimate finding that Petitioner did not establish that his removal was based on disability discrimination. CONCLUSION Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB'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. PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610) 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 (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. 2021001399 7 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 September 23, 2021 Date