[Redacted], Joey B., 1 Grievant,v.Hugh Halpern, Director, United States Government Publishing Office, Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2020001345 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joey B.,1 Grievant, v. Hugh Halpern, Director, United States Government Publishing Office, Agency. Appeal No. 2020001345 Agency No. GE19-3 DECISION The Grievant 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 November 19, 2019, Step III, final decision concerning his allegation of 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 decision. BACKGROUND The record indicates that the Grievant worked as an Offset Pressperson in the Agency’s Press Division located in Washington, D.C. On August 15, 2019, he filed a grievance under the Agency’s negotiated grievance procedure, which allows for filing discrimination allegations. He alleged discrimination based on disability (cardiac condition) when, on June 27, 2019, he was issued a Letter of Decision upholding the Foreperson’s determination to suspend him for five days. The record indicates that, on March 26, 2019, the Grievant felt ill and went to see the Agency nurse. The nurse asked for a list of his medications which Complainant had in his car. The Grievant asked his immediate supervisor to go to his car to retrieve the list. While at the car, he stated that he again felt sick and decided to drive to the emergency room. He did not request to leave Agency property; nor did he inform his supervisor. While on the way to the hospital, the Grievant stated that he began to feel better. He, therefore, decided not to go to the hospital but instead went to get gas for his car and while there, he bought a lottery ticket. 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. 2020001345 2 The Grievant returned to his workplace and was asked by S1, the Foreperson, where he had been. According to S1, the Grievant responded in a rude and disrespectful manner, and stated that he had been to see the nurse but did not mention that he had left the premises. On April 30, 2019, S1 proposed Grievant’s suspension for five days because: (1) he left the work area without permission; (2) he lacked candor when he told his immediate supervisor, after leaving the medical unit, that he was going to return, and when he spoke to S1 upon his return to work; and (3) he acted unprofessional and discourteous towards S1 when asked about his whereabouts. A grievance was filed which proceeded to Step III for attempted resolution on July 18, 2019. A Step III grievance conference was held on September 12, 2019. Grievant argued that his suspension was proposed because he sought medical attention for his cardiac condition; therefore, it should not have been upheld because it was discriminatory. According to Grievant, the Agency suspended him because of his actual or perceived disability, which violated the Rehabilitation Act. As noted above, the Agency issued a Step III decision denying the grievance and upholding the suspension on November 19, 2019. In sustaining charge 1, the Agency found that the evidence, including Grievant’s admissions, established that he left work without permission and took care of personal errands. The Agency stated that employees must receive permission before leaving work because an employer must know where employees are for safety, security, and risk management purposes. In sustaining charge 2, the Agency found that Grievant did not speak candidly when meeting S1 after returning to work. He only spoke about seeing the nurse and failed to disclose that he had left the premises. Grievant, according to the Agency, also had ample opportunity to inform his immediate supervisor that he left, but he failed to do so, leaving the impression that he had been at the nurses’ office the entire time. Finally, in sustaining charge 3, the Agency found it more likely than not that Grievant was discourteous to S1. Grievant maintained that this charge was improper because it was based solely upon S1’s subjective interpretation of tone and facial expression, but the Agency found that the assertion that this conduct was “out of character” was not persuasive given the entirety of the matter. On appeal, Grievant argues, in pertinent part, that his suspension should be reversed because the three charges were “false/inaccurate” and the only proper charge, AWOL, was never raised. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.401(d) provides that a grievant may appeal to the Commission a final decision of the Agency, the Arbitrator, or the FLRA on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised. We find that the Commission has jurisdiction over Grievant’s appeal as it concerns the Agency’s final decision finding that he was not subjected to discrimination when he was issued a Letter of Decision upholding the Foreperson’s determination to suspend him for five days. 2020001345 3 In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies, as it does here, its decisions were motivated by an employee’s disability and there is no direct evidence of discrimination, the employee must demonstrate that: (1) he is an “individual with a disability;” (2) he is “qualified” for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). To meet his ultimate burden of proving that the Agency’s actions were discriminatory, the Grievant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, for purposes of this decision only, Grievant is a qualified individual with a disability, we find no persuasive evidence that his suspension was in violation of the Rehabilitation Act. An agency never has to withhold discipline or termination of an employee who, because of a disability, violated a conduct rule that is job-related for the position in question and consistent with business necessity. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 35 (as revised Oct. 17, 2002). Also, an agency 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. Id. Here, the record indicates that Grievant was suspended not because he sought medical attention, but because he disappeared from the workplace without informing management and he was found to have not been candid upon his return to work. Furthermore, Grievant provided no evidence that he was treated differently than nondisabled employees. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that disability discrimination occurred. 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. 2020001345 4 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). 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. 2020001345 5 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 12, 2021 Date