0120071609
07-01-2009
Kenneth A. Frische, Complainant, v. Robert M. Gates, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
Kenneth A. Frische,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 0120071609
Agency No. YS-05-0053
DECISION
On February 9, 2007, complainant filed an appeal from the agency's January
19, 2007 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 appeal is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Contract Specialist Supervisor (Team Leader), GS-1101-13, at the
Melbourne facility in Florida. Complainant has been employed at this
facility for over 15 years. As a Contract Specialist Supervisor (Team
Leader), complainant was responsible for planning, supervising, managing
and leading activities of employees assigned to a Multi-Functional
Operations Team within the agency. The majority of the workload
consists of contracts for critical and/or complex military components,
assemblies, or systems. Major duties also include assuring contractor
compliance with the terms and conditions of contracts and fulfillment
of all obligations imposed by the Federal Acquisition Regulation (FAR)
and other pertinent regulations pertaining to government property in
the possession of contractors and subcontractors.
Complainant suffers several medical conditions, including: tachycardia,
hypoglycemia, allergies, anxiety, arthritis, bursitis, depression,
fatigue, headaches, hypertension, and sinusitis. These conditions caused
complainant to miss work on a regular basis. Approximately in 2002,
complainant was authorized by management to work a modified work schedule,
including regularly earning credit hours which were subsequently used
in lieu of sick leave. Data provided on complainant's credit hours
reflects that he carried over 24 credit hours from the previous year
into the year 2004. In 2004, he earned 212.75 credit hours and used
235 credit hours in 2004. In 2005, he earned 138.25 credit hours and
used 134.25 credit hours. There were no other supervisors who earned
credit hours during 2004 and 2005.
In July 2004, complainant was assigned a new supervisor. From July
2004 through March 31, 2005, complainant's first-level supervisor was
Lieutenant Colonel BF (LTCF).1
On February 18, 2005, via email complainant informed LTCF that he was
"plan[ning] to work up to 6 hours credit time next week." On February
19, 2005, LTCF notified complainant that he was not allowed to work
credit time. On February 22, 2005, complainant met with LTCF to discuss
his concerns regarding credit hours. During the meeting, LTCF informed
complainant that he expected all of his supervisors to be at work five
days a week to supervise the employees for whom they have responsibility,
and that he would not allow complainant to work any more credit time.
Complainant told LTCF that he had very little sick leave available,
and that he needed to earn credit hours to use when he missed work due
to his medical situation. Complainant explained to LTCF that he could
not work five days a week for various reasons. Complainant stated,
for example, that some days he suffers blinding headaches with great
sensitivity to light that make him unable to drive to work because he
cannot see. According to complainant, LTCF suggested to him that take
medical retirement, or telework two hours when he is sick, or consider
another position where the schedule is more flexible, but stated that,
as a supervisor, complainant was required to work five days a week.
Complainant was absent from the office at least one day per week and
some weeks was absent two days. During the conversation, LTCF allegedly
implied that complainant was using credit time to make his own 4-day
workweeks. At the end of the meeting, complainant asked LTCF to put
his expectations regarding time and attendance in writing.
By email dated February 22, 2005, LTCF informed complainant about his
expectations. First, he informed complainant, "As it is with all my Team
Leaders, I expect that you will work five days per week." LTCF also
stated that "if you are sick, you will provide the appropriate notice
to me or my Acting Commander replacement and document your missed time
to sick leave." In addition, LTCF stipulated that complainant could
only earn credit hours for mission essential requirements and that his
request for credit hours must be requested and approved in advance before
working the hours. LTCF further informed complainant that he was not
authorized to work a "blanket 6 credit hours per week."
On March 8, 2005, complainant submitted a "Confirmation of Request for
Reasonable Accommodation," in which complainant requested a modified
work schedule as a form of reasonable accommodation. Complainant stated
that his multiple chronic conditions caused him to be absent from work
periodically. Accordingly, complainant requested that the former past
practice of allowing him "to work up to 6 hours of credit time per week
and then apply the earned hours without restriction to cover absences
in lieu of sick leave be formalized as a reasonable accommodation"
for his medical situation. On March 15, 2005, complainant's request
for reasonable accommodation was denied because "medical documentation
inadequate [sic]." Specifically, the letter stated:
"Medical documentation does not provide a diagnosis, including current
clinical status. What is the prognosis of the condition(s)? Is there
an estimated date of full or partial recovery? Specific, not general,
medical information is necessary to make a determination on this request
for reasonable accommodation. Information provided should demonstrate
this condition effect a major life function, and how the requested
accommodation will enable you to perform the essential functions of your
job."
