Melinda Locke, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMar 30, 2007
0120053174 (E.E.O.C. Mar. 30, 2007)

0120053174

03-30-2007

Melinda Locke, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.


Melinda Locke,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01200531741

Hearing No. 110-2003-8469X

Agency No. 02-0410-SSA

DECISION

On March 24, 2005, the complainant filed an appeal with the Equal

Employment Opportunity Commission (EEOC or Commission) claiming that

the Social Security Administration ("agency") failed to comply with the

agency's final order dated April 5, 2004. Complainant alleged she was

discriminated against in violation of Section 501 of the Rehabilitation

Act of 1973, as amended, 29 U.S.C. � 791 et seq., when the agency's

Annison, Alabama District Office ("facility") failed to provide her with

a reasonable accommodation, resulting in her discharge on or about June

21, 2002.

The Administrative Judge (AJ) in the instant case found that the agency

discriminated against complainant by failing to provide her with a

reasonable accommodation to perform the Service Representative Trainee

(SRT) position. The AJ ordered the agency to engage in an interactive

process with complainant within 30 days of the issuance of the agency's

final agency decision to determine whether she could perform the essential

functions of the SRT position with a reasonable accommodation. The AJ

found that should the agency determine that complainant could perform

the essential functions of the Service Representative position with a

reasonable accommodation, she should be awarded back pay and interest

and offered retroactive reinstatement to the SRT position. The AJ also

ordered the agency to pay complainant $5,000.00 in compensatory damages

and provide training of at least one (1) hour in length concerning

reasonable accommodation to the members of its management and supervisory

staff at the facility within six (6) months of the date of the agency's

final decision. The agency's final order reviewed and considered the

evidence of record, and adopted without modification the AJ's decision

on April 5, 2004.

On December 3, 2004, the agency responded to the AJ's final order. In a

memorandum (memo) to the AJ drafted by the agency's District Manager, the

agency stated that it concluded that complainant could not be accommodated

such that she could perform the SRT position. The complainant seeks

compliance with the portion of the final order which stated that it

would engage in an interactive process with complainant to determine

whether she could perform the essential functions of the SRT position

with a reasonable accommodation. We note that the final order stated

that actions would be taken in response to the other remedies recommended

by the AJ pursuant to the agency's acts of discrimination.

Under 29 C.F.R. � 1614.504, if a complainant believes that the agency

has failed to comply with the terms of a final action, she shall notify

the EEO Director in writing of the alleged noncompliance. Under the

regulation, if the complainant is not satisfied with the agency's

attempt to resolve the matter, she may appeal to the Commission for a

determination as to whether the agency complied with the terms of the

final action. The complainant may file such an appeal within 35 days

after she has served the agency with the allegations of noncompliance

but must file an appeal within 30 days of her receipt of the agency's

determination. The complainant timely filed her appeal.

ISSUE PRESENTED

Whether the agency failed to comply with the terms of the final order

which stated that it would engage in an interactive process with

complainant within 30 days to determine whether she could perform the

essential functions of the SRT position with a reasonable accommodation

BACKGROUND

Complainant alleged that she was discriminated against on the

basis of disability (partial paralysis in both elbows; Attention

Deficit/Hyperactive Disorder) in violation of the Rehabilitation Act. when

the agency failed to provide her with a reasonable accommodation,

resulting in her discharge on or about June 21, 2002. The record

indicates that the parties stipulated that complainant is an individual

with a disability which substantially limited a major life activity.

The record also indicates that complainant was hired by the agency as a

CRT, GS-0962-5, and complainant received a two-year probationary period.

Complainant's physical impairment was disclosed to the agency at the

time of her selection, but her attention deficit/hyperactive disorder

(ADD) was not disclosed to the agency. The record demonstrates

that due to the attention deficit disorder, complainant was easily

distracted and needed a greater amount of one-on-one training in order to

retain information. Hearing Transcript (HT) at 73. The record further

indicates that during complainant's training period, she was required to

take weekly standardized tests; within the first month of her training,

complainant informed the District Manager that she did not test well.

At the completion of the Interactive Video Tele-training (IVT) course,

complainant's test scores were an average of 56.88 on the weekly tests,

while the class average was 86.85. HT at 190. While complainant did

not successfully complete the IVT course, complainant was told that she

could continue as a trainee with on-the-job training and mentoring by

a Management Support Specialist (MSS). In March of 2002, complainant

mentioned to the Operations Supervisor and complainant's first-line

supervisor (S1), that due to her ADD she needed an accommodation in order

to perform her job. HT at 40. Complainant provided S1 with a letter

from her physician stating that she had ADD, a mathematics disorder and

borderline intellectual functioning. On April 15, 2002, complainant

provided S1 with a request for a reasonable accommodation, which included

a telephone headset, one-on-one training and instructions. S1 recommended

that complainant be provided with the headset and one-on-one training,

but she declined complainant's other requests.

