0120111976
03-29-2013
Robert M. Butler, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Robert M. Butler,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120111976
Agency No. HS-09-TSA-006293
DECISION
On March 2, 2011, Complainant filed an appeal from the Agency's January 28, 2011 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant established that the Agency denied him a reasonable accommodation in or about July 2008; and (2) whether Complainant established that the Agency constructively discharged him on the bases of religion or disability in October 2008.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer (TSO), SV-1802-D, at the Agency's Eppley Airfield in Omaha, Nebraska. Complainant entered on duty in March 2008 and was subject to a two-year probationary period. Complainant was a member of the Plaid Team, which consisted of a Supervisory TSO (S1), two Lead TSOs (including LTSO1), and 43 TSOs. Report of Investigation (ROI), at 365. As a Plaid Team TSO, Complainant's duties included both baggage and passenger screening. Id. at 92.
Denial of Reasonable Accommodation
According to Complainant, he became aware in April 2008 that he had posttraumatic stress disorder (PTSD), generalized anxiety disorder (GAD), and obsessive compulsive disorder (OCD). Id. at 82-83.
Complainant stated that, in the summer of 2008, he verbally requested reasonable accommodation from LTSO1 and another Lead TSO (LTSO2). Id. at 93. Specifically, Complainant averred that he asked LTSO1 on or about July 5, 2008 if he could work only in baggage screening because his anxiety medication caused facial ticks. Id. at 79. In addition, Complainant averred that he told LTSO2 that he should work only in baggage screening because his PTSD caused him to verbalize the thoughts in his head and passengers could see him talking to himself. Id. at 80.
In contrast, management maintained that Complainant did not request a reasonable accommodation. Specifically, LTSO1 averred that he did not recall a request from Complainant. Id. at 124. In addition, LTSO2 averred that he had the following conversation with Complainant:
He never asked me to work only baggage although I remember talking to him about it. He never came with a request. I remember him indicating to me it might be a good option. I did not have the authority to change his shift. That would have been his supervisor. I told him if he felt it was a good option he would need to talk to his supervisor - work his way up the chain. Id. at 128.
Finally, S1 averred that he never received a request from Complainant. Id. at 138.
Constructive Discharge
On October 30, 2008, two Special Agents (SA1, SA2) from the Agency's Office of Inspection (OI) interviewed Complainant as part of an investigation into possible misconduct. The OI investigative report indicated that OI had received information that Complainant had: (a) abused his authority by misrepresenting himself to the Douglas County Attorneys' Office; (b) made false statements on his application for employment; and (c) threatened members of the Catholic Diocese of Lincoln. Id. at 207. Complainant alleged that, during the interview, SA1 and SA2 yelled and screamed at him, showed him documents from the investigation, and said he needed to resign. Id. at 81. SA1 and SA2 denied that they told Complainant to resign; they averred that they discussed the allegations of misconduct with Complainant and informed him that they would give management the results of the investigation. Id. at 112-14.
After Complainant's interview with SA1 and SA2, he met with the Assistant Federal Security Director for Screening (AFSD) and submitted his written resignation. Complainant alleged that, during the meeting, AFSD said he should resign. Id. at 81. AFSD averred that, in response to Complainant's questions, he explained that Complainant could keep working and hope that nothing further happened, Complainant could be fired, or Complainant could resign. Id. at 121. In addition, AFSD averred that, when Complainant asked what would be the advantage of resigning, he told Complainant that resignation carried none of the stigma of getting fired. Id.
