Amando E. Aquino, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionOct 16, 2003
01A23943_r (E.E.O.C. Oct. 16, 2003)

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