0120081695
05-03-2012
Carin C. Memmer, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Carin C. Memmer,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120081695
Hearing No. 310-2004-00158X
Agency No. 2003-0016-R06
DECISION
Complainant filed an appeal from the Agency's November 28, 2006 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Environmental Protection Specialist, GS-0028-07, in the Agency's Region 6, National Pollutants Discharge Elimination System (NPDES), Water Quality Protection Division, in Dallas, Texas. Complainant's position was an excepted service position under the Agency's Environmental Internship Program (EIP). According to the position description for the Environmental Protection Specialist position, the EIP is a two-year program of rotational assignments and training designed to provide a developmental opportunity for the intern. Complainant was under the direct supervision of Person A, Acting Branch Chief, NPDES, Water Quality Protection Division, and under the secondary supervision of Person B, Branch Chief, NPDES, Water Quality Protection Division. Complainant's third level supervisor was Person C, Director of the Water Quality Protection Division. Complainant worked for the Agency from October 21, 2001, through October 3, 2002, at which time she was terminated. Complainant was in her probationary period during her employment with the Agency.
On December 20, 2002, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (visual impairment), age (45), and in reprisal for protected EEO activity when:
1. From October 2001 to October 2002, Complainant was denied effective and timely accommodations and her supervisor (Person A) made negative and harassing comments and treated her differently than others;
2. On September 3, 2002, Person A cancelled her intern rotation to the Research Triangle Park in North Carolina; and
3. On October 3, 2002, Complainant was terminated from employment at the Agency.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing on her complaint and the AJ held a hearing on September 11 - 15, and 18, 2006. The AJ issued her decision on September 18, 2006.
In her decision, the AJ noted that Complainant has congenital cataracts and found Complainant was substantially limited in the major life activity of seeing. The AJ noted that during an interview for the Environmental Protection Specialist, Complainant advised the Agency of her visual impairment and that she would need reasonable accommodations. The AJ noted that after Complainant was hired, but prior to her first day of work, the Agency asked what kind of accommodations she would need. The AJ noted that in response, Complainant sent an electronic mail message dated October 10, 2001, to Person X from Human Resources listing her requested accommodations. The AJ noted Complainant requested one 24-inch computer monitor for her office computer, one office computer, one laptop computer, one color printer, adaptive software for her office and laptop computers, adaptive video cards for her office and laptop computers, one portable CCTV (Closed Circuit Television) for her office and laptop computers, one highback chair with neck support, one slant board, one footrest, one bright desk lamp, and one phone headset. The AJ noted that Complainant provided different levels of detail on the items requested.
The AJ stated that once Complainant arrived at the Agency, she was asked to use a specific process to request accommodations and to fill out a form entitled USEPA Region 6 Request for Goods and Services. The AJ noted that Complainant completed several of these forms and dated them November 6, 2001. The AJ noted that Complainant requested many of the same items that she had listed in her October 10, 2001 pre-employment electronic mail message. Specifically, Complainant requested the following items: a computer monitor described as a Sony 24" MultiScan Wide Display GDM-FW900; a laptop computer; ZoomText adaptive software; a CCTV described as the Triad Magni-Cam plus various related accessories (such as a head-mounted display and battery accessory); video card described as the All-in-One-Wonder Radion 8500 card for use with the Triad Magni-cam CCTV; a Model LC-Z/FE-BK fluorescent and incandescent table lamp; and one headset for her phone. The AJ noted that all these request forms were signed by the three approving authorities at the Agency, except for the request for a laptop. The AJ noted that while not all forms were dated, a couple of the forms were dated as approved by Person A on November 11, 2001, and a couple of the forms were dated with Division approval on November 19, 2001.
The AJ found that Person Y, Management and Program Analyst, Information Technology (IT) Team was the IT person primarily working with Complainant on her hardware and software computer needs. The AJ noted that as of February 2002, there were some requested items that Complainant had not yet received. The AJ noted that at this point Complainant believed the Agency would not provide her with further accommodation items, and she contacted CAP (Computer/Electronic Accommodations Program), a Department of Defense group that had entered into an agreement with the Agency to assist in the provision of accommodation items. The AJ noted that Complainant requested that CAP purchase some of the same items that she had previously requested from Region 6, but which she had not yet received. Additionally, the AJ stated that Complainant also requested items from CAP which had never been requested from the Agency before.
