Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJul 29, 2014
0120110283 (E.E.O.C. Jul. 29, 2014)

0120110283

07-29-2014

Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.


Complainant,

v.

Ray Mabus,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120110283

Agency No. 09-66001-02506

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 15, 2010, final decision 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. For the following reasons, the Agency's final decision (FAD) which found that Complainant failed to show that he was subjected to discrimination is AFFIRMED.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist (Systems Analyst), YA-2210-02 at the Agency's Space and Naval Warfare Systems Center in San Diego, California. Complainant had previously worked as a contractor for the Agency from May 2007 until he was hired by the Agency in June 2008. Complainant was told that he was terminated because he was not meeting his job requirements. Complainant asserts that he was terminated because of his disabilities as there had never been any mention regarding him not meeting his job requirements. Complainant contends that the Agency was aware that he had disabilities because the Department of Veterans' Affairs had issued him disability ratings of 50 percent for sleep apnea, and 10 percent for major depressive disorder. Complainant also self identified himself as being an individual with a disability. On September 30, 2009, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of disability (mental and physical) when, on June 4, 2009, he was terminated during his probationary period. Following an investigation by the Agency, Complainant requested a FAD. The FAD found that Complainant failed to demonstrate that he was subjected to discrimination.

The record reveals that on June 4, 2009, Complainant's immediate supervisor (S1) issued Complainant a Letter of Termination for inadequate performance. In the termination letter, S1 stated that Complainant failed to meet deadlines, which resulted in the Activity not meeting critical program deadlines. S1 also indicated that because Complainant had worked the prior year as a contractor, on the same project, it was anticipated that he would not need much monitoring. S1 indicated that he gave Complainant the benefit of the doubt when he gave him a "valued performer" appraisal rating, but that his work was marginally acceptable. For example, S1 noted that Complainant was instructed to complete four one-hour online courses on October 30, 2008, but he did not complete the course until November 28, 2008. S1 alleged that Complainant was also slow in completing his assigned duties, and at the end of the performance period, Complainant had not completed the processing of two out of three contract packages assigned to him.

In the FAD, the Agency found that Complainant was an individual with a disability. The Agency noted that Complainant retired from the Navy as a disabled veteran with a physical and mental disorder. His physical disorders were identified of sleep apnea, chronic hyponea, and a circadian rhythm sleep disorder (delayed sleep phase syndrome). Complainant indicated that he used a breathing machine for sleeping. He stated that as a result of working through the night as a sailor, his body lost the ability to create a circadian rhythm. Therefore, he fell asleep during the day and he could not sleep through the night. Complainant took medicine to wake up in the morning, and he reported that he constantly changed his medicine which required him to take all of his sick leave and most of his annual leave. He stated that he also had major depressive episodes and chronic depression. He was first treated for depression in 1987. He stated that when he was depressed, he worked more slowly, but he "becomes more normal when he comes out of it." Complainant's medical documentation supported the diagnoses of major depression and sleep apnea.

There is no dispute that while Complainant was still a contract employee working with a Program Manager (PM), an Agency employee, he told PM that he took medication for depression. According to PM, he did not reveal that information to anyone because he thought it was told to him in confidence. After Complainant was hired as an employee, PM has never in his supervisory chain.

S1 indicated that in October 2008, Complainant requested an alternate schedule for two weeks for sleeping problems, which was approved. S1 stated that he believed that it was a temporary condition and not a disability. As such, he granted Complainant one week of an alternate work schedule and one week of leave. According to S1, Complainant never went on the alternate work schedule or took the leave, and he never followed up with subsequent requests.

Complainant's second-line and third-line supervisors maintained that they were not aware of Complainant's disorder. Management argued that Complainant was not a qualified individual with a disability because he was unable to complete his job assignments in a timely manner with or without an accommodation.1

S1 also indicated that funding for Complainant's position was also a factor in his removal during his probationary period. S1 explained that while working as a liaison between project managers and contractors from April 15 - 30, 2009, the second-line supervisor (S2) told him that he wanted to replace Complainant as a cost savings move after examining Complainant's mid-year performance review. Based on S2's, and upper management's statements regarding funding, Sl stated that he determined that Complainant should be terminated. S1 noted that other high level managers told him that Complainant took abnormally long to accomplish his tasks.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency was aware that he was a person with a disability because in April 2007, he presented copies of his resume which clearly showed that he was a Disabled Veteran, with both a service connected disability of 60% and 10-point compensable preference identified. Further, Complainant maintains that as part of the completion of his application for employment he submitted an OPM Self-Identification of Handicap form and by the time he was hired on June 8, 2008, he was asked to provide a VA letter showing the extent of his disability. He argues that he clearly established a prima facie case of disability discrimination.

