0320120001
01-04-2012
Rodney F. Barkis, Petitioner, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Rodney F. Barkis,
Petitioner,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320120001
MSPB No. DA0752100579I1
DECISION
On October 4, 2011, the Equal Employment Opportunity Commission received
a petition from Petitioner asking for review of a final decision 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.
ISSUE PRESENTED
The issue presented is whether the decision of the MSPB, with respect
to Petitioner’s allegation of disability 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.
BACKGROUND
In an appeal filed with the MSPB, Petitioner alleged that the Agency
discriminated against him on the basis of disability (bipolar disorder)
when, effective June 25, 2010, he was removed from his position of
Carpenter with the 17th Civil Engineering Squadron at Goodfellow Air Force
Base in Texas. Petitioner was charged with the following in connection
with an April 15, 2010 incident: (1) engaging in threatening conduct by
initiating a verbal and physical confrontation with a co-worker (C1);
(2) defiance of authority, refusal to comply with orders/instructions;
and (3) deliberate failure to observe safety practices.
The undisputed record reflects that the following events occurred during
the April 15, 2010 incident: Petitioner entered the building through
an open door leading to a welding area, where C1 was working with a lit
acetylene torch; C1, holding the lit torch, told Petitioner not to use
the welding door as an entrance; Petitioner refused to go back outside to
use a different door and threw water at C1 while C1 was holding the lit
torch; C1 put the torch down and threw a water-mud mixture at Petitioner;
and Petitioner threw mud at C1.1
On January 27, 2011, following a hearing, an MSPB Administrative Judge
(MSPB AJ) issued an initial decision sustaining charges 2 and 3,2 finding
no disability discrimination, and upholding the Agency’s removal action.
Regarding charge 2, the MSPB AJ found that Petitioner was previously
told by supervisors and C1 that the welding door was not to be used as
an entrance, but chose to disobey those instructions when he used the
welding door as an entrance on April 15, 2010. In so finding, the MSPB
AJ relied on the testimony of C1, two employees working in the welding
area when the incident occurred, the Unit Safety Representative, and
Petitioner’s supervisor. Although Petitioner testified that he was
never instructed that he was not supposed to use the welding door as
an entrance, the MSPB AJ noted that every other witness testified that
it was common knowledge that the welding door was not to be used as an
entrance and that the entire squadron was briefed on the issue.
Regarding charge 3, the MSPB AJ found that Petitioner’s actions
created serious safety concerns. In so finding, the MSPB AJ relied on
the testimony of C1, the Unit Safety Representative, and Petitioner’s
supervisor. Although Petitioner testified that he only threw water
on C1 because C1 approached him with a lit torch and that he did not
violate any safety practices by using the welding door, the MSPB AJ
noted that other witnesses testified that Petitioner disregarded safety
practices in the hazardous welding area. The MSPB AJ determined that
Petitioner’s safety violations included the following: (a) entering
through the welding door when there was another door only 10 feet away;
(b) entering through the welding door when he saw C1 using the lit torch;
(c) not wearing the proper protective equipment in the welding area;
and (d) throwing water at C1, who was holding the lit torch.
Regarding charges 2 and 3, the MSPB AJ found the testimony of the other
witnesses to be more credible than Petitioner’s testimony. In crediting
their testimony, the MSPB AJ determined that those witnesses testified
“in a direct and straightforward manner” and noted the consistency
of their testimony on both cross and direct examination.
Regarding the issue of disability discrimination, the MSPB AJ analyzed it
under two frameworks: reasonable accommodation and disparate treatment.
As to reasonable accommodation, the MSPB AJ found that Petitioner failed
to establish that the Agency did not accommodate his bipolar disorder.
Specifically, the MSPB AJ cited testimony from Petitioner that he did not
need an accommodation to do his job, he did not request an accommodation,
and his bipolar disorder was unrelated to his behavior on April 15, 2010.
As to disparate treatment, the MSPB AJ found that Petitioner failed to
identify similarly situated individuals outside of his protected class
that were treated more favorably than he was. Specifically, the MSPB
AJ determined that C1 (who received a written reprimand for keeping
the torch lit when he first encountered Petitioner) was not similarly
situated to Petitioner because their actions on April 15, 2010 were
different. The MSPB AJ found that C1 was attempting to enforce safety
standards when he told Petitioner not to enter through the welding door,
whereas Petitioner engaged in purely unsafe behavior and instigated an
altercation with C1.