The AJ noted that sometime during the CAP process, Complainant sought to assist fellow co-workers in the completion of their CAP forms. The AJ noted that Complainant organized demonstrations and evaluations of a variety of items for the visually impaired. The AJ explained that as a result of these various onsite evaluations, Complainant completed CAP forms for herself and for various co-workers.
The AJ noted that Complainant repeatedly claimed that the Agency failed to give her the specific CPU she requested. The AJ found that prior to starting at the Agency, Complainant requested an "office computer with a 1.5 MHz hard drive, as much RAM as possible, a graphics card with as much RAM as possible, and the latest version of Acrobat reader." The AJ noted that Complainant claimed that her request was denied because she was instead given a CPU with 600 MHz. The AJ found that there was no evidence that Complainant specifically mentioned to anyone at Region 6 that the CPU she had been issued did not have the necessary megahertz. Additionally, the AJ found that 600 MHz is greater than 1.5 MHz and that the CPU that she was issued was sufficient.
The AJ noted that Complainant also claimed that she was denied ZoomText.1 The AJ stated that in October 2001, prior to her first day of work, Complainant requested ZoomText Version 7.06. The AJ also noted that in November 2001, Complainant completed a USEPA Region 6 Request for Goods and Services confirming her request for ZoomText. The AJ noted that at the time of the second request, a trial version of that software had already been loaded onto Complainant's temporary computer. The AJ noted that ZoomText was permanently installed on Complainant's computer in December 2001. The AJ noted that Complainant testified that the installed version of ZoomText was close enough to the specific version she requested.
The AJ noted that Person Y testified that she tuned the display terminal of Complainant's computer and that she used to come in on Saturdays to set the accessibility options exactly as Complainant needed. The AJ noted that Person Y stated that after she had saved the special fonts and screens in Complainant's computer, Complainant stated "it was the first time that she was able to read the screen without her special glasses."
The AJ noted that Person Y estimated it took three to four weeks after Complainant's arrival to tune her computer and software. The AJ noted that Person Y worked one-on-one to address Complainant's magnification needs. The AJ noted that Complainant did not test the audible text reading feature on her computer when ZoomText was first installed. The AJ found the evidence lent credence to the argument that the magnification feature of ZoomText was working well enough that Complainant did not feel compelled to even test the text reading feature of ZoomText. Moreover, the AJ noted that on February 27, 2002, Complainant sent an electronic mail message to Region 6's EEO Officer advising her that her computer was effectively able to run ZoomText.
The AJ stated that during the hearing, Complainant explained that in March 2002, she realized that her CPU did not have enough memory to run ZoomText. The AJ noted that Person Y testified that Complainant's computer had sufficient memory to run ZoomText. The AJ also noted that the manufacturer of ZoomText required at least 32 MB of memory and 64 MB for NT systems. The AJ noted that Complainant's operating system was not the NT system. The AJ determined Complainant's computer far exceeded the manufacturer's requirement, as it had 256 MB of memory. The AJ found it was more likely than not that Complainant's computer had sufficient memory to run ZoomText.
Additionally, the AJ addressed Complainant's contention that ZoomText did not work properly. The AJ noted that Person A testified that Complainant never complained to her that ZoomText was not working effectively. Further, the AJ noted that Person A testified that Complainant twice demonstrated ZoomText to her once in early 2002 and then in the summer of 2002. The AJ recognized that this did not mean that ZoomText was working problem-free. Rather, the AJ noted that the record showed that there were two problems with this software: when Complainant changed the settings on her computer as she was trying to download programs from the internet and when another software called MAGic was running at the same time.
