01A14117
11-06-2003
Robin J. Traylor, Complainant, v. Marianne Lamont Horinko, Acting Administrator, Environmental Protection Agency, Agency.
Robin J. Traylor v. Environmental Protection Agency
01A14117
November 6, 2003
.
Robin J. Traylor,
Complainant,
v.
Marianne Lamont Horinko,
Acting Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A14117
Agency Nos. 98-0200; 98-0002;
98-0035; & 99-0014
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Contract Specialist, GS-1102-11 at the agency's Office of
Research and Development Service Center, Office of Administration and
Resources Management, Research Triangle Park, North Carolina facility.
Complainant sought EEO counseling and subsequently filed formal EEO
complaints on October 14, 1997, November 18, 1997, January 26, 1998
and November 24, 1998 alleging that he was discriminated against on the
bases of disability (depression) and age (D.O.B. 10/30/55) when:
(1) on August 8, 1997, he was issued a new leave restriction letter (LR)
(Issue 1);
(2) on September 22, 1997, he was suspended for three days for his
failure to follow instructions of the LR (Issue 2);
(3) on October 28, 1997, he received a �Minimally Satisfactory� on
his Performance Evaluation for Fiscal Year (FY) 1997<1> (Issue 3); and
(4) his employment was terminated on September 18, 1998 (Issue 4).<2>
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
BACKGROUND
During the period of October 1995 through August 1996, complainant
used 522 hours of leave for a variety of reasons, including illness.
Accordingly, complainant's first-line supervisor at the time (S1) issued
a LR due to excessive absence. The LR required complainant to provide
appropriate medical documentation from his treating physician outlining
specific reasons for any absences. The documentation was required to
state a diagnosis and prognosis and any limitations on complainant's
ability to return to work. The LR included a letter for complainant's
physician describing the documentation required and warned that any
illness-related absence for which appropriate medical documentation was
not submitted would be charged as �absent without leave� (AWOL).
Complainant was absent from July 29 through August 9, 1996 because of
illness. Complainant returned to work with no restrictions on August
12, 1996. However, complainant failed to submitted appropriate medical
documentation upon his return to work. On August 27, 1996, complainant
provided a medical note to S1. While the medical note did not comply
with the leave restriction guidelines, S1 accepted the note but warned
complainant that future medical notes must be complete. On September
30, 1996, S1 issued a letter of reprimand to complainant for failing
to provide appropriate medical documentation for 33 hours of leave
on various days in late August and September, 1996 which resulted in
complainant being placed on AWOL. Complainant was warned that similar
infractions could result in more severe disciplinary action.
S1 gave complainant a �Minimally Satisfactory� performance evaluation
for FY 1996. The evaluation cited many deficiencies in complainant's
performance, as well as his frequent absences. S1 also placed complainant
on a Performance Improvement Plan (PIP) for the period November 14, 1996
through March 13, 1997 to correct complainant's performance deficiencies.
In January 1997, complainant was assigned a new supervisor (S2).
On March 31, 1997, S2 gave complainant another Minimally Satisfactory
performance evaluation for the period October 1, 1996 through March
1, 1997. S1 approved this rating. This evaluation cited similar
performance deficiencies as the prior performance evaluation, but did
not directly cite complainant's leave record.
Issue 1 - August 8, 1997 Leave Restriction Letter
In March 1997, complainant was assigned a new supervisor (S3).
Complainant took approved leave in March and most of April 1997 due to
knee surgery. Complainant was also absent one day in May, 1997 and from
July 8 through July 18, 1997. Complainant provided a medical note on
July 21, 1997 which stated in its entirety �Please allow a 10 day leave
of absence due to treatment of depression, July 8 through July 18, 1997.
May return earlier if doing well.�
On July 21, 1997, S3 issued a new leave restriction letter to complainant.
The stated basis for the LR was complainant's excessive use of leave
and frequent unscheduled leave that had an adverse effect on workflow
and productivity. The terms of this LR were similar to the prior LR.
S3 also suggested to complainant that he consider seeking disability
retirement. However, complainant insisted that he was not disabled
and could control his depression.
Issue 2 - September 22, 1997 Three-Day Suspension
On August 18, 1997, complainant arrived to work two hours late due to
difficulties getting his children to school that morning. Complainant did
not comply with the terms of the LR by calling in before 9:00 a.m. to
explain his lateness. S2 charged complainant with AWOL for his absence.
This was complainant's second AWOL offense. S2 informed complainant
that she would be proposing a suspension for his second AWOL offense.
