Kyle B. Orand, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 5, 2009
0120073668 (E.E.O.C. Nov. 5, 2009)

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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