Complainant,v.Michael B. Donley, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

May 9, 2013

0120121305 (E.E.O.C. May. 9, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120121305

Agency No. 9X1M10036

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
December 15, 2011 final Agency decision (FAD) concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The
Commission’s review is de novo. For the following reasons the Commission AFFIRMS the
FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contract
Negotiator in the Contracting Branch at the Aeronautical Systems Center at Wright-Patterson
Air Force Base in Ohio. Complainant had been diagnosed with major depression and panic
anxiety disorder. In September 2003, Complainant’s doctor indicated that Complainant had a
permanent medical restriction, namely, he was to avoid multi-tasking. In 2008, Complainant
sought to have that restriction removed. In April 2009, Complainant underwent a fitness for
duty examination. The physician, who specialized in occupational medicine, concluded that
Complainant would have difficulty with certain aspects of his job, namely the complexity and
scope of assignments as well as “personal contacts.” As a result, this physician recommended
that management limit the number of contracts assigned to Complainant simultaneously or that
Complainant be assigned lower priority/lower stress contracts.

In June 2010, Complainant presented medical documentation from his doctor lifting the earlier
multi-tasking restriction. Further, Complainant’s doctor indicated that Complainant could
perform the essential duties of his position with the accommodations of frequent feedback
regarding his work performance and breaks whenever he suffered panic attacks.
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Complainant underwent a follow-up fitness for duty interview in July 2010. After interviewing
Complainant and management and reviewing Complainant’s medical documentation, the
aforementioned physician concluded that his previous recommendation regarding limiting the
number or stress level of Complainant’s work assignments should remain in effect. Further,
the physician stated that Complainant should receive frequent feedback and breaks when
needed. The Agency attempted to accommodate Complainant by assigning him fewer and less
complex contracts than a GS-12 Contract Negotiator normally would have been assigned.

On September 8, 2010, Complainant received his performance appraisal for the period of April
1, 2009 to August 8, 2010, as rated by his first-level supervisor (S1). Complainant was rated
in five major duty critical elements identified in his position description. He was rated as
“does not meet” in critical elements 1, 2, and 4 with an overall performance rating of
“Unacceptable.” Additionally, Complainant was evaluated on nine appraisal factors on a
range from 1 (very poor) to 9 (outstanding). On those factors, Complainant received scores
between 3 and 5.

On November 15, 2010, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of disability and in reprisal for prior protected EEO
activity when on September 8, 2010, he was given a performance appraisal with a rating of
“Unacceptable.” At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his right to request a hearing
before an EEOC Administrative Judge. When Complainant did not request a hearing within
the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b)

In the FAD, the Agency initially determined that Complainant had not established a prima
facie case of disability discrimination. In particular, the Agency found that Complainant
established that he is an individual with a disability, but he failed to show that he is a qualified
individual with a disability. More specifically, based on Complainant’s submitted
documentation and the results of his fitness for duty examinations, management assigned
Complainant fewer contracts with lower dollar amounts. In addition, management
accommodated Complainant by allowing him to take breaks as needed. Complainant’s first-
level supervisor (S1) asserted that she frequently gave Complainant feedback and he was
provided the opportunity to ask questions whenever he did not understand his assignments.
Nonetheless, management affirmed that Complainant could not perform assignments at the
level of independence and proficiency expected of a GS-12 Contract Negotiator, even with
accommodations. Complainant did not identify any other accommodations that would have
enabled him to successfully perform the essential functions of his GS-12 Contract Negotiator
position. As a result, the Agency determined that Complainant was no longer qualified for his
GS-12 Contract Negotiator position.

The Agency found that in 2008 and 2009, management considered reassigning Complainant to
other positions in the Contracting Closeout Office or the Small Business Office. Complainant
initially expressed interest in reassignment but changed his mind in November 2008.
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Additionally, Complainant objected when management conducted a 90-day search for a
reassignment for him during the summer of 2009. The Agency concluded that Complainant
did not identify any other positions to which he could have been reassigned. As a result, the
Agency found that Complainant was not a qualified individual with a disability as defined
under the Rehabilitation Act and that he had not established a prima facie case of disability
discrimination.

As to reprisal, the Agency determined that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the performance standards for Major
Duties (1), (2), and (4) all required the incumbent to accomplish those duties effectively. S1’s
main criticism of Complainant’s work was that he was not performing his work assignments at
the level of independence and proficiency expected of a GS-12 Contract Negotiator. S1
indicated that he was only assigned one low-dollar contract during the rating period, yet he
required more oversight, assistance, and direction than should have been necessary for a
“Senior Buyer.” S1 added that Complainant worked hard and timely submitted his work, but
at the expense of accuracy and completeness, which required his work products to be
repeatedly returned for corrections. Further, despite giving the impression that he understood
S1’s directions, his work products showed otherwise. Finally, Complainant had to request
multiple copies of technical evaluations and purchase requests because he often lost
documentation.