Complainant submitted a response to the proposed suspension which cited
a variety of reasons for his absences, including his depression. After
considering complainant's response to the proposed notice of suspension,
S4 decided to reduce the 5-day suspension to a 3-day suspension, since
complainant stated that he would make serious attempts to comply with
future leave procedures.
Issue 3 - October 28, 1997 Minimally Satisfactory Performance Evaluation
On October 28, 1997, S2 gave complainant a six-month �Minimally
Satisfactory� performance evaluation which cited several deficiencies
in complainant's performance. For example, the evaluation stated that
complainant often did not complete his work on time which resulted in
the reassignment of his work to his co-workers. The evaluation also
stated that he failed to prioritize his work and spent time on unimportant
issues and created barriers which impeded the implementation of contracts.
The evaluation also stated that on one occasion his primary customers
asked that he be replaced with one of his coworkers.
On March 8, 1998, S2 issued a letter of warning to complainant for his
poor performance in providing customer service. The letter cites several
instances of complainant's failure to perform required work in a timely
and correct manner. For example, the letter states that as of January 20,
1998, complainant did not compile documents necessary for a January 12,
1998 Office of Inspector General audit. S2 had instructed complainant
to compile these documents on December 16, 1997 and January 5, 1998.
Because of this failure someone else had to compile the documents.
The letter states that complainant did not have a real explanation of
why the work was not done. On April 9, 1998, complainant was absent
due to a migraine headache.
On April 16, 1998, S2 placed complainant on a PIP for the period April 20,
1998 through July 19, 1998. The PIP notice outlined several performance
deficiencies including errors in his completed work, failure to complete
his work on a timely basis, and customer complaints. The PIP did not
reference complainant's leave record. The PIP outlined requirements for
improved performance and warned complainant that if his performance at
the end of the PIP period was not fully successful, management would be
obligated to consider reassignment, demotion, or removal.
In May 1998, complainant advised S2 that he had a sleeping disorder and
was taking medication that made him drowsy which made it difficult for
him to focus. S2 suggested that complainant speak with his physician
about adjusting his medication. S2 also suggested to complainant that he
modify his work hours so as to allow for a later report time. At first,
complainant refused to modify his work hours. Finally, on June 3, 1998,
complainant agreed to change his work hours from a 6:30 a.m. report
time to 7:00 a.m. report time. Complainant also told S2 that he felt
he was out of control and that he had difficulty accepting his marital
problems and his work-related problems. Complainant also told S2 that
he was �depressed.�
On June 12, 1998, complainant did not report to work. He requested
emergency annual leave at 8:35 a.m. to attend a hearing that he claims
he did not know about previously. Complainant never provided proper
documentation to support his absence and was charged 8 hours of AWOL.
In addition, complainant used approved annual leave from June 15 through
June 19, 1998.
On June 24, 1998, S2 approved two hours of leave so that complainant could
attend his Employee Assistance Program appointment. Complainant returned
four hours later with a medical note which stated in its entirety:
�[Complainant] was seen today for depression. His prognosis is fair.
A follow-up visit is indicated in 4-6 weeks.� S2 charged complainant
with AWOL for the two hours of absence that was not approved.
Complainant was absent every day from June 29, 1998 to August 1, 1998.
Complainant called S2 each day to say that he was ill or depressed.
On July 2, 1998, S4 sent an email to the former manager of the Customer
Management Division, which stated in part: �Attached is the latest update
on [complainant]'s PIP. He has failed miserably and now he is back to
his heavy use of sick leave (of which he has none). My intention is that
we appraise his performance immediately after the PIP. His performance
will be unsatisfactory in nearly every respect. I expect to remove him
from federal service. He is a menace to this organization.�
On July 23, 1998, S2 and S3 gave complainant an unsatisfactory performance
evaluation. Complainant was rated �Unsatisfactory� for three of seven
work standards, �Minimally Successful� for three work standards and
�Fully Successful� for one work standard. The stated bases for his
unsatisfactory ratings were his continued failure to complete work
and address the needs of his customers in a timely manner; failure to
devise solutions to customer problems which ensure the integrity of
the acquisition process; and the regular submissions of work products
containing errors.
On July 27, 1998, S2 received a letter, dated July 26, 1998, from one
of complainant's physicians which stated in its entirety:
To Whom it May Concern:
Re: Medical Certification for Absence Due to Illness for [Complainant]
I have seen [complainant] on July 6, 1998 and July 22,
1998. [Complainant] is suffering from a major depressive
episode. [Complainant] clearly fits the criteria established by the
American Psychiatric Association in the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, a copy of which is
enclosed. [Complainant] clearly fulfills Criteria I, II, IV, V, VII,
and VIII of Category A. He also fulfills Categories B, C, D, and E.