Further, Complainant asserts that he was adequately performing the essential functions of his position because the Agency hired him after he worked in the position as a contractor. Complainant explains that it was not until his termination letter on June 4, 2009, that there was any mention that he did not adequately perform the essential functions of the position. He argues that during his entire 14-months as a contactor his managing supervisor never informed him that he was not performing adequately. Furthermore, his performance continued unchallenged for the subsequent 12-months of his employment as a government employee. Complainant asserts that no one made any comments, or documented any allegations suggesting that he was not performing up to the required and expected standards of his position. Complainant contends that he has clearly shown that he was a qualified individual with a disability and therefore should have been approached about his need for a reasonable accommodation.

Complainant argues that the Agency's discriminatory motive is clear in that they wanted to replace him with someone who did not have all of the "baggage" that he had and whom could be paid out of some fund other than the division's overheard account. Finally, Complainant argues that the Agency's argument that he did not provide adequate medical documentation is ridiculous based on his submission of corroborating notices. Complainant argues that the Agency discriminated against him on the bases of his disability, wrongly discharged him, and failed to provide him with a reasonable accommodation.

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 final decision. We find that even if we assume arguendo that Complainant established a prima facie case of disability discrimination, and is a qualified individual with a disability we find the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was terminated due to the time it took him to complete his work assignments, and due to budget constraints. To show pretext Complainant argues that there were never any complaints regarding his work; therefore, his dismissal must have been because of his disability. Complainant does not, however, establish that his work was submitted in a timely manner nor does he show that budget concerns did not play a role in his removal.2

Complainant also argues that management was aware of his disabilities; however, the record reveals that upper management maintained they were not aware of Complainant's disabilities or the need for an accommodation.3 For example, S1 stated that, in October 2008, when Complainant requested a two week change in his work schedule, he only believed that Complainant was experiencing a temporary sleep impairment. As noted above, he granted Complainant one week of an alternate work schedule and one week of leave. According to S1, Complainant never went on the alternate work schedule or took the leave, and he never followed up with subsequent requests. Complainant does not adequately rebut management's contentions.

Contrary to Complainant's assertions that the Agency was aware of his disability ratings, we note that the Commission has held that, with respect to disability ratings from the Department of Veterans Affairs, such ratings do not necessarily indicate that an individual is disabled under the Rehabilitation Act. Wood v. United States Postal Service, EEOC Request No. 05950624 (October 17, 1997) and Miller v. United States Postal Service, EEOC Request No. 05940121 (September 9, 1994)(Forty-percent disability rating from VA not sufficient, by itself, to establish disability).

As we do not have the benefit of an AJ's findings after a hearing that could have established what management officials knew prior to Complainant's removal, as Complainant chose a FAD instead, we can only evaluate the facts based on the weight of the evidence presented to us. Accordingly, we find the preponderance of the evidence of record does not establish that discrimination occurred here. Therefore, we find that the Complainant's argument that the Agency's actions were due to his disability fails.

The Agency's FAD 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

__7/29/14________________

Date

1 The individual requesting reasonable accommodation has the threshold burden of establishing that she or he is a qualified individual with a disability and that there is a nexus between the disability and the need for the requested reasonable accommodation. Struthers v. Dep't of the Navy, EEOC Appeal No. 07A40043 (June 29, 2006)

2 The Commission has long held where a Complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Coe v. Department of Homeland Security, EEOC Appeal No. 0120091442 (October 7, 2011); Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).

3 Even if PM's knowledge were imputed to Complainant's supervisory chain, we find no persuasive evidence that, prior to his removal, Complainant made a specific request to management for an accommodation for his disabilities that would have allowed him to perform the essential functions of his position and that said request was denied.

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0120110283

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120110283