Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency.

Equal Employment Opportunity Commission

Feb 25, 2015

0120123065 (E.E.O.C. Feb. 25, 2015)

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

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs
(National Cemetery Administration),
Agency.

Appeal No. 0120123065

Hearing No. 420-0832-00126X

Agency No. 2003-0832-2011103731

DECISION
On July 23, 2012, Complainant filed an appeal from the Agency’s July 13, 2012 final order
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. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND
Complainant worked as a Program Support Assistant at the National Cemetery facility in
Biloxi, Mississippi. On September 21, 2011, Complainant filed an EEO complaint in which he
alleged that the cemetery Director, his first-line supervisor (S1) discriminated against him on
the basis of disability by issuing him a one-day suspension, which he ultimately served on July
19, 2011. The notice of proposed suspension stated that on February 15, 2011, near the end of
his shift, Complainant, who has diabetes, experienced a sudden drop in his blood sugar levels,
which caused him to become very agitated and slur his speech. A Cemetery Representative
who was present during the episode gave Complainant some M&Ms, but his condition did not
improve. The Representative then called 911 and asked for an ambulance. Complainant then
ran from the office, got into his truck and drove to a gas station a few miles from the
Cemetery, where he bought a snack cake and orange juice. After consuming these items,
Complainant immediately returned to the office, from which he had been gone for
approximately eleven minutes, his blood-sugar level having returned to normal. Investigative
Report (IR) 22-25, 105-106, 138-140, 176, 186-88, 192.
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When asked by the EEO investigator why he believed that he had been subjected to
discrimination on the basis of disability in connection with his suspension, Complainant replied
that he was in the middle of a medical emergency and that it did not seem right that he should
be suspended for being sick. He admitted, however, that he did not have control over his
faculties when he left the worksite. IR 26-27. S1 and the Cemetery Representative testified
that Complainant had driven out of the Cemetery at a high rate of speed, and that in his
condition, he represented a safety hazard to himself, to other employees, and to any visitors
who might have been on the grounds. IR 110, 126-30, 154-55. They also testified that the
ambulance and fire rescue unit arrived shortly after Complainant had left. IR 111-12, 139-40,
150, 165-66. In addition, Complainant’s own affidavit testimony, together with that of S1 and
the Operations Chief establishes that he had been reprimanded on two previous occasions, most
recently on February 4, 2009. IR 28-29, 111, 130.

On May 18, 2011, S1 issued Complainant notice of a proposed one-day suspension.
According to the notice of proposed suspension, Complainant was being disciplined for leaving
the worksite without permission. The Chief of Operations for the Memorial Service Network
upheld the suspension by memorandum dated July 8, 2011, noting that his decision took into
account his past disciplinary record, which he considered to be a contributing factor in
determining the appropriate penalty. Complainant served his suspension on July 19, 2011. IR
179, 193-97.

At the conclusion of the ensuing investigation, the Agency notified Complainant of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a
hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s
May 4, 2012, motion for a summary judgment and issued a decision on July 3, 2012. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected him to discrimination as alleged. In particular, the AJ had
concluded that Complainant failed to establish a prima facie case of disparate treatment in that
he had not shown that a similarly situated employee without a disability had been treated more
favorably under the same or similar circumstances.

ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for decisions.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Consequently, in order to warrant a hearing on his disability discrimination claim,
Complainant would have to present enough evidence to raise a genuine issue of material fact as
to whether S1 was motivated by unlawful considerations of his diabetic condition when she
made the decision to suspend him for one day. See 29 C.F.R. § 1614.109(g); Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Such evidence can take the
form of discriminatory statements or past personal treatment, comparative or statistical data,
unequal application of Agency policy, deviations from standard procedures without explanation
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or justification, or any other information from which to infer the existence of an unlawful
motivation. See Hovey v. Department of Housing & Urban Development

, EEOC Appeal No.
01973965, (Aug. 31, 2000).
Complainant maintains that S1 had issued the suspension because of his illness. S1 testified,
however, that she suspended Complainant because he had left his duty station without
permission under conditions which were both unnecessary and potentially dangerous. S1’s
affidavit testimony had been corroborated by the affidavits of the Operations Chief, the
Cemetery Representative who had called 911 for Complainant, the Human Resources Liaison
who S1 consulted in determining the appropriate penalty, and the various emails and
memoranda documenting the incident. Complainant himself admitted that he had a previous
disciplinary record, which the Operations Chief expressly cited as a factor in his decision to
uphold the suspension. Complainant has not presented any sworn statements from other
witnesses or documents which contradict the explanations provided by S1, the Cemetery
Representative, the Operations Chief, or the Human Resources Liaison. The Commission has
long held that unsupported assertions are not sufficient evidence of illegal motive. Porter v.
Department of the Navy

, EEOC Petition No. 03800087 (January 14, 1981).
To the extent Complainant alleges that he was being denied a reasonable accommodation in
connection with his suspension, the Agency is not required to excuse past misconduct as a
reasonable accommodation, even if that misconduct is the result of the individual’s disability.
Liebsch v. Department of Agriculture. EEOC Appeal No. 01A21614 (July 31, 2003); EEOC
Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act

, EEOC Notice No. 915.002, Question 36 (October 17, 2002).
Ultimately, we agree with the AJ that Complainant has not presented enough evidence to raise
a genuine issue of material fact with respect to his disability discrimination claim.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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.
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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), at 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 77960, Washington, DC 20013. 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

(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.

RIGHT TO REQUEST COUNSEL

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court does not extend your time in which to file a civil action. Both the request and
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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

Date
February 25, 2015