01a11371
09-30-2002
Kenneth Paxton, Complainant, v. Donald L. Evans, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration) Agency.
Kenneth Paxton v. Department of Commerce
01A11371
9/30/02
.
Kenneth Paxton,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration)
Agency.
Appeal No. 01A11371
Agency No. June 14, 2000
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 appeal is accepted
pursuant to 29 C.F.R. � 1614.405.<1> For the following reasons, the
Commission AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a probationary Personnel Assistant at the agency's Mountain
Administrative Support Center, Boulder, Colorado facility. Complainant
sought EEO counseling and subsequently filed a formal complaint on June
21, 1999, alleging that he was discriminated against on the bases of
disability (head injury) and reprisal for prior EEO activity when he was
coerced into resigning during his probationary period when the agency
failed to accommodate his disability.
Complainant alleged that he suffers from a head trauma related to
a service-connected disability, and that the agency was aware of his
compensable injury when he was hired. In that regard, complainant alleged
that during the interview, complainant's supervisor (S1) noticed on his
application that he had sustained a compensable injury, and remarked,
�[i]s there anything I need to know about it?� Complainant remarked in
the negative, and the matter was dropped.
The record reveals that soon after complainant was hired, he informed S1
that he may periodically suffer from black outs. Indeed, in January 1999,
complainant suffered a black out and informed S1 that the black out was
related to his service connected injury.
Complainant alleged in his affidavit that in March 1999, S1 berated
him in front of co-workers for taking leave. Furthermore, complainant
maintained that he was subjected to strict scrutiny related to his
performance from his co-workers, who rotated training complainant.
According to complainant, the co-workers left yellow �post-it� notes on
his work, xeroxed the work, and left it for S1 to review. Believing he
was being singled out, complainant notified the Office Director, who
suggested complainant discuss the matter with S1, and possibly seek work
in another position. Beginning in March 1999, S1 informed complainant
he was not performing up to standards, and might be terminated during
his probationary period.
Complainant contacted an EEO Counselor in late March 1999. On April 2,
1999, complainant notified S1 that he suffered from short term memory
loss. Complainant alleged that S1 then stated �[i]f I knew you had
this trouble when I interviewed you, I probably would not have hired
you.� According to complainant, S1 then discussed the possibility of a
reassignment within the agency with the Human Resources Manager because
complainant could not be accommodated in her unit. Complainant alleged
that S1 also informed complainant that it would look better on his record
if he resigned rather than being terminated.
On April 5, 1999, complainant, S1, and the Human Resources Manager met to
discuss the matter. Complainant alleged that during that conversation, it
was suggested that complainant use a manual containing personnel codes so
that complainant could apply the appropriate codes to use during his work.
Complainant averred however, that S1 informed the Manager that complainant
already used the manual, and it did not seem to work. Complainant averred
that the Human Resources Manager then asked complainant if there was
something else he could do, and he remarked �computers.� Complainant
averred that the Human Resources Manager informed complainant that there
were insufficient funds to detail complainant to Information Services,
but that he would look into other available positions for complainant.
Complainant averred that after the meeting, he applied for a Realty
Specialist position, but was not selected for the position. Out of
frustration, complainant resigned from his position on April 16, 1999,
with an effective date of April 30, 1999. This complaint followed.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant had established he
was an individual with a disability. In that regard, the agency found
complainant had suffered a service-related head injury, and experienced
short term memory difficulties, as well as difficulty learning new tasks
and concentrating. However, the agency found complainant was not a
�qualified individual with a disability� because the record revealed
complainant had consistent performance difficulties during the 32
weeks he was employed by the agency, and despite repeated training,
complainant's performance had not improved. Assuming, arguendo, that
complainant was a qualified individual with a disability, the agency
also found complainant failed to establish a prima facie case because
he had not suffered an adverse action.
The agency assumed complainant had established an inference of
retaliation. In that regard, the record revealed complainant was
notified he might be terminated soon after he made contact with the
agency's EEO Office.
In response to complainant's allegations, S1 admitted she asked him
during the interview if there was anything she needed to know about
the service related disability, but dropped the issue when complainant
replied in the negative. She averred that despite training, the feedback
she received complainant's co-workers was that complainant consistently
caused input errors and did not follow procedures. S1 recalled that
she reviewed the errors with complainant, and he claimed he was never
informed how to handle the specific procedure. Further, when complainant
informed her he preferred verbal criticism rather than �post-it� notes,�
she informed the co-workers, who in turn reported they were in fact
verbally notifying complainant regarding his performance errors.
S1 averred that in March 1999, she warned complainant about his
performance, and that he needed to improve or else he would be terminated.
Soon thereafter, complainant informed S1 that he suffered from short
term memory loss. S1 alleges that at that time, she asked complainant
why he had waited so long to tell her, and he responded that it was his
belief that he would not have been hired if he had told her about his
memory loss. S1's testimony regarding the April 5, 1999 meeting with
the Human Resources Manager was similar to complainant's testimony.
