U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lloyd E.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120150325 Hearing No. 470-2012-00233X Agency No. 2012-24323-FAA-04 DECISION On October 31, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's October 9, 2014, 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. For the following reasons, the Commission MODIFIES the Agency's final order. ISSUES PRESENTED The issues presented are whether the Agency discriminated against Complainant on the basis of disability when it (1) denied him a reasonable accommodation and (2) terminated his employment. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Airway Transportation Systems Specialist (ATSS) at the Agency's Cleveland Radar System Support Center (CRSSC) in Oberlin, Ohio. On April 16, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (major depression, sleep apnea) when: 1. since September 19, 2011, he was denied a reasonable accommodation; and 2. on December 28, 2011, he was terminated from his position of Airway Transportation Systems Specialist, FV-2101-F, during his probationary period. Complainant began working as an ATSS at the Agency on September 19, 2011. In his application for the position, Complainant checked the box indicating that he was a veteran with disabilities. The Manager of Technical Operations (MTO) and the CRSSC Manager (S1) interviewed Complainant and, on September 1, 2011, MTO recommended him for the position. MTO testified that she was aware that Complainant was a disabled veteran because he had noted it on his application. S1, who concurred with the recommendation, stated in his affidavit that he did not know at the time of the interview that Complainant had a disability. Complainant testified that a Human Resources Specialist (HR1) at the Agency's Oklahoma City, Oklahoma, facility asked him to provide documentation regarding his disabilities. On September 13, 2011, Complainant faxed an undated Department of Veterans Affairs Ambulatory Care Center document to HR1. The document lists the disability ratings for Complainant's disabilities, including depressive disorder and sleep apnea. Also on September 13, 2011, HR1 signed the "Appointing Officer" block on Complainant's Application for 10-Point Veteran Preference form. According to the vacancy announcement, the ATSS duties included installing and maintaining electronic equipment and lighting aids for aviation navigation, maintenance of equipment, and working "with radar, communications, computers, navigational aids, airport lighting aids, and electrical/mechanical support for facilities on and off airports." The position was subject to the Agency's Drug and Alcohol Testing Program. Complainant's work hours were 7:00 a.m. to 5:30 p.m. Monday through Thursday. On October 31, 2011, Complainant was late to work. He called S1, who was his first-level supervisor, and told S1 that he had accidently reported to the wrong facility. Complainant testified that he had thought that he was supposed to attend a class at the facility, that the class was scheduled for a later date, and that he did not sign in at the facility because he did not need to get through the gate. On November 2, 2011, Complainant was late to work for a second time. He testified that he had an argument with his roommate the night before and overslept. S1 testified that he saw Complainant arrive late and that he excused the absence because Complainant had reported it to a co-worker. A Request for Leave or Approved Absence form shows that Complainant requested, and S1 approved, the use of 1.5 hours of compensatory time on November 2, 2011. S1 testified that, at 8:30 a.m. on November 15, 2011, an employee who needed help with some aviation equipment asked him where Complainant was. S1 called the Federal Facilities Building, where Complainant would report and pick up a vehicle, and a management assistant told him that Complainant "just got here" and "just left a few minutes ago." As he hung up the telephone, S1 received a text message from Complainant stating that he, Complainant, had talked to the employee who needed assistance and had been at work the entire time but was having computer problems. Complainant testified that he overslept because he had run out of medication. S1 testified that he contacted a Human Resources Specialist (HR2) on November 15, 2011, to discuss disciplining Complainant. Because Complainant was a probationary employee, there was no progressive discipline. S1 considered whether to remove Complainant. In a November 15, 2011, e-mail to Complainant and other employees, S1 reiterated that the morning shift started at 7:00 a.m. He stated that employees needed to notify him ahead of time if they were going to be late. Complainant was approximately 45 minutes to an hour late for work on November 16, 2011. S1 spoke to Complainant about his four days of tardiness and, according to Complainant, told him to call S1 beforehand if he was going to be late. S1 testified that Complainant stated that he had had difficulty sleeping the previous night. In a Record of Conversation form dated November 16, 2011, S1 stated that he told Complainant that it appeared that he had been trying to sneak into work without S1 seeing him. He also stated that Complainant said that he was late because "he was having difficulty sleeping." When Complainant asked to switch to eight-hour days