Linda B. Johnson, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionAug 13, 2000
01973945 (E.E.O.C. Aug. 13, 2000)

01973945

08-13-2000

Linda B. Johnson, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Linda B. Johnson v. Social Security Administration

01973945

August 13, 2000

Linda B. Johnson, ) Appeal No. 01973945

Complainant, ) Agency Nos. SSA-547-93

v. ) SSA-078-94

Kenneth S. Apfel, ) Hearing Nos. 210-96-6234X

Commissioner, ) 210-96-6235X

Social Security Administration, )

Agency. )

)

DECISION

Complainant timely initiated an appeal to this Commission from a final

agency decision (FAD) concerning her complaints of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. � 2000e et seq.; and Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The

appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at and hereinafter referred to as 29 C.F.R. � 1614.405).

The issue presented is whether complainant was discriminated against on

the basis of disability (Spina Bifida and Arnold-Chiari malformation)

when she was removed from her excepted service appointment as a Clerk

(Typing), GS-4.<2> For the following reasons, the Commission REVERSES

the FAD insofar as it found that complainant failed to establish that

she was subjected to discrimination on the basis of disability.<3>

BACKGROUND

The facts of this matter are extensively set forth in the record and

are only summarized herein. In October 1990, complainant received an

excepted service appointment as a Teleservice/Contact Representative,

GS-5, and successfully completed her one-year probationary period.

However, in November 1991, complainant submitted a resignation citing

personal reasons. In response, the agency offered complainant a position

as a Clerk (Typing), GS-4. Complainant accepted the agency's offer.

Previously, in August 1991, the agency and the American Federation of

Government Employees (AFGE) had discussed revising the performance plans

of all Clerk (Typing) positions at the applicable facility to make Generic

Job Task (GJT) 27 a critical element. GJT 27 concerns the maintenance

of time and attendance (T&A) records. The record reflects that the

agency's system for maintaining T&A records is relatively complex.

It requires some fifteen Clerks to spend from 20% to 50% of their

time performing T&A functions for twenty-nine units having a total of

approximately 550 employees. The T&A functions include posting hours

worked, tracking credit hours worked and used, charging annual leave and

sick leave hours used, maintaining balances of hours, etc. In addition,

under the agency's system, one hour is entered as 1.0, but three quarters

of an hour is entered as .7 and one quarter of an hour is entered as .2.

Due to the complexity of, and time spent performing, these duties, the

AFGE sought to have them included as a critical element of the Clerk's

performance evaluations.

Complainant had a substantial number of errors in her T&A records.

The agency had a section secretary assist her in performing T&A duties.

By June 1993, the agency reduced her responsibility to one unit and

continued to have the section secretary assist her. In addition,

complainant was provided with a simple calculator for use in mathematical

computations. However, her performance did not improve.

In December 1992, complainant requested as a reasonable accommodation

that: her T&A errors be written up "for discussion only;" another employee

assist her as she completed the duties; her name automatically be entered

to the Overtime/Credit Hour projection sheet; and her union representative

be called regarding any matter of a negative nature which would adversely

affect her or be placed in her personnel file. In its response, the

agency noted that: no formal documentation was yet being placed in her

records; her T&A duties had already been reduced and the section secretary

was assisting her; authorization to work overtime did not constitute a

reasonable accommodation; and that the applicable collective bargaining

agreement already provided her with the right to a union representative.

In January 1993, complainant's serving personnel office learned that an

individual with a visual impairment (a Claims Representative, hereinafter

"CR") would be transferred to the facility and would require an Assistant

Reader, GS-4, to assist her.

In April 1993, the agency proposed to remove complainant from her position

due to inability to perform the essential functions of her position,

i.e. the T&A duties. On May 10, 1993, the position description of the

Clerk (Typing) position was formally changed to make GJT 27 a critical

element. In June 1993, the agency informed complainant that removal

of her T&A duties would not constitute a reasonable accommodation

because they were an essential function of her position. The agency

further stated that there was no other funded, vacant position without

mathematical/computational duties in the relevant commuting area.

