[Redacted], Fredrick T., 1 Petitioner,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 20, 2021

Petition No. 2020005153 (E.E.O.C. Jul. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fredrick T.,1 Petitioner, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Petition No. 2020005153 MSPB No. DE-0714200222I-1 DECISION On September 14, 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. For the following reasons, we CONCUR with the MSPB’s ultimate decision that Petitioner did not establish that the Agency discriminated against her as alleged. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Advanced Medical Support Assistant, in the Agency’s Health Administration Services at the Agency’s Salt Lake City Health Care System facilities in Salt Lake City, Utah. The record indicated that Petitioner was in active treatment for his Schizophrenia since at least January 31, 2018. Sometime shortly before August 2019, Petitioner submitted the following reasonable accommodation request: Work station with minimal distractions, assigned work space with a locking cabinet/drawer for as needed medications, an optional 10-15 min break to use in situations where he feels overwhelmed (additional break time taken needs to be 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. 2020005153 2 made up for at the end of the tour - per supervisor discretion), work environment includes minimal contact with other employees that are potential triggers. On August 7, 2019, the Agency granted the requested accommodation. On November 27, 2019, Petitioner was involved in an incident with a coworker (CW1) that involved Petitioner physically grabbing CW1’s wrist and shoving her. The incident revolved around the lighting in the shared office space. Petitioner alleged that CW1 would not allow him to access and/or change the lighting in the office and that this amounted to a denial of his reasonable accommodation. On March 9, 2020, Petitioner was issued a proposed 3-day suspension based on a charge of disruptive behavior. On March 10, 2020, Petitioner was involved in an incident with another coworker (CW2) where Petitioner made sexually inappropriate comments. During a fact-finding investigation, Petitioner admitted making sexually inappropriate comments, but asserted that the comments were being taken out of context. On March 24, 2020, the proposed suspension was rescinded and replaced with a proposed removal based on two charges: (1) disruptive behavior and (2) conduct unbecoming a Federal employee. On April 1, 2020, the Director issued a Decision on Removal Proposed citing to the November 2019 and March 2020 incidents. The Director noted that she considered the entirety of the incidents and determined that removal was the appropriate penalty. Petitioner’s removal was effective April 7, 2020. On April 12, 2020, Petitioner timely filed a petition to the Merit Systems Protection Board (MSPB) for appeal from the Agency’s decision to remove him from federal service, effective April 7, 2020. In his appeal to MSPB, Petitioner alleged the Agency subjected him to discrimination based on his disability. Specifically, Petitioner alleged that the Agency’s removal did not adhere to his reasonable accommodation and did not take his disability into consideration. The hearing was held on June 18, 2020. On September 11, 2020, the MSPB Administrative Judge (AJ) issued an initial decision in favor of the Agency, finding that the Agency proved by substantial evidence that Petitioner’s actions warranted removal under the facts of this case. On September 14, 2020, Petitioner filed the instant petition. CONTENTIONS IN PETITION Petitioner asserts that the MSPB AJ was biased in reviewing his appeal as the MSPB AJ refused to examine a prior complaint that Petitioner had submitted. Petitioner asserts that he submitted a prior complaint as evidence to establish a pattern of discrimination by the Agency. Specifically, the prior complaint allegedly demonstrated that his supervisor had previously declined Petitioner’s request to go to Employee Health to seek assistance for his Schizophrenia. 2020005153 3 Petitioner asserts that had he been allowed to seek care; he would not have experienced a psychotic episode at work. Petitioner asserts that his complaint is essentially that the Agency refusing to reasonable accommodate his mental health needs, specifically, that he required adequate lighting as dim lighting was a trigger for his Schizophrenia. Petitioner argues that CW1 wanted the lights off and/or dimmed and refused to reason with him. Petitioner does not deny that the incidents as the Agency allegedly occurred. Petitioner also discusses several aspects of the MSPB AJ’s decision as it relates to his claim of harmful procedural error and stale charges. In response, the Agency asserts that Petitioner engaged in disruptive and unbecoming behavior that resulted in a physical altercation between him and CW1. The Agency states that Petitioner had a verbal altercation with CW1 regarding the lights in the office. Petitioner then grabbed CW1 by the wrist and physically pushed her away. The Agency asserts that the behavior was inappropriate, unprofessional, and warranted disciplinary action. The Agency notes that the second charge of inappropriate conduct was also warranted, and that Petitioner acknowledged making the comments towards CW2. The Agency argues that Petitioner’s claim that the Agency had discriminated against him based on his disability, fails because management would have issued the disciplinary actions regardless of Petitioner’s disability status. Upon review of the record and the MSPB AJ’s decision, the Agency requests that the Commission uphold the Initial Decision in favor of the Agency. 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 Disparate Treatment Petitioner alleges that he 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, he 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 Constr. 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). 2020005153 4 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 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). However, the Agency has articulated a legitimate, nondiscriminatory reasons for its removal action, namely the incidents involving CW1 and CW2. Petitioner acknowledged that the incidents occurred as framed, but that the Agency was not reviewing the matter in full context with his disability. Petitioner asserted that his mental health diagnosis, specifically his Schizophrenia, was the root cause for the incidents cited by the Agency. Petitioner essentially argued that he was disparately disciplined considering his diagnosis makes certain workplace interactions difficult. We acknowledge Petitioner’s assertions that certain social functions can be difficult with his 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. 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. Based on the record, we find that Petitioner has failed in this regard. Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that Petitioner was denied a 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. § 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). 2020005153 5 Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a 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) and (p); Enforcement Guidance on Reasonable Accommodation; Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). Reasonable accommodation may include making facilities accessible, job restructuring, modifying work schedules, and other similar actions. Dennis v. Dep’t of Educ., EEOC Appeal No. 0120090193 (June 15, 2010); Spence v. Nuclear Regulatory Comm’n, EEOC Appeal No. 0120041082 (Aug. 2, 2007), request for reconsideration denied, EEOC Request No. 0520070907 (July 9, 2008). Petitioner alleged that CW1 would not allow him to access and/or change the lighting in the office and that this amounted to a denial of his reasonable accommodation. With respect to Petitioner’s reasonable accommodation claim, we find that, despite Petitioner’s claim to the contrary, there is no indication that he was forced to work outside of his restrictions and/or that he was denied a reasonable accommodation. There’s no indication that Petitioner made management aware that the lighting issue was part of his reasonable accommodations. Accordingly, at no point did Petitioner established that he was denied a reasonable accommodation. 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. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB’s finding that Petitioner did not establish the affirmative defense of unlawful discrimination. 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. 2020005153 6 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 July 20, 2021 Date