Florentino S.,1 Complainant,v.Eric K. Fanning, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionOct 14, 20160120152949 (E.E.O.C. Oct. 14, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Florentino S.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120152949 Hearing No. 570-2010-00264X Agency No. ARHQOSA09APR01431 DECISION The Commission accepts Complainant’s appeal from the Agency’s August 18, 2015 final order 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Systems Analyst at the Agency’s Army Material Command Headquarters in Fort Belvoir, Virginia. Complainant was diagnosed with Diabetes in 2000, and he suffers from peripheral neuropathy and arthritis. Complainant’s conditions impair his abilities to walk and keep his balance. Around January 2009, Complainant’s doctor determined that Complainant’s conditions impaired his short-term memory and his abilities to concentrate and think. As a result of the neuropathy and arthritis in his fingers, Complainant cannot effectively use a laptop computer keyboard. Complainant has been granted several accommodations to assist him in performing his duties, including an ergonomic keyboard. 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. 0120152949 2 The Agency offers a Lean Six Sigma (LSS) training program. LSS is a process improvement program that utilizes statistical and project management philosophies. Complainant requested to become certified at the Master Black Belt level as he had previously been certified at the Black Belt level. A Master Black Belt level certifies an individual to lead and manage projects. In January 2009, Complainant enrolled in the LSS Master Black Belt level training course taught by two instructors (TI-1 and TI-2). Complainant subsequently learned that the final course examination would be administered on a laptop. In February 2009, Complainant informed TI-1 that he was having difficulty with his hands because of arthritis and neuropathy and that he was having problems with his short-term memory. Additionally, on February 24, 2009, Complainant communicated his need for a reasonable accommodation for the LSS Master Black Belt examination to TI-1 and the EEO Specialist. The EEO Specialist submitted a written reasonable accommodation request stating that Complainant needed “preventative measures for conditions/adaptive equipment” and “test- taking accommodation with Army Lean Six Sigma office,” with the latter adjustment being specifically requested for the LSS examination. On March 13, 2009, the Agency administered the LSS Master Black Belt examination. Complainant took the test, but did not receive any accommodation at the time. On March 26, 2009, Complainant contacted TI-1 and the Director of the LSS Program (Director) regarding his request for reasonable accommodation. In response, TI-1 stated that Complainant would be allowed to re-take the test orally if he failed. Complainant responded that he wanted, as a reasonable accommodation, to take the test untimed and without the use of “a cumbersome laptop which constrained the use of [his] large arthritic hands.” The Director responded that it was the office’s intent to have all candidates successfully pass the final exam or re-test, but there were no exceptions to the policy. On April 1, 2009, the EEO Specialist attempted to call the Director on Complainant’s behalf, but was unable to reach him. On April 2, 2009, the EEO Specialist followed up with an email to the Director regarding Complainant’s medical conditions and the fact that they likely “would interfere with his ability to take his [Master Black Belt] test in the time allotted.” The Director responded on April 9, 2009, and referred the EEO Specialist to another office. After subsequent emails, the Director noted that Complainant’s office did not request any special conditions for Complainant prior to nominating him for the course. On April 13, 2009, Complainant learned that he had failed the examination. Unbeknownst to the instructors, Complainant had taken the examination home with him after completing it. Approximately two weeks after the final grades were posted, TI-1 received a second examination that Complainant had taken on his own initiative at home. Complainant claimed that he completed the examination over the course of four days with his own equipment. Initially, the Director instructed TI-1 to disregard the examination. On May 6, 2009, the Director emailed Complainant and asked that he submit the examination to him and he would have it graded. Complainant’s second examination was graded and given a score of 56 or 65 applying the nine-point curve. Candidates needed to achieve a score of at least 70 to pass the 0120152949 3 Master Black Belt examination; therefore, Complainant did not pass. Complainant was offered additional coaching and an extended timeframe to take the test again orally; however, Complainant declined. On June 12, 2009, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of disability when management failed to accommodate him in connection with the final exam for the U.S. Army Lean Six Sigma (LSS) Master Black Belt Training Program, and as a result, caused him to fail the exam. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the Agency and issued a decision on July 31, 2015. In the decision, the AJ initially determined that Complainant is a qualified individual with a disability. Next, the AJ found that Complainant established that he requested reasonable accommodation during his conversations with TI-1 about the adjustments he would need for the final examination, the additional conversations he had with Agency officials, and his conversations with TI-1 and the Director following the examination. On March 26, 2009, Complainant specifically told the Director, TI-1, TI-2, and the EEO Specialist that he wanted “for reasonable accommodation, to finish the test within normal working conditions and not because of a timed test…that required the use of a cumbersome laptop which constrained the use of [his] large arthritic hands.” The AJ next determined that it was undisputed that the Agency failed to engage in the interactive process. When Complainant first requested accommodation to take the examination, TI-1 erroneously believed that the request needed to be submitted on a form for him to refer it to the Director for his consideration. Furthermore, the AJ found that it was undisputed that the EEO Specialist made several attempts to contact the Director on Complainant’s behalf to discuss the matter, but the Director failed to respond to the EEO Specialist’s messages. Even once he did respond, the Director failed to engage Complainant or the EEO Specialist on Complainant’s behalf to conduct an assessment of Complainant’s limitations and possible accommodations. As a result, the AJ found that the undisputed evidence demonstrated