Charles B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 17, 2019

0120181982 (E.E.O.C. Sep. 17, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Charles B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120181982

Agency No. 200J-0330-2017103490

DECISION

Complainant timely 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 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. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

ISSUES PRESENTED

The issues presented are: (1) whether Complainant established that he was denied reasonable
accommodation for his disability; and (2) whether Complainant established that the Agency's
proffered explanations for his termination were pretext to mask discrimination based on his
disability.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Claims Assistant,
GS-6, at the Agency’s Regional Office in Milwaukee, Wisconsin. Report of Investigation (ROI),
at 4.

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.
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On January 5, 2017, management issued Complainant a Letter of Proposed Removal for being
Absent without Leave (AWOL) on multiple dates from December 7, 2016, through January 5,
2017, for a total of 161.5 hours. ROI, at 76-77.

Complainant and the Agency subsequently entered into a Last Change Agreement (LCA), signed
by Complainant on March 1, 2017. Id. at 83-84. Therein, the Agency agreed to hold
Complainant’s January 5, 2017, Proposed Removal in abeyance for two years provided that
Complainant maintained satisfactory conduct and attendance and refrained from committing any
offense that could result in disciplinary action. Id. The Agency also agreed to reduce the
Proposed Removal to a 30-day suspension should Complainant abide by the terms of the
agreement. Id.

Subsequently, after Complainant was found sleeping on duty on March 23, 2017, and April 5,
2017, management issued Complainant a Notice of Removal on April 7, 2017. Id. at 78-79
Therein, management cited to Complainant’s AWOL from December 7, 2016, through January
5, 2017, and noted that his sleeping while on duty constituted a violation of the terms of the
LCA. Id.

However, while Complainant was being presented with the Notice of Removal on April 7, 2017,
he stated that he recently sought medical advice for a sleeping disorder. Id. at 60. At that time,
Complainant forwarded management an April 4, 2017, email that he had sent to his medical
provider indicating that he was having trouble staying awake at work. Id. at 67. Complainant
thereafter asked management not to fire him but to give him more time to find out what was
medically wrong with him. Management informed Complainant that the decision to remove him
had already been made and it was too late for him to request such an accommodation. Id. at 60.
Complainant averred that he did not make a formal accommodation request and simply instead
asked management for additional time for his sleeping condition to be properly diagnosed. Id.
Management sustained the Letter of Removal on April 13, 2017, and Complainant was
terminated.

On July 22, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of disability (sleep disorder) when: (1) on April 13, 2017, management
failed to provide him with a reasonable accommodation; and (2) on April 13, 2017, he was
terminated from his position as a Claims Assistant, GS-6.

Following the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

The Agency specifically found that Complainant did not show that the Agency had a duty to
accommodate him under the Rehabilitation Act.
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In so finding, the Agency noted that Complainant acknowledged that he did not inform
management of his sleeping disorder until after he was issued the April 7, 2017, Letter of
Removal. The Agency noted that Complainant did not take advantage of his opportunities to
inform management of his sleeping disorder when he was found asleep at his desk on March 23
and April 5, 2017. The Agency further explained that Complainant did not inform management
what accommodations he needed to perform his duties.

The Agency also found that it articulated legitimate, nondiscriminatory reasons for its actions,
which Complainant did not show were pretextual. The Agency explained that Complainant was
terminated because he violated the terms of the LCA, which was issued because Complainant
had accumulated over 161 hours of unauthorized absences. The Agency further stated that
Complainant was found sleeping on duty on March 23 and April 5, 2017, which violated the
terms of the LCA that Complainant maintain satisfactory attendance and conduct. The Agency
found that Complainant failed to show that it was motivated by discriminatory animus with
respect to its decision to terminate him.2

CONTENTIONS ON APPEAL

Complainant did not file a brief on appeal. The Agency requests that we affirm its decision,
finding no discrimination.

STANDARD OF REVIEW

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.