and report to work at 8:00 a.m., S1 replied that Complainant could switch to eight-hour days but would need to start at 7:00 a.m. "as our SOP stated and all other employees reported at this time." Complainant declined the offer, and S1 told him that he would be charged with absence without leave (AWOL) for the time that he was late. The record reflects that S1 charged Complainant with one hour of AWOL. Complainant asked to meet with S1 on November 17, 2011. Complainant testified that he told S1 "about [his] disabilities," that he was a disabled veteran, that he was having a problem obtaining his medication, and that this was causing him to lose sleep and come to work late. In a Record of Conversation form dated November 17, 2011, S1 stated that Complainant told him that he had "anger, depression, and anxiety, and is an 80% disabled veteran." According to the form, Complainant also told S1 that he had been oversleeping because he was missing a medication that helped him to sleep, that he was not sure when he would have the medication, and that he had not yet transferred his medical records from Columbus. S1 stated in the form that Complainant asked whether S1 had told anyone about his tardiness and S1 replied that he had told his manager about it. Complainant asked whether he was going to be fired, and S1 said that he "was not sure, but that it was a possibility and that [he] would let [Complainant] know as soon as a decision had been made." In addition, S1 stated in the form that Complainant asked to work a 1:00 p.m. - 11:00 p.m. shift and that S1 denied the request because Complainant lacked training and certification and "only certified personnel work rotating shifts alone." During the meeting, S1 suggested that, rather than working four 10-hour days, Complainant switch to eight-hour shifts and work from 7:00 a.m. to 3:30 p.m. Complainant rejected this suggestion because it required him to come to work at 7:00 a.m. and he would "still run the risk of being late." S1 also suggested that Complainant report to work at 8:00 a.m. and use one hour of leave. Complainant, who testified that he earned 16 hours of leave per month, rejected this alternative because he "would have [run] out of leave in a short period," would then risk being late again, and would be unable to use leave if he became ill or wanted to visit his family. Complainant reported to work on time from November 17 through December 20, 2011. In a December 19, 2011, letter to Complainant, S1 summarized the conversation that he had with Complainant on November 17, 2011. S1 noted that Complainant had identified himself as a disabled veteran and had asked to work a 1:00 p.m. - 11:00 p.m. shift or to start work at 8:00 a.m. rather than 7:00 a.m. S1 also noted that he had explained that it was Agency "practice to have new hire employees work administrative hours until they have obtained equipment certifications and can stand watch," that the "administrative schedule starts at [7:00 a.m.] for everyone," and that "it would not be fair to the other employees" if he permitted Complainant to start work at 8:00 a.m. In addition, S1 inquired whether Complainant was requesting reasonable accommodation, stated that he needed to understand "exactly what accommodation" Complainant was seeking, and asked Complainant to provide medical documentation explaining how the accommodation would enable Complainant to perform the essential functions of his position. Noting that Complainant had said that he had run out of medication, S1 stated, "I need to know what your current status is with regard to this medication." He further stated that he wanted to share the information with the Flight Surgeon's Office "so they can help [S1] to determine whether or not this medication would preclude [Complainant] from being able to perform safety sensitive duties."2 According to a December 19, 2011, Record of Conversation, S1 gave the letter to Complainant and asked if he was requesting reasonable accommodation. Complainant asked what the term "reasonable accommodation" meant. S1 "explained the process of requesting one and how the Agency would find a job for him if he was found to [be] medically unable to perform the duties of an ATSS in a safety sensitive position." S1 stated in the form that Complainant "became agitated and was concerned with the 2nd paragraph of the letter regarding the [Agency's] concern for his ability to perform the job." On December 20, 2011, Complainant gave S1 a November 18, 2011, doctor's note stating that Complainant was being treated for depression and was taking two identified medications. In a December 20, 2011, Record of Conversation, S1 stated that Complainant told him that he was not requesting reasonable accommodation because he was taking medications and no longer having problems getting to work on time. On December 21, 2011, S1 unsuccessfully tried to find Complainant at 7:45 a.m. S1 texted Complainant and instructed him to call when he arrived at work. Complainant called S1 at 8:30 a.m. and asked to have the rest of the day off from work. Complainant was charged with two hours of AWOL. HR2 sent a December 22, 2011, e-mail to her superiors informing them that the CRSSC wanted to remove Complainant for tardiness. Subsequently, by letter dated December 28, 2011, S1 terminated Complainant's employment with the Agency because of unacceptable behavior. In that regard, S1 