Fabian Vaksman, Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionFeb 8, 2007
0120071058 (E.E.O.C. Feb. 8, 2007)

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.

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0120071058

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120071058