U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cecile S.,1 Petitioner, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Petition No. 2021000075 MSPB No. DC-0752-20-0145-I-1 DECISION Petitioner filed a 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 her claim 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Logistics Management Specialist at the Agency’s facility in Washington, D.C. Petitioner alleged that the Agency discriminated against her on the bases of her disability (mental/autism) and reprisal for prior protected EEO activity when, on October 17, 2019, she was removed from her position as a Logistics Management Specialist. On August 21, 2019, Petitioner’s first line supervisor, the Deputy Director (RMO12) (unknown disability and EEO activity) issued Petitioner a Notice of Proposal to Remove (Notice). 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. 2 Responsible Management Official (RMO). 2021000075 2 The Notice provided a detailed account of the four charges and various related incidents as to why RMO1 was proposing removal. The Notice first charged Petitioner with Failure to Follow Instructions and cited to six incidents. Specifically, RMO1 repeatedly requested Petitioner to provide her detailed schedule. Petitioner failed to follow instructions and refused specific requests to provide her schedule. Instead, she repeatedly informed RMO1 when she was generally in the office but did not break down her schedule as he requested. The charge also detailed RMO1’s request that Petitioner prioritize a meeting with a colleague to take over the User Account Manager’s (UAM) responsibilities. RMO1 emphasized how crucial it was that Petitioner make the meetings as the original employee responsible for UAM duties was leaving. Petitioner failed to attend two meetings regarding the UAM takeover. The last incident detailed Petitioner's initial refusal and subsequent reluctance to participate in an in-person meeting. The second charge was for Absent Without Leave (AWOL) citing eleven incidents. This charge cited to Petitioner’s unexcused absences on March 6, 7, 8, 11, 12, 14, and 15, 2019; and April 8, 9, 10, and 18, 2019. RMO1 acknowledged that Petitioner had requested sick leave for such dates, but that despite his repeated instructions and requests, she failed to provide sufficient medical documentation. As a result, Petitioner incurred AWOLs. The third charge was for Lack of Candor citing three incidents. This related to the second charge as Petitioner had previously requested sick leave due to her prescription glasses breaking. Petitioner asserted that her glasses broke on or about March 6, 2019, but for unspecified reasons did not begin the process to replace or repair them until March 13, 2019. Petitioner informed RMO1 that she would be out of office for an indefinite period of time due to the broken glasses. RMO1 repeatedly requested documentation substantiating her request, but Petitioner failed to provide such documentation. The charge also cited to Petitioner denying her role as the UAM point of contact (POC) even though she was aware of her new role as the UAM POC. The fourth charge was for Inappropriate Behavior citing four incidents. These involved Petitioner accusing RMO1 of lying about Petitioner. The other two incidents involved Petitioner approaching RMO1 and another employee and yelling at them. The Notice stated that, despite several informal and formal counseling sessions, Petitioner’s conduct did not improve. The Notice stated that Petitioner had the right to respond to the proposal, and to provide any mitigating factors she believed management should consider. Petitioner was placed on administrative leave. Petitioner timely responded. In her response, Petitioner included a request for a reasonable accommodation due to a diagnosis of Autism Spectrum Disorder (ASD). Petitioner’s request included returning to work to improve her social skills. Petitioner believed that her diagnosis explained the difficulties she occasionally had when interacting with her colleagues and supervisors. On or about August 27, 2019, Petitioner submitted the same reasonable accommodation request to RMO1. 2021000075 3 On October 16, 2019, the Agency issued its Removal Decision. The Deputy Assistant Administrator (RMO2) (unknown disability and EEO activity) was the deciding official in the removal action. RMO2 stated that Petitioner’s response was considered and determined that there were no mitigating factors to stop the removal proceedings. Petitioner was removed from federal service effective October 17, 2019. On November 18, 2019, Petitioner appealed the Agency’s Removal Decision to the Merit Systems Protection Board (MSPB). On June 11 and 17, 2020, the MSPB Administrative Judge (AJ) held a hearing on the matter. On July 30, 2020, the MSPB AJ issued the initial decision. In this decision, the MSPB AJ determined that the Agency’s removal action was appropriate. The MSPB AJ noted that Petitioner did not submit her reasonable accommodation request until after receiving the Notice and that there was no evidence that the request or Petitioner’s disability status had any bearing on the decision to remove her from federal service. Additionally, the MSPB AJ determined that management was unaware of Petitioner’s Autism diagnosis prior to the issuance of the Notice. Even if management was aware, the MSPB AJ noted that the Rehabilitation Act did not immunize employees with disabilities from being disciplined for workplace misconduct, provided such conduct would otherwise be subject to discipline. The MSPB AJ affirmed the Agency’s removal action. On October 3, 2020, Petitioner filed the instant petition. CONTENTIONS IN PETITION Petitioner raised no arguments in her petition. The Agency responded to the petition asserting that the MSPB AJ appropriately determined that there was no discrimination. The Agency requested that the Commission affirm the MSPB AJ’s decision. 