The Human Resources Manager averred that during the April 5, 1999,
meeting, he asked complainant how he could be accommodated. In response,
he recalls that complainant requested a position where he would carry
things around the office for co-workers. The Human Resources Manager
informed complainant there was no such position available. He also
testified that although he had looked into a computer position at the
Director's earlier request, there was no vacant positions available.
He claimed that he located a position in the Facilities and Logistics
Storeroom, but that the position's supervisor informed him that the
position required the incumbent to remember procedures and inventory
codes. The supervisor of the position informed the Human Resources
Manager that complainant would be unable to perform the duties of the
position, and that the position could not be restructured without losing
its basic function.
Finally, several personnel specialists provided affidavits for the record.
Therein, they averred that complainant failed to follow procedures,
and had difficulty retaining much of what he learned.
On appeal, complainant contends that he was not properly trained by
the agency, and denied informing the Manager he simply wanted to �carry
things around the office� for co-workers. Complainant contends that he
applied for a Realty Specialist position, and was interviewed but did
not get the position. He argues he was entitled to the position as a
reasonable accommodation. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Assuming arguendo, that complainant is an �individual with a disability�
within the meaning of the Rehabilitation Act, we note that reassignment
is the reasonable accommodation of last resort and is required only after
it has been determined that: (1) there are no effective accommodations
that will enable the employee to perform the essential functions of
his/her current position, or (2) all other reasonable accommodations
would impose an undue hardship. Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, Notice No. 915.002 p. 24 (March 1, 1999)(Guidance). In this case,
complainant did not request or identify any other accommodation other than
reassignment. Although the record does reveal that S1 assumed complainant
could not be accommodated in the Personnel Assistant position due to
the level of detail involved in the position, when she and the Manager
asked complainant how he would like to be accommodated, he only requested
reassignment to a computer position.<2> The record further reveals that
the agency continued complainant's training, but he was unable to perform
the essential functions of the position. Furthermore, complainant used
a desk reference that contained personnel codes, but it did not enable
complainant to properly recall the appropriate codes. The record is
lacking as to any other accommodation which could enable complainant to
perform the essential functions of the Personnel Assistant position.
When an employee cannot perform the essential functions of his
current position because of a disability, and no accommodation
is possible in that position, reasonable accommodation includes
reassignment to another position. Ignacio v. United States Postal
Service, EEOC Petition No. 03840005 (September 4, 1984), aff'd, 30
M.S.P.R. 471 (Spec. Pan. February 7, 1986). However, in this case,
even if complainant were otherwise entitled to reassignment, the record
indicates that he never adequately performed the duties of the position
for which he was hired, and was therefore not entitled to reassignment
as an accommodation. Guidance, at p. 40. <3>
As for complainant's claims of S1's mistreatment, as well as his
allegation that on April 2, 1999 she informed him he would not have
been hired if she had known about his disability, we find the record
contains little, if any, corroborating evidence of complainant's claims.
Although complainant alleged that a co-worker heard S1 yell at him
about taking leave, the co-worker averred she did not recall hearing
such a conversation. Furthermore, complainant failed to establish,
by a preponderance of the evidence, that his version of events during
the April 2, 1999 meeting occurred as he testified.
Finally, we turn to complainant's claim that he was retaliated against
due to his contact with the agency's EEO Office. We agree with the agency
that complainant established a prima facie case of retaliation, however,
the agency successfully rebutted the inference raised by complainant.
Complainant failed to persuade us that retaliation, as opposed to
performance related difficulties, was the true reason for his resignation.
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 FAD.
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
9/30/02
Date
1As an initial matter, we will address the agency's contention that
complainant's appeal was untimely filed. The record reveals the
agency issued its final decision on June 14, 2000, and acknowledges
it was unaware when complainant received the final decision. On or
about July 28, 2000, complainant attempted to appeal to this office.
For unknown reasons, complainant's appeal was returned to him, and he was
informed to re-file his appeal once he received a final agency decision.
After requesting assistance from the White House, complainant's appeal
was eventually returned to this Office and processed. Although the agency
argues complainant did not intend to appeal the agency's final decision in
his July 2000 correspondence, we disagree and find complainant's appeal
was timely filed, given the agency's failure to prove when complainant
received the agency's final decision.
2A review of complainant's complaint reveals he asked the Human Resources
Manager if the agency could create a position for him whereby he would
perform random tasks for other co-workers. However, Federal Law does
not require the agency to create a position for complainant.
3 The agency is advised that 29 C.F.R. � 1614.203(g), which governed and
limited the obligation of reassignment in the Federal sector, has been
superceded and no longer applies. 67 Fed. Reg. 35732 (5/21/01), to be
codified as 29 C.F.R. �203(b). The Americans with Disabilities Act (ADA)
standards apply to all conduct on or after June 20, 2002, and emphasize,
among other things, a broader search for a vacancy. The ADA regulations
regarding reassignment can be found at 29 C.F.R. �� 1630.2(o) and 1630.9.
Additional information can be found in the Appendix to the ADA regulations
and in the EEOC's Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act (March 1, 1999)
at Questions 25-30. These documents are available on the EEOC's website
at www.eeoc.gov.