01A23943_r
10-16-2003
Amando E. Aquino, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Amando E. Aquino v. Department of the Air Force
01A23943
October 16, 2003
.
Amando E. Aquino,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A23943
Agency No. AR000011159
DECISION
INTRODUCTION
Complainant timely appealed to this Commission from the agency's June 13,
2002 final decision finding no discrimination in complainant's employment
discrimination complaint alleging violations of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. For the following reasons, the
Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a GS-9 Medical Technologist in a medical laboratory at Lackland Air
Force Base. Complainant sought EEO counseling and subsequently filed
a formal complaint alleging that he was discriminated against on the
bases of national origin (Filipino), sex (male), disability (sleep apnea
and depression/stress), and reprisal for prior EEO activity when he was
placed on a Performance Improvement Plan (PIP) on August 14, 2000.
BACKGROUND
Complainant initially was placed on the PIP on March 10, 2000.
In response to medical documentation submitted by complainant, the agency
held the PIP in abeyance pending the outcome of complainant's treatment.
This medical documentation came from two sources: 1. complainant's
primary-care physician concerning his mental condition; and 2. a pulmonary
specialist ("Specialist-1") conducting sleep studies on complainant.
Complainant's primary-care physician recommended complainant receive two
weeks of sick leave while he was being treated for a "stress-related
illness." The agency provided complainant with the requested leave,
until the physician sent a second correspondence, dated March 31, 2000,
releasing complainant to return to full duty. Meanwhile, by letter dated
March 21, 2000, Specialist-1 explained that complainant suffered from
"obstructive sleep apnea," which left complainant fatigued, forgetful, and
sleepy. Specialist-1 suggested that complainant "be given consideration
at work because of his medical condition."
In a later correspondence, dated April 12, 2000, Specialist-1 explained
that despite receiving treatment, complainant continued to be lethargic
and forgetful as a result of his lack of sleep. While his treatment
was ongoing, Specialist-1 recommended that complainant "not be in any
position where errors could cause patient harm or could cause errors in
patient lab studies. For that reason, I recommend that [complainant] be
on a lower level of responsibility for the type of work that he is usually
accustomed to." As a result of this letter, the agency continued to hold
complainant's PIP in abeyance, and placed him in a GS-4 Medical Technician
position in "Specimen Collection", with saved-pay at the GS-9 level.
While complainant worked in Specimen Collection, Specialist-1
began working with two colleagues to treat complainant's sleep-apnea
("Specialist-2" and "Specialist-3"). During this time, complainant's
symptoms improved, and he began to have restful sleep. By e-mail
dated August 10, 2000, however, Specialist-2 informed complainant's
supervisor that complainant not only had obstructive sleep apnea, but also
"idiopathic central nervous system hypersomnia", which caused complainant
to have periods of fatigue during the day. He released complainant to
return to work, so long as he was not placed in "shift work," and informed
the supervisor that further work restrictions may be determined later.
In response to Specialist-2's release, the agency returned complainant
to his Medical Technologist position, and reintroduced the PIP on August
14, 2000. The agency also requested further information concerning
complainant's work restrictions.
Specialist-3 responded to the agency's request on August 20, 2000,
confirming that complainant could return to work, so long as his position
was not "alertness-critical." Specialist-3 explained that, complainant
could only return to his job if "brief lapses of attention will not
carry dangerous consequences." Based on Specialist-3's explanation, the
agency determined that complainant's GS-9 Medical Technologist position
in the medical lab was not alertness-critical, and continued to monitor
complainant's performance under the PIP.
On August 31, 2000, complainant sought EEO Counseling regarding being
placed back on the PIP. On September 11, 2000, complainant's PIP ended.
The agency found that complainant had not met his obligations under the
PIP, and his performance had not improved. As a result, it returned
complainant to the GS-4 Medical Technician detail. On the same day,
complainant sought treatment at a Mental Health Clinic, and was admitted
for eleven days to a "partial hospitalization program" for intensive
treatment of depression, stress, and an adjustment disorder. During this
time, the agency issued complainant a notice of proposed removal for
failure to meet his performance standards as a Medical Technologist.
