[Redacted], Dwight F., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Jul 19, 2021

Appeal No. 2021002919 (E.E.O.C. Jul. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dwight F.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency. Appeal No. 2021002919 Agency No. 54-2020-00576 DECISION On April 21, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 25, 2021 final decision concerning his equal employment opportunity (EEO) complaint 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant period, Complainant worked as a Meteorologist, GS-1340-12, at the Agency’s Weather Forecast Office (WFO) National Weather Service, in Wilmington, North Carolina, On July 9, 2020, Complainant filed a formal EEO complaint alleging the Agency discriminated against him on the bases of disability and age (over 40) when he was issued a 14-day suspension, effective June 12 to June 25, 2020. Following an investigation, Complainant requested that the Agency issue a final decision. The Agency issued its final decision on March 30, 2020, finding no discrimination. 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. 2021002919 2 The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-party 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 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, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant 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. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. As a 12-Meteorologist, Complainant’s duties include providing general weather, water, and climate information as well as critical outlooks and/or warnings of potentially disruptive, danger or extreme events to the general public, media, and core partners (e.g., emergency management.” His duties require him and his colleagues to work rotating shifts in a 24-hour per day, 7-day per week environment. As a result of the demanding and unpredictable nature of weather conditions, an incumbent in this role “must maintain sharp mental focus during highly stressful events.” During the investigation, management officials stated that on or about May 6, 2019, while working an “S” shift with the Lead Meteorologist, an incident occurred in which Complainant was observed to be unresponsive for a period of time. The Lead Meteorologist noticed that the Area Forecast Discussion and the gridded forecast consistency checks had not been completed in preparation for the morning forecast package to be issued on time by 3:30 a.m. He asked Complainant how his work was progressing, but he did not respond. After waiting for a few minutes and an unsuccessful second attempt at receiving a response from Complainant, the Lead Meteorologist completed Complainant’s tasks and worked on the other projects after issuing the morning forecast package. Near the end of the “S” shift at approximately 4:25 a.m., the Meteorological Technician came in for his shift and greeted the Lead Meteorologist and Complainant. When Complainant did not respond, the Meteorological Technician approached Complainant’s workstation. After Complainant did not respond once, the Meteorological Technician went to his workstation and physically shook Complainant. At that point, the Meteorological Technician noted that Complainant seemed to wake up. He informed Complainant that it was time to go home. 2021002919 3 The Meteorological Technician further noted that at first Complainant seemed disoriented, moving slowly, but not verbally communicating, and he went back and sat down at his desk. After Complainant asked something to the effect of, “Am I at work?” the Meteorological Technician informed him that it was time to go because his shift was over. He made Complainant a cup of coffee and by the time he left the office around 5:00 a.m., he seemed more alert and left the office 30 minutes after the end of his shift. When Complainant reported for his next “S” shift, also on May 6, 2019, he approached the Lead Meteorologist and another Lead Meteorologist (“Lead Meteorologist 2”) and apologized for the incident earlier that morning. Complainant admitted openly that on his previous shift, he had taken one of his dog’s anxiety pills which caused an adverse reaction. Upon hearing this, the Lead Meteorologist 2 told Complainant that he needed to stop self-medicating and get help. On October 27 or 28, 2019, the Meteorologist-In-Charge, also Complainant’s first-line supervisor (over 40) (“S1”) learned of the incident that occurred on or about May 6, 2019, while reading the Lead Meteorologist’s staff notes that he had prepared to provide feedback for the end of the fiscal year ratings. Specifically, the Lead Meteorologist had included notes of the incident that occurred on or about May 6, 2019, regarding Complainant being unresponsive. He called the Lead Meteorologist and learned more about the details of what occurred and requested that he inform him of these kinds of incidents sooner moving forward. The Lead Meteorologist told S1 that he was increasingly concerned about Complainant and the impact his situation was having in the office. Thereafter, S1 contacted the Labor and Employee Relations Specialist about the situation and she advised him to conduct an investigation into this matter upon his return from annual leave. S1 stated that he met with the Lead Meteorologist, Lead Meteorologist 2, and Meteorological Technician and they provided written statements to him. On December 4, 2019, S1 met with Complainant to learn his recollection of what occurred on or about May 6, 2019. According to S1, he informed Complainant that it came to his attention that Complainant was unresponsive for an extended period of time, and “some [work] products may have been missed and may have been related to taking his pet’s medication.” S1 asked Complainant what happened on that day and he responded that he did not remember. S1 stated that when he proposed Complainant’s suspension, he was not aware that Complainant had any medical condition that would have resulted in the incident of concern. He stated that he proposed the 14-day suspension after conducting an investigation and coordination with Human Resources. He acknowledged that he did not issue the proposed suspension until approximately nine months after the May 6, 2019 incident because he was not aware of the event until late October 2019 while reading a document that the Lead Meteorologist provided to him related to the end of fiscal year staff feedback. 