EEO Complaint
On August 13, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of religion (Catholic) and mental disability (PTSD, GAD, OCD) when:
1. It denied his request for reasonable accommodation; and
2. It constructively discharged him.
The Agency initially dismissed Complainant's complaint pursuant for untimely EEO Counselor contact. In Robert M. Butler v. Department of Homeland Security, EEOC Appeal No. 0120100650 (May 6, 2010), the Commission reversed the Agency's dismissal of Complainant's complaint and remanded the matter for an investigation. 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 EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in
29 C.F.R. � 1614.108(f), 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.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that the final decision erred in finding no discrimination. Regarding the prima facie case of disability discrimination, Complainant argued that his PTSD, GAD, and OCD substantially limited his ability to control his emotions. Regarding claim 1, Complainant argued that he clearly requested to work only baggage screening as a reasonable accommodation and that the Agency failed to accommodate him. Regarding claim 2, Complainant argued that the Agency's reason (he resigned after being confronted with evidence from the OI investigation) was pretextual for "getting rid of a crazy man" within their ranks. Specifically, Complainant asserted that, after the Agency learned of the incidents that were part of the OI investigation, the Agency wanted to get rid of him before he harmed anyone, even though he had never actually harmed anyone and had never threatened harm to anyone at the airport. Moreover, Complainant asserted that, instead of allowing him a reasonable accommodation, the Agency used his "characteristics" as a reason to constructively discharge him.
The Agency did not submit a statement or brief in opposition to Complainant's appeal.
ANALYSIS AND FINDINGS
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. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.A. (Nov. 9, 1999) (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").
Denial of Reasonable Accommodation
As an initial matter, we assume, without so finding, that Complainant is an individual with a disability. Under the Commission's regulations, federal agencies may not discriminate against individuals with disabilities and are required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless an agency can show that reasonable accommodation would cause an undue hardship.
See 29 C.F.R. �� 1630.2(o) and (p); Appendix. When an individual decides to request accommodation, the individual must let the employer know that he needs an adjustment or change at work for a reason related to a medical condition. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (as revised Oct. 17, 2002).
Upon review of the record, we find that Complainant failed to request a reasonable accommodation from the Agency because he did not make a request to a supervisor, even after being told to do so. We find credible LTSO2's testimony that he advised Complainant to contact Complainant's actual supervisor if he wanted to work only in baggage screening, because LTSO2 did not have the authority to change Complainant's work duties permanently. Complainant, in his rebuttal affidavit and on appeal, did not dispute this testimony. In addition, Complainant did not dispute the testimony of his actual supervisor, S1, who averred that Complainant never told him about his need for a reasonable accommodation. Therefore, based on the undisputed testimony, we find that Complainant was told he had to contact his actual supervisor, S1, in order to request a reasonable accommodation, but he did not do so.
Constructive Discharge
A constructive discharge occurs when an employee resigns from his employment because he is being subjected to unlawful employment practices. If the resignation is directly related to the agency's unlawful employment practices, it is a foreseeable consequence of those practices and constitutes a constructive discharge. See Pernell v. Nat'l Archives & Records Admin., EEOC Appeal No. 0120051935 (Oct. 31, 2006). The agency is responsible for a constructive discharge in the same manner that it is responsible for the outright discriminatory discharge of a charging party.
The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995).
Upon review of the record, we find that Complainant failed to prove his claim of constructive discharge because he did not show that the Agency engaged in discriminatory conduct which became so intolerable that he had no choice but to resign. We find, based on the OI investigative report, that OI initiated the investigation because it had reason to believe that Complainant may have engaged in misconduct. ROI, at 204-364. In addition, we find credible the testimony of SA1 and SA2 denying that they harassed or pressured Complainant to resign during the October 30, 2008 interview. Although Complainant testified that he experienced harassment and pressure to resign during the interview, we note that a statement signed by Complainant on October 30, 2008 explicitly noted: "I have not been mistreated and the TSA agents have been respectful to me throughout this interview and [have] treated me with dignity." Id. at 299-300. Therefore, based on the above documentary and testimonial evidence, we find that Complainant failed to establish his claim of constructive discharge.
On appeal, Complainant seemed to argue that the Agency should have excused his misconduct because it stemmed from his disability. Although the Agency had not disciplined Complainant at the time of his resignation, we note that an employer may discipline an individual with a disability for violating a workplace conduct standard even if the misconduct resulted from a disability, if it would impose the same discipline on an employee without a disability. EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, No. 915.002, Question 30, (Mar. 25, 1997).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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.
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 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
___3/29/13_______________
Date
2
0120111976
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111976