Around the same time, complainant declined an agency Employee-Relations
Specialist's attempts to discuss reassignment. Then, before the agency
could act on its proposed removal, complainant resigned to accept
employment at another agency.
Complainant filed his formal complaint on October 12, 2000, and the
agency accepted the complaint for investigation. At the conclusion of
the investigation, complainant was informed of his right to request
a hearing before an EEOC Administrative Judge or alternatively, to
receive a final decision by the agency. By letter dated June 18, 2001,
complainant requested a hearing. Complainant later withdrew his request
for a hearing, and the complaint was returned to the agency for a final
decision via a September 17, 2001 order from the Administrative Judge.
In its June 13, 2002 final decision, the agency found that complainant
failed to establish a prima facie case of disability discrimination,
because he was not a qualified individual with a disability.
Specifically, the agency noted that complainant's sleepiness was resolved
with treatment, and that his bouts with depression were short-term.
In finding that complainant's deficient performance was not due
to his impairments, the agency noted that complainant was not in an
"alertness-critical" position, received leave whenever he requested it,
and, according to his physicians, was capable of performing his work
during the time he served in the Medical Technologist position.
With regard to complainant's claims of national origin, sex, and reprisal
discrimination, the agency found that complainant established a prima
facie case. Nonetheless, the agency found that it had legitimate
reasons for its actions, and that complainant failed to prove that the
agency's reasoning was a pretext for discrimination. Specifically,
the agency found that complainant was placed on the PIP because
his performance continued to decline since his 1997-1998 performance
appraisal. The agency explained that complainant made more departures
from agency procedures than other Medical Technologists concerning the
review and handling of patient test results, failed to timely submit
his College of American Pathologists' (CAP) checklists, exceeded the
maximum number of errors allowed on a CAP checklist by thirty (and
thus jeopardized the agency's CAP accreditation), failed to document
unscheduled troubleshooting on lab instruments, failed to complete weekly
quality control reviews, and delayed reporting "start sample" results.
With regard to pretext, the agency explained that complainant failed to
show that any similarly situated individuals received favorable treatment,
or otherwise prove that the agency's actions were unjustified.
On appeal, complainant argues that his sleep apnea rendered him unable to
concentrate on the job. He claims that the agency should have reassigned
him to a lateral position, rather than demote him to a GS-4 position.
Complainant asserts that reassignment was the appropriate action to take
because his position was alertness-critical, and no other accommodation
existed to allow complainant to perform the essential functions of a
Medical Technologist. According to complainant, the Mental Health Center
psychiatrist requested a reassignment on his behalf when, by letter dated
September 11, 2000, the psychiatrist wrote, "we believe [complainant's]
current distress is at least partially related to a difficult working
relationship with his direct supervisor. If possible and at your
discretion, if [complainant] could [be] transferred to a different
working environment under a different supervisor, we believe it would be
a positive factor for his mental health recovery." Complainant asserts
that his supervisor repeatedly refused to acknowledge that his medical
condition affected his performance.
Alternatively, complainant argues that once he was returned to his
Medical Technologist position in August 2000, complainant received very
little feedback from his supervisor or coworkers. He contends that
the agency should have provided him with training or help to improve
his performance. Further, complainant explains that although the PIP
required his supervisor to hold weekly status meetings, his supervisor
provided no constructive feedback, and only "targeted" complainant's
mistakes. With regard to pretext, complainant claims that he copied
his CAP reports from a female coworker of a different national origin
who received no negative feedback regarding her reports.
ANALYSIS AND FINDINGS
National Origin, Sex, and Reprisal Discrimination
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether s/he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In the present case, the agency submitted nondiscriminatory reasons for
its actions. Complainant argued that the reasoning was a pretext for
discrimination because other employees who returned similarly structured
CAP reports did not receive the same treatment as he did, and that all
of the other men working in complainant's division left to avoid the
discriminatory treatment of his supervisor. The agency included copies of
the CAP checklists for the record, explaining that although complainant
should not have obtained his coworker's reports, his numerous mistakes
clearly demonstrated that he did not "copy" the coworker's CAP checklist.
