0120133106
10-21-2015
Melvin C.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Melvin C.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.
Appeal No. 0120133106
Agency No. FSIS-2011-01064
DECISION
By mail on August 20, 2013, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant's appeal from a final Agency decision (FAD) dated July 11, 2013, which he received on July 19, 2013, 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. The Commission deems the appeal timely2 and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Food Inspector (Slaughter), GS-5 (probationary) and GS-7 (permanent) with the Agency's Food Safety and Inspection Service, stationed at Tyson Fresh Meats in Holcomb, Kansas.
On January 25, 2012, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against him based on his race (White), disability (sleep apnea, dyslexia)3 and reprisal4 for prior protected EEO activity under Title VII and the Rehabilitation Act when:
1. On various dates he was subjected to harassment, including but not limited to:
a. sometime around June 2011, his request to S1 (White - Complainant's first line day shift supervisor - 6:15 AM to 3 PM) for a permanent assignment on the night shift (3:15 PM to about 11:50 PM) to escape harassment was denied by S1;
b. since June 21, 2011, he was required to wear a heavy apron while conducting his line inspection work, despite hot and steamy work conditions;
c. on June 23, 2011, he received a Letter of Counseling by S1 for allegedly "flipping off" a coworker;
d. on July 5, 2011, he received a written confirmation of an oral counseling by S1 regarding tardiness and attendance;
e. on September 28, 2011, in the presence of other plant employees, S4 (Hispanic - Complainant's night shift second line supervisor) humiliated him by yelling and screaming "It took you 15 minutes to shit!," when he returned a few minutes late from a break, even though he advised S1 he was feeling ill;
f. on March 24, 2012, Coworker 1 (White - Hispanic) disrupted him while he was performing his inspection duties by removing an inkwell and stamp and later encouraging a Tyson supervisor to throw pieces of fat and meat at him;
g. On March 24, 2012, the Agency District Manager over various plants, including Complainant's, forbade him from contacting the district office or financial processing to resolve time and attendance issues;
h. on September 27, 2012, Coworker 1 threw a "pluck" (cow heart and lung together) on his work table, spoke to him in an unprofessional manner, and pointed and laughed at him;
i. from May 17, 2011, to September 28, 2011, management expressed indifference and refused to intervene in response to his complaints of hazing, bullying, and criticism from coworkers and supervisors alike, including him being shoved, yelled at, falsely accused, singled out, and ridiculed for not "keeping up" and returning late from bathroom breaks;
j. Alleged incident on October 16, 2012 (withdrawn on appeal); and
k. on October 19, 2011, S1 ignored his pleas for urgent medical care and relief from duty until after he collapsed on the plant slaughter floor;
2. On August 5, 2011, S1 issued him a Letter of Caution concerning tardiness and unexcused absences and charged him AWOL for eight hours, and later refused to accept medical documentation he submitted to remove the AWOL charge;
3. On some dates after October 19, 2011, he was charged as Absent Without Leave (AWOL) despite filing of an Office of Workers' Compensation Program (OWCP) claim and submitting medical documentation substantiating his absence;
4. On December 1, 2011, his request for reasonable accommodation was denied;
5. On April 23, 2012, management refused to relieve him from the line after more than eight hours in spite of his doctor's recommendations, and
6. Alleged incident on September 28, 2012 (withdrawn on appeal).
As a Food Inspector, Complainant inspected cattle meat and organs in a slaughter facility for abnormalities, such as disease and contamination which would make it unfit for human consumption. The inspection process involved making cuts with a knife. Inspectors worked in close proximity to each other - four or five feet. Complainant started working on May 8, 2011.
At the conclusion of 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). When he did not request a hearing, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b). It found no discrimination.
Regarding his dyslexia and sleep apnea, the Agency found Complainant is an individual with a disability. Accordingly, we need not address whether Complainant is an individual with a disability. The Agency also assumed, for purposes of analysis, that management was aware of Complainant's EEO activity.
Regarding harassment, the Agency found that the record did not show a number of incidents occurred as alleged, that the ones that did occur did not rise to the level of actionable harassment and management took prompt remedial action reasonably calculated to stop it, and the management counseling Complainant received was taken for legitimate, nondiscriminatory reasons. Regarding the remaining issues, the Agency found that some actions were taken for legitimate nondiscriminatory reasons, and that the requested accommodation would be an undue hardship. It provided various reasons for Complainant allegedly being charged AWOL despite his filing an OWCP claim.