In this regard, the Assistant Regional Commissioner ("ARC") testified

that a manager in the agency's Civil Rights and Equal Opportunity

Office asked that complainant be considered for the position of Reader.

The ARC requested that a District Manager consider complainant for a

lateral transfer into the Reader position. The District Manager later

informed the ARC that she wished to proceed with a recruitment action for

the Reader position because "she did not feel that [complainant] met the

needs that she saw for the Reader position." Hearing Transcript ("HT"),

Vol. 2, 161. In its FAD, the agency would state that it believed that

"participation in the selection process was required by the blind claims

representative [and that] arbitrary placement of anyone in the Reader

Assistant position without the concurrence of the [CR] was not possible

[as it is not] appropriate to inconvenience one disabled employee in

order to accommodate another." Thus, the agency maintained that a

lateral transfer of complainant would be inappropriate because it was

necessary to ensure compatibility between the CR and the reader and to

provide the CR with an ownership interest in the selection of the reader.

In July 1993, the CR transferred to the facility. Complainant was

removed from her position on July 17, 1993. On that day, complainant

made a formal request that the agency provide her with unspecified

computer software which would assist her in performing the T&A duties.

On July 19, 1993, the agency issued a vacancy announcement for the

position of Reader Assistant. Complainant applied for this position,

made the best qualified list and was interviewed. However, another

candidate was selected in September 1993. This candidate ultimately

declined the position and, in October 1993, the agency obtained actual

funding/approval for the position from its Headquarters Office after a

second applicant was offered and accepted the reader position.

Meanwhile, complainant had sought counseling and filed her instant formal

EEO complaint. The agency accepted the complaint and complied with all

procedural prerequisites. Complainant timely requested and received a

hearing before an EEOC Administrative Judge ("AJ"). After the hearing,

both parties submitted extensive post-hearing briefs setting forth their

positions on this matter. In the recommended decision ("RD"), the AJ

found that complainant failed to establish that she had been subjected to

reprisal but had established discrimination on the basis of disability.

Complainant claimed that the agency could have accommodated her in the

Clerk position by excusing her from the performance of T&A duties,

by providing her with a programmable calculator (rather than the

simple calculator) or by obtaining computer software to assist her.

The AJ found, however, that T&A duties were an essential function of

the Clerk position and, thus, that the agency was not required to excuse

the performance of such duties. Insofar as complainant argued that the

agency could have accommodated her in the Clerk position by providing

her with a programmable calculator (rather than the simple calculator),

the AJ was not persuaded that the agency knew or should have known that a

programmable calculator would permit complainant to perform T&A duties.

In addition, the record reflects that complainant had difficulties

performing various tasks associated with the T&A duties. In addition,

the AJ found no evidence that the agency was, or should have been,

aware of the precise limiting effects of complainant's disability on her

mathematical/computational skills or how a programmable calculator would

have addressed those limitations. Regarding complainant's request for

computer software, the AJ was not persuaded by complainant's claim that

"an Agency computer expert purportedly stated in January 1994, through two

layers of hearsay, that a T&A computer program specifically tailored to

[complainant] was readily achievable." RD at 22. In this regard, the

record reflects that an automated version of the T&A system initially

developed by the agency in 1993 was still not operational in 1996.

However, the AJ found that the agency's failure to laterally transfer

complainant into the Reader position constituted failure to accommodate

her disability. The AJ found that the agency purposefully decided not

to offer the Reader position to complainant but proceeded to remove her

despite the fact that complainant was fully qualified for the position,

as demonstrated by her inclusion on the best qualified list after

posting of the position, and despite the agency's knowledge that the

Reader position would have to be filled upon the transfer of the CR.

