0120100967
05-24-2013
Cecil Avery, Complainant, v. Nancy M. Ware, Director, Court Services and Offender Supervision Agency, Agency.
Cecil Avery,
Complainant,
v.
Nancy M. Ware,
Director,
Court Services and Offender Supervision Agency,
Agency.
Appeal No. 0120100967
Hearing No. 570-2009-00461X
Agency No. 08-006
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 11, 2009, final decision concerning his 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., 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 (FAD) which found that Complainant failed to demonstrate that he was subjected to discrimination or denied a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Chief Information Security Officer, GS-14, Office of Information Technology (OIT), at the Agency's Washington, D.C. facility. Complainant was hired on June 4, 2007, for this position and was still within his 12-month probationary period at the time of this complaint. On February 4, 2008, Complainant received a "Fully Successful" performance appraisal from his first-line supervisor.1 Complainant's second-line supervisor (S-2) however, found Complainant's performance unacceptable. Specifically, he found that Complainant's oral and written communication skills were weak. He observed that Complainant did not consistently express himself in a professional manner during face to face meetings, and maintained that his writing was disorganized, unfocused and often included poor grammar and misspellings.
S-2 also indicated that he had received feedback from OIT staff and staff from other Agency departments citing the same concerns with Complainant's communication skills. Therefore, on February 14, 2008, ten days after Complainant received his initial performance appraisal, his supervisor told him that management had decided to terminate him and that he should seek another position outside of the Agency. During their discussion, however, Complainant's supervisor agreed to work with him to see if he could improve his performance in order to be retained beyond the end of his probationary period.
Following this meeting, on February 18, 2008, Complainant began to suffer from chest pains. He was told by his doctor that he had heart blockages and immediately needed bypass surgery. Complainant's surgery was scheduled for March 3, 2008. He told his supervisor that he expected to be out for about one month. On March 20, 2008, Complainant's supervisor called him to let him know that he did not have sufficient leave donations to cover his leave. Complainant proposed that he be allowed to telework. To support his request, on April 2, 2008, Complainant submitted a doctor's note, which recommended that Complainant not return to work because of the stress and anxiety he suffered on the job when his termination was proposed. It was also recommended that Complainant be placed in another position or be allowed to work from home. On May 8, 2008, Complainant was informed that his telework request had been denied. He was instructed to return to work by May 12, 2008, and told that if he failed to do so, he would be deemed Absent Without Leave (AWOL). Complainant thereafter requested leave under the Family Medical Leave Act (FMLA) to care for his critically ill father. In the alternative, Complainant also requested one year of Leave Without Pay (LWOP). This request was also denied.
Therefore, on June 26, 2008, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), disability (physical and mental),2 and reprisal for prior protected EEO activity when on May 9, 2008, he was denied a reasonable accommodation which included telecommuting and leave without pay for a year.
Following an investigation by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Complainant, however, withdrew his request and the matter was returned to the Agency for a FAD. The FAD found that Complainant failed to show that he was subjected to discrimination or retaliation. The FAD opined that assuming, arguendo, that Complainant established a prima facie case of reprisal, race, color, and disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant's request for telework was denied because the medical documentation that he provided did not establish that he was a qualified individual with a disability. Moreover, his request was denied because his position required him to interact with customers and OIT staff in person. Further, his request for LWOP for one year was denied because management argued that it was unreasonable and impractical as it meant that OIT could not do anything with his position for an indefinite period of time and his responsibilities were too significant to allow for an extended period of absence. Further, the Agency indicated that it initially denied Complainant's LWOP under FMLA because he had not concluded one year of continuous federal service and therefore was not eligible to invoke FMLA. Complainant renewed his request by memorandum (memo) dated July 1, 2008. The memo requested LWOP under the FMLA for a period May 13, 2008 to June 2, 2008 to care for his father. Management explained that after discussion with S2, and the Human Resources Office, it was decided to approve Complainant's request because he had applied for disability retirement. S2 indicated that Complainant's request would be approved until the Office of Personnel Management made a decision regarding his application for disability retirement. Therefore, the Agency maintained that it had articulated legitimate, nondiscriminatory reasons for its actions.
