[Redacted], Salvatore B., 1 Complainant,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Aug 3, 2021

Appeal No. 2020001438 (E.E.O.C. Aug. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Salvatore B.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Appeal No. 2020001438 Agency No. HUD-00001-2019 DECISION On November 30, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 6, 2019 final decision concerning his equal employment opportunity (EEO) complaint alleging employment 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. Complainant worked as an Account Executive, GS-1101-13, at the Agency’s Office of Housing in Seattle, Washington. On October 25, 2018 (and later amended), Complainant filed a formal complaint in which he alleged that the Agency discriminated against him on the bases of race (African-American), national origin (African-American), sex (male), color (Black), disability (mental and physical), and reprisal (prior protected EEO activity) by denying him advanced sick leave and situational telework, and by placing him in absence without leave (AWOL) status.2 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. 2 Complainant also alleged that on September 12, 2018, his supervisor (S1) issued him a notice of proposed termination. By email dated May 22, 2019, Complainant withdrew his mixed-case termination claim from the EEO process so that he could pursue that claim through arbitration. Investigative Report 583. 2020001438 2 At the conclusion of the ensuing investigation, the Agency presented Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant requested a final decision without a hearing. In accordance with his request, the Agency issued its final decision in which it found that Complainant was not subjected to discrimination or reprisal as alleged. Complainant averred that on August 1, 2018, he left work to seek treatment for bipolar disorder condition on August 1, 2018, and that he was advised by his treating physician to either take time off from work, work at home, or both. He also averred that S1 contacted him repeatedly via telephone and email to pressure him into returning to work prematurely, and that when he did not, S1 denied his requests for advanced sick leave, suspended his situational telework privileges and placed him in AWOL status. IR 88, 91. S1 responded that Complainant did not submit medical documentation to justify his advanced sick leave requests until September 5, 2018, and that when Complainant did submit the requested documentation, he approved 10 hours of advanced sick leave. IR 251-52, 263, 268-70. S1 further stated that Complainant had taken situational telework whenever he wanted to without formally requesting it, and that he did not suspend Complainant’s situational telework privileges until September 27, 2018. In a counseling letter issued that day, S1 stated that Complainant disregarded his directive to return to work for a counseling session. IR 252-53, 271-73. As to AWOL, S1 averred that he placed Complainant in AWOL status due to Complainant’s refusal to return to work despite numerous attempts on his part to discuss the situation. In a reprimand letter issued on October 2, 2018, as well as the counseling letter, S1 stated that Complainant’s absences were hindering his ability to manage the work of the office. IR 252, 254, 274. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). 2020001438 3 The prima facie inquiry may be dispensed with in this case, however, since S1 articulated a legitimate and nondiscriminatory reasons for his actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). According to S1, Complainant’s request for advanced sick leave was initially denied because Complainant had not properly submitted the request in accordance with Agency policies and procedures and Complainant had not submitted medical documentation in support. Complainant subsequently provided the requested medical documentation and the request was approved. S1 affirmed that he had been very flexible with Complainant and approved situational telework until September 27, 2018, when Complainant refused to come into the office for a counseling session and did not return until October 2, 2018. Complainant was placed on AWOL because Complainant refused to return to work and did not have approved leave. S1 stated that Complainant’s repeated refusal to return to work, his disregard of S1’s attempts to communicate with him via telephone and email, and his failure to provide sufficient medical documentation for his ongoing requests for leave and situational telework violated Agency procedures and were hampering the ability of the office to accomplish its mission. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, 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. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d. EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Beyond speculative and conclusory assertions, however, Complainant presented no evidence which contradicts or undercuts S1’s explanations for his actions, which cause us to question S1’s veracity as a witness, or which tend to establish the existence of at least one of the indicators of pretext listed above. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. In light of that assessment, we agree with the Agency that the record does not support Complainant’s claim of discrimination or reprisal. To the extent that Complainant is alleging that he was subjected to a hostile work environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 2020001438 4 A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Finally, to the extent that Complainant claims that that the Agency failed to reasonably accommodate his condition, we note that agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Dep’t. of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). We will assume for purposes of analysis that Complainant is a qualified individual with a disability. S1’s affidavit testimony, together with the counseling letter establish that he approved both advanced sick leave and situational telework up until September 27, 2018, and that after that date, he suspended these privileges because Complainant’s ongoing and undocumented absences from work were in violation of the Agency’s policies and negatively affected the office. IR 251- 53, 268-69, 271-74. Complainant was out of work for some time and by October 10, 2018, Complainant’s psychiatrist stated that Complainant could return to work on November 5, 2018. By November 8, 2018, however, Agency management had proposed Complainant’s removal for conduct unbecoming a federal employee and threatening behavior based on Complainant’s conduct. 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). Based on the record evidence, we find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. 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 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. 2020001438 5 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. 2020001438 6 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 August 3, 2021 Date