01a00715
01-19-2001
Joseph N. Soos, Complainant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.
Joseph N. Soos v. Federal Deposit Insurance Corporation
01A00715
1/19/01
.
Joseph N. Soos,
Complainant,
v.
Donna A. Tanoue,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01A00715
Agency No. FDIC-96-21, FDIC-96-21a
Hearing No. 100-98-7374X, 100-98-7375X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final
decision concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the following
reason, the Commission AFFIRMS the agency's final decision.
BACKGROUND
In his first complaint, complainant alleges he was discriminated against
on the basis of disability (post traumatic stress disorder (PTSD)
involving anxiety and depression), when he was:
denied reasonable accommodation as recommended by his physician by
letter dated October 26, 1995;
denied firearms training;
denied timely administrative processing of his worker's compensation
claim; and
denied advance sick leave on December 20, 1995.
In his second complaint, complainant alleged he was retaliated against
and subjected to harassment when:
he was required to attend weekly meetings;
he was informed that his future sick leave would not be approved;
he was informed by agency Senior Legal Counsel that he considered
himself under a threat of violence by complainant;
he was prohibited from on-duty driving;
he was prohibited from having any contact with Senior Legal Counsel or
from going into the Legal Division;
he was not permitted to attend firearms training on March 13, 1996,
and June 3, 1996; and
he was disciplined on June 5, 1996, for improper use of leave.
The record reveals that complainant, then a Criminal Investigator at
the agency's Headquarters facility, filed two formal EEO complaints
with the agency on January 24, 1996 and July 2, 1996, alleging that the
agency discriminated against him as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
The record reveals complainant worked for the agency as a Criminal
Investigator at the agency's Headquarters office from 1992 until 1997,
when he retired on disability. In 1992, complainant was assigned to
a difficult investigation that caused him to suffer tremendous stress.
In July 1993, complainant requested reassignment from the case due to the
effect it was having on him personally and professionally. In response,
the agency referred complainant to an EAP Counselor.
Complainant's condition deteriorated, and he was referred to a
psychiatrist. By letter dated May 9, 1995, complainant's psychiatrist
recommended to the agency that complainant be immediately removed from the
investigation he was working on due to the stress he was experiencing.
He stated that complainant was suffering from major depression,
complicated by anxiety attacks. Complainant's psychiatrist also noted that
complainant had difficulty concentrating, short term memory problems,
impaired judgement, depressed mood, psychomotor retardation and severe
anxiety. Testimony revealed complainant suffered from panic attacks
which caused him to suffer from heavy breathing, difficulty speaking,
shaking, diminished ability to absorb and recall information, draw legal
conclusions, plan, and think clearly.
In July 1995, complainant was assigned to a new supervisor and was
assigned work which, according to agency officials, was intended to be
less stressful for complainant. The work involved examining allegations
for investigation, and inputting data into the agency's computer system.
The AJ found that complainant suffered problems learning the new
data entry skills. As a result, by letter dated October 26, 1995
complainant's psychiatrist recommended that complainant be returned
back to investigative work so that he could use his investigative skills
and regain his confidence. The AJ found that the agency did not comply
with this request until March 1996. However, the AJ also found that the
agency attempted to accommodate complainant's disability in other ways.
For instance, in December 1995, the agency's Legal Counsel invited
complainant to offer suggestions as to how to accommodate his condition.
Additionally, the Legal Counsel offered complainant reassignment or a
detail to another position; however, complainant declined. Finally,
the agency advanced complainant sick leave.
In March 1996, the agency complied with complainant's October 1995
request for reassignment to investigation when he was assigned to
another supervisor, and tasked with investigative duties along with a
Senior Agent. However, in April 1996, complainant suffered a relapse
and disappeared for approximately one week. According to the record,
complainant lived in his car at the time and was unable to make
contact with anyone. After he reported back to work, he informed
the agency that he had discontinued his medication and therapy due to
his financial situation. During a meeting in early May regarding his
absence, complainant made references to workplace violence in front of
the agency's Legal Counsel. When questioned, he informed the agency that
had he desired to commit an act of violence, he would not discuss it,
he would just do it.<2>
The AJ determined complainant was an individual with a disability, but
he failed to establish he was a qualified individual with a disability
since he was unable to perform his job of a Criminal Investigator with
or without an accommodation from 1995 through 1996. In so finding, the
AJ determined that the agency investigated alternative accommodations
for his disability, when it requested specific suggestions from him,
offered him another position, and advanced him sick leave. Despite these
accommodations, the AJ found complainant was unable to perform the job as
a Criminal Investigator. The AJ did note, however, that the agency erred
when it did not timely remove complainant from the data entry job.<3>
The AJ found that during 1995 and 1996, the agency conducted firearms
training, but agency officials were concerned about permitting complainant
to attend due to his anxiety attacks. Specifically, agency officials
observed complainant suffer an anxiety attack where his breathing became
irregular, he appeared disoriented, and trembled. In 1995, complainant's
supervisor contacted complainant's psychiatrist in order to determine
whether complainant should be permitted to attend firearms training,
especially since individuals known to cause complainant stress would
also be present at the training. By letter dated October 29, 1995,
complainant's psychiatrist reported that he saw no reason why complainant
should not be permitted to attend the firearms training. However,
the agency did not place complainant on the list of attendees for the
1995 training session. In 1996, agency officials were still concerned
about complainant's ability to attend firearms training, especially in
light of his discontinuation of treatment and medication at the time.