ANALYSIS AND FINDINGS
Coworker Harassment
Complainant contended that in the beginning of his employment one white coworker would constantly "ride" him, but gave no examples. S1 stated he saw this coworker disrespect and demean Complainant. The EEO counselor relayed that Complainant contended that because of his learning disability he had a longer learning curve, which opened the door to daily and unrelenting hazing, bullying, and badgering by his coworkers who would also complain to S1 about his having difficulty keeping up with the production line.
Specifically, Complainant contended that Coworker 2 (Hispanic), who was assigned to train him, did not train him. Coworker 2, who usually worked on the day shift, denied this. Report of Investigation (ROI), Exh. 14, at 148. She countered that when she trained Complainant by telling him how to do the job, he would get very angry. She wrote that people tried to help Complainant with keeping his knife sharp and inspecting product [he missed], and Complainant got very angry he could not keep his knife sharp, and often reacted with anger when people offered help.
Coworker 2 related an incident which allegedly occurred on or about June 16, 2011. Each food inspector was responsible for inspecting different cattle heads that passed by on a chain. Complainant was assigned to inspect each fifth head. When he started inspecting the wrong head, Coworker 3 (Hispanic surname), who primarily worked on the day shift, told him, and advised which was the fifth head. Complainant contended Coworker 3 screamed "fives, fives, fives," but she did not recall doing this. According to Coworker 2, Complainant got mad, yelled in Coworker 3's face, and after she responded "don't yell at me" and turned away, Complainant "flip[ped] off" Coworker 3, and then angrily and wildly cut on the heads, which scared Coworker 2. Coworker 2 explained that Complainant pushed other food inspectors out of his way and was swinging his knife around cutting right in front of the other food inspectors. She stated that she stopped the line to report the incident. ROI, Exh. 14. Coworker 3 added that Complainant's cattle head passed Complainant without him condemning it, even though it was contaminated and clearly needed to be condemned. ROI, Exh. 13, at 140. Coworker 2 stated she has never seen Complainant shoved by anyone.
Complainant alleged that Coworker 1 was the main perpetrator of coworker harassment. They worked together on the day shift, and both moved to the night shift within weeks of each other. Complainant stated he switched to the night shift in late July 2011. He contended that Coworker 1 pushed and yelled at him, made racial comments toward him, and called him names, but he did not recall the comments or names.
Complainant raised two specific incidents regarding Coworker 1. First, he contended that on March 24, 2012, Coworker 1 moved a nearby inkwell and stamp he used to reject livers, stomachs and organs, and when he asked him to put it back he refused, making him reach for one further away which was difficult. He also contends that on this day Coworker 1 encouraged a Tyson supervisor throw pieces of fat on him and make fun of him, which he did. Second, Complainant contended that on September 27, 2012, Coworker 1 picked up and threw a pluck on his table that Complainant likely failed to inspect, and then pointed and laughed at him. Coworker 1 denied these two incidents occurred, and denied bullying or harassing Complainant.
In October 2012, Complainant filed a harassment claim against Coworker 1 using an internal Agency process. He contended that Coworker 1 bullied a number of people, and stated he engaged in 20 plus occasions of unprofessionalism (including some incidents unrelated to bullying, such as accepting gifts from Tyson, etc.). He gave examples of alleged bullying against three Whites, two Hispanics, and an Asian employee (we are presuming one is White and one is Hispanic based on their names). The alleged bullying took the form of telling a White employee in the locker room he was not "Mexican enough to understand...", pushing a food inspector (Anglo name) who was new to the plant and yelling at him to get out of the way while he was inspecting, verbally abusing Coworker 4 (White food inspector) and an Asian employee, verbally abusing and "flip[ping off" a Hispanic food inspector in various places, and laughing and poking fun at a new food inspector (Hispanic name) for missing a pluck. Supplemental ROI, Exh. 20. In his EEO affidavit, Complainant stated that Hispanic employee identified in the record as such brought complaints similar to his against Coworker 1. ROI, Exh. 6 at 53, and Exh. 18. This is corroborated by the statement of S4. Supplemental ROI, Exh. 5, at 45.
