0120130239
06-24-2015
Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120130239
Hearing No. 420-2011-00117X
Agency No. 9Z0J10007
DECISION
On October 22, 2012, Complainant filed an appeal from the Agency's September 21, 2012 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence in the record supports the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision that the Agency did not discriminate against Complainant on the bases of disability or reprisal for prior protected activity when it gave her an overall performance rating of "unacceptable" and did not allow her to stay past her end of duty day to finish work.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-1102-09, at the Agency's 42nd Contracting Squadron at Maxwell Air Force Base in Montgomery, Alabama. Beginning in March 2008, Complainant's First Level Supervisor was the Supervisory Contract Specialist (S1). Beginning in July 2009, Complainant's Second Level Supervisor was the Contracting Commander (S2). Complainant's duty hours were 8:30 a.m. to 5:30 p.m.
In July 2009, Complainant informed the Agency that she had been diagnosed with attention deficit hyperactivity disorder (ADHD). In an August 5, 2009 letter, Complainant's physician informed the Agency that Complainant sometimes had difficulty completing work-related tasks because of her ADHD and requested that the Agency consider changing her duty hours from 8:30 a.m. - 5:30 p.m. to 9:30 a.m. - 6:30 p.m. "as part of a method of therapy."
In a January 21, 2010 letter, pursuant to the Agency's request for additional medical documentation,1 Complainant's physician informed the Agency that the change in duty hours would allow Complainant to attend morning behavioral therapy sessions (8:00 a.m. - 9:00 a.m.) and still work an eight-hour day without having to use leave.
On February 11, 2010, Complainant filed an informal EEO complaint (Agency No. 9Z0J10004) alleging that the Agency discriminated against her on the basis of disability when, ongoing since August 2009, it denied her a reasonable accommodation. On March 26, 2010, Complainant and the Agency entered into a settlement agreement to resolve the complaint. In the settlement agreement, Complainant agreed to attend evening behavioral therapy sessions and the Agency agreed to schedule weekly progress meetings with Complainant as an accommodation.
On April 29, 2010, S1 gave Complainant an overall performance rating of "unacceptable" on her April 2009 - March 2010 performance appraisal. Specifically, S1 rated Complainant "does not meet" on all four critical elements. In addition, S1 rated Complainant "far below fully successful," "below fully successful," or "slightly below fully successful" on the following seven (out of nine) appraisal factors: work effort, adaptability to work, problem solving, work productivity, self-sufficiency, skill in work, and work management.
On July 29, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (ADHD) and reprisal for prior protected EEO activity (Agency No. 9Z0J10004) when:
1. On April 29, 2010, it gave her an overall performance rating of "unacceptable" on her April 2009 - March 2010 performance appraisal; and
2. On or about April 30, 2010, it denied her request to stay past her 5:30 p.m. end of duty day, without compensation, to finish work.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing. The AJ held a hearing on January 19, 2012.
On July 17, 2012, the AJ issued a decision concluding that Complainant did not prove that the Agency discriminated against her as alleged.
Regarding claim 1, the AJ found no disparate treatment on the bases of disability or reprisal. Specifically, the AJ found that Complainant did not prove, by a preponderance of the evidence, that the legitimate, nondiscriminatory reason articulated by the Agency - Complainant's unacceptable performance from April 2009 to March 2010 - was pretextual. The AJ noted Complainant's argument that she had received overall performance ratings of "acceptable" before filing her February 2010 informal EEO complaint. The AJ, however, found that Complainant's performance problems pre-dated March 2008 (when S1 began supervising Complainant) and credited S1's hearing testimony that: (a) when she reviewed Complainant's personnel file, she discovered that Complainant's Former First Level Supervisor (FS1) had documented similar performance problems; (b) when she talked to Complainant's Former Second Level Supervisor about Complainant's performance problems, he told her that he previously had similar conversations with FS1; and (c) when she talked to Civilian Personnel about Complainant's performance problems, they told her that they previously had similar conversations with FS1. AJ Decision, at 10 (citing Hr'g Tr., at 212-15). Moreover, the AJ found that Complainant did not demonstrate that the Agency treated her differently than similarly situated persons outside of her protected classes.
Regarding claim 2, the AJ found no denial of reasonable accommodation. Although the Agency denied Complainant's request to change her duty hours (from 8:30 a.m. - 5:30 p.m. to 9:30 a.m. - 6:30 p.m.), the AJ found that she had requested the change in order to attend behavioral therapy, that the Agency allowed her to use leave to attend morning behavioral therapy sessions, and that she later was able to attend evening behavioral therapy sessions. Although the Agency denied Complainant's request to stay past her 5:30 p.m. end of duty day to finish work, the AJ found that such an accommodation would not be effective. In so finding, the AJ credited S1's testimony that there were problems with Complainant's performance even when FS1 had allowed her to work as late as she desired. AJ Decision, at 11 (citing Hr'g Tr., at 227-28).