The AJ found that the agency failed to establish that its reasons for

not laterally reassigning complainant to the Reader position constituted

an undue hardship upon the agency. Accordingly, the AJ recommended

that complainant be offered the Reader position or a substantially

similar position, retroactive to July 17, 1993, with appropriate back

pay and benefits; that complainant be awarded attorney's fees; and

that the agency post a notice. With respect to complainant's claim

for compensatory damages, the AJ found that the agency had made a good

faith effort to reasonably accommodate her in the performance of her T&A

duties by reducing the number of units for which she was responsible;

providing her with a mentor; and by refraining from formally documenting

her performance until February 1993. Because of the efforts made by the

agency in attempting to accommodate complainant in her Clerk position,

the AJ found that the agency had acted in good faith and, therefore,

complainant was not entitled to an award of compensatory damages.

In its FAD, the agency found that the AJ "followed a logical sequence in

his decision until his discussion" of reassignment to the Reader position.

Accordingly, the FAD adopted the RD insofar as it found that complainant

was not subjected to reprisal, and found that complainant was unable,

with or without reasonable accommodation, to perform the essential

functions of her Clerk position. However, because the Reader position

"was posted on July 19, 1993, but not funded until October 1993," the

agency found it irrelevant. The agency noted that the Reader position was

a "special needs" position and, thus, unlike other full-time equivalency

("FTE") positions, it is funded by the agency's Office of Civil Rights

and Equal Opportunity ("ORCEO"). Accordingly, the agency facility had to

submit a request for a special needs position to ORCEO, which would then

determine the propriety of the request and then allocate the position

from its pool. Because the Reader position "did not come into existence

until October 1993," the agency maintained that it did not become vacant

"within [the] reasonable amount of time" contemplated by 29 C.F.R. �

1630.2(o). In addition, the agency found that it "would clearly be an

undue hardship on [the agency], and likely illegal, to place [complainant]

in a position which was not funded." As previously noted, the FAD also

maintained that participation in the selection process was required by

the CR and that an arbitrary placement of anyone in the Reader position

without the CR's concurrence was neither possible nor appropriate.

Complainant's counsel timely appeals and argues that the AJ erred in

finding that T&A duties were an essential function of the Clerk position

and in finding that complainant could not have been accommodated in

the Clerk position by a programmable calculator or computer software.

Counsel also argues that the AJ correctly determined that complainant

should have been reassigned to the Reader position and prays that this

Commission "put [complainant] back to work with back pay and compensatory

damages."

ANALYSIS AND FINDINGS

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 29

C.F.R. � 1614.405(a)), all post-hearing factual findings by an AJ will be

upheld if supported by substantial evidence in the record. Substantial

evidence is defined as �such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.� Universal Camera

Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

The Commission notes that complainant was born with severe spina bifida,

a congenital birth defect which causes paraplegia, loss of sensation,

urological damage and kidney and bladder problems. Complainant's bladder

and one of her kidneys were removed because of deformities. She suffers

from very poor balance, pain and weakness in her back and legs, and

limp feet. As a result of spina bifida, in the early 1990s, she also

developed Arnold-Chiari malformation, a condition which causes her to have

difficulties with complex mathematical calculations. The Commission notes

that the agency never contested that complainant was an individual with a

disability and does not contend on appeal that the AJ erred in so finding.

Accordingly, we agree with the AJ's determination that complainant,

who made the best qualified selection list for the Reader position,

was a qualified individual with a disability within the meaning of the

Rehabilitation Act. 29 C.F.R. � 1630.2(m).<4>

The Commission notes that the positions of the parties were clearly

argued before the AJ, both during the hearing and in the parties' post

hearing briefs. After a careful review of the record, the Commission

is unpersuaded by either the agency's or the complainant's criticisms

of the RD insofar as it found that: the performance of T&A duties was

an essential function of complainant's Clerk position; that complainant

failed to establish that she could have performed such duties had she

been provided with a programmable calculator or with available computer

software; and that the agency failed to establish that the Reader

position did not and could not have constituted a vacant position for

which complainant qualified and into which she could have been reassigned

without posing an undue hardship upon the agency. 29 C.F.R. � 1630.2(p).

Given that the position was announced in July 1993 and a selection was

initially made in September 1993, the agency's argument regarding the

funding for the position is without merit.

