Toni C. Works,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120071260
Hearing No. 120-2005-00190X
Agency No. 04-0032-SSA
DECISION
On January 2, 2007, complainant filed an appeal from the agency's December
5, 2006 final order concerning her 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 accepted pursuant to 29 C.F.R. §
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final order.
ISSUES PRESENTED
Whether there is substantial evidence in the record to support the AJ's
finding that the agency did not discriminate against complainant on the
basis of disability.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Management Assistant, GS-6 at the agency's Office of Management
Operations, Center for Management Services facility in Baltimore,
Maryland.
On October 28, 2003, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (African American), color
(unidentified) disability (grand mal seizure disorder and diabetes),
and age (41) when: (1) she was subjected to harassment, citing (a)
the agency's failure to provide her with adequate training, and the
agency's stated intention not to spend money training older employees,
(b) the agency's failure to assign her any ongoing tasks, and (c) the
agency's intentional failure to give complainant credit for the project
that she developed; (2) the agency's failure to accommodate her medical
condition even though her physicians informed the agency about the side
effects of changing her medications; and (3) the agency's decision to
terminate her doing her probationary period, effective August 8, 2003.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a four-day hearing on August 10, August
19, and August 23-24, 2006, and issued a decision on October 4, 2006.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
At the beginning of the hearing, the parties stipulated to a revised
statement of the issues in the complaint. Specifically, the AJ framed the
issues before him as whether the agency discriminated against complainant
on the basis of disability by: (1) failing to accommodate complainant's
disabilities (grand mal seizures and diabetes); (2) subjecting her
to disparate treatment by refusing to grant leave requests as well
as setting a more stringent standard for approving these requests,
placing complainant on absent without leave (AWOL) status, failing to
provide adequate training and failing to assign appropriate work; and
(3) terminating her employment during her probationary period on July 25,
2003, effective August 8, 2003. See HT 8/10/06 at 6-7.
Complainant began her service with the agency in late August 2002 as
a Management Assistant (MA), GS-6, in the Employment Development and
Training Branch, Office of Management Operations, Center for Management
Services. Her first-line supervisor was the Branch Manger (BM), but
others oversaw her work as well, including the Deputy Branch Manager
(DBM), and the leaders of the two teams to which she was assigned during
her tenure. The position was newly created, and the agency intended
that each of the six teams under BM would have one MA assigned to it.
The position description stated, among other things, that the incumbent
must have knowledge of one or more automated systems, and be able to
compile and maintain statistical reports, monitor program activity and
compile various reports and produce charts and graphs.
Complainant testified that she suffered from grand mal seizures and that
her supervisors were aware of her condition. She had been in the Navy
but was discharged following an accident that caused brain trauma and,
after surgery, she experienced intermittent seizures. She received
medical treatment from the Department of Veterans Affairs (VA) in
Louisiana, and on her arrival in Baltimore in the summer of 2002, she
began treatment at a local VA facility. According to a note from the
VA, complainant's new physicians determined that she required a change
to new medications that caused side-effects including lack of focus,
concentration, fatigue, and sleepiness. In the undated note, which the
parties agree was prepared in December 2002, complainant's physician
stated that the side-effects from the medication should clear up within
a few weeks of the adjustment. Complainant testified, and the AJ found,
that complainant gave a copy of the note to BM, and that this constituted
a request for reasonable accommodation.1
Complainant experienced a seizure at work in February 2003, and was taken
to the hospital. She was absent for two weeks and, although initially
charged AWOL, her leave was later changed and she was granted advanced
sick leave. She also had seizures in June and July 2003, and was absent
for about a week each time. After she returned from leave in late July
2003, she was given a letter on July 25, 2003, notifying her of her
termination effective August 8, 2003. The letter stated that she was
being terminated because of "repeated failure to complete assignments
as expected." Subsequently, complainant requested that the agency
provide her with reasonable accommodation by considering alternatives,
such as lightening her work load or transferring her to another office.
The agency denied her request.