that the Agency failed to engage in the interactive process with Complainant. Nonetheless, the AJ found that the undisputed evidence supported that Complainant was provided an effective accommodation. Complainant, on his own initiative, took the examination home and completed a second examination, unsupervised, without time constraints, in any manner he chose that was responsive to his limitations. Although the Agency was initially reluctant to accept Complainant’s second examination, the AJ noted that it was undisputed that the Agency ultimately accepted and graded the second examination. The three scorers assigned Complainant scores of 62, 55, and 51. Complainant’s average score of 0120152949 4 56 was even given a nine point curve. Complainant’s overall score of 65 was still below the passing threshold. Thus, the AJ concluded that Complainant was provided an effective accommodation for his physical and mental condition that enabled him to complete the LSS Master Black Belt examination.2 The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of the Agency. Complainant argues that he requested reasonable accommodation for taking/completing the examination and the Agency failed to engage in the interactive process with him. Further, Complainant claims that even though the Agency accepted his second examination, officials failed to properly grade the second examination. Finally, Complainant contends that the Agency should have allowed him to take an untimed verbal examination. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. Denial of Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that Complainant was denied a reasonable accommodation, 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. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 2 The AJ noted that Complainant challenged the grading of his examination; however, the AJ found that Complainant failed to demonstrate that a genuine issue of material fact existed regarding the accuracy of his score. 0120152949 5 1630.2 (o) and (p). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is a qualified individual with a disability. Upon review of the record, the Commission agrees with the AJ that the record demonstrates that the Agency failed to engage in the interactive process following Complainant’s request for reasonable accommodation. Complainant had several conversations about his short-term memory and arthritic hands with the course officials and his concerns about his ability to take the examination administered by laptop. Complainant did not receive an accommodation during the administration of the initial written examination. Complainant and the EEO Specialist attempted to communicate with TI-1 and the Director to request an accommodation. Following the examination, on March 26, 2009, Complainant specifically requested accommodation to allow him to “finish the test within normal working conditions not because of a timed test to push the rim on the LSS body of knowledge that required use of a cumbersome laptop which constrained the use of my large arthritic hands.” Complainant’s Motion for Summary Judgment, Ex. 7, at 3-4. The Director did not immediately respond to Complainant’s request until April 9, 2009. At no point did the Director or the instructors engage with Complainant to assess his condition and pursue any possible accommodations which would allow him to successfully complete the examination. Thus, the Commission finds that the Agency failed to engage in the interactive process with Complainant. Despite the Agency’s failure to engage in the interactive process, the Commission agrees with the AJ that the Agency provided an effective reasonable accommodation for Complainant’s medical conditions that allowed him to successfully take the LSS Master Black Belt examination. Complainant requested an alternative method to taking the examination because he was unable to complete it in the five-hour timeframe due to his physical and mental conditions. ROI, Fact-Finding Conference, at 36. It is undisputed that Complainant took the examination home on his own volition and completed it untimed and with equipment suitable for his condition over the course of four days. Id. at 43. While the Agency was initially reluctant to accept it, the Director ultimately accepted Complainant’s second examination and submitted it for grading. Id. at 107. Complainant received a score of 56 (plus a nine-point curve), which was still below the passing threshold of 70. Id. at 94. As an accommodation, Complainant was seeking an alternative method of taking the examination which included no time limit and equipment suited for his physical conditions. Complainant completed the examination under those conditions, and the Agency accepted the examination he completed under those conditions. Complainant acknowledged that he submitted the examination expecting that it would be accepted as his official, completed examination and that taking it without time constraints and with his own equipment “solved [his] requested accommodation.” ROI, at 171; Agency’s Response to Complainant’s Motion for Summary Judgment, Ex. C, at 5. The Commission therefore agrees with the AJ that Agency fulfilled its obligation to reasonably accommodate Complainant’s condition by accepting his second examination completed under the conditions Complainant requested. 0120152949 6 Complainant argues on appeal that the Agency should have allowed him to take the examination orally and untimed. The Commission notes that Complainant may be entitled to an effective reasonable accommodation under the Rehabilitation Act, but he is not entitled to the accommodation of his choice. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 9 (rev. Oct. 17, 2002). Complainant has presented no evidence that the requested and provided accommodation was ineffective. Furthermore, the record indicates that the Agency was willing to allow Complainant to take the examination again verbally, with additional coaching, and extended timeframes and deadlines to enable him to receive sufficient coaching. Complainant declined this offer. Finally, to the extent, that Complainant challenges the accuracy of the course officials’ grading of his second examination, the Commission finds that Complainant presented no evidence of discriminatory animus regarding the manner in which his examination was processed. Accordingly, the Commission finds no basis to disturb the AJ’s summary judgment decision. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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. The requests 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 0120152949 7 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’s signature Carlton M. Hadden, Director Office of Federal Operations October 14, 2016 Date Copy with citationCopy as parenthetical citation