0120172531
09-27-2018
Ethan M.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ethan M.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120172531
Agency No. NY160843SSA
DECISION
On July 7, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 6, 2017, final decision concerning his equal employment opportunity (EEO) complaint alleging employment 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. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD).
ISSUES PRESENTED
Whether the Agency properly found that Complainant failed to establish that he was subjected to discrimination on the basis of disability when he was allegedly improperly denied a reasonable accommodation on May 22, 2016.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Benefits Authorizer, GS-9 at the Agency's Northeast Processing Service Center facility in Jamaica, New York. The Agency's FAD thoroughly discussed that facts in the record, and the instant decision incorporates them as stated. On November 9, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and age (over 40) as articulated in the statement of Issues Presented above. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge on the reasonable accommodation claim. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
Denial of 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. 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. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish disability discrimination, Complainant 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.
A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). "[T]he word 'accommodation' ... conveys the need for effectiveness." Id. "An ineffective 'modification' or 'adjustment' will not accommodate a disabled individual's limitations." Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. See Guidance. A complainant who seeks to hold an agency liable for failing to accommodate a disability need not show that they have suffered an adverse employment action. An agency is required to accommodate an employee's disability whether or not a failure to do so is motivated by discrimination based on that disability.
For purposes of analysis only we will assume, without so finding, that Complainant is an individual with a disability. Complainant, however, has not shown that he could perform the essential functions of his position as a Benefits Authorizer with or without an accommodation, i.e., he has not established that he is a qualified individual with a disability. The record indicates that the Agency attempted to accommodate Complainant, but he was still unable to perform the duties of his position with the accommodations provided.
In January 2015, during the second phase of his training, an audit was conducted of Complainant's work. His mentor found a number of deficiencies and errors, which he memorialized in a summary dated February 4, 2015. Out of 13 cases reviewed, a total of 6 errors related to payment processing, technical errors, and informational errors were recorded. The mentor advised Complainant of specific improvements that needed to be made to his work product. On or around March 26, 2015, Complainant was again advised that there were still concerns with his performance. He was subsequently informed that he was being put on a performance assistance plan (PAS) to give him an opportunity to work on the areas of concern and improve his performance. The PAS would start at the end of March and run for 30 days. In May 2015, Complainant was advised that he had not successfully completed the PAS, and that he would be put on an Opportunity to Perform Successfully (OPS) plan, effective May 14, 2015.
Complainant subsequently requested a reasonable accommodation of a modified keyboard and voice activated computer typing software to improve accuracy and production. The Agency approved the request and cancelled the OPS plan pending completion of his training on the assistive equipment. On August 6, 2015, Complainant was put on another PAS, despite getting acclimated to the assistive software. By August 25, 2015, he was still lagging in productivity, and failed to exhibit acceptable performance in two critical areas. By letter dated September 17, 2015, Complainant was advised that he was being placed on another PAS which would remain in place for 120 days, and on November 12, 2015, a progress review was conducted and Complainant was advised that his work continued to reflect inconsistencies in research, comprehending policy, and processing cases accurately. As a result of little improvement overall in his work performance, and following two more progress reviews in December 2015 and May 2016, a proposal was made by letter dated May 23, 2016, to reduce Complainant in grade from his Benefit Authorizer position to the position of Earnings Reviewer.
A protected individual is entitled to a reasonable accommodation. See Castaneda v. United States Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). The employer may choose among reasonable accommodations so long as the chosen accommodation is effective. U.S. Airways v. Barnett, 533 U.S. 391, 400 (2002). In this case, we find that the Agency took care in assessing which accommodations would be most effective for Complainant. Complainant identified specific accommodations, and worked with appropriate Agency personnel to put the accommodations in place. Complainant had been given multiple opportunities and supports to improve his work performance, but failed to do so. The record is void of any evidence that there was a delay in Complainant obtaining the requested accommodations, or that he was not given the specific accommodations he requested. Additionally, Complainant had already been placed on a series of performance improvement plans in an effort to assist him with improving his performance in his position. Complainant was unable to establish that he could perform the essential functions of his position with, or without an accommodation - therefore he was unable to establish that he was qualified. Even if we were to assume Complainant was qualified, we find that he did not establish that he was denied a reasonable accommodation.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's FAD. Complainant did not establish that he was a qualified individual with a disability. Even assuming, arguendo, that he was able to establish that she was a qualified individual with a disability, he did not prove that he was denied a reasonable accommodation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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's signature
Carlton M. Hadden, Director
Office of Federal Operations
___9/27/18_______________
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 The Commission notes that Complainant's initial complaint contained an additional allegation that he was discriminated against on the basis of age when on October 11, 2016, he was demoted from a Benefits Authorizer (BA), GS-9 position to a Customer Service Representative (CSR), GS-8 position. We note this allegation was processed as a mixed-case before the MSPB and is not the subject of the instant decision.
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