In response to this internal harassment claim, S4 noted the White employee in the locker room did not mention or complain about the incident, but he spoke with Coworker 1 about being more supportive of new hires. In an EEO affidavit, Coworker 4 stated Coworker 1 never did anything to her, and she worked with him over six years. She countered that Complainant gets out of his work area almost nightly pointing his knife, and several times it has come across her face, and that all this has caused her and several inspectors to caution him about swinging and pointing his knife. She wrote that she has never seen Coworker 1 harass Complainant, and Complainant constantly stops the line telling people what to do with their product before it gets to them and is so worried about others doing their job that he does not pay attention to his own. Supplemental ROI, Exh. 14. In response to the internal harassment claim, S4 wrote that he orally counseled Coworker 1 in the past regarding professionalism and punctuality, and he would now address these issues again with an accompanying letter which will remain in is file. Id., at 136. In a March 2013, affidavit, a White Food Inspector wrote that in the last few months Coworker 1 changed his ways 180 degrees, meaning he was no longer behaving offensively. Supplemental ROI, Exh. 13, at 106 - 107.
S3 (White), Complainant's first line night supervisor, stated that he has seen Coworker 1 speak to Complainant sarcastically and rudely, and heard him talk about "dumb white people" in Spanish and say someone was not "Mexican enough," with some of those comments directed toward Complainant. He stated he has counseled Coworker 1. He stated Complainant mostly keeps to himself, but sometimes inspectors complain he has missed contamination on a product, which causes tension. ROI, Exh 10. Apparently referring to the pluck incident, S3 stated Coworker 1 has done similar things to other inspectors, including Whites, Hispanics, and an Asian employee. Supplemental ROI, Exh. 6, at 52. One Hispanic inspector he identified has not been referred to above.
S1 stated that food inspectors reported to him that Complainant blew up and got upset while performing inspection procedures and crossed over into their areas. He stated Complainant also complained about people crossing over into his inspection area, and characterized his outbursts as occasional. ROI, Exh. 8.
Despite Coworker 1's denial, the overwhelming evidence shows that he threw the pluck Complainant missed on the table toward Complainant. Supplemental ROI, Exh. 5 at 45, Exh. 6 at 52, Exh. 13 at 106, and Exh. 18 at 127. Further, after doing so he pointed and laughed at Complainant. While Complainant did not indicate the length of this taunting, a coworker wrote it went on for the better part of an hour. Supplemental ROI, Exh. 20, at 146. The record shows Coworker 1 said he was not going to do Complainant's work and would push the product back to him to complete. Supplemental ROI, Exh. 5 at 45. One of Complainant's coworker's stated Coworker 1 does not talk to White people and has thrown pluck on the work table to many people, but never saw him do this humiliating thing to Hispanics. Supplemental ROI, Exh. 12. Another coworker stated he has seen Coworker 1 make a lot of harassing and derogatory statements if Complainant got into his work area, and he directed these statements toward others as well, particularly some new hires who were also Hispanic. Supplemental ROI, Exh. 13, at 107.
Management Harassment
S2 (White, Complainant's day shift second line supervisor) stated the labor contract requires that rotations to and from the day and night shifts be made every four weeks, but inspectors are allowed to trade with each other to maintain being on one shift. ROI, Exh. 7, at 73. This statement was corroborated by S1's statement. S1 stated a White coworker of Complainant was permitted to trade shifts with Coworker 1 earlier than Complainant because he completed his training before Complainant.
Regarding being required to wear a heavy apron, the overwhelming evidence is that Complainant asked to wear the apron and was never required to wear one. ROI, Exhs. 8, at 93, 13 at 141, 14 at 148, and 15 at 153.
S1 stated he issued the letter of counseling about Complainant flipping off a coworker in response to a complaint.
Regarding S4 allegedly yelling and screaming at Complainant and saying "it took you 15 minutes to shit" after Complainant got back late from a bathroom break, both S4 and Complainant gave varying accounts of what occurred. The EEO counselor relayed that Complainant claimed he was delayed 3 minutes and 22 seconds because he experienced stomach cramps, but in his affidavit he attributed the delay to there being no toilet paper and his having to locate some.