In August 1996, the agency's psychiatrist opined that although he did
not believe complainant was suicidal or homicidal, permitting complainant
to carry a weapon was ill advised.
The AJ found complainant was not unreasonably denied firearms training.
Regarding complainant's other allegations, the AJ found complainant
was not harassed when he was required to attend regular meetings with
his supervisor. Rather, she found the meetings were held to monitor his
progress so that he could resume his investigative work. Furthermore,
although complainant alleged the agency unreasonably delayed in processing
his Worker's Compensation claim, the AJ found insufficient evidence
of such. Finally, although there was confusion among agency officials
regarding advanced sick leave, the AJ found complainant was advanced
sick leave on December 20, 1995, once proper authorization was received.
On September 30, 1999, the agency issued a final decision adopting the
AJ's finding of no discrimination. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, complainant argues through his attorney that the AJ made
incorrect factual findings when she found complainant was not a qualified
person with a disability. Specifically, complainant contends the AJ
ignored complainant's psychiatrist's testimony wherein he opined that
complainant was qualified for the position with reasonable accommodation.
He argues that the agency failed to engage in an individualized assessment
of complainant's abilities when it failed to conduct a psychiatric
evaluation before it determined he was not qualified. Complainant
maintains he was not accommodated, since the agency unreasonably delayed
in reassigning him from the stressful investigation until 1995, and
then again delayed when it failed to reassign him from the data entry
assignment. He argues that had he been provided timely accommodations,
he would have been able to successfully perform the duties of a Criminal
Investigator.
As for his disparate treatment and harassment allegations, complainant
argues that the AJ erred when she found the agency had a legitimate,
nondiscriminatory reason for refusing complainant firearms training,
removing his driving privileges, processing his Worker's Compensation
claim, requiring him to attend weekly meetings, and restricting his
access to the Senior Legal Counsel. He asks that we reverse the agency's
finding of no discrimination.
In response, the agency cites our revised regulations, and argues
that the AJ's factual findings are supported by substantial evidence.
The agency maintains complainant was not a qualified person with a
disability since substantial evidence in the record revealed complainant
was unable to perform the essential functions of his position with
or without an accommodation. The agency noted that complainant had a
compromised ability to concentrate, absorb and recall information, plan
and think clearly, and draw logical conclusions. The agency also found
substantial evidence to support the AJ's finding that the agency made
several attempts to accommodate complainant's disability. Specifically,
once the agency received medical documentation from complainant in
May of 1995, it removed complainant from the stressful investigation.
Then, when the data entry assignment was unsuccessful, the agency removed
him and reassigned him to a senior agent to conduct investigative work.
Finally, the agency argues that complainant failed to provide sufficient
rebuttal to the legitimate non discriminatory reasons for complainant's
remaining disparate treatment allegations, and argues complainant failed
to prove he was subjected to harassment.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We agree with the AJ that
complainant is an individual with a disability. However, in addition
to establishing that he has a disability, complainant must also show
that he is qualified. See Cleveland v. Policy Management Systems Corp.,
119 S.Ct. 1597 (1999). A qualified individual with a disability is one
who can, with or without reasonable accommodation, perform the essential
functions of the position in question.
We find substantial evidence in the record to support the AJ's findings
that despite the agency's attempts at accommodating complainant's
disability, complainant was unable to perform the essential functions of
his position. The record reveals that in July 1995, the agency assigned
complainant to what complainant's psychiatrist referred to as a �well
intentioned attempt to accommodate [him],� that being, the preliminary
investigative work, which involved data entry. Testimony revealed that
all Criminal Investigators were required to initiate investigations by
entering data into the computer. Complainant was provided assistance for
this task, but was unable to accomplish the data entry. As a result of
the stress he encountered on this assignment, complainant's psychiatrist
recommended in October 1995 that complainant be removed from this task,
and reassigned to investigative work.