The AJ concluded that even if Complainant later learned that ZoomText did not work as she previously determined, she had a responsibility to advise her supervisor, Person A, of this problem. The AJ noted that while Complainant asserted that she advised the computer department in March 2002, it was clear that the computer department was not the final word on accommodations.
The AJ noted that Complainant acknowledged that after a certain time she no longer sought to obtain accommodations from Region 6 through Person A. The AJ noted that Complainant claimed that sometime in May 2002, Person A "snuck up" behind her while she was doing computer work and said, "Your neck must be killing you and you must be going crazy." The AJ noted that Complainant stated after this event she no longer sought accommodations from Person A. The AJ recognized that Person A testified that she did not make the alleged statement. The AJ determined that Complainant was not relieved of her responsibility to approach her supervisor and discuss her specific request regarding ZoomText.
The AJ noted that Complainant obtained a letter from her doctor entitled "PacifiCare Pre-Authorization" dated April 15, 2002, listing six different devices that would allow Complainant to work more efficiently. The list included three different specialized glasses. One was a 3X mini-bioptic computer telescope system to give her "more efficiency when using her computer at work." The other two devices were a 4X Autofocus Ocutech telescope system for seeing distances at work and a DVI expanded field bioptic system for reading standard print with an expanded field. The AJ noted that the doctor's letter did not address the use of ZoomText or any other magnification software used by Complainant at work. The AJ found no evidence that Complainant's doctor considered that type of software when making her recommendations for specific computer prosthetics.
The AJ noted that Complainant's personal health insurance company, PacifiCare, declined to purchase these items. The AJ noted that Complainant asked Person Z, Diversity Coordinator, to assist her with the appeals process once PacifiCare denied the items. The AJ noted that Complainant claimed that in May 2002, she informed Person A about PacifiCare's denial and that she was concerned she would injure her neck while tilting her head backwards to view the computer screen through her own personal glasses, the Design for Vision 6.0X ocular prosthetic system, with a field of vision of 1.5 inches.
The AJ found Complainant's testimony as to whether she specifically informed Person A that she wanted the Agency to purchase these glasses for her computer use to have been equivocal. The AJ noted that Person A denied that Complainant asked her for the requested glasses to use with the computer. The AJ noted that Person A stated that Complainant approached her about a series of five glasses, but that Complainant did not tie the glasses to the work she was performing at the Agency. Thus, AJ found while Complainant may have discussed PacifiCare's denial with Person Z and Person A, there was no persuasive testimony that Complainant asked her for the prosthetic system for use with computer work.
The AJ noted that at the beginning of her employment in 2001, Complainant requested a 24-inch computer monitor referred to as a cathode ray tube (CRT) monitor. The AJ noted that Complainant was given a 21-inch CRT monitor by the Agency.
The AJ stated that in spring of 2002, Complainant became aware that there were new flat screen computer monitors available on the market. The AJ noted that Complainant then substituted her earlier request for a 24-inch CRT monitor with a request for a flat panel monitor with a 21-inch diagonal measurement. The AJ noted that Complainant sent her request dated March 11, 2002, to Person Z and Person Y. The AJ noted that in response, Person Y stated she will contact Complainant to find out exactly which monitor Complainant is requesting. The AJ noted that Person Y drove Complainant and other visually impaired employees to a computer store to view the new computer screens. The AJ also noted that Complainant believed this was insufficient to properly evaluate the new screens. The AJ noted that the Agency personnel, including Person Y, assisted Complainant in setting up evaluations of the new computer screens at the office. The AJ noted that thereafter, Complainant selected the ViewSonic 23.1 flat screen computer.
The AJ found there was insufficient evidence to show that the 21-inch CRT monitor that Complainant was provided by the Agency was ineffective to allow her to perform her work. The AJ noted that once flat-screen monitors became available in Spring 2002, Complainant revised her request for a 21-inch flat screen monitor. The AJ noted that Person Y readily responded to Complainant's request and drove her to a computer store to look at the new models. The AJ noted that Person Y also assisted Complainant in testing two different flat-screen monitors at her work station. The AJ noted that by the end of July 2002 Complainant chose a 23.1 inch flat screen, which she requested from CAP, not the Agency. The AJ noted that the item was ordered by CAP for delivery at her next expected rotation at Research Triangle Park, North Carolina.