The EEO counselor relayed that S4 stated Complainant had a history of tardiness as documented by his first line day supervisor, which created problems for other inspectors, and said Complainant retuned several minutes late and he sternly told him tardiness was unacceptable. In his affidavit S4 wrote Complainant returned 20 minutes late from his break, and told him he took a "monster blank." While not denying yelling, S4 stated Complainant was the one that got cocky in his face and used the word shit, not him. He wrote that this was not the first time Complainant took long breaks, so he had to confront him about it. Coworker 3, who witnessed the incident, wrote that S4 yelled at Complainant for being late from his break, she believed S4 cursed but did not recall exactly what he said, and believed S4 was angry about Complainant being late to relieve an inspector.
Complainant stated that after he returned from work after injuring his back, he was shorted 171/2 hours and tried to straighten out the issue with the district office. He called the Financial Processing Center and Resource Management Assistant in the District Office. S1 stated Complainant called these employees almost daily for awhile, and the discussions would sometimes go on 20 minutes, with Complainant haranguing them. Supplemental ROI Exh. 6, at 53. S4 stated S1 was allowing Complainant to leave his post to make these calls, which resulted in complaints from Complainant's coworkers because they had to cover for him for so much time. Supplemental ROI, Exh. 5, at 44. Regarding straightening out hours, the District Manager stated the Financial Processing Center and Resource Management Assistant can't verify the time Complainant worked - his supervisor in the plant had to do that. The District Manager asked S1 to discourage Complainant from making the calls, which he did.
Complainant contended that on October 19, 2011, S1 ignored his urgent pleas for medical attention and relief from duty. S1 countered that as soon as he was notified by the company supervisor what was going on, he went to Complainant as fast as he could, and he had personnel from the company get a wheelchair to wheel Complainant to the nursing station. ROI Exh. 8, at 87. Coworker 4 recalled an incident where Complainant claimed he was hurt and not relieved from the line by S1. She stated Complainant asked her to write a statement to this effect but things did not happen as Complainant claimed -- S1 relieved him pretty quickly. Supplemental ROI, Exh. 14, at 115.
Complainant alleges that he was subjected to harassment. To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. �1604.11.
The Agency found that Coworker 1 made racist remarks but they were not pervasive as they were not mentioned by most witnesses. We note that Coworker 1's comment that someone was not "Mexican enough" is not inherently derogatory, and Complainant did not allege the phase "dumb White people" was directed at him. While derogatory, the term not severe, and we find the remarks were not pervasive.
The record reflects that Complainant had unpleasant interactions with some coworkers. After reviewing the record, we find he has not shown this occurred based on his protected bases. Comments and unpleasant interactions occurred when Complainant skipped over inspections, with one example being a contaminated cow head. Complainant attributes these missed inspections to his dyslexia - losing count. But the record shows that when Complainant had difficulty performing his duties he got frustrated and angry, and when coworkers offered to help him keep his knife sharp or inspect missed product, he reacted with anger. The record shows that Complainant also had conflicts with coworkers surrounding his crossing over into their space while doing inspections with his knife since this was dangerous. There is no doubt that up to around 2013, Coworker 1 was difficult, and took a strong stand and made nasty remarks when people missed inspecting a product and crossed over into his inspection work space. But the record shows he did the same to other food inspectors, including Hispanics, and he was particularly impatient with new inspectors since they made mistakes.
Regarding alleged harassment by mangers, in some instances Complainant did not establish that the incidents occurred, as alleged -- being required to wear a heavy apron and S1 ignoring his urgent pleas for medical attention. In other incidents, the Agency provided nondiscriminatory explanations for its actions which Complainant did not rebut - the delay in approving his move to the night shift, telling him to stop calling District office, and issuing him a letter of counseling for "flipping off" a coworker. Regarding the later incident, a coworker stated this involved more than flipping someone off - Complainant getting angry and yelling and angrily, wildly, and dangerously cutting on slaughtered cattle heads resulting in the stopping of the line. The facts surrounding the incident involving Complainant returning late from a bathroom break and S4 are disputed, and Complainant did not allege that S4 perpetrated other incidents of harassment. For the reasons found by the Agency, we find that Complainant did not prove he was subjected to discriminatory harassment.