We agree with the AJ that the agency delayed in formally returning
complainant to investigative work until March 1996. However, we do
not agree with complainant's argument that this failure represents
bad faith on the agency's part, or that it was tantamount to a denial
of an accommodation. Complainant was provided assistance performing
the data entry work. In November 1995, the agency offered complainant
another position, which complainant declined. In December 1995, the
Legal Counsel invited complainant's suggestions as to accommodations.
Once complainant was formally reassigned to another supervisor so that he
could conduct investigative work, his supervisor met with complainant
on a weekly basis in order to monitor his progress. In late April
1996, however, complainant suffered a relapse and was unable to work
for a period of time. Although it appears the data entry work did
not accomplish its intended purpose, that being, a less stressful work
environment, we find the record supports the AJ's finding that the agency
ultimately satisfied its obligation to provide a reasonable accommodation
when it examined other possible accommodations.
Complainant argues that the AJ ignored the testimony of complainant's
psychiatrist, wherein he opined complainant could perform the essential
functions of his job with accommodation. Despite this testimony, we
find the AJ's decision that complainant was not a qualified individual
with a disability was supported by substantial evidence. In that
regard, we note that �the determination of whether a person is a
"qualified individual with a disability" requires an individualized,
case-by-case assessment of the specific abilities of the person, the
specific requirements of the position that the person holds or desires,
and the manner in which the person may be able or enabled to meet those
requirements. EEOC Enforcement Guidance on the Effect of Representations
Made in Applications for Benefits on the Determination of Whether a Person
Is a "Qualified Individual with a Disability" Under the Americans with
Disabilities Act of 1990 (ADA). EEOC Notice Number 915.002 (February 2,
1997).
Complainant's position description states that a Criminal Investigator
is tasked with conducting complex investigations either alone or with
a team, and must confer with officials regarding the investigation's
progress and problems encountered. An investigator is required to
conduct surveillance, coordinate with other law enforcement agencies,
advise U.S. Attorneys regarding preparation of cases for trial, and
participate in technical support. In October 1995, complainant's
psychiatrist reported that complainant had deteriorated considerably
and described a �severely comprised ability to concentrate on tasks,
absorb and recall information, plan, think clearly and draw logical
conclusions.� ROI ex. 6 attachment 26. Furthermore, the psychiatrist
described complainant as becoming confused easily, has difficulty
remembering phone numbers, and �difficulty navigating to find and
return from even familiar places.� Id. Complainant's psychiatrist
also remarked that even if properly accommodated, complainant would
not recover if he did not continue with his treatment and therapy.
Although the complainant's psychiatrist opined that complainant would
be able to perform the essential functions of his job if reasonably
accommodated, he did not support this conclusion with a factual basis,
other than complainant's past history as an investigator. In light
of the above, we find the AJ's decision was supported by substantial
evidence in the record.
As to complainant's remaining allegations, we also find the AJ's
determination that complainant failed to prove the agency's reasons
for its actions were a pretext for discrimination is supported by
substantial evidence. Although complainant's psychiatrist reported there
was no indication of potential for violence during firearms training,
in the same letter he also explained that complainant had difficulty
concentrating, and a diminished ability to plan and think clearly.
Furthermore, the record reveals agency officials were concerned about
complainant's ability to engage in firearms training due to his repeated
references to workplace violence, and the fact that individuals who had
contributed to complainant's stress in the past were also participating
in the firearms training. Finally, the agency psychiatrist's determined
that complainant should not participate in firearms training. As such,
the AJ's finding that the agency did not act unreasonably when it denied
complainant firearms training is supported by substantial evidence.
Finally, we also find substantial evidence in the record to support
the AJ's decision that complainant was not subjected to harassment
or that the agency intentionally delayed in processing his Worker's
Compensation claim. We note that complainant failed to present evidence
that any of the agency's actions were in retaliation for complainant's
prior EEO activity or were motivated by discriminatory animus toward
complainant's disability. We discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, including
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
1/19/01
Date
1 On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 29 C.F.R. Part 1614 in
deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.
2Testimony also revealed that in the summer of 1995, complainant told his
former supervisor that he had purchased a .45 caliber, hollow-point bullet
and had planned to take his life, but he was no longer feeling suicidal.
The supervisor testified that complainant told her he wanted to give
the bullet to her because she had been so instrumental to his progress.
3However, the AJ also found that during this time, complainant did not
continue with his medication and therapy as per his psychiatrist's advice,
which may have contributed to his added anxiety and stress. Notably,
complainant's psychiatrist testified that even with accommodations from
the agency, complainant would not have recovered unless he had continued
with his medication and treatment.