The AJ noted that Complainant claimed that she did not get a laptop as she had requested. The AJ noted that the Agency denied Complainant a laptop as she was not expected to work outside the office. The AJ found there was no showing that a laptop would have been necessary for Complainant to perform the essential functions of her job.
The AJ noted that Complainant claimed the Agency denied her a color printer. The AJ noted that when questioned about the color printer request at the hearing, Complainant conceded that there were other color printers in the area that she could use. The AJ found that Complainant did not show a failure to accommodate with regard to the color printer.
The AJ noted that Complainant requested two video cards; however, she only received one. The AJ found that Complainant requested two video cards, one for use in the laptop she asked for and one for use in her desktop. The AJ noted that since Complainant did not receive a laptop, a second video card was not necessary and was not a failure to accommodate.
The AJ noted that Complainant stated that although the Agency gave her a Triad Magni-Cam CCTV, they did not provide accessories to make it portable. The AJ noted that Complainant stated she needed the CCTV to be portable, to allow her to read things around the office. The AJ found Complainant did not explain why her reading glasses would not have achieved the same result, except to say that there was a large map hanging up on the wall and that she needed to read it. The AJ found no convincing evidence that this map was a necessary part of her primary assignment, updating the Ocean Discharge Criteria Evaluation. Moreover, the AJ found Complainant did not present persuasive evidence explaining why her glasses, which she used for reading, could not have serviced this purpose were the map taken down for her review. Thus, the AJ found a portable CCTV was not required to reasonably accommodate Complainant.
However, the AJ stated that there was a possibility that Complainant might in the future need the portability aspect of the Magni-Cam in her future rotations. The AJ noted that Person A did sign off on Complainant's request for the additional accessories from CAP, which Complainant received.
The AJ noted that Complainant also requested a specific high-back chair, a slant board for reading documents at her desk, and a footrest. The AJ found that there was a delay by the Agency in providing these items due to failed communication. The AJ found that there was insufficient evidence that Complainant adequately alerted the Agency that these items were needed in connection with her sight impairment. The AJ found while Complainant requested these items in her pre-employment electronic mail message, she did not fill out a USEPA Request for Good and Services form for these items. The AJ found that since Complainant did not use the established procedure for the purchase of the OBUS chair, the slant board or footrest, the Agency was not liable for failing to realize that Complainant still wanted these items.
The AJ noted that Complainant eventually inquired about the status of these items and a subsequent meeting was held that included the Assistant Regional Administrator. The AJ noted that after this meeting, Person W from Facilities confirmed in writing via electronic mail to others at the Agency that she was proceeding with the order of the OBUS chair; and that the footrest and slant board had been placed on Person Z's chair for delivery to Complainant. The AJ noted that the OBUS chair was provided in May 2002. The AJ noted that Complainant stated that she improvised something else for the footrest while she was waiting, but she did not improvise with respect to the slant board.
The AJ noted that Complainant also claimed that she asked for a bright lamp early in her employment. The AJ found that Person A credibly testified that Complainant did have additional light in her cube, but Complainant denied this. The AJ stated that had Complainant not been able to procure the additional lighting that she needed, it would have been more likely than not that this would have been one of the items that she would have ordered from CAP. Thus, the AJ found it unlikely that Complainant did not have adequate lighting for the time she worked at Region 6.
Finally, the AJ noted that Complainant requested a cordless phone headset which she stated was not timely granted. The AJ noted that the two written requests for a headset identified the headset for use in conjunction with her desk telephone and not for use with her computer. Additionally, the AJ found Complainant did not explain during the hearing how not having the cordless phone headset prevented her from performing the essential functions of her job. The AJ found that the Agency's failure to timely provide the cordless phone headset did not constitute a failure to accommodate Complainant. Moreover, the AJ noted that Complainant later requested a different type of headset for use with both the computer and telephone from CAP, which she did receive.