2 The Agency provided Complainant with appeal rights to the Commission on his reasonable
accommodation claim but provided Complainant with appeal rights to the Merit Systems
Protection Board (MSPB) for his removal claim. It is not clear if Complainant filed an appeal
with the MSPB. Nevertheless, the Commission properly may assume initial jurisdiction of a
mixed-case issue (i.e., an adverse action which is properly within the jurisdiction of the MSPB)
when, for example, the allegation is so firmly enmeshed in the EEO process that it would unduly
delay justice and create unnecessary procedural complications to remand it to the MSPB. See
Richardson v. Dep't of Veterans Affairs, EEOC Appeal Nos. 01982915, 01984977 (Nov. 5,
2001). In this case, given the passage of time and to avoid unnecessary procedural complications,
we find that Complainant’s removal claim is so firmly enmeshed in the EEO process that it
would better serve the interests of administrative economy to address it in the instant appeal. See
Willia M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120171396 (Nov. 7, 2018) (finding
complainant’s termination claim, wherein she was given appeal rights to the MSPB, was firmly
enmeshed in the EEO process, and therefore the Commission adjudicated complainant’s
termination, along with her claim of denial of reasonable accommodation).

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§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chap. 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”).

ANALYSIS AND FINDINGS

Reasonable Accommodation

In order to establish that Complainant was denied a reasonable accommodation, Complainant
must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a
disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement
Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the
individual satisfies the requisite skill, experience, education and other job-related requirements
of the employment position such individual holds or desires and, with or without reasonable
accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m).
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. 29 C.F.R. §§ 1630.2(o), (p). For the purposes of
this decision, we will assume that Complainant is a qualified individual with a disability.
In the instant case, it is undisputed that Complainant did not inform the Agency of his medical
condition until after his was issued the April 7, 2017, Letter of Removal. He did not inform the
Agency of his medical condition when he was found sleeping on duty on March 23, 2017, and
April 5, 2017. As such, Complainant acknowledged that he did not inform management that he
needed accommodation or that he had a sleeping impairment until after he was terminated.
Therefore, we find that Complainant’s assertion that he was denied a reasonable to be unavailing.
In so finding, we note that the need for a reasonable accommodation does not excuse past
misconduct. See Enforcement Guidance, at Question 36 (“An employer must make reasonable
accommodation to enable an otherwise qualified employee with a disability to meet such a
conduct standard in the future, barring undue hardship, except where the punishment for the
violation is termination. Since reasonable accommodation is always prospective, an employer is
not required to excuse past misconduct even if it is the result of the individual's disability.”); see
also id., at Question 40 (“As a general rule, the individual with a disability -- who has the most
knowledge about the need for reasonable accommodation -- must inform the employer that an
accommodation is needed.”). Therefore, we find that Complainant did not show he was denied a
reasonable accommodation for his condition, as alleged.
Disparate Treatment
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To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). A complainant must initially 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
After a review of the record, assuming arguendo that Complainant has established a prima facie
case of discrimination based on his disability, we find that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. The Agency explained that Complainant was
terminated because he violated the terms of the LCA, which was issued because Complainant
had accumulated over 161 hours of unauthorized absences. The Agency stated that Complainant
was found sleeping on duty on March 23, 2017, and April 5, 2017, which constituted a violation
of the terms of the LCA that Complainant maintain satisfactory attendance and conduct.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons
were pretext for discrimination. Burdine, at 256. Upon review, we find that Complainant has not
established that the Agency’s reasons for his termination were pretextual based on his disability.
Complainant specifically does not dispute that he had accumulated 161 hours of unauthorized
absences, and that he was found sleeping on duty. It is also undisputed that Complainant did not
inform the Agency of his medical condition until after he was issued the Letter of Removal on
April 7, 2017. Based on the record, there is simply no evidence from which to conclude that
management was motivated by discriminatory animus.
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not established that he was subjected
to discrimination based on his disability, as alleged. Accordingly, we AFFIRM the Agency’s
final decision.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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.
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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

September 17, 2019
Date