0120092856
11-27-2009
Chuchwudi Perry, Complainant, v. Gary F. Locke, Secretary, Department of Commerce, Agency.
Chuchwudi Perry,
Complainant,
v.
Gary F. Locke,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120092856
Agency No. 07-56-82
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 29, 2009 final decision concerning his equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The record reflects that on January 22, 2007, complainant was hired as
a Patent Examiner, at the agency's Office of Patent Training Academy in
Alexandria, Virginia, on an excepted service appointment subject to a
2-year probationary period.
On August 10, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him on
the bases of race (African-American), color (African-American), disability
(vision impairment), and in reprisal for prior EEO activity when:
1. on February 16, 2007, an employee processing his first pay check
yelled at him;
2. on May 23, 2007, he received a "Notification of Discharge During
Trial Period" effective May 26, 2007;
3. as of May 25, 2007, the agency had not responded to his reasonable
accommodation request submitted on February 2, 2007; and
4. on June 21, 2007, complainant did not receive compensation for pay
period ten (10).
On September 17, 2007, the agency issued a partial dismissal. The agency
accepted claims 2 - 4 for investigation. However, the agency dismissed
claim 1 for raising a matter that was not brought to the attention of an
EEO Counselor and not like or related to a matter that has been brought to
the attention of an EEO Counselor, pursuant to 29 C.F.R. � 1614.107(a)(2).
The agency also dismissed claim 1 on the alternative grounds of stating
the same claim that is pending before or has been decided by the agency
or the Commission, pursuant to 29 C.F.R. � 1614.107(a)(2).
After the investigation of claims 2 - 4, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On April 1, 2009, the AJ issued an order,
dismissing the formal complaint from the hearing process. In his Order,
the AJ concluded that because complainant failed to cooperate during
the discovery process; complainant and his representative violated the
hearing process when they submitted untimely documentation and complainant
walked out of his deposition that was being conducted by an agency counsel
before it had been completed; and failed to show cause for his failure
to comply with his April 15, 2008 Order to produce all relevant records,
he remanded the case to the agency for issuance of a final decision.
Therefore, the agency issued the instant final decision on May 29, 2009.
In its May 29, 2009 final decision, the agency found no discrimination
concerning claim 2 - 4. Specifically, the agency found complainant failed
to establish a prima facie case of race, color, disability and reprisal
discrimination.1 The agency further found assuming, for the purpose
of argument only, complainant established a prima facie case of race,
color, disability and reprisal discrimination, management articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show were a pretext.
Regarding claim 2, complainant's first-level supervisor (S1) stated that
complainant was terminated during his probationary period for failure
to adequately perform the duties of his position. S1 stated that
complainant "routinely missed due dates on assignments. No finished
work product turned in. No completed applications to be mailed.
[Complainant] had not demonstrated the expected level of ability to
learn and independently perform assigned functions. [Complainant]
failed to demonstrate acceptable performance of the assigned task and
functions." Furthermore, S1 stated that complainant's race, color,
alleged disability and prior protected activity were not factors in
management's determination to terminate him during his probationary
period.
Regarding claim 3, S1 stated that the Office of Civil Rights handles
reasonable accommodation requests. S1 stated that he was unaware
until approximately April 23, 2007 that complainant was experiencing
difficulties with his vision. Specifically, S1 stated that complainant
"never complained that he had visual impairment until around 4/23 [2007]
and/or his vision impairment might affect his work."
The Reasonable Accommodation Specialist (Specialist) stated that
complainant was referred to him by the Associate Director of the Office of
Civil Rights. The Specialist stated that he met with complainant prior
to his dismissal but could not recall the specific day. The Specialist
stated that he and complainant discussed complainant's concerns about
scheduling leave and being permitted to keep medical appointments.
The Specialist stated that he explained the agency process for requesting
reasonable accommodation to complainant. The Specialist further stated
that complainant "could have discussed reasonable accommodation with
another source at USPTO [United States Patent and Trademark Office],
however he would have been directed to OCR for the interactive process."
Regarding the assertion that complainant had a lengthy conversation with
the Specialist, informing him that he had lost vision in his left eye
and needed enlargement of certain displays on his computer monitor in his
office, the Specialist stated "I don't recall having a conversation with
[complainant] regarding computer monitors." The Specialist stated that
during the relevant time he gave complainant his business card and "I do
offer my services to employees who may have questions on accommodation
issues."
Regarding claim 4, S1 stated that he was not involved in processing
compensation for pay period ten. S1 stated, however, he provided
complainant with time to work with Human Resources (HR) in order to
resolve an earlier pay dispute complainant voiced. S1 stated that he
consulted with Class Manager and the Director in order "to help solve
[Complainant's] problems and to expedite some of the services from HR."
With respect to complainant's allegation that S1 threatened him that he
would be terminated for challenging management concerning his pay dispute,
S1 denied it.
The Specialist stated that he met with complainant prior to his dismissal
and complainant "discussed issues he was having with his schedule
and leave. I suggested that he talk to someone in Employee Relations."
On appeal, complainant argues that the agency "failed to engage in
the interactive process despite his numerous requests for reasonable
accommodation and despite being on notice as to Complainant's requests and
disability." Finally, complainant requests that the Commission overturn
the agency's final decision finding no discrimination and that he "should
receive a new hearing regarding his disability discrimination claims."
In response, the agency argues that the date of a November 14, 2007
Schedule A letter that complainant submitted to the EEO investigator was
months after he was removed from agency employment and that there was
no possible way management could have had this letter in its possession
during complainant's tenure at the agency. The agency further argues
that complainant never provided management with medical documentation
of a disability during his employment. The agency argues that the only
medical documentation provided of complainant's medical impairment during
his employment was a sentence written on a prescription pad dated May
16, 2007 which stated "Please excuse [complainant] from work activity
because of pain and need for positioning until 5-28-07." Furthermore,
the agency argues that as a result, complainant was never a qualified
individual with a disability under the Rehabilitation Act.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
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. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant 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.
See 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
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board 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).
In the instant case, we find that after a careful review of the record,
the agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination.
Complainant, on appeal, has provided no persuasive arguments indicating
any improprieties in the agency's findings. Therefore, after a review of
the record in its entirety, including consideration of all statements on
appeal, it is the decision of the Equal Employment Opportunity Commission
to AFFIRM the agency's final decision concerning claims 2 - 4 because
the preponderance of the evidence of record does not establish that
discrimination occurred.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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. See 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 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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
November 27, 2009
__________________
Date
1 The Commission presumes for purposes of analysis only, and without so
finding, that complainant is an individual with a disability.
2 On appeal, complainant does not challenge an agency September 17, 2007
partial dismissal regarding claim 1. Therefore, we have not addressed
this issue in our decision.
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0120092856
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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