cited Complainant's "continued problems with tardiness." Complainant testified that his attendance problems began after he ran out of medication. The lack of medication affected his sleep and caused him to be late. Complainant, who had to transfer his medical records to the Veterans Administration facility in Cleveland and receive a referral to a psychiatrist there, ran out of medication in the middle of October and started back on medication in the middle of November. He stated that it took approximately one-and-one-half to two months for him to become acclimated to the medication and fully functional. Complainant testified that his doctor placed no restrictions on him. In addition, Complainant stated that he communicated to the Agency that he needed help temporarily, until he was acclimated to the medication and his sleep schedule was resolved. He acknowledged that he had been more than one hour late for work on some occasions. He asserted, however, that coming to work at 8:00 a.m. rather than 7:00 a.m. "would have released some of the pressure" and that he would have been able to arrive at work by 8:00 a.m. He also asserted that two probationary employees (CW1 and CW2) had worked on the 1:00 p.m. to 11:00 p.m. shift. Complainant acknowledged that he came to the facility late at night "four or five times" and slept at his desk so that he would not be late to work. He stopped doing so when S1 told him that he could not do that. Complainant confirmed that he told S1 in December 2011 that he was back on medication and was not asking for an accommodation. He testified that he told S1 this "[b]ecause I wasn't asking for accommodation. I was just asking for some help. I didn't understand what accommodation was anyway. And he made it sound like it was a really big deal." According to Complainant, S1 "explained it as . . . this big entity, and if I kept pursuing it, I would be fired." Complainant testified that he was late on December 21, 2011, because he was upset about the December 19 letter, which questioned his ability to do his job, and because his family had called him the previous night to tell him that his step-father was terminally ill. S1 denied that he told Complainant that he would be fired if he did not stop asking for accommodations. He testified that he decided to terminate Complainant's employment on November 16, 2011. According to S1, HR2 informed him on the afternoon of November 17 that a draft termination letter had been sent to legal counsel for review. When Complainant told S1 an hour later that he had a disability, it "sort of threw a wrench in the whole process" and "seemed to slow down the process extremely." S1 asserted that he offered Complainant "viable options" and that S1's obligation ended when Complainant turned down the options. He stated that Complainant had earned compensatory time, sick leave, and vacation leave and that providing Complainant with leave without pay is "something [S1] could have worked out possibly." He also stated that Complainant could have used advanced sick leave, although he was "not 100 percent sure" that probationary employees were eligible for advanced leave. S1 testified that employees who did not have certification did not work by themselves. According to S1, CW1 had certification and worked evening shifts but did not work by himself. CW2 was in Cleveland for only two weeks and never worked evening shifts. S1 believed that CW1 and CW2 attended training classes in Oklahoma City during evening shifts. In addition, S1 asserted that the ATSS position is a safety-sensitive position and that the Agency has strict guidelines regarding the use of medications. S1 stated that Complainant's "dishonesty overall contributed" to the decision to fire him. HR2 testified that she discussed Complainant's conduct with S1 and helped to draft the removal letter. She believed that S1 contacted her on November 15 or 16, 2011. They discussed Complainant's tardiness and whether to remove him during his probationary period. HR2 stated that Complainant was discharged for tardiness, that there were five confirmed instances of tardiness, and that Complainant's removal was not inevitable as of November 17, 2011. HR2 also testified that she drafted the Agency's December 19, 2011, letter in consultation with legal counsel. She did not know why there was a delay between Complainant's November 17, 2011, conversation with S1 and the Agency's December 19, 2011, request for medical information. She stated that the Flight Surgeon's Office would evaluate whether an employee's medication posed a safety risk and that "[t]echnicians don't hold a medical standard, although they are part of a safety-sensitive work group." In addition, HR2 testified that S1 had not given her the impression that there were any duties that Complainant could not perform because of his medication. 