The record reflects that, on May 21, 2002, the Alabama Department of

Rehabilitation Services provided a list of recommended accommodations

for complainant. There were ten (10) recommendations in the memorandum,

and the record indicates that the agency complied with some of the

recommendations. However, on June 7, 2002, complainant was informed that

she would be terminated on June 21, 2002 as she failed to demonstrate

that she had the ability to learn and perform her job duties. The agency

informed complainant that she was counseled and trained on many occasions,

but she did not show sufficient improvement. While agency officials

noted that they were informed of complainant's request for a reasonable

accommodation, the agency stated that she was not able to retain or

apply information and perform the job.

Following a hearing, the AJ found that the agency violated the

Rehabilitation Act, as it failed to engage in an interactive process

to determine whether a reasonable accommodation was available so

complainant could perform the essential functions of her position.

Pursuant to the issuance of the agency's final order, which adopted the

AJ's findings, the agency issued a memo to the AJ. The memo stated

that a meeting was conducted on November 16, 2004, and the purpose

of the meeting was to determine whether complainant could perform the

essential functions of the Service Representative Trainee position with

a reasonable accommodation. The memo stated that complainant was given

a copy of the position description for her position and noted that the

critical elements listed in the position description were the essential

functions of the position. The memo listed the critical elements of

the position, and noted that complainant was told that the position

was highly technical and required administration decisions about Social

Security benefits. The memo also stated that the position at issue must

progress toward being able to successfully process the full range of

critical duties as described in the position description, and must also

show evidence of acquiring and retaining the knowledge to independently

make determinations.

The memo noted that during the meeting, complainant was asked five (5)

questions regarding her ability to perform the essential functions of the

position at issue, and she stated that she had many positive attributes

such as computer and communication skills. In addition, the memo noted

that complainant stated her Attention Deficit Hyperactivity Disorder

caused her problems in learning the position related to training.

She suggested several procedures for the formal and informal training

periods, such as allowing her to tape the training classes for later

review and minimizing distractions such as printers and copiers.

The memo noted several features common to individuals with ADHD,

such as mathematics disorder and adjustment disorder, with borderline

intellectual functioning. As such, the memo stated that an evaluation of

complainant's ability to perform the critical elements of the position

at issue would begin with her ability to understand and apply basic

mathematical functions. The memo noted that of the six (6) critical

elements of the position, five (5) of them refer to the need to resolve

problems with payments. The memo noted that during both the Interactive

Video Tele-training (IVT) training and subsequent informal training,

complainant was given extensive one-on-one instruction and showed

difficulty in the comprehension of math procedures and formulas. Further,

even "easy" concepts gave her great difficulty, and these characteristics

were consistent with the diagnosis of Mathematics Disorder.

The memo noted the agency had a "Work Test," wherein a central and common

calculation was given to trainees similar to the calculations required

in the position at issue, and this was taught in IVT class. The memo

stated that complainant was never able to understand the calculation

concept in the "Work Test" despite being taught to her multiple times by

multiple people. As such, the memo found that even if complainant's other

problems could be accommodated, her mathematical inability precluded

her from making correct determinations and giving claimants correct

information. Even if complainant was given a calculator to make the

actual calculations, the memo noted that the position still required the

concepts being applied to achieve the correct results. In addition, the

memo noted that complainant had difficulty in comprehending questions

or situations which presented themselves, which is consistent with

Borderline Intellectual Functioning. In so finding, the memo noted that

when complainant was presented with issues regarding beneficiaries, she

frequently misunderstood or partially understood their problems. As a

result, without understanding the nature of the beneficiaries problems,

incorrect or incomplete actions were taken. Further, the memo noted that

many of the suggestions complainant made to allow her to take training

so she could perform the position at issue were attempted and failed.

Thus, the memo concluded that complainant was unable to complete the

essential functions of the SRT position with a reasonable accommodation.

Subsequent to the issuance of the memo to the AJ, complainant petitioned

the Commission to allege non-compliance with the terms of the FAD.

Complainant alleged that the FAD provided for the agency to engage in

an interactive process with her to determine if she could perform the

essential functions of the SRT position with a reasonable accommodation.