The record reveals several instances where complainant received feedback
from management on four major assignments. On three separate occasions,
complainant was assigned tasks to complete with a deadline which she
failed to meet. In one particular circumstance, BM completed the task
himself. Complainant's lack of productivity ranged from failing to make
contributions to team assignments to failing to produce anything at all
for individual tasks. On June 23, 2003, BM notified complainant, in
writing, that her work required improvement in certain areas, including
work performance, conduct, dependability, and use of time. BM also noted
that complainant failed to participate in a task assigned to all staff
which entailed assisting another component with a typing assignment for
two hours a day. Complainant asked for and was afforded an opportunity
to demonstrate that her work performance was of good quality. At this
presentation, complainant presented a box of documents she asserted were
samples of her various work products. During this meeting, the management
team present discovered that the box contained multiple copies of the
same 2-page document, containing what appeared to be computer codes.
See HT 8/23/06 at 118:19-121:21.
The AJ noted the four instances of inadequate performance cited by BM
and found that they constituted sufficient grounds for complainant's
termination. The AJ found that this articulation by the agency stated
a legitimate, nondiscriminatory reason for complainant's termination,
and that complainant failed to demonstrate pretext. The AJ rejected
complainant's argument that her leave usage for her seizure disorder
impacted the agency's decision to terminate her. He also concluded
that the agency was not obligated to grant reasonable accommodation
in connection with complainant's performance once complainant received
notice of her termination.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that the AJ improperly concluded that
the agency presented a legitimate, non-discriminatory reason for its
employment action, and that complainant failed to demonstrate pretext
with regard to disparate treatment. Further, complainant contends that
she was a qualified individual with a disability and that the agency
knew she had said disability, but failed to engage in the interactive
process with her and provide her with reasonable accommodation when she
requested such in December 2002 and July 2003.
In response, the agency requests that the Commission uphold the AJ's
decision as it is supported by substantial evidence. The agency asserts
that it accommodated complainant in December 2002 when complainant's
supervisor approved her various requests for leave to recover from her
seizures, and that complainant requested no other reasonable accommodation
until after the termination decision was made. The agency states that
it terminated complainant because she could not perform her job tasks
adequately, not because she took leave related to her seizures.
ANALYSIS AND FINDINGS
Standard of Review
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. An AJ's credibility determination based on the demeanor of
a witness or on the tone of voice of a witness will be accepted unless
documents or other objective evidence so contradicts the testimony or
the testimony so lacks in credibility that a reasonable fact finder
would not credit it. See EEOC Management Directive 110, Chapter 9,
§ VI.B. (November 9, 1999).
Reasonable Accommodation
For the purposes of analysis, the Commission assumes, without so finding,
that complainant is an individual with a disability within the meaning
of the Rehabilitation Act. As a general rule, an agency must make a
reasonable accommodation for the known physical or mental limitations of
a qualified disabled employee who requests an accommodation, unless the
agency can demonstrate that accommodation would work an undue hardship on
its operations. See Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans With Disabilities Act, No. 915.002,
at 6 (rev. Oct. 17, 2002). It is the responsibility of the individual
with a disability to request a needed reasonable accommodation. An
individual with a disability should request a reasonable accommodation
when she knows that there is a barrier that is preventing her from
performing her job, and it may be in an employee's interest to request a
reasonable accommodation before performance suffers or conduct problems
occur. Id. at 10-11.
A reasonable accommodation is always prospective, meaning that even
once complainant disclosed her disability and requested reasonable
accommodation, she was entitled to accommodation only from the date of
such disclosure. An employer is not barred from imposing discipline or
terminating an employee who, because of a disability, violated a conduct
rule that is job related for the position in question and is consistent
with business necessity. Id. at 45.
An employer is only obligated to initiate discussion of reasonable
accommodation when: (1) it knows that the employee has a disability;
(2) it knows or has reason to know that the employee is experiencing
workplace problems because of the disability; and (3) it knows or has
reason to know that the disability prevents the employee from requesting
accommodation. Id. at 48-49.
Here, there is substantial evidence in the record to support the
determination that the agency properly accommodated complainant
in response to her December 2002 reasonable accommodation request.
At any time that complainant was able to document that her absence was
related to her seizure disorder, she was not penalized for taking leave.
See HT 8/10/06 at 261-263. In several instances complainant did not have
the necessary leave to accommodate that amount of time she had to be off
work and in these instances she was advanced sick leave. Id. at 261-262.
Based on the reasonable accommodation complainant requested at the time,
we find that the agency met its burden with respect to complainant's
December 2002 request.