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). Complainant timely requested a hearing. The AJ held a hearing by videoconference on June 26, 2013, and issued a decision on October 1, 2014. Administrative Judge's Decision The AJ found that Complainant did not prove that the Agency discriminated against him on the basis of disability. He concluded that Complainant requested reasonable accommodation on November 17, 2011, and that Complainant established a nexus between his disability and the request for reasonable accommodation. The AJ further concluded that the Agency offered Complainant a reasonable accommodation when S1 offered to allow Complainant to arrive at work at 8:00 a.m. and use one hour of leave. On that point, the AJ stated that Complainant worked four days per week, that there typically are four weeks per month, that Complainant would need 16 hours of leave per month, and that Complainant accrued sufficient leave to implement S1's suggestion.3 Accordingly, the AJ found that Complainant did not establish that the Agency failed to provide him with a reasonable accommodation. The AJ further found that Complainant did not establish that the Agency discriminated against him on the basis of disability when it terminated his employment. The AJ concluded that Complainant did not establish a prima facie case of discrimination because he did not show that the Agency treated employees outside of his protected class more favorably than it treated Complainant. He noted that Complainant waited until November 17, 2011, to inform the Agency that his tardiness was due to his disability and that the Agency was not required to excuse Complainant's past misconduct. He also noted that Complainant reported to work on time for approximately one month and stated on December 20, 2011, that he was taking his medication and did not need a reasonable accommodation. The AJ rejected Complainant's argument that his statement that he was not seeking a reasonable accommodation should not be held against him because he did not understand the meaning of the term. In that regard, the AJ found Complainant's "articulation that he was taking his medication and that he was no longer having a problem waking up coupled with the fact that he was in fact on time for the preceding month persuasive that he communicated to the Agency that he no longer needed an accommodation." (Emphasis in original.) The AJ concluded that Complainant could not show that his termination resulted from a failure to accommodate because (1) the Agency offered, and Complainant rejected, a reasonable accommodation on November 17, 2011, and (2) Complainant indicated on December 20, 2011, that he did not need accommodation. The Agency issued a final order fully implementing the AJ's determination that Complainant did not prove that the Agency subjected him to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant, through his attorney, argues that the Agency did not comply with its own policies and procedures for processing reasonable-accommodation requests. He contends, among other things, that the AJ erroneously found that Complainant denied that he needed a reasonable accommodation. In that regard, he states that he did not understand the meaning of the term "reasonable accommodation" until after the Agency terminated his employment. Complainant further contends that the Agency did not offer him a reasonable accommodation. He argues that S1's suggestion that he arrive at work at 8:00 a.m. and use one hour of leave was not a reasonable accommodation. Asserting that there were 17 or 18 work days in "most months," Complainant argues that the AJ miscalculated the amount of leave that Complainant would have had to use if he had accepted S1's offer. He maintains that he would have run out of leave if he had accepted the offer. Noting that S1 was not sure whether Complainant was eligible for advanced leave, Complainant asserts that the use of advanced leave was not an option for him. Complainant argues that the Agency did not engage in the interactive process and failed to provide him with a reasonable accommodation. Complainant further argues that he established a prima facie case of discrimination. According to Complainant, he did not need to show that the Agency treated him less favorably than it treated similarly situated employees. In response, the Agency argues that substantial evidence supports the AJ's findings of fact and that the AJ correctly determined that the Agency did not discriminate against Complainant on the basis of disability. STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. See 29 C.F.R. § 1614.405(a). An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact-finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015). ANALYSIS AND FINDINGS Denial of Reasonable Accommodation Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that he was denied a reasonable accommodation, Complainant 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 him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance on Reasonable Accommodation"). An individual with a disability is "qualified" if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002) ("the word 'accommodation' . . . conveys the need for effectiveness"). That is, a reasonable accommodation "should provide the individual with a disability with an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment, as are available to the average similarly situated employee without a disability." 29 C.F.R. pt. 6130 app. § 1630.9. If more than one accommodation will enable an individual to perform the essential functions of his or her position, "the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide." 29 C.F.R. pt. 6130 app. § 1630.9; see also Enforcement Guidance on Reasonable Accommodation at Question 9. "The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability." 