03A50006
01-31-2005
Roger E. Kendall, Petitioner, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Roger E. Kendall v. Department of Justice
03A50006
January 31, 2005
.
Roger E. Kendall,
Petitioner,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Petition No. 03A50006
MSPB No. SF-0752-04-0153-I-2
DECISION
On November 17, 2004, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
BACKGROUND
Petitioner was an Intelligence Research Specialist at the agency's Drug
Enforcement Administration. On May 20, 2004, petitioner filed a mixed
case appeal with the MSPB. Petitioner alleged that he was discriminated
against on the bases of disability (delayed sleep phase syndrome and
sleep apnea) and age (59 years old) when, effective November 17, 2003,
the agency removed him from his position based on a charge of excessive
absence without leave (AWOL).
The record indicates that petitioner's work schedule had been from
9 a.m. to 5:30 p.m. On September 9, 1998, petitioner submitted
his request to the Deputy Assistant Administrator for Personnel
for a change in his work schedule so that he could arrive at work
at 11:00 a.m. as a reasonable accommodation for his sleep disorders.
Additionally, petitioner requested that in the event he could not arrive
by 11 a.m., he asked to alter his schedule based on his arrival time.
Management denied both of petitioner's requests. In November 1999,
management changed his schedule work hours to 10 a.m. until 6:30 p.m.
On September 24, 2001, petitioner continued to request that the agency
allow him to work beginning at 11:00 a.m. Again, petitioner was informed
by management that his work schedule would remain starting at 10 a.m.
On December 19, 2001, petitioner was issued a leave restriction letter.
From January 11, 2002 through August 9, 2002, petitioner's AWOL charges
continued to grow. During that timeframe, management, on a weekly basis,
would provide petitioner with a list of his reporting times. A review
of those reports shows that petitioner rarely reported for duty by 11:00.
Petitioner was subsequently issued a warning by his supervisor on August
29, 2002, regarding his continued tardiness. Petitioner requested
a work schedule that supposedly would accommodate his condition but
failed to indicate a specific accommodation. Petitioner's attendance
issue persisted. The record indicates that he would arrive at a variety
of times but, again, would rarely arrive before 11 a.m., let alone his
10 a.m. start time. As a result, the agency placed petitioner on leave
restrictions and he received five-day and fourteen-day suspensions
for excessive unauthorized AWOL. On May 27, 2003, the agency proposed
petitioner's removal. The agency based its decision on petitioner's
history of absences, his lack of reliability and availability, and
recent accumulation of 50.5 hours of AWOL from March 17, 2003 through
April 18, 2003. The removal action became effective November 17, 2003.
After a hearing, the MSPB Administrative Judge (AJ) found that petitioner
failed to establish that he was a qualified individual with a disability
based on performance deficiencies unrelated to his condition. As a
result, the MSPB AJ determined that petitioner did not establish a
violation of the Rehabilitation Act.
As to petitioner's claim of age-based discrimination, the MSPB AJ
determined that the agency articulated legitimate, nondiscriminatory
reason for its action, namely the charge of excessive absence without
leave. Further, the MSPB AJ found that petitioner did not establish by
preponderant evidence that the agency's reason was pretext. Accordingly,
the MSPB AJ concluded that petitioner did not show that the agency's
action was discrimination based on age.
Petitioner filed this petition with the Commission without comment.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Reasonable Accommodation
Reasonable accommodation includes modifications to the manner in which
a position is customarily performed in order to enable a qualified
individual with a disability to perform the essential job functions.
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act, EEOC No. 915.002 (October 17,
2002) (Enforcement Guidance). The Rehabilitation Act of 1973 prohibits
discrimination against qualified disabled individuals. See 29 C.F.R. �
1630. In order to establish disability discrimination, petitioner must
show that: (1) he is an individual with a disability, as defined by 29
C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability
pursuant to 29 C.F. R. � 1630.2(m); and (3) the agency failed to provide
a reasonable accommodation. Enforcement Guidance.
For the purposes of analysis, we assume petitioner is an individual
with a disability. The Commission finds that petitioner failed to
satisfy prong (3). Petitioner did not show that the agency violated
the Rehabilitation Act when it failed to adjust his schedule in response
to his request for an accommodation. First, a reasonable accommodation
must be effective. �[T]he word �accommodation' . . . conveys the need
for effectiveness.� See Lavern R. Wiley v. United States Postal Serv.,
Appeal No. 07A20105 (September 15, 2003), req. for reconsideration
denied, Request No. 05A40147 (December 11, 2003). �An ineffective
�modification' or �adjustment' will not accommodate a disabled
individual's limitations.� Id. Second, a reasonable accommodation
needs to be reasonable on its face, i.e., plausible or feasible. Id.
Petitioner requested that the agency provide him with a change in work
schedule originally from 9:00 a.m. to 5:30 p.m. to 11:00 a.m. to 7:30 p.m.
In petitioner's request, he also noted that he would like the ability to
adjust his work schedule so that when he arrived after 11:00 a.m., he be
allowed to work a full eight-hour day. The agency modified petitioner's
schedule so that he could start at 10:00 a.m. and denied petitioner's
specific requests. Upon review, the Commission finds that petitioner's
request for his reporting time to be changed to 11:00 a.m. would not
have been effective. This is based on petitioner's attendance record
over the years which showed he rarely reported for duty by 11:00 a.m.
Therefore, we determine that the record indicates that the only effective
accommodation would have been to allow complainant to report to work
whenever he was able. However, such an accommodation is not reasonable
on its face. Id. It is not "plausible� or �feasible" for an employer
to excuse chronic erratic absenteeism and tardiness by an employee
who cannot provide timely notice sufficient to enable the employer
to ensure adequate staffing. See id. Thus, the Commission concludes
that petitioner failed to show that there was an effective and feasible
accommodation that the agency could have provided.
Age Discrimination
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). For petitioner to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the petitioner bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether petitioner has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, the agency has provided legitimate,
nondiscriminatory reasons for its action, namely petitioner's pattern
of excessive AWOL and prior disciplinary actions. Petitioner failed
to show that the agency's reasons were pretext for age discrimination.
Accordingly, we conclude that petitioner failed to show that the removal
action was discriminatory based on age.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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
January 31, 2005
__________________
Date