01981668
03-20-2000
Robert C. Laity, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
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.