29 C.F.R. pt. 6130 app. § 1630.9. To request accommodation, an individual must let the employer know that she or he needs an adjustment or change at work for a reason related to a medical condition. The individual may use "plain English" and need not use the phrase "reasonable accommodation." Enforcement Guidance on Reasonable Accommodation at Question 1. A modified work schedule, such as an adjustment to arrival or departure times, is a form of reasonable accommodation. Absent undue hardship, an employer must provide a modified schedule when required as a reasonable accommodation, "even if it does not provide such schedules for other employees." Enforcement Guidance on Reasonable Accommodation at Question 22. An employer is not required to excuse an employee's past misconduct as a reasonable accommodation. Absent undue hardship, however, an employer must provide a reasonable accommodation that will enable an otherwise qualified individual with a disability to meet a uniformly applied conduct rule that is job related and consistent with business necessity. Id. at Questions 35-36; see also id. Question 36 Example (employer may discipline employee with depression who was often late for work because of medication side effects, but employer also must consider whether it can provide a reasonable accommodation, such as a modified work schedule, in the future without incurring an undue hardship). In this case, it is undisputed that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. It also is undisputed that Complainant, when he was at work, adequately performed the essential functions of his ATSS position. The Agency has argued that Complainant did not meet its requirement that employees report to work on time, and Complainant has argued that the Agency unlawfully failed to provide him with a reasonable accommodation that would have enabled him to meet the requirement. For the reasons explained below, we find that Complainant is a qualified individual with a disability who could have performed the essential functions of his ATSS position with the reasonable accommodation of a modified work schedule. Complainant requested a reasonable accommodation when he asked to work a 1:00 p.m. - 11:00 p.m. shift or to start work at 8:00 a.m. rather than 7:00 a.m. because of his disability. The Agency did not have to excuse Complainant's prior instances of tardiness, but it did need to determine whether it could provide Complainant with an effective accommodation that would not have resulted in undue hardship. We disagree with the AJ's conclusion that the Agency met its reasonable-accommodation obligation when S1 offered to allow Complainant to arrive at work at 8:00 a.m. and to use one hour of leave. Although an employer may choose among effective accommodations, "forcing an employee to take leave when another accommodation would permit an employee to continue working is not an effective accommodation." Denese G. v. Dep't of the Treasury, EEOC Appeal No. 0120141118 (Dec. 29, 2016) (citing Mamola v. Group Mfg. Servs., Inc., 2010 WL 1433491 (D. Ariz. Apr. 9, 2010); Woodson v. Int'l Bus. Machines, Inc., 2007 WL 4170560 (N.D. Cal. Nov. 19, 2007)). Thus, "absent undue hardship, an agency should provide reasonable accommodations that permit an employee to keep working rather than choosing to put the employee on leave." Id. S1's proposal that Complainant take leave did not constitute a reasonable accommodation here, where there was an alternative accommodation that would have allowed Complainant to continue working a full day and would not have resulted in an undue hardship. In that regard, we find that the Agency has not shown that it would have incurred a significant difficulty or expense if it had allowed Complainant to report to work at 8:00 a.m. rather than 7:00 a.m. There is no evidence that this proposed schedule change would have been "unduly disruptive to other employees' ability to work." Enforcement Guidance on Reasonable Accommodation at "Undue Hardship Issues." The Agency's blithe assertion that allowing Complainant to report to work at 8:00 a.m. "would not be fair to the other employees" does not establish undue hardship. Id. ("Nor can undue hardship be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees."). We find, therefore, that the Agency denied Complainant a reasonable accommodation on November 17, 2011, when it refused to permit him to report to work at 8:00 a.m.4 Despite the denial of reasonable accommodation, Complainant managed to report to work on time for approximately one month. It is clear, however, that he did so at great personal difficulty. For example, Complainant slept at his desk at night "four or five times" to ensure that he would not be late to work. We find, therefore, that the Agency's denial of Complainant's request for a modified work schedule denied Complainant an equal employment opportunity. In December 2011, after receipt of the Agency's December 19, 2011, letter requesting medical documentation, Complainant told S1 that he was taking medication and was not asking for an accommodation. Although Complainant argues that he did not understand the meaning of the term "reasonable accommodation," we agree with the AJ's determination that Complainant communicated to the Agency that he was taking his medication and no longer having problems arriving on time. Accordingly, we find that the Agency's reasonable-accommodation obligation ended on December 20, 2011, after Complainant