Time and Attendance
On July 5, 2011, Complainant received written confirmation of S1's oral counseling for not reporting to work on time and failing to call in. S1 counseled Complainant that since starting work on May 8, 2011, he appeared to be developing a pattern of reporting late for duty and cited three dates in June and July 2011, where he did not call or show up until after his reporting time of 6:15 AM, in violation of the call in policy. S1 noted that in recent conversations with Complainant he discussed the importance of reporting to work timely.
Complainant, who moved from California, stated that because he was in training he was getting used to the environment, and he previously told S1 he was having extreme difficulty with his apnea and adjusting to the elements in Kansas. He moved from California. He did not deny being late and not calling in.
The EEO counselor relayed that S1 stated Complainant told him about his learning disability and medical problems, suggesting this occurred shortly after he started, but denied being aware of Complainant's dyslexia and sleep apnea in his affidavit.
On August 5, 2011, S1 issued Complainant a letter of caution for tardiness and absence without leave (AWOL). S1 charged that on August 1, 2011, Complainant failed to report to duty and did not contact the office until 3:47 PM (the night shift started at 3:15 PM), and when he called in he said he had a headache and would not report for duty. Complainant was charged eight hours of AWOL for that day. S1 also charged that on August 4, 2011, Complainant contacted the office at 2:47 PM and did not report to work until 3:30 PM, and as a result of his late call he was charged with 15 minutes of AWOL.
Complainant counters that on August 1, 2011, he woke up in an apneic state. In his September 2012, affidavit, he stated he has only awakened in an apneic state four times in his life, and only once since starting his position. He stated that when this occurs he wakes up extremely tired, and should not drive, handle machinery, or use a knife. ROI, Exh. 6, at 32. He stated that approximately 57 minutes before his shift, within an hour of the call-in period, because he was on the night shift he called S3, told him he awoke in an apneic state and what this meant. S3 confirmed this to the EEO counselor. S3 stated that when Complainant started working on the night shift, he told him he had sleep apnea and dyslexia.
Complainant contended that when S1 gave him the letter of caution, he told him the AWOL could be removed if he brought in medical documentation. According to Complainant, he told S1 he had a doctor's appointment in three weeks and would submit documentation after the appointment, but when he did S1 said there was nothing he could do.
S1 stated he issued Complainant the letter of caution for the reasons therein. He wrote that while Complainant did submit medical documentation, the District Office determined it was insufficient. While S2 did not remember the specifics, he believed the District Office instructed that the letter be issued. The record contains one medical note written around this time. It is dated August 26, 2011, by pulmonary and sleep practice, and reads "this man was seen [undecipherable word] for severe hypertension. He is cleared for full duty." ROI, Exh. 22, at 168.
Complainant filed forms with OWCP claiming that on September 26, 2011, October 6, 2011, and October 19, 2011, he suffered injuries at work, as applicable, to his ankle, knee, groin and low back. ROI, Exhs. 36 - 38. He dated the forms November 9, 2011. Complainant stopped working on October 19, 2011, and was out for about the next six or seven weeks. ROI, Exh. 10, at 112.
In coordination with OWCP and with Complainant's agreement, the Agency placed Complainant on a work hardening program - starting him at four hours a day and over time increasing his hours until he returned to full time duty. He was authorized to request LWOP for the hours he did not work, and file claims with OWCP for wage loss compensation for the hours he was not working. While the work hardening program was originally scheduled to run from November 29, 2011 to December 9, 2011, it was extended at least three times and expired on or after January 27, 2012. ROI, Exh. 23.
In January 2012, OWCP denied all of Complainant's injury claims, and advised that any previously paid Continuation of Pay, if applicable, would be charged to his sick and/or annual leave.
The record on Complainant being charged AWOL despite filing an OWCP claim and submitting medical documentation substantiating his absences is quite unclear. According to Complainant, after injuring himself on October 19, 2011 (Wednesday), he was cleared through the end of the week, but was then charged AWOL for the next two weeks. He stated he got this AWOL cleared through the District Office, but was then charged AWOL again the week of Thanksgiving after he used the last of his sick and annual leave. Complainant also stated he submitted leave slips for three epidurals with doctor notes for the first, second and third weeks in January 2012 and all automatically became AWOLs, even though he had available leave.