Although complainant's supervisor also admitted in her affidavit that one
of complainant's coworkers failed to timely submit his CAP checklist,
she noted that this coworker had a family emergency requiring him
to be out of the office for a significant amount of time during the
relevant time period, that the coworker completed his checklist by an
extended deadline, and that his completed checklist contained no errors.
The supervisor also noted that this coworker was new to the position,
whereas complainant had considerable experience, and therefore should
have been able to complete the checklist quicker and more accurately than
the coworker. Complainant has not proven that the agency's reasoning,
as articulated in its final decision, is a pretext for discrimination.
Accordingly, the agency's finding of no discrimination on the bases of
national origin, sex, and reprisal was proper.
Disability Discrimination
Whether proceeding under a disparate treatment or reasonable
accommodation analysis, complainant first must establish that he is
a qualified individual with a disability. See Sims v. United States
Postal Service, EEOC Petition No. 03A00033 (Feb. 25, 2000); 29 C.F.R. �
1630.4 (prohibiting discrimination against qualified individuals
with disabilities). In the present case, the Commission presumes,
without deciding, that complainant is an individual with a disability.
To the extent complainant is alleging disparate treatment on the basis
of disability, complainant's claim is analyzed in a similar manner to his
national origin, sex, and reprisal claims. See Moore v. Department of the
Army, EEOC Request No. 05960093 (Oct. 16, 1998) (noting that complainant
must show that the agency took an adverse action against complainant,
and demonstrate a causal relationship between the agency's actions and
complainant's disability). As previously discussed, complainant has
failed to show that the agency's reasoning was pretext. Therefore,
his claim of disparate treatment on the basis of disability fails.
Qualified employees with disabilities are entitled to reasonable
accommodations to enable them to perform the essential functions of their
positions, or to enjoy equal benefits and privileges as other similarly
situated employees without disabilities. See 29 C.F.R. � 1630.2(o)(1);
see also EEOC Enforcement Guidance: Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, at 2-3 (March 1,
1999) (hereinafter "Reasonable Accommodation Guidance"). Generally,
an individual with a disability must inform the employer that an
accommodation is needed. Reasonable Accommodation Guidance, at 3.
Although complainant never personally requested any particular reasonable
accommodation, his physicians and specialists clearly made several such
requests on his behalf. See EEOC Enforcement Guidance on the American
with Disabilities Act and Psychiatric Disabilities, Q. 18, at 20 (a
health professional may request a reasonable accommodation on behalf of an
individual with a disability); Reasonable Accommodation Guidance, at 3.
When complainant, through his health care professionals, requested leave
and a temporary reduction in his responsibilities, the agency complied.
In fact, the agency fulfilled every request complainant made, with the
exception of reassignment.
Reassignment to a vacant position is a permissible form of reasonable
accommodation when accommodation in the employee's present job is not
possible, or would cause an undue hardship. Reasonable Accommodation
Guidance, at 37; Psychiatric Disabilities Guidance, Q. 29, at 28.
The agency should consider reassignment to a vacant position only after
it has studied accommodations that would enable complainant to remain
in his current position. Reasonable Accommodation Guidance, at 38.
Although the agency did not actually reassign complainant, the
record reveals that the agency offered to provide complainant with a
reassignment. In her affidavit, an Employee-Relations Specialist stated
that she "discussed the possibility" of a reassignment with complainant
after the PIP was not successful. According to the Employee-Relations
Specialist, complainant was "not agreeable to such actions." In other
words, the agency offered to help complainant find a vacant position
for reassignment, and complainant declined the offer. Complainant,
in essence, refused to participate in the interactive process to find
a suitable reassignment.
On appeal, complainant also appears to argue that the agency should have
reassigned him to a lateral position rather than move him to the GS-4
Medical Technician position. The first time complainant was placed in the
GS-4 position, the agency was attempting to comply with his health care
provider's suggestions for a temporary reduction in responsibilities in
order to allow complainant to return to his prior position. The second
time complainant was placed in the GS-4 position, he refused the agency's
offer to find a reassignment. The agency cannot be faulted for failure
to provide the very accommodation it offered but complainant declined.
CONCLUSION
The agency's final decision finding no discrimination 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
October 16, 2003
__________________
Date