Complainant also noted that she was requested to provide extensive

medical documentation by the discriminating official, and she provided

medical documentation regarding her limitations from her physician.

In addition, complainant submitted to the agency the list of recommended

accommodations which would assist her in being successful in the training

for and performance of the duties of the STR. Complainant referenced

the November 16, 2004 meeting held in response to the AJ's order, and

alleged that the meeting was not an objective attempt to comply with the

AJ's order. In addition, complainant alleged that it was inappropriate

that the officials responsible for the acts of discrimination were present

at the meeting. Complainant also alleged that the memo submitted to the

AJ was not a recommendation, but rather was a decision by the agency

justifying its prior actions. She stated that she had previously

submitted accommodations which were successful in both academics

and in the workforce, and the conclusions reached in the memo did not

constitute an objective and valid attempt to accommodate her. As such,

complainant believed the agency was in non-compliance with the FAD, and

requests that she be granted an interaction with a neutral and unbiased

source to determine whether she can complete training and perform the

duties of the position. She concluded by stating that there was no

sound basis for the determination that she would be unable to perform

the essential functions of the SRT position even if the accommodations

were granted.2 Essentially, complainant concludes that the agency has

failed to establish that she cannot perform the essential functions of

the SRT position and did not engage in the interactive process ordered

by the agency in its FAD.

FINDINGS AND ANALYSIS

Upon review of this matter, we first note that neither party appealed the

final order dated April 5, 2004. Therefore, we do not review the AJ's

findings on liability in this decision and only make a determination of

whether the agency complied with its final order. After a review of the

record, we find that the agency complied with the final order by engaging

in the interactive process to determine complainant's ability to perform

the essential functions of the SRT position. In so finding, we note that

the agency requested pertinent documentation from complainant, and made

an evaluation of complainant's ability to perform in the position based

upon medical assessments contained in medical documentation provided

by complainant as responsive to agency requests as well as a guidance

on Attention Deficit/Hyperactivity Disorder published by the American

Psychiatric Association. We note that complainant declined to provide

various medical documentation to the facility's District Manager which she

previously provided to the agency's Civil Rights and Equal Opportunity

Office; thus the District Manager had only previously submitted medical

documentation to consider.

Complainant maintains that the meeting with agency management on November

16, 2004 was not an objective attempt to comply with the final order, in

part as the discriminating official (the District Manager) was present.

We determine that the record does not support complainant's claim that

the agency did not engage in a good faith attempt to determine whether

she could perform the essential functions of the SRT position with

appropriate accommodations. While the facility's District Manager was

present at the November 16, 2004 meeting, the record indicates that he

along with other agency managers (including the facility's Civil Rights

and Equal Opportunity Team Leader) were charged with engaging in the

interactive process with complainant to determine whether complainant

could perform the position at issue. Moreover, our review here does not

examine whether the agency's conclusions about complainant's ability to

perform the essential functions of the position are correct, instead we

only review whether the agency engaged in the actions required by the

final order.

We find that, pursuant to the AJ's order, the agency: (1) considered the

essential functions of the SRT position; (2) consulted with complainant

to determine her particular abilities and limitations as regarding

the essential job functions of the SRT position, including identifying

barriers to the job performance and how they could be overcome with an

accommodation; (3) identified potential accommodations and assessed

how effective each would be in enabling complainant to complete the

IVT training course. After consideration of these factors, the agency

concluded that, based upon complainant's responses to questions at the

meeting regarding: (1) her abilities and limitations relating to the

SRT position; (2) barriers to performance of the SRT position; (3) how

the barriers could be overcome; and (4) reasonable accommodations which

would ensure her successful performance of the SRT position, as well

as the medical evidence submitted, the essential functions of the SRT

position and the prior experience and documentation required to support

the position, complainant could not perform the essential functions of

the position even if the requested accommodations completely negated the

effects of her impairment. We further note that the record reveals no

allegations from complainant that the agency failed to pay her $5,000.00

in compensatory damages or failed to provide training to the facility's

District Manager or MSS on reasonable accommodation. Consequently,

we find that the agency has complied with its final order.

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

____3/30/07________________

Date

1 Due to a new data system, this case has been re-designated with the

above-referenced appeal number.

2 We note that complainant initially attempted to have the AJ determine

that the agency was not in compliance with the FAD, but the AJ issued

a notice dated December 13, 2004 stating that the Birmingham District

Office no longer had jurisdiction over the complainant. The AJ advised

complainant that she should file an appeal with the Office of Federal

Operations if she believed the agency failed to comply with the terms

of the FAD.

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0120053174

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120053174