0120141913
02-26-2016
Elenore F.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elenore F.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120141913
Hearing No. 560-2012-00222X
Agency No. KC-11-0846-SSA
DECISION
Complainant filed an appeal from the Agency's March 25, 2014 final decision concerning her equal employment opportunity (EEO) complaint. She alleged employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Assistant/ Senior Case Technician ("SCT"), GS-0986-06, at the Agency's Office of Disability Adjudication and Review facility, in Kansas City, Missouri.
On October 13, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (physical and mental) when, on May 12, 2011, the Agency removed Complainant from her Legal Assistant / Senior Case Technician position during her probationary period.
The Agency accepted her complaint for investigation. The pertinent record developed during the investigation shows that Complainant was employed with the Agency from September 27, 2009 until May 12, 2011, when the Agency terminated her employment. She was serving a two-year probationary appointment. Complainant had qualified for a non-competitive Schedule A appointment based on her hearing impairment. Complainant has deafness in her right ear and a mild hearing loss in her left ear. Her immediate supervisor was aware of her hearing disability through his direct contact with her. She also asserted she had other medical conditions, including anxiety.
She reported to the Group Supervisor, GS-13 ("supervisor") at the Moreno Office of Disability Adjudication and Revenue. Her second-level supervisor was the Hearing Office Director. Complainant was also assigned a mentor, a Lead Case Technician.
Her position description required that she "pull an average of eight cases per week or more" and initiate and monitor pre-hearing and post-hearing activities. In October of 2009, her immediate supervisor conducted an initial discussion with Complainant regarding her performance plan. He advised her that she needed to improve and to be more focused.
On February 25, 2010, the Hearing Office Director sent an email message to all SCTs, including Complainant. The message contained a checklist of daily activities, the purpose of which was to enable the SCTs to comply with the requirements of the Agency's electronic Business Plan. Included on the checklist was the requirement that employees "check for and address any voicemail message," and "fully wrap up yesterday's hearings." Report of Investigation (ROI), Exhibit 5, p.1.
On March 19, 2010, her supervisor conducted a performance discussion with Complainant. ROI, Exhibit 22, p.5. He told Complainant that she needed to "balance immersion into detail with the coexisting imperatives of timeliness and productivity."
In early June of 2010, Complainant was assigned to work with an Administrative Judge. ROI, Exhibit 20, p. 1. Complainant was given the responsibility for the full range of duties associated with the SCT position.
On June 30, 2010, her supervisor issued Complainant a memorandum explaining the requirements for pursuing a request for reasonable accommodation, if she wanted to do so. Her supervisor informed Complainant that if she did not submit the SSA Form 501 by August 6, 2010; he would assume that Complainant did not wish to pursue reasonable accommodation. He followed up by sending Complainant a memorandum dated August 12, 2010, that, again offered his assistance if Complainant wished to submit the SSA Form 501.
Complainant did not request reasonable accommodation until November 5, 2010. Complainant requested that: (1) her desk would be relocated, (2) instructions be placed in writing, and (3) she be allowed to function as a floater rather than being assigned to a particular Administrative Judge.
Complainant received a formal performance rating, signed November 26, 2010, that showed that her performance was rated as satisfactory, but under the performance standards required of a trainee. The performance evaluation also indicated that, going forward, Complainant would be required to carry out the full range of the critical jobs elements in her performance standards. ROI, Exhibit 22.
On February 7, 2011, the Agency formally responded to Complainant's request for reasonable accommodation. The memorandum stated that a medical doctor found that Complainant was substantially limited in the major life activity of hearing and that the hearing impairment qualified Complainant as an individual with a disability. In addition, the memorandum also stated that, although Complainant could function with verbal communication, the Agency would continue to provide written instructions and confirmation of oral instructions as requested by Complainant. Complainant was also allowed to relocate her desk.
Complainant's request to be allowed to function solely as a floater rather than being assigned to work with a particular Administrative Judge was denied. The Agency essentially found no connection between Complainant's hearing impairment and this accommodation request. In addition, the memorandum stated that the Agency had not received requested medical documentation of Complainant's other claimed impairments (anxiety, depression and ADHD) and her need to be placed in a floater position as an accommodation to those other conditions.
On March 20, 2011, the Agency issued Complainant a Notice of Intent to terminate her employment prior to the end of her probationary period. In the Notice of Termination, the second-level supervisor stated that, despite receiving training and being issued a performance improvement plan, Complainant continued to make serious errors in judgment, failed to follow her supervisor's instructions, and failed to complete assignments.
On May 11, 2011, the Agency terminated Complainant's employment, during her probationary period. The record shows that the Agency retained another SCT with a hearing impairment.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before a United States Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but she subsequently withdrew her request for a hearing. On July 25, 2015, Complainant asked the Agency for a decision on the record.
