0120110907
03-14-2012
James E. Jordan, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
James E. Jordan,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120110907
Agency No. 09-00027-03025
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the November 8, 2010 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.
For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Information Technology Specialist in the Technical Services
Organization at the U.S. Marine Corps Headquarters in Kansas City,
Missouri. Complainant is visually impaired and has had the condition
for approximately 39 years. On March 24, 2009, Complainant received
an email advising all employees that they needed to complete mandatory
EEO training. The training was online, presented in Powerpoint slides,
and required a certificate of completion to be printed and submitted to
the supervisor.
On April 1, 2009, Complainant attempted to access the online training
using his screen-reading software (JAWS), but the courses were not in
an accessible format. Complainant informed the Director that he could
not access the mandatory training. The Director told Complainant that
he would have someone from the Training Office come over, determine the
compatibility issues, and read the screens for him. When the Training
Coordinator came to the office, Complainant told her that he did not want
her to read to him because it defeated the purpose of the software and
because it was insulting to him. Complainant alleged that the problem
with his software was not resolved, and he was never able to take the
online training courses.
On July 22, 2009, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of disability
(visually impaired) when the Director failed to accommodate him with
software. 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 (AJ). Complainant requested that the Agency issue a FAD and, in
accordance with Complainant's request, the Agency issued a FAD pursuant
In the FAD, the Agency determined that Complainant is a qualified
individual with a disability as defined under the Rehabilitation Act.
The Agency concluded, however, that Complainant had not been denied
reasonable accommodation in violation of the Rehabilitation Act.
Specifically, the Director stated that when he learned that Complainant
was having difficulties completing the annual EEO training, he immediately
asked the Training Coordinator to investigate the software issues and
to accommodate Complainant in completing the EEO training by reading
any slides to Complainant that he might not be able to read with JAWS
and assisting him in printing the completion certificate.
Complainant alleged that he was denied accommodation because of
management’s lack of knowledge and awareness of “comparable access.”
He alleged that he was denied his right as an employee with a disability
to have comparable access to information systems that was provided to
his co-workers.
The Director maintained that he told Complainant that management
would accommodate him in completing his annual EEO training; however,
Complainant told him that he did not want to be accommodated and that
he planned to file an EEO complaint regarding the compatibility of
the EEO training package with JAWS. Further, the Director stated that
Complainant said he was tired of receiving accommodations and that the
training package should just work with his software. Additionally, the
Director asserted that Complainant told him that if he accepted reasonable
accommodation, he would not be able to file an EEO complaint and that
he planned to refuse any accommodation other than having the training
package being made compatible with JAWS. The Director affirmed that
Complainant refused to sit down with anyone so management could determine
the compatibility issue between JAWS and the EEO training package.
The Director notified the EEO Office about the compatibility issues and
that Complainant had refused reasonable accommodation. He stated that
the EEO Specialist advised management to exempt Complainant from the
training and allow him to proceed with filing his EEO complaint.
Additionally, Complainant alleged that the Agency has discriminated
against him regarding his access to the timekeeping system because it is
not compatible with JAWS. The Director acknowledged that management was
aware of Complainant’s problems accessing the timekeeping system, and
the Agency had been working to fix the flaw in the software. Nonetheless,
the Director stated that many employees had a timekeeper assigned to
enter their time and attendance into the system and Complainant’s
supervisor ensures that his time is put into the system.
The Agency concluded that Complainant had failed to establish that he was
denied reasonable accommodation in violation of the Rehabilitation Act.
The Agency determined that the EEO training was not compatible with
JAWS and management offered to accommodate Complainant by having the
Training Coordinator help him complete the training and identify the
compatibility issues so that a solution could be found. The offered
accommodation would have permitted Complainant to complete the required
training while trying to assess and correct the software issues.
Moreover, Complainant was exempted from the training requirement after
he refused management's offered accommodation. The evidence further
established that the Agency was working on a software fix to JAWS to
allow Complainant to enter his time and attendance and, in the meantime,
his supervisor entered his time into the system. As a result, the Agency
found that Complainant had not been denied reasonable accommodation in
violation of the Rehabilitation Act.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates that he was frustrated and disappointed
that the training materials were not compliant with his assistive
software. Complainant contends that the purpose of the Rehabilitation
Act was to prevent this type of situation from happening and to create
a level playing field for employees with disabilities. Accordingly,
Complainant requests that the Commission reverse the FAD.
STANDARD OF REVIEW
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
(EEO MD-110), at 9-15 (Nov. 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”).
ANALYSIS AND FINDINGS
The Commission notes that the Rehabilitation Act of 1973 prohibits
discrimination against qualified disabled individuals. 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. See 29 C.F.R. §§ 1630.2 (o) and (p).
The Commission shall assume without deciding (for the purposes of this
decision) that Complainant is a qualified individual with a disability.
The record reveals that Complainant was provided the JAWS screen-reading
software as an accommodation to assist him with his daily duties.
Complainant encountered difficulties in completing mandatory EEO training
through JAWS. The Director asked the Training Coordinator to speak
with Complainant to investigate the compatibility issues and to assist
Complainant in completing the training by reading any presentation slides
that he may not have been able to access and printing the completion
certificate. ROI, at 178. Complainant rejected this accommodation
stating that it would be insulting and defeated the purpose of the law.
Id. at 149. Further, the Director stated that Complainant informed him
that he would refuse any accommodation other than having the training
information being made compatible with his screen-reading software.
Id. at 179. In addition, the Director noted that Complainant refused
to cooperate with the Agency’s efforts to determine the compatibility
issues between his screen reading software and the training package. Id.
With respect to the time-keeping system, the Director affirmed that Agency
employees are not specifically required to complete their own timesheets,
and many employees have a timekeeper assigned to input their time. ROI,
at 181. Nonetheless, the Director asserted that the Agency has requested
a fix to the timekeeping software, and Complainant’s supervisor inputs
Complainant’s time and attendance. Id.
While an individual may be entitled to reasonable accommodation under the
Rehabilitation Act, he is not entitled to the accommodation of his choice.
The accommodation provided must be effective. Under the circumstances
herein, the Agency offered Complainant effective accommodations. Moreover,
the Agency was trying to resolve problems that arose with the assistive
technology that Complainant preferred, and Complainant was unwilling to
cooperate. We acknowledge Complainant’s frustration, but the record
does not support a finding that the Agency’s efforts to ensure that
Complainant enjoyed the same benefits and privileges of employment as
employees without disabilities were insincere or that the Agency engaged
in a pattern of providing “makeshift” accommodations that were
ultimately ineffective. For these reasons and under the circumstances
herein, we decline to find the Agency liable for discrimination.
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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 14, 2012
Date
2
0120110907
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120110907