2021002919 4 S1 acknowledged considering Complainant’s disciplinary history in proposing the 14-day suspension. Specifically, S1 noted that on October 2, 2019, Complainant received a Letter of Reprimand for failure to follow instructions and unbecoming a federal employee associated with incidents that occurred during Hurricane Dorian. The record contains a copy of the Notice of Proposed Suspension to suspend Complainant for 14 days. Therein, S1 stated that on or about May 5, 2019, Complainant was assigned to work the “S” shift from 7:30 p.m. to 4:30 a.m. During that shift, Complainant appeared to be asleep while he was on duty. He expressed concerns about Complainant’s behavior. He determined that Complainant’s inattention to duty “has a detrimental effect on your co-workers and the mission…I see little potential for rehabilitation without this action has you have failed to conduct yourself appropriately. I can determine no other alternative sanction to deter such misconduct. Therefore, for these reasons, I am proposing your suspension because I consider the proposed action to be the absolute minimum penalty to correct your misconduct.” The Deputy Director (over 40), also Complainant’s second-line supervisor (“S2”), he was the deciding official to suspend Complainant. Specifically, he stated that the reasons and specification listed in the proposed suspension were supported “by a preponderance of the evidence, and warranted disciplinary action in order to promote the efficiency of the Federal service.” He further stated that he concurred with S1’s facts and findings because it was clear from the evidence presented Complainant demonstrated inattention to duty during his shift. The record also contains a copy of the Decision on Notice of Proposed Suspension dated May 6, 2020, in which he placed Complainant on notice that his 14-day suspension will be effective June 12 to June 25, 2020. For instance, S2 stated that he “carefully weighed all the relevant factors and circumstances in this matte including your years of service, your work performance, and the nature of the charges. I have concluded that the evidence supports the proposed 14 calendar day suspension proposed by [S1]…I need to impress upon you your lack of judgment is very concerning...I have lost faith in your ability to make such decisions and hope this disciplinary action will prompt you to think twice about making decisions that have an adverse effect on the operations of WFO Wilmington and the National Weather Service.” After careful review of the evidence, we conclude that the responsible management officials articulated a legitimate, non-discriminatory reason for the suspension - the incident of May 6, 2019, where Complainant was unresponsive for an extended period of time during his work shift. Complainant failed to prove, by a preponderance of the evidence, that this proffered reason was a pretext designed to mask disparate treatment discrimination on the bases of age or disability. Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodations 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. 29 C.F.R. § 1630.9. 2021002919 5 Here, Complainant identified his disabilities as major depression and anxiety and stated that he is limited in his ability to interact with others. He stated that, at times, he is gregarious and outgoing while other times he is a “loner” who does not like interacting with others. He further stated that his disability has led him to binge drink at times. Complainant claimed management denied his request for a reasonable accommodation. S1 asserted that he was not aware of Complainant’s disability when he issued the proposed suspension. Complainant acknowledges he was not sure if S1 was informed of his disability. S1 stated that in late July 2019 he did become aware that Complainant was experiencing personal difficulties, but did not know he had a disability. However, at that time, after consultation with Human Resources, he issued Complainant a letter apprising him of the reasonable accommodation process, but Complainant did not proceed with requesting a reasonable accommodation. The record further indicates that on October 2, 2019, S1 issued a Letter of Reprimand for another incident of misconduct. In the letter, S1 notified Complainant if he believed a medical condition that may have contributed to his misconduct at issue, he could submit medical documentation to that effect. However, there is no record that Complainant elected to do so. In his response to the proposed suspension, Complainant did apprise S2 of his disability and his speculation that his medical condition could have contributed to his misconduct. He claims that S2 should not have upheld the proposed suspension as an accommodation to his disability. However, we note that the need for a reasonable accommodation does not excuse past misconduct. See EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002, (rev. Oct. 17, 2002), Question 36 (“an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.”). Here, Complainant had already engaged in the misconduct that led to his 14-day suspension by the time he raised the possibility of receiving reasonable accommodation. In sum, we conclude that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2021002919 6 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. 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). 2021002919 7 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 July 19, 2021 Date