0120073668
11-05-2009
Kyle B. Orand, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Kyle B. Orand,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073668
Agency No. 200303492007100193
DECISION
On July 24, 2007, complainant filed an appeal from the June 28, 2007 final
agency decision (FAD) 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 appeal is deemed timely and 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 Veterans Service Representative (VSR) at the agency's
Office of Resolution Management, VA Regional Office in Waco, Texas.
Complainant interviewed for the VSR position within weeks of having
surgery on his right eye to correct Keratoconus. Complainant was offered
the position; however, he attempted to delay his start date because
he was still recovering from the surgery. Complainant was told his
start date could not be delayed and he reported for work on October 24,
2005 beginning a one-year probationary period. Complainant was placed
in a VSR training class which had already convened 13 weeks prior to
his arrival. Complainant struggled in training, in part, because his
eye had not healed completely.
Complainant requested and was provided a flat-panel monitor to help
ease the strain on his eye. Complainant was also provided one-on-one
supplemental training to help him to catch up with the other VSRs. In
February 2006, a representative from Blind Rehabilitation of the agency's
Vocational Rehabilitation and Employment Division conducted a site
evaluation to determine what accommodations were needed for complainant.
In April 2006, the VSRs completed training and were assigned to teams.
Complainant was provided additional accommodations including a larger
flat-panel monitor, handheld magnifier, and closed-circuit television
to assist him in his work. Complainant struggled to meet production
standards. On October 5, 2006, complainant was issued a Separation
During Probationary/Trial Period letter citing low quality ratings as
the reason for termination. Complainant was allowed to resign in lieu
of separation and resigned from his position on October 19, 2006.
On December 19, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of a disability (eye condition)
when on October 19, 2006, he resigned in lieu of being terminated during
his probationary period.
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). The FAD found that complainant failed to
establish a prima facie case of discrimination on the basis of disability.
The FAD found that complainant failed to show that he suffers from a
disability within the meaning of the Rehabilitation Act. The FAD noted
that complainant's alleged impairment was the poor condition of his right
eye after having surgery and that complainant's physician estimated that
it would take three months to fully heal. The FAD found that complainant
failed to show that his impairment lasted longer than the estimated three
months of healing time and that the Rehabilitation Act was not intended to
cover temporary disabilities. As a result, the FAD found that complainant
failed to prove that he was discriminated against as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contests the FAD's finding that he failed
to establish a prima facie case of discrimination on the basis of a
disability. Complainant asserts that he was diagnosed with Keratoconus
while he was in the military and that this information was documented
in his medical records. Complainant alleges that the agency knew of his
condition at the time of his initial interview. Complainant claims that
any statement from management stating that they did whatever it took
to accommodate him is untrue. Complainant alleges that the one-on-one
training that was promised to him to catch him up on missed training
was approximately 10 hours of instruction and the rest was up to him to
read with one eye as fast as he could. Complainant claims that he did
not receive everything he needed until six months after he was hired
and management still did not understand why he was not up to speed.
In response, the agency asserts that while complainant may be considered
disabled for veterans' compensation purposes, that does not necessarily
mean he is disabled under the Rehabilitation Act. The agency avers
that the documentation complainant provided failed to show that he was a
qualified individual with a substantial limitation in one or more major
life activities with a permanent or long-term duration. Accordingly,
the agency requests that we affirm the FAD.
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 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
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
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, assuming complainant is disabled, and that he
could otherwise establish a prima facie case of discrimination on the
alleged basis, we find that the agency has articulated a legitimate,
nondiscriminatory explanation for its actions. In August 2006,
complainant's trainer (T1) became his supervisor and asserts that
complainant still had difficulty applying guidelines and processing cases.
ROI, Ex. B-6. at 26. Further, T1 states that she received a complaint
from another VSR that complainant was asking the same questions
constantly and was not looking up the information as required. Id.
T1 avers that she met and discussed with complainant reports that he was
asking others outside his team for answers, which negatively affected
overall production. Id. at 28-32. T1 adds that new employees are free
to ask questions; however, they are assigned a person on their team
to go to for help. Id. at 28. Complainant's third-line supervisor
(S3) asserts that she met with complainant's supervisors and trainers,
reviewed complainant's case statistics, and determined that complainant
was not progressing the way they all had hoped. ROI, Ex. B-3 at 47.
S3 states that complainant was still going around hunting for others
to give him the answers without trying to work the case himself which
frustrated several team members. Id. Further, S3 states that by late
July or early August 2006, complainant should not have been asking the
same questions repeatedly. Id. at 49-50. Finally, S3 states that she
decided to recommend that complainant be terminated in August 2006 when
she saw that, based on complainant's accuracy rate, the number of cases
he was producing, and feedback from his current and past supervisors,
he was not progressing. Id. at 51.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated legitimate, nondiscriminatory reasons were
pretext for discrimination. While the record reveals that complainant's
initial training may have been less than ideal, the record reveals that
efforts were made to help complainant improve. Complainant alleges that
some of the ratings he received were based on the personal preferences
of the supervisor at the time and some of the problems were little
things that were not caught until after his completed cases had piled
up for review. ROI, Ex. B-1 at 38-39. Further, complainant claims
that his case review ratings were changed in May 2006 and no one ever
explained to him why or what his errors were. Id. at 39-40. The record
reveals that complainant's supervisor (S1) was out at the time and
another VSR (R1) reviewed his work. R1 maintains that she failed to
review a certain area of complainant's work and S1 corrected it upon
his return which lowered complainant's numbers. ROI, Ex. B-7 at 24-27.
Complainant acknowledges that he met with two of his supervisors in July
2006 about his below-standard numbers. Id. at 40. He asserts that he
was never told that he was in danger of being terminated, just that his
numbers may keep him from being promoted. Id. at 40.
We find that complainant has presented no evidence establishing that
the agency's reasons are pretextual. Aside from complainant's bare
assertions, the record is devoid of any persuasive evidence that
discrimination was a factor in the agency's decision to terminate
complainant. At all times, the ultimate burden of persuasion remains
with complainant to demonstrate by a preponderance of the evidence that
the agency's reasons were not the real reasons, and that the agency acted
on the basis of discriminatory animus. Complainant failed to carry this
burden.
Denial of Reasonable Accommodation
It is not entirely clear from the record that complainant is actually
claiming that he was denied a reasonable accommodation in the instant
complaint. To the extent that he is claiming a denial of a reasonable
accommodation, we note that 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. �� 1630.2(o) and (p). The record reveals that each time
complainant requested an accommodation (e.g. a flat-panel monitor to
help him with computer work and closed-circuit television for reading
hard copy) the agency provided one for him. We note that 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 EEOC's Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act (October 17, 2002).
Complainant has presented no evidence that any of the accommodations
provided were ineffective. After a thorough review of the record and
assuming arguendo that complainant is not only an individual with a
disability, but also a qualified individual with a disability, we find
that the agency did not deny complainant's requests for a reasonable
accommodation.
CONCLUSION
We AFFIRM the agency's decision finding no discrimination.
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 5, 2009_
Date
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0120073668
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073668
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