In this regard, the Commission is unpersuaded by the agency's contention

that special needs positions are not included in the class of positions

available for reassignment under the Rehabilitation Act and concurs

with the AJ's finding that the agency "purposefully chose not to offer

the Reader position to [complainant], but proceeded to remove her" even

though complainant was fully qualified for the Reader position and despite

the agency's knowledge that the Reader position would have to be filled

upon the transfer of the CR. The Commission is not persuaded that the

agency would have been unable to obtain approval from the ORCEO for the

Reader position immediately upon notifying ORCEO of the CR's transfer

and complainant's eligibility. The Commission further finds that the

agency's refusal to seek such approval precludes the agency from meeting

its burden of proving that it made a good faith effort to reasonably

accommodate the known disability of an otherwise qualified employee.

Therefore, the agency shall consider complainant's entitlement to an

award of compensatory damages. See West v. Gibson, 527 U.S. 212 (1999);

Cobey Turner v. Department of the Interior, EEOC Appeal Nos. 01956390

and 01960518 (April 27, 1998). Also, in order to remedy complainant for

the discriminatory conduct, the agency shall offer complainant placement

in the position of Reader Assistant, GS-4, or a substantially similar

position, with back pay, benefits and seniority, to the date complainant

accepts or declines the agency's offer.

CONCLUSION

After a thorough review of the record and the arguments on appeal,

it is the decision of the Commission to REVERSE the FAD insofar as it

found that complainant failed to establish that she was subjected to

discrimination on the basis of disability. Accordingly, the agency is

directed to comply with the following ORDER.

ORDER

The Commission orders the following remedial actions:

(1) The agency shall offer complainant placement in the position

of Reader Assistant, GS-4, or a substantially similar position, and

determine the appropriate amount of back pay and other benefits due

complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60)

calendar days after the date this decision becomes final. Complainant

shall have thirty (30) calendar days in which to accept or reject the

offer of placement. Complainant shall cooperate in the agency's efforts

to compute the amount of back pay and benefits due, and shall provide

all relevant information requested by the agency. If there is a dispute

regarding the exact amount of back pay and/or benefits, the agency shall

issue a check to complainant for the undisputed amount within sixty (60)

calendar days of the date the agency determines the amount it believes to

be due. Complainant may petition for enforcement or clarification of the

amount in dispute. The petition for clarification or enforcement must

be filed with the Compliance Officer at the address set forth below.

(2) The agency shall conduct training for its supervisory personnel

at its Seattle, Washington, office regarding their obligations under

Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.�

791 et seq.

(3) The issues of compensatory damages and attorney's fees and costs

are REMANDED to the Hearings Unit of the Chicago district office.

Thereafter, the AJ shall issue a decision on these issues in accordance

with 64 Fed. Reg. 37,644, 37,657 (1999) (to be codified at 29 C.F.R. �

1614.109), and the agency shall issue a final action in accordance with

64 Fed. Reg. 37,644, 37,657-58 (1999) (to be codified at 29 C.F.R. �

1614.110) within forty (40) days of receipt of the AJ's decision.

The agency shall submit copies of the decision of the AJ and the final

agency action to the Compliance Officer at the address set forth below.

(4) The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the foregoing corrective actions have been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Seattle, Washington, facility copies

of the attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address set forth below within ten (10) calendar days of the

expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action,

the administrative processing of the complaint, including any petition

for enforcement, will be terminated. 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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. 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 19848, Washington, D.C. 20036. 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. 64 Fed. Reg. 37,644,

37,661 (1999) (to be codified and hereinafter referred to as 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. 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

August 13, 2000

_______________ _____________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 Prior to the hearing, complainant withdrew the allegation that she was

subjected to discrimination when she received a letter of counseling in

February 1993 (Agency No. 547-93; EEOC Hearing No. 210-96-6234X), and on

appeal, complainant does not contest the FAD's finding of no retaliation.

3 The Vice Chairman has recused himself from participation in this

decision.

4 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: WWW.EEOC.GOV.