U.S. Equal Employment Opportunity Commission

Roger E. Kendall, Petitioner,


John Ashcroft, Attorney General,

Department of Justice, Agency


MSPB No. SF-0752-04-0153-I-2

Petition No. 03A50006

2005 EEOPUB Lexis 350


January 31, 2005




On November 17, 2004, petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.




Petitioner was an Intelligence Research Specialist at the agency's Drug Enforcement Administration. On May 20, 2004, petitioner filed a mixed case appeal with the MSPB. Petitioner alleged that he was discriminated against on the bases of disability (delayed sleep phase syndrome and sleep apnea) and age (59 years old) when, effective November 17, 2003, the agency removed him from his position based on a charge of excessive absence without leave (AWOL).


The record indicates that petitioner's work schedule had been from 9 a.m. to 5:30 p.m. On September 9, 1998,  petitioner submitted his request to the Deputy Assistant Administrator for Personnel for a change in his work schedule so that he could arrive at work at 11:00 a.m. as a reasonable accommodation for his sleep disorders. Additionally, petitioner requested that in the event he could not arrive by 11 a.m., he asked to alter his schedule based on his arrival time. Management denied both of petitioner's requests. In November 1999, management changed his schedule work hours to 10 a.m. until 6:30 p.m. On September 24, 2001, petitioner continued to request that the agency allow him to work beginning at 11:00 a.m. Again, petitioner was informed by management that his work schedule would remain starting at 10 a.m.


On December 19, 2001, petitioner was issued a leave restriction letter. From January 11, 2002 through August 9, 2002, petitioner's AWOL charges continued to grow. During that timeframe, management, on a weekly basis, would provide petitioner with a list of his reporting times. A review of those reports shows that petitioner rarely reported for duty by 11:00. Petitioner was subsequently issued a warning by his supervisor on August 29, 2002, regarding his continued tardiness. Petitioner requested a work schedule that supposedly would accommodate his condition but failed to indicate a specific accommodation.


Petitioner's attendance issue persisted. The record indicates that he would arrive at a variety of times but, again, would rarely arrive before 11 a.m., let alone his 10 a.m. start time. As a result, the agency placed petitioner on leave restrictions and he received five-day and fourteen-day suspensions for excessive unauthorized AWOL. On May 27, 2003, the agency proposed petitioner's removal. The agency based its decision on petitioner's history of absences, his lack of reliability and availability, and recent accumulation of 50.5 hours of AWOL from March 17, 2003 through April 18, 2003. The removal action became effective November 17, 2003.


After a hearing, the MSPB Administrative Judge (AJ) found that petitioner failed to establish that he was a qualified individual with a disability based on performance deficiencies unrelated to his condition. As a result, the MSPB AJ determined that petitioner did not establish a violation of the Rehabilitation Act.


As to petitioner's claim of age-based discrimination, the MSPB AJ determined that the agency articulated  legitimate, nondiscriminatory reason for its action, namely the charge of excessive absence without leave. Further, the MSPB AJ found that petitioner did not establish by preponderant evidence that the agency's reason was pretext. Accordingly, the MSPB AJ concluded that petitioner did not show that the agency's action was discrimination based on age.


Petitioner filed this petition with the Commission without comment.


   Analysis and Findings


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. 29 C.F.R. § 1614.305(c).


Reasonable Accommodation


Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. Enforcement  Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) (Enforcement Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish disability discrimination, petitioner 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 a reasonable accommodation. Enforcement Guidance.


For the purposes of analysis, we assume petitioner is an individual with a disability. The Commission finds that petitioner failed to satisfy prong (3). Petitioner did not show that the agency violated the Rehabilitation Act when it failed to adjust his schedule in response to his request for an accommodation. First, a reasonable accommodation must be effective. "The word 'accommodation' . . . conveys the need for effectiveness." See Lavern R. Wiley v. United States Postal Serv., Appeal No. 07A20105 (September 15, 2003), req. for reconsideration denied, Request No.  05A40147 (December 11, 2003). "An ineffective 'modification' or 'adjustment' will not accommodate a disabled individual's limitations." Id. Second, a reasonable accommodation needs to be reasonable on its face, i.e., plausible or feasible. Id.


Petitioner requested that the agency provide him with a change in work schedule originally from 9:00 a.m. to 5:30 p.m. to 11:00 a.m. to 7:30 p.m. In petitioner's request, he also noted that he would like the ability to adjust his work schedule so that when he arrived after 11:00 a.m., he be allowed to work a full eight-hour day. The agency modified petitioner's schedule so that he could start at 10:00 a.m. and denied petitioner's specific requests. Upon review, the Commission finds that petitioner's request for his reporting time to be changed to 11:00 a.m. would not have been effective. This is based on petitioner's attendance record over the years which showed he rarely reported for duty by 11:00 a.m. Therefore, we determine that the record indicates that the only effective accommodation would have been to allow complainant to report to work whenever he was able. However, such an accommodation is not reasonable on its face.  Id. It is not "plausible" or "feasible" for an employer to excuse chronic erratic absenteeism and tardiness by an employee who cannot provide timely notice sufficient to enable the employer to ensure adequate staffing. See id. Thus, the Commission concludes that petitioner failed to show that there was an effective and feasible accommodation that the agency could have provided.


Age Discrimination


A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For petitioner to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the petitioner bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).


This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether petitioner has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).


Upon review of the record, the agency has provided legitimate, nondiscriminatory reasons for its action, namely petitioner's pattern of excessive AWOL and prior disciplinary actions. Petitioner failed to show that the agency's reasons were pretext for age discrimination. Accordingly, we conclude that petitioner failed to show that the removal action was discriminatory based on age.




Based upon a thorough review of the record and for the foregoing reasons, 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.