No individual who suffers from such an illness would be capable of
performing the tasks and duties of the job [Complainant] described to
me as his own. This evidence has led me to conclude that [Complainant]
was incapacitated, as regards to his work at the Environmental Protection
Agency, from June 29, 1998 until August 1, 1998.
This document shall constitute the entirety of my clinical notes from
[Complainant's] two visits.
After receiving this note, S2 changed complainant's leave status for the
period June 29 through August 1, 1998 from AWOL to leave without pay.
On July 31, 1998, S2 issued a Notice of Proposed Suspension to complainant
for his third AWOL offense which occurred on June 12, 1998.
On August 3, 1998, complainant called in sick, but provided S2 with
another medical note identical to the one above, except that it states:
�I had seen [complainant] on August 5, 1998. He continues to suffer from
a major depressive episode.� The letter also states: �This evidence had
led me to conclude that [complainant] was incapacitated, as regards his
work at the Environmental Protection Agency, from August 1, 1998 and
will continue until September 28, 1998.�
Issue 4 - Termination of Employment
On August 6, 1998, S2 issued complainant a Notice of Proposed Removal.
The stated basis for removal was complainant's two minimally satisfactory
performance appraisals for the period October 1, 1995 through September
30, 1996 and March 28, 1997 through September 30, 1997, and his failure to
successfully complete the PIP for the period April 20, 1998 through July
19, 1998. The removal was based solely on unacceptable performance and
set forth numerous performance deficiencies that occurred prior to June
29, 1998. The removal notice acknowledged that complainant discussed
his feelings of depression with S2 and discussed some difficulties
with concentration that his medications caused. However, S2 noted that
during the period October 1, 1997 through June 28, 1998, complainant had
been absent from work only three times and failed to indicate that his
performance problems were caused by any medical problem. On August 25,
1998, S4 issued his final decision to remove complainant from employment,
effective September 19, 1998. On August 27, 1998, complainant, through
his union representative (U1), requested an accommodation of time off
from work and a modified work schedule for complainant's �psychiatric
disability� which �relates to depression and stress.� On September 3,
1998, S4 responded to U1, in writing, stating that on August 25, 1998,
he had issued a final decision to terminate complainant, and therefore,
he considered U1's request for an accommodation moot.
ANALYSIS AND FINDINGS
Disability Claims
Whether proceeding under a disparate treatment or reasonable
accommodation analysis, complainant first must establish that he is
a qualified individual with a disability. See Sims v. United States
Postal Service, EEOC Petition No. 03A00033 (Feb. 25, 2000); 29 C.F.R. �
1630.4 (prohibiting discrimination against qualified individuals with
disabilities). In the present case, the Commission presumes, without
deciding, that complainant is an individual with a disability.
Disparate Treatment
Issues 1, 2, 3 and 4
In analyzing a disparate treatment claim where there is no direct evidence
of discrimination, we apply the burden-shifting method of proof set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Presley
v. United States Postal Service, EEOC Request No. 05980656 (September
20, 2001) (applying McDonnell Douglas analysis to disability claims).
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when, as here, the agency has
articulated a legitimate, nondiscriminatory reason for its actions.
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
were a pretext for discrimination. See United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Upon review of the record, we find that complainant has failed to show, by
a preponderance of the evidence, that the agency's reasoning for each of
the alleged employment actions, was pretext for disability discrimination.
The record supports the finding that complainant was placed on a new
LR in August 1997, because of his excessive and abusive leave record.
In addition, the record supports the finding that complainant was issued
a three-day suspension in September 1997 because he violated the LR.
In addition, we find no evidence in the record to dispute the fact
that complainant was performing Minimally Successful work in FY 1997.
Lastly, the record fully supports the finding that complainant was
terminated for poor work performance. We note that complainant does
not dispute the finding that his work performance was poor. Therefore,
we find that complainant's claim of disparate treatment on the basis of
disability fails.
Reasonable Accommodation
Qualified employees with disabilities are entitled to reasonable
accommodations to enable them to perform the essential functions of their
positions, or to enjoy equal benefits and privileges as other similarly
situated employees without disabilities. See 29 C.F.R. � 1630.2(o)(1);
see also EEOC Enforcement Guidance: Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, at 2-3 (October 17,
2002) (hereinafter "Reasonable Accommodation Guidance"). Generally,
an individual with a disability must inform the employer that an
accommodation is needed. Reasonable Accommodation Guidance, at 3; See 29
C.F.R. � 1630.9 (app) (2000). While the request for an accommodation may
be in layman's terms, it must be sufficient to place the agency on notice
that complainant required an adjustment at work for a reason related to
a medical condition. EEOC's Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities, p. 10 (March 25, 1997).
