0120071058
02-08-2007
Fabian Vaksman, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Fabian Vaksman,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120071058
Agency No. 9Z0J05009L071
DECISION
Complainant appeals to the Commission from the agency's decision dated
December 6, 2006, finding no discrimination. In his complaint, dated
June 7, 2005, complainant alleged discrimination based on disability
(attention deficit hyperactivity disorder) when on April 16, 2005, he
received a Notification of Summary Disenrollment Action, and management
failed to accommodate him during testing which resulted in a deficiency
of 3.6 academic points.
After completion of the investigation of the complaint, complainant
requested an immediate final decision. The agency then issued its
decision concluding that it asserted legitimate, nondiscriminatory
reasons for its actions, which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons for
the alleged actions. The agency stated that complainant was hired as a
GS-11 Historian in February 2005, on a probationary basis, contingent
upon him successfully completing the Civilian Historian Orientation
Course2 at Maxwell AFB, Alabama, within six months of being hired with a
cumulative grade of 70% or higher. However, the record indicates that
complainant achieved a cumulative score of only 66.4%, thus failing to
complete the requirements of his probationary employment.3
The record indicates that complainant attended the course at issue
from February 23, 2005, through March 18, 2005. However, on March 18,
2005, he was notified of academic failure from the course, and he was
denied course graduation credentials. On that date, he also received
a Notification of Recommendation for Summary Disenrollment due to his
lack of academic ability to complete the course. In response to this
recommendation, complainant claimed that management failed to accommodate
his disability during testing. Thereafter, on April 16, 2005, he received
the alleged Notification of Summary Disenrollment Action at issue.
Complainant admitted that he did not ask for any accommodations until
after he received the Notice of Recommendation for Summary Disenrollment
although he received academic counseling twice through the course.
Specifically, when two instructors expressed concern about his ability
to successfully complete the course, complainant assured them that he
"would do well" and they "did not need to worry about him." In his
response to the Notice of Recommendation, complainant merely asked,
as an accommodation, that his scores be raised by the number of points
lost due to his disability.
The two instructors stated that during the course complainant argued
with them over the proper way to write agency histories, and he
stubbornly held his ground. One of the adjunct faculty indicated
that complainant reluctantly accepted their admonishments to write as
they were teaching him, and he eventually, but not without argument,
accepted their instructions. The adjunct faculty member also indicated
that complainant was disruptive to students with all his questions
and occasional outbursts. Another student in the course stated that
complainant continually disrupted the class with his inappropriate,
inflammatory, or confrontational questions to either the staff or
guest speakers. This other student also stated that complainant had
difficulty accepting direction from the enlisted and adjunct instructors
and consistently displayed a combative attitude. The record contains
complainant's electronic messages to the agency indicating that the
alleged course instruction was "absurd," "useless," "hostile propaganda,"
"an act of treason," and "sabotage."
The agency noted that despite complainant's education and experience,
complainant did not demonstrate that he could successfully perform an
essential function of the Historian position, i.e., independently follow
security procedure, even with a reasonable accommodation. The agency
also noted that complainant failed to demonstrate that he possessed
one of the other important requirements for successful performance
of his position, i.e., the ability to work effectively with others.
We agree with the agency that complainant did not put the agency on
notice that he desired an accommodation until after he completed the
tasks required in the course. Thus, we find that complainant was not
denied an accommodation because we find that complainant failed to timely
request an accommodation. We do not address in this decision whether
complainant is a disabled individual.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous
interpretation of material fact or law; or
2. The appellate decision will have a substantial impact
on the policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 8, 2007
__________________
Date
1 This is the agency number provided by the agency in the agency's brief
on appeal.
2 This course is also referred to as USAF Aerospace Historian Basic
Course.
3 Complainant also filed a complaint concerning his removal which is
pending under EEOC Appeal No. 0120070606.
??
??
??
??
2
0120071058
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120071058