Complainant made the second reasonable accommodation request, for
reassignment, on July 25, 2003. The record reflects that complainant
concedes that this request was made immediately following complainant's
receipt of the notice of termination. We find the AJ's conclusion that
the agency was not required to provide the reasonable accommodation of
reassignment after complainant received notice of her termination is
in line with Commission precedent. See, e.g., Bell v. Department
of Homeland Security, EEOC Request No. 0120071655 (May 28, 2009)
(agency under no obligation to provide accommodation requested after
issuance of notice of termination.); Smith v. Department of Labor,
EEOC Request No. 01A50480 (February 28, 2006) (no denial of reasonable
accommodation found where complainant failed to request accommodation
until given notice of termination); Ruiz v. National Archives and
Records Administration, EEOC Request No. 01A55070 (January 24, 2006)
(where request for accommodation comes after performance and conduct
issues lead to commencement of termination process, agency not obligated
to accommodate complainant); Hernandez v. Department of the Navy,
EEOC Request No. (March 30, 2004) (agency not required to excuse past
behavior even if result of individual's disability, if accommodation
was not requested prior to occurrence of past misconduct).
Complainant also argues that because the agency knew she had a permanent
disability, it had an ongoing obligation to engage in the interactive
process. Complainant contends that one part of this obligation was
to act affirmatively to determine whether she needed an accommodation.
In support of her reply to the agency's brief in response to her appeal,
complainant cites Donahue v. Consolidated Rail Corp., 224 F.3d 226 (3rd
Cir. 2000). However, complainant's reliance on this case is misplaced.
The circumstances in the instant case are clearly distinguishable from
the circumstances of Donahue, as well as those of Mengine v. Runyon,
114 F.3d 415 (3rd Cir. 1997), the Third Circuit's seminal case regarding
an employer's obligation to engage in the interactive process. In both
of these cases, the employees requested the reasonable accommodation
of some sort of reassignment. Engagement in the interactive process in
each of these circumstances would have likely assisted the employer and
the employee in finding a suitable position for the employee. Donahue,
114 F.3d at 233. Quoting the Eleventh Circuit's observation that "where
a plaintiff cannot demonstrate 'reasonable accommodation,' the employer's
lack of investigation into reasonable accommodation is unimportant,"
the court in Donahue makes it clear that the plaintiff must at bare
minimum make a request for a type of reasonable accommodation for the
employer to have the burden of ensuring that this type of accommodation
is met. Id.
In the instant case, complainant's initial request for reasonable
accommodation in December 2002 concerned leave. The record reflects
that this request was honored consistently when complainant demonstrated
that she needed to take leave as a result of her seizure disorder.
As addressed above, complainant's second request for the reasonable
accommodation in July 2003 for reassignment was made after she was issued
a notice of termination. At that time, the agency had no duty to further
accommodate her.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its actions. See
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited
reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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).
The agency asserts that complainant's inability to adequately perform
her job, and not the leave taken related to her seizure disorder, as its
reason for terminating complainant. We find that there is substantial
evidence in the record to support the agency's position that it had
a variety of issues with complainant's job performance, and that its
decision to terminate her was related to these issues and not her use
of leave related to the seizure disorder. See HT 8/10/06 at 377:11-19;
HT 8/19/06 at 19:12-24:4; and HT 8/23/06 at 272:11-277:17. Further,
there is substantial evidence in the record demonstrating that the
agency accommodated complainant's leave request related to her seizures,
disputing complainant's argument of pretext. See HT 8/10/06 at 261-263.
Assuming, arguendo, that complainant properly established a prima facie
case of discrimination on the basis of disability, we find that the agency
met its burden of production by articulating legitimate, nondiscriminatory
reasons for its actions. The Commission finds that complainant failed to
present any persuasive evidence to establish that the agency's articulated
reasons for its action were a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that there
is substantial evidence in the record to support the AJ's finding that
complainant failed to demonstrate that the agency discriminated against
her on the basis of disability as alleged. Accordingly, both the AJ's
final decision and agency's final order are AFFIRMED.
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
February 29, 2010
Date
1 The record does not reflect that complainant ever requested
accommodation specific to diabetes.
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0120071260
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120071260