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
8
0120053174