Next, the AJ examined Complainant's disparate treatment claims. With regard to her claim of discriminatory discharge based on disability and age, the AJ noted that Complainant attempted to compare herself to other interns who were part of the EIP and who were not separated. However, the AJ noted that those other interns were not similarly situated since they did not report to Person A, as their home-based supervisor. The AJ noted Complainant also compared herself to a prior intern who was younger and not disabled. However, the AJ noted that Person A was not the prior intern's home-based supervisor. Furthermore, the AJ did not find that the prior intern was having performance issues unlike Complainant. Thus, the AJ determined Complainant failed to establish a prima facie case of age or disability-based discrimination.
The AJ found Complainant established that she engaged in protected activity in sufficiently close temporal proximity to support a prima facie case of reprisal discrimination. The AJ noted that prior to Complainant seeking EEO counseling on September 25, 2002, she engaged in protected activity in that she sought accommodations for herself and others throughout her tenure with the Agency, but she intensified her efforts after she found CAP as a funding source for accommodation items.
The AJ noted that Complainant's two-year appointment was to provide the Agency with an opportunity to determine Complainant's fitness and suitability for continued federal employment. The AJ noted that the Agency determined that Complainant's conduct failed to demonstrate her suitability for continued federal employment. The AJ noted the Agency found Complainant continuously failed to follow her supervisor's instructions and had a negative and uncooperative attitude toward her supervisor.
The AJ noted that Person A stated Complainant failed to appropriately focus on setting up rotations and unduly delayed in completing the related individual develop plan (IDP) she was required to submit. The AJ noted that Person A also stated she was dissatisfied with Complainant failing to follow instructions to sign up for an appointment to review her performance. The AJ also stated that Person A noted that the Agency was unhappy with the amount of time Complainant utilized the Computer Graphics Coordinator on Complainant's project. Specifically, Person A noted that the Computer Graphics Coordinator's supervisor complained about the amount of time the Computer Graphics Coordinator was spending on Complainant's project. Moreover, the AJ noted that Person A recounted an occasion where Complainant at first declined an assignment by Person B, which Person A understood to be a simple and short-term task.
The AJ noted that Complainant was assigned to update the Ocean Discharge Criteria Evaluation Assignment. The AJ noted that Person D stated that Complainant did not complete the project in a timely manner due to her "obsession with formatting and graphic manipulations." The AJ noted that Person D stated that he told Complainant that the graphics contained in the existing document were adequate for the project and he stated that he repeatedly told her that she "needed to finish the project in a timely manner rather than spending many hours redeveloping graphics." The AJ noted that the Agency stated that after spending time creating and inserting new graphics, Complainant became embroiled with formatting issues, mostly involving page numbering errors. The AJ noted that Person D told Complainant that she could address the problem by separating the chapters or getting the page numbers manually typed; however, she did not do this. The AJ noted that according to Person D, Complainant's final work product contained a significant number of typographical errors, page numbering errors, and factual errors.
The AJ noted that Complainant claimed that Person D was not aware of all the technological difficulties she was experiencing and the barriers she faced in completing a complex document. However, the AJ found this ignored the fact that Person D said that Complainant made the existing document more complex by adding graphics that he felt were unnecessary. Also, the AJ noted that once the document became more complex due to the graphics Complainant added, Person D sought to avoid the formatting problems by giving Complainant suggestions, which she did not follow. The AJ found Complainant failed to show that the Agency exhibited discriminatory or retaliatory animus toward Complainant.
The AJ also addressed Complainant's claim that she was treated less favorably than a prior intern who had rotated to Region 6. Specifically, Complainant alleged that Person A subjected her to increased surveillance when she came back to Region 6 starting on September 26, 2002. The AJ noted that based on the various unauthorized absences from her assigned workplace for substantial periods of time during this time period, Person A's checking in on Complainant and following up as to absences from her cubicle did not appear unreasonable.
