0120054265
02-21-2007
In re Estate of Merlon Thomley,1 Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
In re Estate of Merlon Thomley,1
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01200542652
Agency No. 03-0016-SSA
DECISION
On May 19, 2005, complainant filed an appeal from the final agency
decision (FAD) dated April 26, 2005, 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).
ISSUES PRESENTED
Whether complainant was discriminated against based on his disability
(statutorily blind) and reprisal for EEO activity when:
1. he was not provided with reasonable accommodation; resulting in him
being unable to perform at his maximum, his performance being assessed
at an unsatisfactory level, and being denied a within grade increase on
May 25, 2002,
2. he was subjected to a hostile work environment and disparately treated
when he was not removed from review status on August 20, 2002,
3. he was denied overtime,
4. he was assigned a certain mentor on September 13, 2002, and
5. he was terminated during his probationary period effective December
30, 2002.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a contract representative (technical support technician), GS-5.
He claimed discrimination regarding the above issues. Following an
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). This occurred within days after his passing.
After complainant's family and representative indicated they wanted
to go forward with the complaint, the agency issued a FAD finding no
discrimination. They have not requested a hearing.
On appeal, complainant's representative argues that in assessing
complainant's performance, the agency used incorrect standards on
productivity and accuracy, and the proper standards are lower. He also
argues that that the complainant was removed before being reasonably
accommodated with desktop equipment that would permit him to print off
materials and reprint them in higher contrast needed to see documents
to properly do his job.
ANALYSIS AND FINDINGS
Complainant was legally blind since 1987. His visual field of vision
in each eye was permanently reduced to less than 10 degrees, and his
vision was further impaired by flashes and floaters in his visual field.
The FAD found complainant was substantially limited in the major life
activity of seeing, and for purposes of analysis, we will assume he was
an individual with a disability.
An April 12, 2002, letter from a retina specialist physician indicated
complainant suffered from acute headaches with extended exposure to
fluorescent lighting, and natural lighting was recommended for optimum
acuity enhancement. The physician recommended that as a reasonable
accommodation complainant be seated nearest to a natural light source.
Soon thereafter, complainant was moved to a workstation with a window
and incandescent light. In a meeting around that time, according to
written notes by complainant's supervisor, complainant's representative
reported this was helpful.
In his job, complainant worked in a largely paperless environment.
According to complainant, due to contrast problems, he had difficulty
reading documents on his computer, so he would print them out, walk to
a photocopier on his floor, and photocopy them in high contrast to read
them easier. It is not clear what percentage of documents to which
this applied, but it was large.
In March 2002, complainant requested as a reasonable accommodation a
printer so he could print documents in bold type. The agency was told
internally or externally that no such printer existed. The record
suggests that the agency researched the matter. In April 2002,
complainant requested as a reasonable accommodation a desktop photocopier
with contrast controls. The agency asked for medical documentation to
support the request, but complainant declined to provide it. The agency
denied the request, noting in essence that complainant did not have
mobility problems and could use the common photocopier. Complainant's
manager up to May 2002 offered to have photocopying done for complainant.
The agency later agreed, without further medical documentation, to
provide complainant a desktop scanner and printer, but by this time
local management already issued a decision to terminate him for failure
to demonstrate that he could learn and perform his job duties.
Based on a through review of the record, complainant failed to establish
that the agency did not reasonably accommodate him. Regarding desktop
equipment, complainant never provided medical documentation to support
his request, and centralized photocopiers with contrast controls were
available.
Moreover, complainant did not show that his performance problems were
related to not having desktop contrast equipment. The preponderance of
the evidence supports that many of the performance problems for which he
was removed were unrelated to this, i.e., sustained lack of job knowledge,
failure to work independently regarding making his own decisions,
and inability to process actions with multiple issues. Moreover,
complainant did not meet productivity and quality expectations, and he
did not establish lack of desktop accommodating equipment was the reason.
The preponderance of the evidence supports that the agency determined
his performance was unsatisfactory, withheld his within grade increase,
declined to remove him from review status (meaning monitoring his work),
and terminated him for the above performance problems, not because of
his disability or prior EEO activity. The record does not show he was
disparately treated.
The agency explained that complainant was not allowed overtime because
he was on review status, and was assigned a certain mentor due to a lack
of availability of another volunteer mentor. Complainant did not show
that the agency's explanations were pretext to mask discrimination.
Complainant failed to prove discrimination. Accordingly, the FAD is
affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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.
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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 21, 2007
__________________
Date
1 Complainant passed away on or about September 26, 2003.
2 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120054265
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120054265