S1 stated that on October 19, 2011, Complainant arrived late to duty without calling in advance, which was why he was charged some AWOL for that day. He stated the District Office decided Complainant's medical documentation was insufficient. ROI, Exh. 8, at 83. In another document S1 wrote that on October 25, 2011, Complainant was a no call no show AWOL. ROI, Exh. 33. S2 stated that while he was not directly involved, Human Resources instructed S1 that Complainant did not qualify for sick leave or LWOP because he did not provide supporting medical documentation - it released him to return to work and OWCP denied his claim. S3 believed that while waiting for OWCP to make a determination on his claim he ran out of leave and was charged some AWOL. However, a Human Resource Specialist who serviced Complainant's area stated that while OWCP denied his claims, during the time he was on the work hardening program he was not placed on AWOL, he was placed on LWOP. ROI, Exh. 12, at 130 - 131. Complainant was on the work hardening program from November 29, 2011 to on or after January 27, 2012. Except for AWOL charges on and prior to October 25, 2011, the record does not show the Agency considered taking or took any action against Complainant for AWOL. ROI, Exh. 33.
Regarding the July 5, 2011, written confirmation of counseling, Complainant does not contest that shortly after he started working and was on probation, he was repeatedly tardy to work without calling in advance. He attributed this to adjusting to his new job, adjusting to the elements in Kansas, and his difficulty with his sleep apnea, but did not back up the later explanation with medical documentation for the cited dates. Regarding the August 5, 2011, letter of caution, Complainant does not specifically challenge the 15 minute August 4, 2011, AWOL charge. He does challenge the August 1, 2011, AWOL charge. The Agency agreed to excuse this absence if Complainant submitted medical documentation. We agree with the Agency that the documentation he submitted was inadequate - while Complainant attributed being out on August 1, 2011, to an apneic incident, his medical documentation to cover this incident only referred to hypertension on August 26, 2011, and cleared him for full duty.
Regarding being charged AWOL despite filing an OWCP claim and submitting medical documentation, S1 stated that Complainant arrived late to work without calling in advance on October 19, 2011 (the same day he was later allegedly injured on the job). S1 stated the District decided the medical documentation he submitted was insufficient, and Complainant was charged AWOL on October 25, 2011, for being no call and no show. The evidence in the record does not contradict these reasons. Complainant contended he was charged AWOL for two additional weeks in October 2011, but got it cleared through the District Office. The record is not well developed on this point. Further, Complainant contended that for the week of Thanksgiving 2011, and for three days when he got epidurals in January 2012, he was charged AWOL. The Human Resources Specialist stated, however, that during the time Complainant was in the work hardening program (November 29, 2011 to at least January 27, 2012), Complainant was charged LWOP, not AWOL. In any event, the record does not show that the Agency considered or took action against Complainant based on any AWOL charges after October 25, 2011, which weakens the contention that such AWOL charges, even if they occurred, were motivated by discrimination against Complainant. We find Complainant has not proven discrimination regarding his time and attendance.
Denial of Reasonable Accommodation
The EEO counselor relayed that Complainant stated that on December 1, 2011, his request to management to combine his work hardening program with alternate duty was denied -- working in his regular position and then rather than going home doing general office work which required little or no physical effort. Complainant contended that inspector Coworker 5 (Anglo name) was permitted to do this. S2 stated that while recovering from nerve surgery on his elbow and wrist, the District Manager authorized Coworker 5 to come to the office and study for a professional training that could possibly lead to his promotion. ROI Supplement, Exh. 3, at 29. S1 stated that through special permission of the District Office, Coworker 5 was involved in some off the line training. ROI Supplement, Exh. 4, at 36. Others stated that generally, the Agency did not provide light duty to food inspectors. The evidence shows light duty was occasionally permitted for short durations -- a few days to a week or so.
S1, S2, and S3 all indicated that Complainant did not ask them for a reasonable accommodation. When asked about the reasonable accommodation he requested, in his affidavit Complainant wrote he verbally requested to be given more time for learning and testing (dyslexia). Complainant stated he was the process of gathering medical documentation on this, and S1 advised him his probation was extended to give him additional time to learn and/or test. ROI, Exh. 6, at 33. The record does not show he was counseled regarding his performance. He stated he also asked that when he awoke in an apneic state, to be given a reasonable amount of time to call in and be excused for the day (sleep apnea). He wrote since management did not respond to this accommodation request, he worked with the Disability Employment Program Coordinator (DPM).
