0120123554
03-05-2013
Holly E. Senatore, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Holly E. Senatore,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120123554
Agency No. FBI201100049
DECISION
On September 7, 2012, Complainant filed an appeal from the Agency's August 7, 2012, final decision concerning her 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant had been recently hired as an Intelligence Analyst (IA) candidate at the Agency's Federal Bureau of Investigations facility in Washington, D.C.
On February 10, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity (making requests for reasonable accommodation) when:
1. On or about December 15, 2010, she was advised by the Unit Chief of the Basic Analyst Training Unit, Intelligence Training Section, Training Division (Training Chief) that her requests for reasonable accommodation for the Intelligence Basic Course (IBC) were denied; and subsequently, by letter dated February 8, 2011, she was advised by the Agency's Office of Equal Employment Opportunity Affairs (OEEOA) that her request for a note taker, use of class notes during tests, and reassignment as accommodations were also denied.
2. On February 24, 2011, Complainant's request for 90 days of leave without pay was denied.
3. On March 20, 2011, Complainant received notification that her request for a medical hardship transfer to the Knoxville Division was denied; and subsequently, on March 29, 2011, she received notification that her appeal of the transfer was denied.
4. On April 4, 2011, Complainant was terminated from employment with the FBI based upon suitability.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or retaliation as alleged.
This appeal followed.
Complainant's Disabilities
The record in this matter indicates that Complainant was hired on October 24, 2010, as a candidate for the IA position. In accordance with Agency policy, all IAs are required to complete the Intelligence Basic Course (IBC) prior to performing IA-related duties. Complainant was scheduled to begin the IBC on January 4, 2011.
Complainant indicates that she has congenital hydrocephalus, learning disabilities, and a grand mal/convulsive seizure condition. According to Complainant, her cognitive and physical disabilities affect major life activities including caring for herself, breathing, driving, thinking, talking and seeing. In a letter to the Agency's Selective Service Placement Coordinator dated February 26, 2010, Complainant disclosed these conditions. In a letter dated October 1, 2010, Complainant's physician noted that Complainant's abilities in reasoning; analytical thinking, vocabulary, and comprehension are within the superior, gifted range. Complainant's physician further indicated that Complainant's hydrocephalus condition caused Complainant to experience motor problems, headaches, severe tonic-clonic seizures without warning, geographic special relations disorientation, chronic insomnia, hypothyroidism and learning disabilities including situational memory loss, occasional inattention to detail and retrieval of information, and a different pattern of learning.
According to Complainant, when she started working for the Agency her last grand mal seizure had been in December 2005. Complainant further indicated that she had been seizure-free with the assistance of medication from that point until December 2010, when as a result of a hostile work environment at FBI, she developed two types of seizures known as focal non-convulsive simple partial and partial complex. Complainant alleges that the seizures she experienced in 2010 were medically distinct from her prior grand mal seizures. According to the record, Complainant became concerned for her safety while living alone in the Washington D.C. area following her December 2010 seizures. As a result of the seizures, Complainant could no longer drive. Complainant further indicated that she experienced seizures in public settings, including the Virginia Rail Express (VRE) train as she was commuting to work.
Requests for Reasonable Accommodation
On November 2, 2010, Complainant told her first-line supervisor about her medical condition and provided him with a copy the October 1, 2010 letter from her physician referenced above. In addition to detailing Complainant's medical condition, Complainant's physician set out Complainant's request for reasonable accommodations including additional time to learn new subjects and locations, written instruction and directions rather than verbal, and double time on tests. Complainant's physician also indicated that traditional testing modes would be difficult for Complainant. The letter requested that the Agency evaluate her achievements and strong points rather than her disabilities in order to "afford her a level playing field."
The record indicates that Complainant then requested the following accommodations for her participation in the IBC: written instructions; an altered test format from multiple choice questions to essay or short answer; use of class notes on tests; extra time on tests; and a note taker. The record indicates that Complainant's supervisor forwarded her requests to the Training Chief. Complainant alleges that on December 13, 2010, she was told that she would not receive any accommodations at IBC. Complainant wrote to the Agency's Office of Equal Employment Opportunity Affairs (OEEOA) to request its assistance with securing her reasonable accommodation requests. According to Complainant, she advised her supervisor that she still wanted to begin the IBC on the planned entry date of January 4, 2011. She alleges further that she understood, however, that her entry into the IBC could be delayed until the reasonable accommodation issues were resolved.
