Robert C. Laity v. Department of Veterans Affairs 01981668 March 20, 2000 Robert C. Laity, ) Complainant, ) ) Appeal No. 01981668 v. ) Agency No. 96-1903 ) Hearing No. 160-97-8082X Togo D. West, Jr., ) Secretary, ) Department of Veterans Affairs, ) Agency. ) ____________________________________) DECISION The Commission accepts complainant's timely appeal from a final agency decision (FAD) concerning his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. § 1614.405). In his complaint, complainant alleged that he was discriminated against based on his disabilities (clinical depression, obesity, speech and hearing) and reprisal for his prior EEO complaints when he received an admonishment on May 14, 1996, and when he was allegedly harassed on May 1, 3, 10, and 14, 1996.<2> Complainant timely sought EEO counseling and filed his instant EEO complaint, which was accepted and investigated by the agency. Thereafter, complainant timely requested a hearing before an EEOC Administrative Judge (AJ), who issued a recommended decision (RD) without a hearing. The agency adopted the RD, which found no discrimination, as its FAD. In the RD, the AJ found as follows: Complainant, a Housekeeping Aide, sought EEO counseling after he was issued an admonishment on May 14, 1996 based on the charge that, on May 1, 1996, complainant raised his voice to a Personnel Specialist. The record reflects that the Personnel Specialist was representing the agency in a matter being heard before the Merit Systems Protection Board ("MSPB") and complainant was representing the employee. Complainant contended that because his mother is profoundly hearing impaired, he generally speaks loudly. However, a supervisor who was present described complainant as "screaming at the top of his lungs" in a hostile and angry manner. Complainant had been granted administrative leave for May 3, 1996 to act as a representative before the MSPB. On May 2, 1996, the agency representative informed complainant that the hearing had been canceled. Because he feared that the agency representative may have been deceitful, complainant reported to the hearing site. As complainant's administrative leave had been canceled, he was apparently required to use annual leave. The acts of alleged harassment cited by complainant pertain to the incident which occurred on May 1, 1996, the denial of administrative leave for May 3, 1996, the drafting of the admonishment on May 10, 1996, and the issuance of the admonishment on May 14, 1996. Assuming arguendo that complainant was a qualified individual with a disability and that he could establish a prima facie case of discrimination based on disability and reprisal, the AJ found that he failed to establish that the legitimate, nondiscriminatory reasons articulated by the agency for its actions were pretextual or unworthy of credence. In this regard, with respect to the issuance of the letter of admonishment, the AJ stated that complainant was not seeking accommodation but was claiming that he was subjected to disparate treatment based on his disabilities. On appeal, complainant states that: "Current guidelines with regard to the treatment of individuals with [disabilities] when those individuals are found to have done such things as raised their voice to a coworker, require that accommodation (which could include not disciplining the disabled employee), be granted. In such cases, such conduct, if it does not directly affect the performance of the employee's duties must be accommodated." Thus, while complainant does not admit to screaming and contends that the agency fabricated this charge in order to discipline him, complainant maintains that through his EEO complaint, he was seeking accommodation for his disabilities. Accordingly, assuming that he engaged in the conduct cited by the agency, complainant contends that reasonable accommodation would require that the agency merely ignore his outburst on the basis that such conduct resulted from his disabilities. However, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity, an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. See EEOC Compliance Manual § 902.2, n. 11, 8 FEP Manual (BNA) 405:7259, n. 11 (1995); EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (March 25, 1997). In other words, so long as the workplace conduct standard is job-related for the position in question and is consistent with business necessity, an employer does not have to excuse misconduct, even if the misconduct results from an impairment that rises to the level of a disability, if the employer does not excuse similar misconduct from its other employees. Because the Commission finds that the workplace conduct standard in question was job-related and consistent with business necessity, the Commission finds that complainant cannot prevail by arguing that the agency was obligated to tolerate such conduct. Insofar as complainant continues to deny that he screamed at the representative in an angry and hostile manner, the Commission notes that an AJ may issue a decision without a hearing when he finds that there is no genuine issue of material fact. Such summary judgment is appropriate where the trier of fact determines that, given applicable substantive law, no genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the evidence is such that a reasonable fact-finder could find in favor of the non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). In the context of an administrative proceeding under Title VII, summary judgment is appropriate if, after adequate investigation, complainant has failed to establish the essential elements of his case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988). Here, the Commission is not persuaded that the AJ erred in determining that complainant failed to produce evidence which tended to establish that the agency officials who issued the admonishment were motivated by discrimination based on disability or reprisal when they determined that the version of the incident recounted by the Personnel Specialist and the supervisor was more credible than the version recounted by complainant. The Commission has carefully reviewed complainant's remaining arguments (including that the agency was attempting to impinge upon his representational advocacy and his protected First Amendment rights, and that the MSPB did not properly inform him about the cancellation of the hearing and he acted prudently in protecting his client's interests by not believing the agency representative) and finds them unpersuasive. Accordingly, after a thorough review of the record, the Commission finds that the RD adequately set forth the relevant facts and analyzed the appropriate regulations, policies and laws. Therefore, it is the decision of the Commission to AFFIRM the FAD. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0300) 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. 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.405); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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 19848, Washington, D.C. 20036. 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. 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred to as 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. 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199) 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 (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: March 20, 2000 Date Carlton M. Hadden, Acting Director Office of Federal Operations CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to complainant, complainant's representative (if applicable), and the agency on: Date 1 On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at WWW.EEOC.GOV. 2 The Rehabilitation Act was amended in 1992 to apply the standards in the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment. Since that time, the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints of disability discrimination. These regulations can be found on EEOC's website: WWW.EEOC.GOV.