Management also indicated that Complainant was denied a reasonable accommodation because he was not entitled to one because he was not a qualified individual with a disability. Management explained that while it considered Complainant's request for telework and LWOP for a year, the essential functions of his position involved interacting with customers and OIT staff in-person to make sure that information was properly protected. Management maintained that these duties could not be performed from home. Further, it was noted that telework was for proven highly capable employees who did not need to regularly meet in person with others or who exhibited a highly competent and effective alternate communication means. Complainant however did not meet this standard as he had problems communicating and had failed to demonstrate an acceptable competency level for being able to mitigate any reduction of face-to-face meetings by an alternate communication means. Therefore, even assuming that Complainant had established that he was a qualified individual with a disability, the Agency maintained that his request to telework as an accommodation would not have been effective.
Further with regard to Complainant's request for LWOP for one year, the Agency maintained that the request was not supported by medical documentation, as Complainant's physician's letter dated April 4, 2008, indicated that Complainant was "now physically able to return to work." The letter further indicated that Complainant seeks other employment based on his reports of chronic stress and anxiety. A second physician, in a letter dated April 1, 2008, indicated that Complainant needed at least another 6-8 weeks of recovery time before returning to work. Management maintained that neither physician indicated a need for Complainant to be on leave for one year to recover from his bypass surgery. Therefore, the Agency indicated that even if it assumed that Complainant established that he was a qualified individual with a disability, Complainant failed to establish that his request for leave for one year was necessary.
To show pretext Complainant argued that a fellow employee, who was not of his protected bases, had been allowed to telework for four days a week. The Agency maintained that the employee was not similarly situated to Complainant as they performed different jobs, as the employee was a programmer and Complainant was the Chief of Information Security. Moreover, the Agency indicated that the programmer was very effective in his job while Complainant was not. Accordingly, the FAD found that Complainant failed to show that he was subjected to discrimination and/or denied a reasonable accommodation in violation of the Rehabilitation Act.
CONTENTIONS ON APPEAL
On appeal, Complainant among other things contends that he was never made aware that his performance was unsatisfactory until he was told about his proposed removal. Further he contends that the Agency's arguments are pretext in that after 24 months his position still has not been filled.
In response, the Agency maintains that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext. Additionally, the Agency argues that Complainant's argument about the current status of his position should not be considered on appeal as it is Complainant's first time addressing this subject.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's FAD. We find that even if we assume arguendo that Complainant established a prima facie case of discrimination and reprisal as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions as was fully discussed above. Further, when considering Complainant's contentions on appeal, we find that Complainant failed to show that the Agency's reasons were pretext for discrimination.
To the extent that Complainant is alleging that the Agency failed to accommodate him, the Commission notes that under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and (p). Complainant must make the initial showing that he is a "qualified individual with a disability," that is, an individual with a disability who satisfies the requisite skill, experience, education and other job related requirements of the position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of the position. 29 C.F.R. � 1630.2(m).
Assuming, without so finding, that Complainant is an individual with a disability under the Rehabilitation Act, the evidence of record indicates that during the relevant time period Complainant was not "qualified." In this regard, we note the complaints received by S2 regarding Complainant's work performance and the proposal to remove him during his probationary period because of his performance. Because we find that Complainant was not qualified, we find that he was not entitled to an accommodation. Moreover, we note that Complainant's medical documentation did not support his request to telework indefinitely or to be placed on LWOP for a year.3 Finally, while it was also recommended that Complainant be placed in a new position, the record evidence does not show that Complainant ever made the Agency aware of any vacant funded positions for which he was qualified.
Accordingly, we find that Complainant failed to show that he was denied a reasonable accommodation in violation of the Rehabilitation Act. We also find that the preponderance of the evidence of record does not establish that discrimination occurred. Therefore, the Agency's FAD finding no discrimination 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
___5/24/13_______________
Date
1 This report was not in the record.
2 Complainant listed the following impairments: post traumatic stress, congestive heart failure, triple bypass surgery, depression, stress anxiety, degenerative arthritis, light heart attack, high blood pressure and high cholesterol.
3 An employee is required to show a nexus between the disabling condition and the requested accommodation. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002) (citing Wiggins v. U.S. Postal Serv., EEOC Appeal No. 01953715 (Apr. 22, 1997)).
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0120100967
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013