In a March 29, 2005 doctor's note, complainant's doctor indicated that
complainant was diagnosed with tachycardia and reactive hypoglycemia
since 1970, which are chronic conditions. The doctor also indicated
that complainant had developed additional medical conditions including
allergies, anxiety, arthritis, bursitis, depression, fatigue, headaches,
hypertension and sinusitis. The doctor's note stated that, "[W]hile
these conditions are carefully managed, they can recur at inconvenient
and unexpected times that cause him to miss work." The note further
indicated that these conditions are under control and have a low
probability of exacerbation, but because they are chronic conditions,
there is no date projected for full or partial recovery. Finally, the
doctor endorsed complainant's request for a modified work scheduled as
"a proper adjustment" for complainant's various medical problems.
In a letter dated May 2, 2005, complainant's request for reasonable
accommodation was again denied. The agency requested complainant to
explain how he was substantially limited in a major life activity.
Complainant failed to provide any additional documentation. The agency
offered complainant an alternative accommodation. The agency offered
complainant reassignment to a non-supervisory position, but at the
same grade and pay, that would allow complainant to telework and to
accrue credit hours. Specifically, the agency offered complainant an
Administrative Contracting Officer (ACO) position, because there was
no other vacant position available for which complainant was qualified.
Complainant rejected the offer because it was not a supervisory position.
On March 29, 2005, complainant received three letters of counseling:
(1) because he missed a meeting that was scheduled on March 29, 2005,
and he did not send a representative to the meeting; (2) for his lack
of professionalism and insubordinate tone when complainant stated in an
email to LTCF "[I] respectfully suggest that you might need some help
with your attitude;" and (3) because complainant was one day late in
providing a Telework report.
On September 9, 2005, complainant filed an EEO complaint alleging that
he was discriminated against and subjected to harassment on the bases of
disability (several conditions), age (D.O.B: 9/28/1947), and in reprisal
for prior protected EEO activity (requested reasonable accommodation)
when:
1. on March 29, 2005, his Commander LTCF presented him with three letters
of counseling;
2. on March 15, 2005, LTCF denied his March 8, 2005 request for reasonable
accommodation;
3. on February 22, 2005, LTCF imposed "unique and extraordinary"
conditions on complainant's ability to earn credit time;
4. on February 22, 2005, LTCF inquired of complainant as to why he did
not retire, personally directed a limitation on him that he could only
use sick leave to cover illness, and stated that he would have to go on
leave without pay when his sick leave ran out;
5. on February 19, 2005, LTCF disapproved his request to use credit
hours the following work week; and
6. on October 28, 2004, LTCF sent complainant an email requesting a
doctor's note identifying his need to be out sick, insinuated that he
was avoiding a work-related trip, and accused complainant of combining
credit hours and sick leave to have an extra day off per week.
On October 20, 2005, the agency issued an "Acceptance/Dismissal" letter.
The agency accepted claims (1) through (5) for investigation, and
dismissed claim (6). Specifically, the agency dismissed claim (6), for
failure to comply with the applicable time limits for contacting an EEO
Counselor. The agency noted that the email was sent on October 28, 2004,
but complainant did not contact an EEO Office until May 13, 2005, beyond
the 45-calendar-day time limit to do so. 29 C.F.R. � 1614.105(a)(1).
The agency determined that claim (6) would be considered only background
information.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to 29
C.F.R. � 1614.110(b). In its decision dated January 19, 2007, the agency
framed the underlying dispute in this matter as to whether complainant
was denied reasonable accommodation when he was not allowed to work
credit time. As an initial matter, the agency found that complainant was,
in fact, a person with disability at the time of the events in question.
However, the agency concluded that the record did not establish that
the denial of complainant's request for credit hours and a modified
work schedule was a failure to provide him a reasonable accommodation.