In another letter dated January 11, 2011, Complainant also requested a Medical Hardship Transfer to her family home of Knoxville, Tennessee. According to Complainant, she needed the skill and services of the neurologist in Tennessee who specialized in seizures and had treated her for more than five years. Complainant also indicated that she had not contacted physicians upon moving to the D.C. area because she had not experienced seizures for five years.
The OEEOA Unit Chief notified Complainant by letter dated January 21, 2011, that she would receive the following reasonable accommodations for the IBC: double time for test taking, the use of short answer or essay style tests, the use of a computer in a quiet area to take tests, individual review of her schedule with an instructor, advance copies of all available power point presentations and outlines for IBC classes, an assigned seat in the front row of the class, and permission to audiotape her classes. The OEEOA Unit Chief wrote:
Based on the medical documentation provided and the Bureau's determination that you meet the qualifications to be considered for the position of Intelligence Analyst, I have determined that you are a qualified individual with a disability within the meaning of the law and are entitled to a reasonable accommodation, if one is available.
However, Complainant's request to use class notes during tests was denied. The letter also did not mention whether Complainant would be provided with written directions or a note taker.
The OEEOA letter also denied Complainant's request for a transfer stating that:
As a general rule, probationary employees are not entitled to reassignment as a reasonable accommodation unless, with or without accommodation, they have already adequately performed the essential functions of their position before the need for reassignment arose. Therefore, at this time, the OEEOA is not considering reassignment as a reasonable accommodation.
In reaching this conclusion, the OEEOA further noted that completion of the IBC was essential to the functioning of an IA because it was a requirement for the position. The Agency had informed Complainant in an April 29, 2010 email entitled "Conditional Job Offer" and a September 30, 2010 welcome letter that IBC was a requirement for her temporary position to become permanent. Because Complainant had not completed IBC, she had not yet demonstrated that she could with or without accommodation perform the essential functions of the IA position for which she had been hired.
Complainant requested that the Agency reconsider its denial of the requested accommodations. In a letter dated February 8, 2011, from the OEEOA Unit Chief, Complainant was informed that her request for written instructions as an accommodation was granted. However, Complainant was also advised that her requests for a note taker and to use notes on tests were denied. The Agency reasoned that "to allow class notes during tests fundamentally alters the ability of the Bureau to measure your understanding of and overall proficiency level in performing critical job-related skills." The Agency also found that note taking involves critical thinking and therefore, Complainant would be either advantaged or disadvantaged depending on the skill of the note taker. The Agency indicated further that allowing Complainant the ability to record the audio instruction in class would provide her the opportunity to review the covered material at her own pace and would allow her, and not a note taker to determine the significance of the information.
According to Complainant, upon learning of the Agency's decision with respect to her accommodation requests, she felt upset and afraid. She indicates that she was convinced that without all of the requested accommodations, she would fail the IBC and her FBI career would be over.
Hardship Transfer Request and 90 Days LWOP
In addition to access to her neurologist, Complainant indicated that a hardship transfer would allow her to receive support from her family in Knoxville, Tennessee. Complainant's newer seizure condition inhibited her abilities to drive herself or use public transportation because of the possibility that seizures could recur. She believed also that her learning disabilities affected her ability to navigate unfamiliar surroundings. On February 16, 2011, the Agency's Chief Medical Officer again denied Complainant's request for a hardship transfer. In reaching this decision, he stated that Complainant could access public transportation and excellent medical care in the Washington, D.C. area.
Also during this time, Complainant had requested an additional 90 days of leave without pay (LWOP) due to her medical issues. On February 24, 2011, Complainant was notified that her request to extend her initial approved 30-day period of LWOP for an additional 90 days was denied, and Complainant was expected to report to the next IBC beginning February 28, 2011. According to the Agency, there is no evidence in the record that the Agency treated Complainant differently from other employees by denying her leave request, especially given the short amount of time that Complainant had been with the FBI.
Following the denial of Complainant's request for an additional 90-day period of LWOP; Complainant emailed her supervisor on February 27, 2011, stating that her leave status should be changed from LWOP to Absent without Official Leave (AWOL). Complainant also advised that she was not medically able to attend the IBC training scheduled for February 28, 2011. After Complainant failed to report to IBC training on February 28, 2011, she was placed in AWOL status.