In attempting to show that management’s reasons were pretextual, Complainant argued that S1
used his medical documentation and prior EEO activity to undermine his work products.
Further, Complainant contended that S1 did not provide substantive feedback to support the
ratings and he was handed the rating without justification. To the contrary, the Agency found
that Complainant received a progress review on October 30, 2009, which was specific about
his performance deficiencies, ways he could improve, and notice as to the ratings he might
expect to receive at end of the rating period if his performance did not significantly improve.
The Agency concluded that Complainant had failed to show that management’s reasons for its
actions were pretext for reprisal. As a result, the Agency found that Complainant had not been
discriminated or retaliated against as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he never asked to be assigned one low-dollar contract;
rather, he asked for frequent face-to-face feedback. Additionally, Complainant states that he
never objected to a reassignment to the Small Business Office or to the Contract Closing
Office. Finally, Complainant contends that his work was undermined in 2010 when an
assignment was reassigned to another co-worker. Accordingly, Complainant requests that the
Commission reverse the FAD.

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ANALYSIS AND FINDINGS

Failure to Accommodate

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” for his GS-12 Contract Negotiator
position.

In so finding, the Commission notes that the essential functions of the Contract Negotiator
position include performing pre/post-award procurement functions for complex, high-monetary
value contracts; performing cost and pricing analysis for those contracts; and preparing and
reviewing contracting recommendations. ROI, at 37-43. The record reveals that between
September 2003 and April 2009, Complainant’s medical documentation recommended that
Complainant avoid multi-tasking and that he be assigned lower-priority/lower stress contracts.
Id. at 122, 122a. In June 2010, Complainant’s doctor determined that Complainant only
needed frequent feedback from his supervisors and breaks when he experienced panic attacks.
Id. at 121. However, the physician who performed the follow up fitness for duty exam found
that Complainant still needed to be restricted to a limited number of simultaneously-assigned
contracts and lower-stress/lower-priority contracts. Id. at 119. The record establishes that
management accommodated Complainant with breaks when he needed and frequent feedback
sessions where any questions regarding his work were answered. Id. at 348.

In addition, the record establishes management assigned Complainant a lower-level contract
during the rating period which needed less evaluation and fewer levels of approval. ROI, at
348. As a result, Complainant was performing lower-level duties not normally assigned to a
GS-12 Contract Negotiator. Id. at 357. The Commission notes that an employer, as a form of
reasonable accommodation, is not required to eliminate an essential function of a position, nor
lower production standards, whether qualitative or quantitative, that are applied uniformly to
employees with or without disabilities. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002,
at 6. (Oct. 17, 2002). Despite the provided accommodations of breaks, frequent feedback, and
lower-level assignments, management stated that Complainant was unable to perform the
essential duties of his GS-12 Contract Negotiator position. ROI, at 347, 357.
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The record reveals that Complainant was initially willing to accept a reassignment and
management attempted to search for a position to reassign him in October 2008; however,
Complainant expressed his desire to stay in his current position in November 2008. ROI, at
380-82. In June 2009, management again attempted to find a position to reassign
Complainant; however, he believed that this was an attempt to terminate him, and he insisted
in remaining in his current position. Id. at 397. While Complainant indicates on appeal that
he would have been receptive to a reassignment, he did not identify a vacant, funded position
for which he could have performed the essential functions, with or without reasonable
accommodation, and there is no evidence of one in the record. Complainant has an evidentiary
burden to establish that it is more likely than not that there were vacancies during the relevant
time period into which he could have been reassigned. See Hampton v. U.S. Postal Serv.,
EEOC Appeal No. 01986308 (July 31, 2002). Accordingly, the Commission finds that
Complainant has not established that he was denied reasonable accommodation in violation of
the Rehabilitation Act.

Disparate Treatment

As to Complainant’s disparate treatment and reprisal claims, the Commission notes that a claim
of disparate treatment is examined under the three-part analysis first enunciated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first
establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was
a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Tx. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,
Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor
Ctr. v. Hicks

, 509 U.S. 502 (1993).
Assuming arguendo that Complainant could establish a prima facie case of discrimination and
reprisal, Agency management has articulated legitimate, nondiscriminatory reasons for
Complainant’s low performance appraisal. S1 affirmed that she rated Complainant based on
his demonstrated performance during the rating period. For example, as to Appraisal Factor 1
(Work Effort), she rated Complainant at 4 because, as a GS-12, he should have been able to
work more independently and not require as much assistance, oversight, and direction. ROI,
at 349. Regarding Appraisal Factor 2 (Adaptability to Work), she rated him at 3 because he
often gave the impression that he understood her direction, but his finished work product
showed otherwise. Id. As to Factor 3 (Problem Solving), she rated him at 3 because he
seldom provided solutions and frequently went to others for assistance. Id. Finally, regarding
Factor 9 (Work Management), S1 rated Complainant at 4 because she would rather
Complainant turn in work that was accurate a day later than the poor work he submitted on
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time. Id. at 350. Overall, Complainant received an “Unacceptable” rating based on his failure
to perform at his grade level. Id.

Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. at 256.

The Commission finds that the record is devoid of any evidence that Complainant's protected
classes were factors in any of the Agency’s actions. At all times, the ultimate burden remains
with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons and that the Agency acted on the basis of discriminatory or
retaliatory animus. Complainant has failed to carry this burden. As Complainant chose not to
request a hearing, the Commission does not have the benefit of an Administrative Judge's
credibility determinations after a hearing; therefore, the Commission can only evaluate the
facts based on the weight of the evidence presented. As a result, the Commission finds that
Complainant has not established that he was subjected to unlawful discrimination or reprisal.

CONCLUSION

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 final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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.
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Part 1614 (EEO MD-110), at 9-18 (Nov. 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:

______________________________ May 9, 2013
Carlton M. Hadden, Director Date
Office of Federal Operations