Specifically, the agency determined that, given the supervisory nature
of complainant's position, allowing him to work only when his conditions
were not acute was, and would be, an unreasonable burden on the agency.
Given the prognosis that complainant's availability at the work site
would only decrease, the agency had not found that extending the credit
hour and schedule considerations requested would address complainant's
inability to perform the essential supervisory element of the position.
Moreover, the agency concluded that complainant failed to respond or
cooperate in attempting to find an alternative reasonable accommodation.
Therefore, the agency found that complainant was not discriminated
against or subject to reprisal, as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that LTCF discriminated against him
by failing to provide reasonable accommodation. Complainant stated
that it is undisputed that prior to LTCF issuing a blanket denial of
his request to earn credit hours, he was able to perform his job in
an exemplary fashion. Specifically, complainant states he had been
performing the exact same position for several years with accommodations
- namely, working credit time - absent undue hardship to the agency.
Complainant further contends that the agency's denial of his request for
reasonable accommodation because he failed to submit adequate medical
documentation was a "ridiculous" contention. Complainant stated that
the agency admitted in its final decision that he is an individual with
disability, so the agency could only escape liability by proving that the
accommodation creates an undue hardship. However, complainant argued,
the agency offered absolutely no evidence of undue hardship.
Complainant further contends that it is a "disingenuous position" for
the agency to state that he was offered a non-supervisory position
because, even though a position was offered, such a position would
negatively impact complainant's status and future income. Specifically,
complainant asserted that the proposed non-supervisory position would
change his pay band under the new National Security Personnel System
and minimize his future income potential. Therefore, accepting such a
position would result in an adverse action. Complainant alleged that he
consistently acted in good faith, and clearly showed his motivation to
secure an alternative accommodation. He argued that the agency acted
in bad faith because it failed to interact with him in his request for
reasonable accommodation for more than one and half years.
In response, the agency reiterates the reasoning set forth in its
decision. The agency requests that the Commission affirm its finding
of no discrimination.
ANALYSIS AND FINDINGS
We note that on appeal complainant does not challenge the agency's
dismissal of issue (6); therefore, we will not address the propriety of
the agency's dismissal of this issue.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
Disparate Treatment
The analysis of claims, such as complainant's, claiming disparate
treatment is patterned after the three-step scheme announced in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). Once the complainant
has established a prima facie case or assuming that he does so, the
agency is required to articulate a legitimate, nondiscriminatory reason
for its actions. To prevail, a complainant must then demonstrate, by a
preponderance of the evidence, that the agency's reason(s) for its action
was a pretext for discrimination, i.e., that the agency's reason was
not its stated reason and that it acted on the basis of discriminatory
animus. See Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
Regarding claim (1), we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. We further find that
complainant has not demonstrated that these reasons were a pretext for
discrimination or retaliation. Specifically, we find that complainant
received three counseling letters based on his lack of performance;
namely, he missed a meeting, he failed to submit an assignment in a
timely manner, and he told his supervisor "you might need some help with
your attitude." Complainant provided justification for not attending
the meeting and for submitting an assignment one day late, but did not
deny that they occurred. Complainant also admitted that he told LTCF
that he needed some help with his attitude, but that he (complainant)
did not consider that to be "unprofessional and insubordinate."
Regarding claims (3), (4), and (5), we find that complainant did
not establish a prima facie case of age or disability discrimination.
Complainant failed to establish that he was treated differently than any
similarly-situated individual outside of his protected classes under the
same circumstances. Specifically, the record shows that all supervisors
were required to work five days a week; employees were required to use
all of their annual leave, sick leave, and then take LWOP due to personal
illness; and all supervisors were allowed to earn credit hours as long
as it as a mission requirement and they requested and received approval
in advance from their supervisors. There is no evidence in the record
that similarly-situated employees outside of complainant's protected
group were allowed to work credit hours in lieu of sick leave.
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 US. 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.
The agency concedes, and we presume for the purposes of analysis only and
without so finding, that complainant is an individual with a disability
within the meaning of the Rehabilitation Act. Based on our de novo review
of the entire record in this case, the Commission finds that complainant
has not established that the agency failed to reasonably accommodate him.
In reaching this conclusion, we find that complainant failed to establish
a link between his claimed disability and the requested accommodation.