The AJ noted that Complainant also claimed that she was subjected to increased scrutiny at the time she was informed of her discharge on October 3, 2002. The AJ noted that Complainant did not take the discharge letter because she wanted to first look for union representation. The AJ noted that Person A stated that Complainant yelled and threw the letter on the ground and ran out of the office past a security guard. The AJ found Complainant went into a stairwell to go to a different floor but due to Person A's deactivation of her identification badge, she was locked in the stairwell. The AJ found it was not unusual that an Agency would deactivate the access card of someone who is being discharged from employment due to security reasons. The AJ determined Complainant's generalized claim of disparate treatment failed as the preponderance of evidence did not demonstrate a connection to discriminatory motives.
Additionally, the AJ recognized that Complainant claimed she was subjected to disparate treatment when Person A cancelled her upcoming rotation to Research Triangle Park. The AJ noted that the Agency stated that the rotation was cancelled because Region 6 needed to monitor Complainant's progress more closely. The AJ noted that the Agency determined that Complainant would need to demonstrate that she could improve her performance during her probationary period. The AJ found there was no evidence that this reason was pretext for discrimination or reprisal. The AJ noted that the Agency had decided to give Complainant another chance at Region 6; however, this did not materialize because Complainant's conduct, according to Person A, continued to deteriorate.
Finally, the AJ noted that Complainant claimed she was subjected to harassment. Specifically, the AJ noted that Complainant alleged that her supervisor made negative and harassing comments to her amounting to a hostile work environment. The AJ noted that Complainant alleged that Person A called her "dorky." The AJ noted that Person A explained when Complainant first started working, she and Complainant had a friendly relationship and that they would chat at the end of the day. The AJ noted that Person A stated that the relevant conversation took place during one of these end of the day chats in Complainant's cubicle. The AJ noted that Person A explained that Complainant was making fun of how people looked at her while she wore her glasses. The AJ noted that Person A said Complainant was mostly making fun of herself in a lighthearted way and that she went along to make Complainant feel at ease. The AJ noted that Person A admitted that she told Complainant that the glasses looked a little dorky, but that was okay and she said that she told Complainant she was pretty dorky too and that she preferred dorky people because they were usually the smartest. The AJ found that within the context of a friendly exchange the comment could not have objectively been perceived as an attempt to harass Complainant.
The AJ noted that Complainant also claimed that in May 2002, Person A "snuck up" behind her as she performed computer work and said "Your neck must be killing you and you must be going crazy."
The AJ noted that Complainant also claimed that on August 19, 2002, Person A approached her and whispered, "I'm going to terminate you," and then said, "Just kidding." The AJ noted that according to Complainant, as Person A had just been promoted, when employees would congratulate her, she would respond, "Thank you. Now I can terminate you."
The AJ noted that Person A denied both allegations. The AJ found that even if Complainant's account was even partly accurate, it is clear that she was not singled out for this type of humor.
The AJ noted that Complainant also claimed that on September 18, 2002, she called Person A at home in the evening, as she had been requested to do, and that Person A "yelled at [her] in a demonic voice and frightened [her]." The AJ noted that Person A denied making this statement. The AJ determined that Complainant's own testimony demonstrated that the allegedly harassing comments by Person A did not unreasonably interfere with Complainant's work performance or create a hostile environment. Specifically, the AJ noted that Complainant stated that the alleged conduct did not really affect her until she realized that Person A was trying to terminate her.
The Agency subsequently issued a final order on November 28, 2006. The Agency's final order fully implemented the AJ's finding that Complainant failed to prove that the Agency denied her a reasonable accommodation or subjected her to discrimination as alleged.
On appeal, Complainant states that she was denied a thorough investigation of her complaint. Complainant also claims she did not receive an impartial or adequate hearing. Complainant also alleges the AJ did not timely enforce her Orders regarding reasonable accommodation during the hearing process. Moreover, Complainant notes that with regard to her claim that the Agency failed to give her the specific CPU she requested, her original October 10, 2001 electronic mail message contained a typographical error in that it stated she requested a computer with 1.5 Mhz hard drive rather than a 1.5 Ghz. She states the permanent computer issued to her had 600 Mhz and she states that she complained to the computer department that her computer did not adequately run ZoomText. Complainant also notes that she met with the Union to discuss acquiring CPUs for visually impaired employees that had sufficient memory to run ZoomText.