Agency Decision
The final decision concluded that Complainant failed to prove that the Agency subjected her to discrimination. The Agency noted that Complainant did not establish a prima facie case of discrimination based on failure to accommodate, because she was not a "qualified individual with a disability." The Agency reasoned that Complainant was not a qualified individual with a disability because the Agency concluded that she was unable to perform the essential functions of her job. The Agency found that her allegation that the Agency failed to have interactive discussions with her was not supported by the facts or law. In addition, the Agency reasoned that, assuming she was a qualified individual with a disability, her request for accommodation was not for a reasonable accommodation because she was asking to be relieved from the requirement to perform the essential functions of her job. It was not reasonable request to be allowed to opt out of the performance of her essential functions. The Agency also held that it was phasing out the floater positions and that it terminated her employment because she failed to meet the performance expectations.
This appeal followed. Complainant did not submit a brief in support of her appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
To bring a claim of disability discrimination, Complainant must first establish that she is an individual with a disability within the meaning of the Rehabilitation Act. An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such impairment. 29 C.F.R. 1630.2(g). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. 1630.2(i). Examples of other major life activities include thinking, concentrating, interacting with others, and sleeping. We note that the Agency has conceded that Complainant is an individual with a disability (hearing impairment) covered under the Rehabilitation Act.
With regard to her other claimed disabilities, the Agency doctor issued a medical determination that her other impairments (anxiety, depression) did not rise to the level of a disability. Complainant was informed of the Agency's determination and she was offered the opportunity to submit additional medical documentation to support her request for an accommodation for these conditions. In a February 7, 2011 memorandum, Complainant was informed that that since she did not submit any additional medication documentation to support her request, the Agency determined that she had not made a showing that she was an individual with a disability for the conditions of anxiety, depression and ADHD. The Agency gave her additional time and also gave her the right to appeal the determination as to whether she was an individual with a disability with regard to the other conditions at issue. Complainant failed to do so. Therefore, we concur with the Agency that Complainant failed to establish that she was an individual with a disability with regard to anything but her hearing impairment.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(m); (2) she is a "qualified" individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See Complainant v. Department of Defense (Department of Defense Education Activity), EEOC No. 0120140976 (January 8, 2016).
A "qualified" individual with a disability is one who satisfied the requisite skill, experience, education, and other job related requirements of the employment position such individual holds, and who, with or without reasonable accommodation, can perform the essential functions of the position. See 29 C.F.R. � 1630.2(m). In this case, based on the satisfactory performance appraisal Complainant received in November 2010, we find that Complainant was qualified to perform her duties, at least under the more lenient standards required of a probationary trainee.
The record establishes that Complainant requested, and was granted, several accommodations to her hearing impairments - her desk was relocated and instructions were given in writing. The only request not granted was the request that she be permanently moved into a floater position. The record shows that she failed to submit sufficient medical documentation to support that request. There is no connection established between this request and Complainant's hearing impairment, and, even assuming Complainant was also disabled because of her other claimed impairments (anxiety/depression/ADHD), she did not establish the need for this accommodation. The job required more multi-tasking and stress-inducing deadlines, not less. The floater job also required that Complainant work with a number of judges and Complainant was asking not to be assigned to any judge and to only pull cases. Finally, to the extent that Complainant was asking for a reassignment as an accommodation, there is no evidence that there was an available, funded, floater position to which she could have been assigned. See Hampton v. U.S. Postal Service, EEOC Appeal No. 01986308 (Aug. 1, 2002). We find, therefore, that Complainant failed to establish that the Agency denied her a reasonable accommodation.
Disparate Treatment - Assignment and Terms and Conditions
There is also no showing that individuals without disabilities were treated better with regard to being assigned to a floater position. In fact, there is testimony that the Agency was eliminating at least one of the two floater positions. Moreover, the record shows that another individual, who had a hearing impairment, was permitted to serve in the floater role.
Disparate Treatment - Termination
As to the termination, the responsible management officials articulated legitimate, non-discriminatory reasons for the termination. The deciding official stated that the decision was made to terminate Complainant's employment during her probationary period due to her unsatisfactory work performance and her failure to meet performance expectations. Management determined that she was not making acceptable progress to the full performance level of the SCT position. Specifically, management claimed she failed to follow instructions or to maintain timely and accurate actions on her case development workload. Management cited her inability to maintain consistent acceptable productivity and also cited Complainant's "flawed" judgment. Her immediate supervisor concurred in the decision.
The decision is supported by record evidence showing that Complainant had been counseled and given a Performance Improvement Memo (PIM) regarding the perceived deficiencies. Further, the record shows that the Agency retained another individual who had a hearing impairment and who did not have similar performance issues. While Complainant claimed some other employees failed to show consistent productivity, all of the comparators were permanent employees. They were not similarly situated to Complainant, who was a probationary employee. There is no showing that any other probationary employees had similar performance issues and had been retained.
Based on the totality of the record, we conclude that Complainant failed to establish that she was subjected to discrimination based on her disability when the Agency refused to permit her to move permanently into a floater position and when it terminated her employment during her probationary period.
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
_____________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 26, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120141913
2
0120141913