Termination
Agency Human Resources officials determined that because Complainant failed to report to IBC as directed, she failed to fulfill a condition of employment and therefore failed to meet the FBI's suitability standards during her probationary period. According to the Agency, Complainant was advised at the time of her appointment that her employment was contingent upon successful completion of IBC. On March 21, 2011, Complainant received a letter from the Agency's Human Resources Division notifying her that her employment would be terminated due to her "failure to meet the suitability standards." The letter noted that the action was taken during the probationary period of her position and that appeal rights were not available.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Reasonable Accommodation Claims
Federal agencies may not discriminate against individuals with disabilities and are required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless an agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p); see Appendix. In this case, it is undisputed that Complainant was an individual with a disability who had been found otherwise qualified for employment by the Agency as an IA, conditioned on her successful completion of the IBC training program. Here, the record demonstrates that the Agency agreed to provide Complainant with a wide variety of accommodations that would assist her in completing the IBC. While some of the accommodations were not offered in the precise form requested by Complainant, alternative accommodations were offered. Complainant, however, has not provided evidence to show that these alternatives would not have been effective in addressing her needs. It has been the Commission's position that if more than one accommodation is effective, "the preference of the individual with a disability should be given primary consideration; however, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations." 29 C.F.R. � 1630.9; see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 9 (revised October 17, 2002); Pollen v. Department of Defense, EEOC Appeal No. 01970984 (January 16, 2001). Thus, while Complainant may be entitled to an effective reasonable accommodation under the Rehabilitation Act, she is not entitled to the accommodation of her choice.
With regard to Complainant's request for extended leave, an employer's failure to accommodate reasonable requests for medical leave can violate the Rehabilitation Act. In this case, management did accommodate Complainant's initial request for 30 days of leave. However, her request for an additional 90-day extension of leave was denied. Complainant did not provide adequate justification for this request. The record does not seems to support a finding that Complainant was unable to work during this period, only that she wanted to remain in Tennessee because she felt more comfortable with the medical treatment there and the support of her family. However, there is no evidence that the sophisticated medical capacities of the Washington, D.C. area would not have provided her with similar treatment options. In light of these factors, as well as the very brief period of her employment, we cannot find Complainant's request for a lengthy extension of her leave to be reasonable.
Complainant also alleges that the Agency failed to accommodate her by not granting her request an immediate transfer to Tennessee. Reassignment to a vacant position can be a form of reasonable accommodation if the employee is "qualified" for the new position. Here, the Agency denied Complainant's immediate request for a transfer because she had not yet taken the IBC training which would qualify her for the IA position, whether located in Washington or in Tennessee. Employers cannot deny a reassignment to an employee solely because she is designated as "probationary." However, if, as here, the probationary employee has never adequately performed the essential functions of her original position then she is not entitled to reassignment. In this situation, the employee is similar to an applicant who applies for a job for which she is not qualified, and then requests reassignment. Applicants are not entitled to reassignment. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 25 (revised October 17, 2002).
Disparate Treatment Claim Based on Disability and/or Retaliation
To the extent the Complainant has also alleged a disparate treatment claim, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we conclude that Complainant has failed to demonstrate that she was subjected to discrimination as alleged. In reaching this conclusion, we find that even assuming arguendo that Complainant established a prima facie case of discrimination on either alleged basis, the responsible Agency officials articulated legitimate, nondiscriminatory reasons for the disputed actions. The record clearly established that Complainant's job with the Agency was conditioned on her successful completion of the IBC. This training was necessary to prepare her to perform the essential functions of the IA position she had been hired into. After some communication between Complainant and Agency officials, the reasonable accommodations Complainant requested to assist in her participation in the IBC were either approved or alternatives proposed.
Complainant was also granted a 30-day leave and a delay in her start of the IBC to allow her to consult with medical providers in Tennessee concerning her medical condition. Agency officials offered legitimate explanations for its decision not to extend Complainant's medical leave for an additional 90 days to allow her to stay in Tennessee. While Complainant based her need to stay in Tennessee in order to seek medical treatment for her condition, Agency officials considered that the Washington area possessed very sophisticated medical capacities that could provide Complainant with appropriate medical care, as well as her brief period of employment with the Agency. Complainant was also encouraged to utilize the Agency's own medical services. In addition, the decision not to grant Complainant a transfer until she had completed the IBC was explained by the Agency, as detailed earlier in this decision, on the fact that completion of the required training program was necessary in order to qualify to perform the essential functions of the IA position.
Finally, the eventual decision to terminate her employment was made because Complainant failed to report to the IBC on the delayed February date as required which had clearly been communicated to her as a condition of her continued employment. As Complainant refused to participate in the IBC training as scheduled, she no longer qualified for her IA position and was terminated.
Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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
March 5, 2013
__________________
Date
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0120123554
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120123554