In response to Complainant's appeal, the Agency noted that from 2004 until 2006, the AJ ruled on numerous requests for reasonable accommodation, including requests to reproduce the ROI in audio format and Complainant's request to reproduce an "unbound stack of exhibits" offered by Complainant in audio format. The Agency noted that a hearing was conducted over six days. The Agency stated that during the hearing Complainant and ten additional witnesses testified and extensive documentary evidence was submitted by Complainant. The Agency argues the AJ's decision is supported by substantial evidence.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
After a careful review of the record, the Commission finds that the AJ's findings of fact are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Additionally, we determine there is no evidence that the AJ was biased, failed to consider the appropriate evidence, or engaged in improper ex-parte communications with the Agency.
Moreover, we find the record was fully developed in this case. Specifically, we find the complaint was thoroughly investigated. Additionally, we note the record was further developed during the hearing process, which is an extension of the investigation process. Furthermore, we find Complainant failed to show that she was denied necessary reasonable accommodations during the hearing process.
Upon review, we find that substantial evidence supports the AJ's finding that Complainant failed to show that she was denied a reasonable accommodation.2 Specifically, the record reveals that the Agency provided Complainant the requested ZoomText software with a 256 MB memory capability that exceeded the memory required to run the ZoomText software, and a 21 inch CRT monitor, which enabled her to perform the essential functions of her job.
With regard to Complainant's claim that the Agency failed to give her the specific CPU she requested, we note that in her actual request, Complainant specified that she needed a computer with 1.5 Mhz hard drive. The record reveals that Complainant was issued a computer with 600 Mhz hard drive. However, even assuming Complainant requested a computer with 1.5 Ghz versus 1.5 Mhz hard drive, we find Complainant failed to show that she was denied a reasonable accommodation. Specifically, we note that the crux of Complainant's contention regarding the size of her hard drive is the focus on whether her computer had sufficient memory to run ZoomText. Upon review, we find the record supports the AJ's conclusion that it was more likely than not that Complainant's computer had sufficient memory to run ZoomText. Moreover, we find that to the extent that ZoomText was not running effectively, Complainant was required to advise her supervisor, Person A, of this problem. While the record shows that Complainant informed the computer department in March 2002, and subsequently informed the Union of her concerns, we find substantial evidence supports the AJ's finding that Complainant failed to inform Person A, or anyone in her supervisory chain, that ZoomText was not running properly.
Moreover, with regard to the other accommodations requested by Complainant, we find substantial evidence supports the AJ's determination that: Complainant did not specifically request certain purported accommodations from the Agency; the Agency either granted or found reasonable alternatives for certain requested accommodations; and the Agency denied non-essential accommodations.
Additionally, with regard to Complainant's contention that the Agency cancelled her intern rotation to the Research Triangle Park in North Carolina, we find that the Agency articulated a legitimate, non-discriminatory reason for canceling her rotation to the Research Triangle Park which was the need to closely monitor Complainant's performance to determine if she could improve her performance during her probationary period. Complainant failed to show that the Agency's actions in canceling her rotation were based on discriminatory animus.
We also find the Agency articulated a legitimate, non-discriminatory reason for terminating Complainant, which was that she was found unsuitable for continued employment based on her failure to follow her supervisor's instructions and her uncooperative attitude. Complainant failed to show that the Agency's articulated reason for terminating her was a pretext for discrimination.
Moreover, the record supports the AJ's determination that Complainant failed to show she was subjected to increased scrutiny or harassment based on her age, disability, or in reprisal for her protected EEO activity.
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 3, 2012
__________________
Date
1 ZoomText is adaptive software designed specifically to meet the needs of the visually impaired. ZoomText includes two adaptive technologies, screen magnification and screen reading, providing complete access to all Microsoft Windows applications. Hearing Exhibit, AJ Exhibit 4.
2 We do not decide in this decision whether Complainant is a qualified individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081695
15
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