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 Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with disabilities. See 29 C.F.R. § 1630. 2021000075 4 In order to establish that Petitioner was denied a reasonable accommodation, Petitioner must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). We assume for analysis, and without so finding, that Petitioner is a qualified individual with a disability. In this matter, Petitioner asserted that, with the proper knowledge, tools, and reasonable accommodation for her disability, she would have been able to navigate the workplace better. However, Petitioner did not inform management of her reasonable accommodation request until after the issuance of the Notice. The record also does not demonstrate that management was aware of Petitioner’s ASD diagnosis prior to the issuance of the Notice. When Petitioner submitted her reasonable accommodation request, she was already on administrative leave pending the results of the removal proposal based on several incidents of workplace misconduct. Under the circumstances, the Agency was not obligated to provide Petitioner a reasonable accommodation while she was on administrative leave pending removal. Id. at 35 (reasonable accommodation is always prospective; accordingly, an employer is not required to excuse past misconduct even if it is the result of the individual's disability). Disparate Treatment Petitioner alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a petitioner 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. McDonnell Douglas, 411 U.S. at 802, n. 13; 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 actions. Tex. Dep’t of Cmty. 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 Ctr v. Hicks, 509 U.S. 502 (1993). 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. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether a petitioner has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). For the purposes of analysis, we assume Petitioner is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 2021000075 5 Assuming Petitioner established a prima facie case, the Agency has articulated legitimate, nondiscriminatory reasons for its action. Specifically, Petitioner was charged with four charges: Failure to Follow Instructions; Absent Without Leave; Lack of Candor; and Inappropriate Behavior. In each charge, the Agency detailed what occurred and why Petitioner was being charged. Petitioner did not dispute the incidents as they occurred but argued that the incidents were largely the part of miscommunication and her diagnosis of ASD. The record demonstrated that management was unaware of Petitioner’s medical diagnosis until after she was provided with the Notice. Even if management were aware of Petitioner’s diagnosis, there is no evidence that the charges levied against Petitioner were unwarranted. Petitioner asserted that her ASD diagnosis was the root cause for several of the incidents cited by the Agency. Petitioner essentially argued that she was disparately disciplined considering her diagnosis makes certain workplace interactions difficult. We acknowledge Petitioner’s assertions that certain social functions can be difficult with her diagnosis. Nonetheless, the Commission has long held that an employer may discipline an employee with a disability for engaging in misconduct if it would impose the same discipline on an employee without a disability. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002, at 29 (Mar. 25, 1997); see also Kane v. U.S. Postal Serv., EEOC Appeal No. 0120112749 (Oct. 25, 2011). Still, Petitioner argued that the removal action was excessive. We note that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Regarding the removal action, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Petitioner failed to show were pretext for discrimination. Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency’s actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Petitioner to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination. Petitioner has failed in this regard. CONCLUSION Based upon a thorough review of the record, we CONCUR with the final decision of the MSPB finding no discrimination. 2021000075 6 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. 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 Petitioner’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 May 24, 2021 Date