spoke with S1. In summary, we find the Agency discriminated against Complainant on the basis of disability when it unlawfully denied him a reasonable accommodation from November 17 through December 20, 2011. Termination 1. Reasonable Accommodation Complainant was tardy five times. Four instances of tardiness occurred before Complainant requested reasonable accommodation, and one occurred after Complainant told S1 that he was no longer having problems. The Agency was not required to accommodate Complainant by forgiving his prior tardiness. Enforcement Guidance on Reasonable Accommodation at Questions 35-36. Because the Agency's obligation to provide the requested reasonable accommodation ended on December 20, 2011, when Complainant told S1 that he was on medication and no longer having problems, Complainant's late arrival on December 21, 2011, was not the result of an unlawful denial of reasonable accommodation. We find, therefore, that the Agency's termination of Complainant's employment did not constitute a denial of reasonable accommodation. 2. Disparate Treatment To prevail in a disparate-treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511. Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability, we find that the Agency articulated a legitimate, nondiscriminatory reason for terminating Complainant's employment. S1 stated in in the December 28, 2011, termination letter that Complainant's "continued problems with tardiness" constituted unacceptable behavior. Complainant has not established that the Agency's articulated reason is a pretext for discrimination. He has not shown that the Agency's explanation is unworthy of credence. For example, he has not shown that employees without disabilities experienced tardiness problems similar to Complainant's but were not discharged. Similarly, Complainant has not shown that a discriminatory reason more likely motivated the termination of his employment. Accordingly, we find that Complainant has not proven that the Agency discriminated against him on the basis of disability when it terminated his employment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency violated the Rehabilitation Act when it did not provide Complainant with reasonable accommodation. We further find that Complainant did not establish that the Agency discriminated against him on the basis of disability when it terminated his employment. Accordingly, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision. The complaint is REMANDED for compliance with this decision and the Order below. ORDER (C0610) The Agency is ordered to take the following remedial actions within 120 calendar days after this decision is issued: 1. The Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages as a result of the discriminatory denial of reasonable accommodation from November 17 through December 20, 2011. The Agency shall afford Complainant an opportunity to establish a causal relationship between the Agency's violations of the Rehabilitation Act and any pecuniary or non-pecuniary losses. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages he may be entitled to and shall provide all relevant information requested by the Agency. The Agency shall issue a new Agency decision determining Complainant's entitlement to compensatory damages within 60 calendar days after the date this decision is issued. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below. 2. The Agency shall provide eight (8) hours of training to the responsible management officials, including S1, regarding their responsibilities under the Rehabilitation Act. The training shall have a special emphasis on the Agency's obligation to provide reasonable accommodation to individuals with disabilities. 3. The Agency shall consider taking appropriate disciplinary action against the responsible management officials, including S1. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 4. The Agency shall post a notice in accordance with the paragraph below entitled "Posting Order." The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Cleveland Radar System Support Center (CRSSC) facility located in Oberlin, Ohio copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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's signature Carlton M. Hadden, Director Office of Federal Operations ___8/17/17_______________ 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 Complainant has not alleged that this request constituted an impermissible disability-related inquiry or medical examination, and this decision makes no finding on whether the request was job related and consistent with business necessity. 3 Noting that S1 testified that he would have allowed Complainant to use advanced leave and that the provision of advanced leave is not a required form of accommodation, the AJ also concluded that the Agency offered Complainant "an accommodation that went beyond what the law required." 4 The Agency waited approximately one month before it asked Complainant for medical documentation concerning his disability and need for accommodation. There is no evidence that, in the meantime, S1 or any other Agency manager told Complainant that the Agency was considering his request for accommodation. Accordingly, we find that the denial of reasonable accommodation occurred on November 17, 2011. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150325 16 0120150325