The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that the Agency subjected her to discrimination as alleged. Complainant then filed the instant appeal. We will address Complainant's contentions on appeal below.
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. Nat'l Labor Relations Bd, 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
Ch. 9, � VI.B (Nov. 9, 1999).
Disparate Treatment - Claims 1 and 2
Upon review, we find that substantial evidence in the record supports the AJ's finding that the Agency did not subject Complainant to disparate treatment on the bases of disability2 or reprisal.
Regarding claim 1, we agree with the AJ that Complainant did not prove, by a preponderance of the evidence, that the Agency's articulated reason for her overall performance rating of "unacceptable" on her April 2009 - March 2010 performance appraisal was a pretext for disability or reprisal discrimination. On appeal, Complainant argued that her previous supervisors had deemed her performance acceptable. We emphasize, however, that the AJ credited S1's testimony that, after reviewing Complainant's personnel file and talking with FS2 and Civilian Personnel, she discovered that FS1 had concerns about Complainant's performance. Complainant did not show that we should not accept the AJ's credibility determination. In contrast, the documentary evidence in the record reflects that FS1 had problems with Complainant's performance. Specifically, FS1's April - August 2007 progress review: (a) indicated that Complainant needed to improve her progress on plan elements, organizational skills, and duty performance; and (b) included the following comments - "Productivity is of concern ... Your totals are lagging dramatically ... Customer Service needs vast improvement ... Your lack of customer service is a repeated pattern & concern ... The quality of products is substandard." Hr'g Record, at Agency Ex. 5.
Regarding claim 2, we find that Complainant did not prove, by a preponderance of the evidence, that the Agency's articulated reason for denying her request to stay past her
5:30 p.m. end of duty day to finish work was a pretext for disability or reprisal discrimination. Specifically, S1 testified that she did not see a need to let Complainant stay late because of Complainant's lack of productivity during the duty day, that Complainant had performance problems even when FS1 had let her stay as late as she wanted to, and that Civilian Personnel had informed her that the Agency could be liable for overtime if she allowed Complainant to stay late without compensation. Hr'g Tr., at 202, 227-28. On appeal, Complainant argued that the AJ overlooked three witnesses who testified at the hearing that S1 allowed other civilian Contract Specialists to stay past their end of duty day. We find, however, that Complainant did not show that those unnamed civilian Contract Specialists were similarly situated. Identification of persons who are similarly situated to the complainant should be based on the nature of the allegations, the alleged nondiscriminatory reasons, and other important factors suggested by the context. See EEOC Compliance Manual Section 15, "Race and Color Discrimination," No. 915.003, � 15-V.2 (Apr. 19, 2006). Here, the record reflects that the five other civilian Contract Specialists supervised by S1 from 2008 to 2010 did not have performance problems and instead were performing at an "above fully successful" level or higher. ROI, at 293-94. Moreover, it is unclear from the witness testimony whether those unnamed civilian Contract Specialists were working overtime or were staying late without compensation. Hr'g Tr., at 33-34, 38-39, 140.
Denial of Reasonable Accommodation - Claim 2
Upon review, we find that substantial evidence in the record supports the AJ's finding that the Agency did not deny Complainant a reasonable accommodation.
Regarding Complainant's request to change her duty hours, we agree with the AJ that the Agency accommodated her need to attend morning behavioral therapy sessions for her ADHD by allowing her to take leave.3 On appeal, Complainant argued that the Agency did not accommodate her by changing her duty hours. We note, however, that permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the American with Disabilities Act, No. 915.002, Types of Reasonable Accommodations Related to Job Performance (as revised Oct. 17, 2002) (Guidance). Although Complainant may have preferred that the Agency change her duty hours instead, we emphasize that an employer may choose among reasonable accommodations as long as the chosen accommodation is effective. See Guidance, Question 9.
Regarding Complainant's request to stay past her 5:30 p.m. end of duty day to finish work, we agree with the AJ that the requested accommodation would not be effective.
An accommodation must be effective in meeting the needs of the individual. See Guidance, General Principles. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position.
See id. Here, the AJ credited S1's hearing testimony that there were problems with Complainant's performance even when FS1 had allowed her to work as late as she desired. Moreover, as noted above, FS1's April - August 2007 progress review indicated that Complainant had performance problems. On appeal, Complainant argued that the AJ overlooked the fact that FS1's progress review covered a time period when she underwent several surgical procedures. We note, however, that Complainant testified at the hearing about those surgical procedures and find that there is no evidence that the AJ did not properly consider that testimony.
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 (M0610)
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 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 (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 (Z0610)
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
__6/24/15________________
Date
1 The Agency and Complainant's physician also corresponded on August 14, 2009, September 10, 2009, October 30, 2009, and December 22, 2009.
2 We assume, without so finding, that Complainant is an individual with a disability under the Rehabilitation Act.
3 We note that, as stated in a March 26, 2010 settlement agreement, Complainant later agreed to attend evening behavioral therapy sessions.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120130239
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130239