Petitioner filed a petition for review by the full Board, but his petition
was denied. Petitioner then filed the instant petition.
ARGUMENTS IN PETITION
In his petition, Petitioner stated that that he received the MSPB’s
final decision on September 4, 2011. In addition, Petitioner argued
that the MSPB “did not take into consideration [his] psychological
medical history” and submitted a copy of his medical record.
In response, the Agency argued that Petitioner’s petition was untimely
filed because it did not meet the 30 day deadline of September 23, 2011.
Specifically, the Agency asserted that Petitioner failed to provide any
credible evidence that he did not receive the MSPB’s final decision
within five days of August 19, 2011 – the date the MSPB mailed the
decision. The Agency also argued that, even if timely, Petitioner did
not demonstrate that the MSPB erred and only submitted the same medical
evidence that was presented at the hearing.
ANALYSIS AND FINDINGS
As an initial matter, we address the Agency’s argument that
Petitioner’s petition was untimely. 29 C.F.R. § 1614.303(c) provides
that a petition must be filed with the Commission within 30 days of
receipt of the final decision of the MSPB. Petitioner stated that
he received the final decision on September 4, 2011. The Commission
received Petitioner’s petition on October 4, 2011, which is within 30
day timeframe. We note that the Agency provided no evidence, such as
a certified mail return receipt card, showing that Petitioner received
the final decision before September 4, 2011. Accordingly, we find that
Petitioner’s petition was timely filed.
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.
Upon review of the record, we concur with the MSPB’s decision that
Petitioner failed to establish that the Agency did not accommodate his
bipolar disorder or that the Agency removed him because of his bipolar
disorder. We note that Petitioner did not specifically challenge any
part of the MSPB’s decision in his petition to the Commission, other
than stating generally that the MSPB “did not take into consideration
[his] psychological medical history.” For purposes of analysis only,
we assume, without so finding, that Petitioner is a qualified individual
with a disability entitled to coverage under the Rehabilitation Act.
First, under the Commission’s regulations, federal agencies 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); see 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. See 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).
Here, Petitioner’s testimony supports the MSPB AJ’s finding that
Petitioner did not need a reasonable accommodation for his bipolar
disorder and never requested such an accommodation. Moreover,
Petitioner’s testimony supports the MSPB AJ’s finding that his
bipolar disorder was unrelated to his behavior on April 15, 2010.
Second, an agency may discipline an employee with a disability for
violating a workplace conduct standard if it would impose the same
discipline on an employee without a disability, provided that the
workplace conduct standard is job-related for the position in question and
is consistent with business necessity. EEOC Enforcement Guidance on the
Americans with Disabilities Act and Psychiatric Disabilities, No. 915.002,
Question 30 (Mar. 25, 1997). Here, Petitioner was removed from his
position based on the following charges: (1) engaging in threatening
conduct by initiating a verbal and physical confrontation with C1; (2)
defiance of authority, refusal to comply with orders/instructions; and (3)
deliberate failure to observe safety practices. We agree with the MSPB
AJ that Petitioner failed to show that a non-disabled employee, such as
C1, engaged in similar misconduct but was not removed. The testimony of
other witnesses, found credible by the MSPB AJ,3 supports the MSPB AJ’s
finding that Petitioner refused to comply with orders/instructions and
deliberately failed to observe safety practices. There is no evidence
in the record that C1 engaged in similar misconduct; unlike Petitioner,
C1 did not use the welding door as an entrance despite instructions
not to do so, enter the welding area while an employee was using a lit
torch, fail to wear the proper protective equipment in the welding area,
and throw water at an employee who was holding a lit torch.
CONCLUSION
Based upon a thorough review of the record, 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 (W0610)
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 (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
__1/4/12________________
Date
1 Petitioner testified that he used the welding door, which was closest
to his vehicle, because he wanted to get out of the rain. In addition,
Petitioner testified that he did not want to go back outside and use
the other door once C1 told him the welding door was not to be used as
an entrance because it was raining heavily and there was lightning in
the sky.
2 The MSPB AJ found that Petitioner’s conduct was not threatening and
declined to sustain charge 1.
3 An Administrative Judge’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 Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, Ch. 9, § VI.B.2 (Nov. 9, 1999).
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0320120001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013