Kenneth Paxton, Complainant,v.Donald L. Evans, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration) Agency.

Equal Employment Opportunity CommissionSep 30, 2002
01a11371 (E.E.O.C. Sep. 30, 2002)

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.