The DPM stated that Complainant first contacted her on October 6, 2011. The accommodation requested was for "absence or late to work due to apnea events. (Blackout periods due to extreme exhaustion)." ROI, Exh. 11, at 123, ROI, Exh. 25. The DPM gave Complainant forms to complete with reminders on November 16, 2011, December 8, 2011, and March 2, 2012, but he did not return them until March 20, 2012. One of the forms was a questionnaire to be completed by Complainant's physician. On this form, one doctor diagnosed Complainant with delayed sleepless syndrome and sleep apnea, and as a reasonable accommodation wrote he "needs time to gradually adjust" and a second doctor diagnosed Complainant with obstructive sleep apnea syndrome but did not suggest any accommodation action by the Agency. ROI, Exh. 24, at 193 - 194.
By letter dated April 11, 2012, the DPM denied Complainant's accommodation request on the grounds that requesting to be absent or late to work on a highly irregular basis with no ability to call ahead of time would conflict with the essential function of his position to be on the job during his tour of duty.
Complainant alleged that on April 23, 2012, management refused to relieve him from the line after more than eight hours in spite of his doctor's recommendation. Complainant stated that while he asked his doctor to return him to full duty, he limited him to no more than eight hours of work. Complainant stated that at the behest of S2, he was told he would not be relieved after his eight hours, and believed he worked 45 minutes longer. Complainant did not state this reoccurred. Supplemental ROI, Exh. 2, at 11. S2 explained that he did not approve Complainant leaving his shift early because his work-hardening agreement had expired. In his statement S3 added he thought Complainant did not realize his work-hardening agreement had expired. On December 12, 2011, Complainant was released to full duty by his doctor, and the record does not contain medical documentation restricting him to eight hours a day after the expiration of the work hardening program around January 2012. ROI, Exh. 22, at 175.
Complainant has not established that when he agreed to the work hardening program, he also asked to be able to work alternate duty in the office. Even if he did, the record does not show that there was a funded, part time vacant position for him in the office for which he was qualified.
We do not agree with the Agency's analysis that attendance was an essential function of Complainant's job. Commission precedent makes it clear that in a case involving excessive absences from work, a Complainant may prove that he is a 'qualified disabled person'--in spite of such absences--by first showing that there is a sufficient nexus between the absences and the purported disability. Southerland v. United States Postal Service, EEOC Request No. 05930714 & 05930715 (July 15, 1994). The burden then becomes the agency's to demonstrate that it would pose 'an undue hardship' for the agency to tolerate or excuse an employee's absences. Id.
Nevertheless, Complainant failed to prove he was denied a reasonable accommodation. He wrote that he has only awakened in an apneic state four times in his life, and only once since starting his position - (on August 1, 2011). We have already found no discrimination regarding the August 1, 2011, AWOL charge. Complainant has not had any further incidents. Accordingly, he has not shown he was denied a reasonable accommodation for being in an apneic state.
Regarding not being relieved at work on April 23, 2012, after eight hours (working an additional 45 minutes), the record contains medical documentation Complainant had been released for full duty, not that he was restricted to eight hours. Complainant also does not contend this incident reoccurred.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), 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, 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 (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, Director
Office of Federal Operations
October 21, 2015
__________________
Date
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 In opposition to Complainant's appeal, the Agency argues that it was untimely filed. We disagree. Complainant received the FAD on July 19, 2013, and we received his appeal by mail on August 20, 2013. Complainant's attorney certified that the appeal was filed on August 15, 2013, which is consistent with the presumption that a letter is received within five calendar days after it was mailed. 29 C.F.R. � 1614.604(b).
3 In its acceptance letter and FAD, the Agency identified Complainant's disabilities as dyslexia, sleep apnea, hypertension, and diabetes. In his affidavits Complainant clarified his disabilities were dyslexia, sleep apnea, and Klinefelter's syndrome. He made no allegations of discrimination regarding Klinefelter's syndrome.
4 On appeal, Complainant clarifies he is claiming reprisal for initiating EEO counseling on September 29, 2011, on the complaint before us and prosecuting the complaint. He writes he is only claiming events subsequent to the above date were retaliatory.
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