Specifically, there is insufficient evidence to show that allowing
complainant to work credit hours every week would have addressed any of
the limitations imposed by his claimed disabilities.
In this case, complainant contends that because of his disability,
he cannot work on a regular schedule. Complainant's multiple medical
conditions result in him missing work one to two days every week.
Accordingly, complainant requested as a reasonable accommodation to be
able to work up to 6 hours of credit time per week and then apply the
earned hours without restriction to cover absences in lieu of sick leave.
Upon his request for reasonable accommodation, the agency appropriately
asked complainant for documentation about his disability and functional
limitations to support his request. See EEOC's Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, Number 915.002, Question 6, (as revised October 17,
2002) ("Reasonable Accommodation Guidance").
By letter dated March 29, 2005, complainant provided medical documentation
that stated that he suffered from tachycardia, hypoglycemia, allergies,
anxiety, arthritis, bursitis, depression, fatigue, headaches, hypertension
and sinusitis, but provided no information from which the agency could
deduce which major life activities were affected by his conditions.
On May 2, 2005, the agency requested additional information, and asked
complainant to "explain how you are substantially limited in a major life
activity." We find that the medical documentation from complainant's
doctor did not state that complainant was limited in any life activity
or that complainant had any other limitation that would require him to
work credit hours to perform the essential functions of his position.
Complainant's doctor only indicated that complainant would benefit from
"a modified work schedule that enables him to work extra hours when able
to (credit hours) in order to offset work time missed due to illness
(sick leave). I fully endorse this request as a proper adjustment for
his various medical problems. Unnecessarily inducing economic duress
by forcing him into Leave without Pay status is contraindicated."
The agency is not required to provide accommodation which complainant
fails to establish is necessary to enable him to perform the essential
functions of his position or to gain equal access to a benefit or
privilege of employment. See McGuffin vs. USPS, EEOC Appeal No. 01A14173
(December 3, 2002). We find that complainant requested the accommodation
of working credit hours for reasons unrelated to his impairments; rather,
he wished to avoid taking sick leave or leave without pay. Accordingly,
he failed to show how working additional time to earn credit hours was
a reasonable accommodation that enabled him to perform the essential
functions of his position as a supervisor. Based on a review of
the evidence, we find that complainant was not denied a reasonable
accommodation in 2004, because he failed to establish a nexus between
his asserted disabling conditions and the requested accommodation.
See Smith v. United States Postal Service, EEOC Appeal No. 0120055839
(October 18, 2007); Brown v. United States Postal Service, EEOC Appeal
No. 01A42650 (September 2, 2004).
Even assuming that complainant was entitled to a reasonable accommodation,
we find that the agency offered a reasonable and effective accommodation
to complainant. The record shows that the agency offered complainant
a non-supervisory position at the same grade and pay, which would allow
complainant to work credit hours, telework, and work a flexible schedule.
Complainant rejected this offer because it was a non-supervisory
position. While complainant may not have been offered the reasonable
accommodation of his preference, an employer is not required to provide
the precise accommodation the employee or applicant wants, so long as
the accommodation offered is an effective one under the circumstances
of the situation. Reasonable Accommodation Guidance. In this case,
we conclude that the accommodation offered complainant was reasonable
and effective under the circumstances. As we noted in Boozer v. United
States Postal Serv., EEOC Appeal No. 0120060283 (July 24, 2007), if
modifying an employee's schedule poses an undue hardship, an employer
must consider reassignment to a vacant position that would enable the
employee to work during the hours requested. Here, complainant has not
produced evidence that there was a vacant, funded supervisory position
for which he qualified at the relevant time, to which he ought to have
been reassigned. While complainant desires a supervisory position,
an agency is only required to place a qualified individual with a
disability in a lateral position or, should one not be available, in a
lower-graded position. Reasonable Accommodation Guidance.
CONCLUSION
Upon review, we find that complainant failed to show that he was denied
a reasonable accommodation or that the agency's actions were motivated
by discrimination. Based on a thorough review of the record and the
contentions on appeal, including those not specifically addressed herein,
we therefore AFFIRM the agency's final order.
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
July 1, 2009
Date
1 In March 2005, LTCF was deployed to Iraq.
??
??
??
??
2
0120071609
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
10
0120071609
11
0120071609