By Deryn Sumner, September 13, 2017

It was a hollow victory for the complainant in a recent case where the EEOC’s Office of Federal Operations found the Department of Transportation failed to accommodate him, but also found his termination during his probationary period was justified.  In issuing the decision, the EEOC overturned an administrative judge’s conclusion that no discrimination occurred in Lloyd E. v. Department of Transportation, EEOC Appeal No. 0120150325 (August 17, 2017). The EEOC reviews the decisions of its administrative judges using a substantial evidence standard of review, as compared to the de novo review given to Final Agency Decisions, which essentially means that decisions from administrative judges are given more deference.  However, here the EEOC found appropriate to modify the final order in part, based on a detailed examination of the timeline in the case, as I discuss in more detail below.  [Editor’s Note: In comparison, MSPB board members grant zero deference to the decisions of their judges, except for credibility determinations based on physical observation.]

The complainant worked as an Airway Transportation Systems Specialist and alleged the Department of Transportation failed to accommodate his depression and sleep apnea when it denied him a reasonable accommodation and terminated him during his probationary period.  The complainant’s work hours were 7:00 a.m. to 5:30 p.m. Monday through Thursday.  He had some issues arriving to work in the morning, once because he showed up at the wrong facility thinking he was supposed to attend a class there, once for oversleeping after getting into an argument with his roommate, and once when he overslept because he had run out of medication.  The complainant had recently relocated and was having issues getting his medication refilled at his new VA Medical Center.  After the complainant failed to show up to work on time the third time, his supervisor contacted HR to ask about disciplining him, and specifically asked about terminating him because he was still a probationary employee. The supervisor also sent out an email to the complainant and other employees reminding them that the morning shift started at 7:00 a.m. and employees needed to notify him if they were going to be late.

Now here’s where the timing becomes important.  The day after the supervisor sent the email reminding everyone to be on time, which was November 16, 2011, the complainant was 45 minutes late to work. In a conversation about the complainant’s tardiness, the complainant reported that he was late because he had problems sleeping and asked if he could switch to working eight-hour days with a start time of 8:00 a.m. The supervisor told the complainant that he could work eight-hour days, but would still need to start work at 7:00 a.m. The supervisor charged the complainant AWOL for being late to work that day.

The next day, November 17, 2011, the complainant spoke to the supervisor again and told him that he was a disabled veteran, what his medical conditions were, and said that he had been late to work because he was not able to get a prescribed medication that helped him sleep.  The complainant then asked again for later start time, this time to be switched to the 1:00 p.m. – 11:00 p.m. shift, which the supervisor denied, saying that instead, the complainant could arrive at 8:00 am and use an hour of leave each day.  Given the complainant’s limited leave balance, he did not agree to this proposed solution.

The complainant reported to work on time from November 17 through December 20, although the record later revealed that a handful of times he came to work in the middle of the night and slept at his desk to avoid being late.  More than a month later, on December 19, 2011, the supervisor asked the complainant if he had been seeking a reasonable accommodation back in November, and asked for medical documentation, as well as whether the complainant could safely perform his job duties, given his need for medication.  The complainant provided a doctor’s note the next day, December 20, 2011, but told his supervisor that he didn’t need accommodations because he had now been taking his medication and was showing up to work on time.

After the complainant requested leave at 8:30 a.m. the following day after not showing up to work, the supervisor terminated him on December 28, 2011 for “continued problems with tardiness.”

The complainant filed an EEO complaint and eventually the case wound its way to an administrative judge.  After holding a video teleconferencing (VTC) hearing, the administrative judge concluded that the agency did offer reasonable accommodation by allowing the complainant to use leave every day and show up by 8:00 a.m.  The administrative judge further found that the agency did not discriminate against the complainant when it terminated him because he did not identify employees outside of his protected class who were treated better, and that he didn’t tell the agency until November 17, 2011 that his tardiness was due to his medical condition.

On appeal, the Commission disagreed with the administrative judge that allowing the complainant to use leave to arrive to work late each day is providing accommodation, noting its prior precedent in Denese G. v. Department of Treasury, EEOC Appeal No. 0120141118 (December 29, 2016) that, “forcing an employee to take leave when another accommodation would permit an employee to continue working is not an effective accommodation.” The Commission further found that allowing the complainant to report to work at 8:00 a.m. did not pose an undue hardship, and that the agency should have accommodated the complainant by granting his request for a modified schedule.  However, the Commission defined the timeframe of the failure to accommodate as only from November 17, 2011 until December 20, 2011 (hence why the dates of the fact pattern are so important).

The Commission did agree that the termination was not discriminatory because the complainant was tardy on five occasions, four of which occurred before he requested reasonable accommodation.  As we’ve previously discussed, an employer does not have to accommodate an employee by forgiving misconduct.  As I mentioned at the start, a hollow victory for the complainant.  What remedies would be appropriate for just a little over a month of not being accommodated?  The Commission remanded the case to the agency for an investigation to determine just that.  [email protected]

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