Issues 1 and 2
We find that the preponderance of the evidence shows that complainant
failed to request a reasonable accommodation prior to August 18, 1997,
beyond sick leave for the depression-related absences he actually took
and for which he was granted leave. To the extent that complainant
alleges that he was entitled to liberal leave procedures and/or should
have been excused from any violation of leave procedures, we disagree.
We find that complainant was required to provide reasonable medical
documentation in support of his leave requests. See Reasonable
Accommodation Guidance, p. 13 (2002); EEOC's Enforcement Guidance
on the Americans with Disabilities Act and Psychiatric Disabilities,
pp. 10-11 (March 25, 1997) (If an individual's disability or need for
reasonable accommodation are not obvious, and he refuses to provide the
reasonable documentation requested by the employer, he is not entitled
to a reasonable accommodation). Since it is not clear from the record
what specific limitation was caused by complainant's disability, it
was reasonable for the agency to require proper medical documentation
to determine what accommodation was required. In addition, there is
no evidence in the record to support the finding that complainant's
disability prevented him from following leave procedures set out in
the LR.
Accordingly, we find that complainant did not prove that the agency
failed to reasonably accommodate his disability when it issued a LR on
July 21, 1997 and when the agency disciplined complainant on August 18,
1997 for violating the LR.
Issue 3
To the extent that complainant raises a reasonable accommodation claim
with respect to Issue 3, the preponderance of the evidence does not
support the finding that complainant's disability caused the performance
deficiencies identified in the performance evaluation. In addition, the
record shows that complainant never related his poor performance to his
disability or requested a reasonable accommodation with respect to his
work performance. Since the need for an accommodation was not obvious,
complainant's claim must fail.
Issue 4
We find that on July 27, 1998, the agency received a request for
a reasonable accommodation in the form of a note from complainant's
physician. The medical note indicated that complainant needed time off of
work because of his disability. The agency accommodated this request by
granting complainant leave without pay. Thereafter, on August 6, 1998,
S4 issued complainant a notice of proposed removal that was effective on
September 19, 1998.<3> Complainant was terminated for poor performance.
While complainant requested a reasonable accommodation on July 27,
1998, the record does not show a causal nexus between the performance
deficiencies for which complainant was terminated and his medical
condition. The evidence in the record does not support a finding that
complainant's depression caused the documented performance deficiencies
or was a factor in the issuance of the PIP. Moreover, there is no
evidence in the record that complainant asked for an accommodation
of his disability with respect to any aspect of the PIP, prior to
the notice of termination.<4> Complainant must establish a nexus, or
causal relationship, between his disability and the performance problems
that resulted in his removal. See Cote v. Department of the Navy,
EEOC Appeal No. 01982735 (July 24, 2000); Lynch v. Department of Army,
EEOC Petition No. 03950128 (September 7, 1995); Hobson v. Department of
Health and Human Services, EEOC Petition No. 03A10011 (November 16, 2001).
Since complainant failed to establish a nexus, or causal relationship,
between his disability and the performance problems that resulted in
his removal, and did not ask for an accommodation of his disability with
respect to any aspect of the PIP, the agency did not fail to reasonably
accommodate him.
Claims of sex and age discrimination and reprisal
With respect to complainant's claims of sex and age discrimination
and reprisal, we find insufficient evidence in the record to support a
finding of pretext or that the agency's employment actions were motivated
by discriminatory or retaliatory bases.
We note that complainant has not provided the Commission with any argument
in support of his appeal.
Therefore, after a careful review of the record and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 6, 2003
__________________
Date
1 Complainant also raised reprisal (prior EEO activity) as a basis to
this claim, in addition to age and disability.
2 Complainant also raised sex (male) and reprisal (prior EEO activity)
as bases to this claim, in addition to age and disability.
3 The record shows that on July 2, 1998, prior to complainant's July 27,
1998 request for a reasonable accommodation, S4 concluded that complainant
would be terminated for his performance deficiencies.
4 While the record shows that U1 requested a �modified work schedule� on
August 27, 1998, such request came after S4 made the final decision to
terminate complainant. We note that since the agency's burden to provide
a reasonable accommodation is always prospective, it was not required
to excuse past performance deficiencies even if they were the result of
complainant's disability. See Reasonable Accommodation Guidance at 48;
Johnson v. Babbitt, EEOC Docket No. 03940100 (March 28, 1996); Reasonable
Accommodation Guidance, p. 13 (2002); EEOC's Enforcement Guidance on the
Americans with Disabilities Act and Psychiatric Disabilities, note 27,
at pp. 29-32 (March 25, 1997).