Lyle P.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 18, 2016

0120141288 (E.E.O.C. Mar. 18, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Lyle P.,1
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120141288

Hearing No. 430-2011-00401X

Agency No. ATL110322SSA

DECISION

On February 13, 2014, Complainant filed an appeal from the Agency’s January 9, 2014, 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 deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

Beginning in February, 2010, Complainant worked as an Attorney Advisor at the Agency’s
Office of Adjudication and Review in Raleigh, North Carolina. His employment was
contingent upon successful completion of a two-year probationary period. Complainant’s
duties included drafting decisions in disability claim cases to be submitted to Administrative
Law Judges for review and approval. Early in his tenure in the position, Complainant
experienced productivity problems in drafting disability case decisions as a result of conditions
related to an intellectual disability. To address these problems, Complaint submitted a request
for reasonable accommodations. In response, the Agency provided Complainant with speech
recognition software and other equipment to assist him in drafting decisions.
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.

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Despite these accommodations, Complainant performance did not meet the Agency’s
requirements. Complainant was removed from his position on February 4, 2011. On March
4, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against
him on the bases of disability (post-traumatic stress, depression, anxiety) when the Agency
terminated him from his Attorney-Advisor position.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing on July 17 and 18, 2013, and issued a decision on December 2, 2013
finding that Complainant had failed to prove discrimination in violation of the Rehabilitation
Act because he had not shown that he was able to perform the essential duties of his position,
despite the provision of all the accommodations he had requested. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

Pursuant to 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). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

In order to be entitled to protection from the Rehabilitation Act, Complainant must make the
initial showing that he was a “qualified individual with a disability.” Assuming arguendo that
Complainant is an individual with a disability within the meaning of the Rehabilitation Act,
Complainant must prove, by a preponderance of the evidence that he was a qualified individual
with a disability during the relevant time period. A “qualified individual with a disability” is an
individual with a disability who satisfies the requisite skill, experience, education and other job
related requirements of the employment position such individual holds or desires, and who,
with or without reasonable accommodation, can perform the essential functions of the position.
29 C.F.R. § 1630.2(m).

Here, the AJ determined that Complainant could not prevail on his Rehabilitation Act claim
because, as a factual matter, he was unable to perform the essential functions of the Attorney
Advisor position. Specifically, the AJ found that Complainant could not produce disability case
decisions of sufficient quantity and quality to meet the Agency’s requirements, despite having
been afforded all of the reasonable accommodations he requested to assist him in
accomplishing that goal. The evidence showed that Complainant was provided with all
reasonable accommodations he requested to assist him in performing the essential duties of the

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position. See Hearing Transcript (Tr.) at 654-55. Despite these accommodations,
Complainant’s performance was deficient. See Tr. at 591-94. Based on our review of the
record we conclude that the AJ’s findings of fact are supported by substantial evidence and that
the AJ’s determination that Complainant was not qualified to perform the essential duties of the
position is correct.

Complainant argues that the record does not support the AJ’s conclusion that Complainant
failed to meet an Agency-imposed numerical production standard, arguing that no such
production standard was ever promulgated by the Agency.2 Even if this were so, it would not
change the outcome here. The evidence shows that, regardless of whether numerical
production standards were in place, the poor quality of Complainant’s legal work was
unacceptable to the Agency and, irrespective of the number of decisions he produced, would
have resulted in his termination. Tr. at 423.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we affirm the Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, 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
2 The Agency has filed a “Motion to Submit New Evidence” seeking to introduce evidence
concerning the Agency’s production standards to bolster its argument on this point. In light of
our decision here, that motion will be denied.

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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

March 18, 2016
Date