0320150024
05-19-2015
Petitioner, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Petitioner,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320150024
MSPB No. CH-0432-13-0493-I-1
DECISION
On December 9, 2014, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Background
At the time of events at issue, Petitioner worked as a Patent Attorney, GS-1222-14, at the Agency's Wright-Patterson Air Force Base in Ohio. From June 2008 to August 2010, the Former Chief of Patent Law (S1) supervised Petitioner. From October 2010 to June 2011 and again beginning in July 2012, the Chief of Patent Law (S2) supervised Petitioner.
On February 25, 2013, management issued Petitioner a notice of proposed removal. The notice cited, in pertinent part, Petitioner's unacceptable performance in critical element #1 (prepare and prosecute patent applications) during the August 16, 2012 to November 30, 2012 performance improvement plan (PIP) period. Specifically, the notice summarized Petitioner's weekly performance during the PIP and stated that Petitioner's work product was not completed on time and was substandard. On April 18, 2013, management issued a decision to remove Petitioner, effective April 19, 2013.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against him on the basis of disability (obsessive-compulsive disorder (OCD) with associated depression and insomnia) when it removed him. Specifically, Petitioner alleged that the Agency was aware of his disability but failed to provide reasonable accommodation.
On April 2, 2014, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision sustaining the unacceptable performance charge, finding no denial of reasonable accommodation, and affirming Petitioner's removal.
In sustaining the unacceptable performance charge, the MSPB AJ found that the Agency established by substantial evidence that Petitioner's performance in critical element #1 was unacceptable during the PIP period. Specifically, the MSPB AJ found that Petitioner failed to meet any of the three components of the performance standard: quality of work, timeliness, and production. Regarding the first component, the MSPB AJ credited S2's testimony that the quality of Petitioner's work was unacceptable. In doing so, the MSPB AJ cited S2's extensive documentation of Petitioner's performance of his duties both before and during the PIP, S2's "straight forward and consistent testimony," and the testimony and statements of other witnesses corroborating S2. Regarding the second component, the MSPB AJ credited S2's testimony that Petitioner never met the timeliness requirement because his work product was unacceptable when submitted and resubmitted for review. Regarding the third component, the MSPB AJ credited S2's testimony that the number of work products Petitioner completed was below the required production average.
In finding no denial of reasonable accommodation, the MSPB AJ stated that Petitioner claimed he could not perform the essential functions of his position without accommodation. Moreover, the MSPB AJ determined that Petitioner failed to establish that he could perform the essential functions of his position with accommodation. The MSPB AJ found that Petitioner, or a health care professional on his behalf, requested the following accommodations in 2010: (1) praise and positive reinforcement / regular feedback on his work; (2) a flexible work schedule with fitness breaks during the workday; and (3) telework.
Regarding accommodation (1), the MSPB AJ found that it was not an accommodation that would allow Petitioner to perform the essential functions of his position. Specifically, the MSPB AJ found that the record demonstrated that the quantity of feedback Petitioner's supervisors gave him was more than he wanted. In addition, the MSPB AJ found that whether or not the accommodation was provided depended entirely upon Petitioner's perception of sincerity. The MSPB AJ cited Petitioner's testimony that when S2 gave him praise or positive feedback, he believed it was insincere.
Regarding accommodation (2), the MSPB AJ found that Petitioner was on a flexible work schedule and was allowed to take fitness breaks during the workday. Although Petitioner argued that this was not an accommodation because all employees were allowed to take up to three hours per week for fitness breaks, the MSPB AJ noted that accommodations are not measured against what other employees are provided but are measured against what an agency can provide that will assist an employee in performing the essential functions of his position.
Regarding accommodation (3), the MSPB AJ found that it was not an accommodation that would allow Petitioner to perform the essential function of his position given his previous difficulties with time and attendance, telework, and time and attendance during telework. Specifically, the MSPB AJ found the following facts: Prior to 2008, the Agency allowed Petitioner to telework several times a week. During this time, Petitioner's observation of the Agency's duty hours was worse than when he was present in the office. In 2008, the Agency terminated Petitioner's telework arrangement due to his misuse of the benefit. Prior to his 2012 PIP, Petitioner did not always attend to his duties, spent excessive time in the break room or in the exercise facility, spent considerable time wandering the hallways and away from his office with his whereabouts unknown, and was observed sleeping in his office. In finding those facts, the MSPB AJ credited the testimony of several management officials, including S2. In addition, the MSPB AJ cited relevant documentary evidence in the record, such as S1's September 24, 2008 memorandum terminating Petitioner's telework arrangement and S2's September 7, 2012 memorandum describing Petitioner's problems with time and attendance. The MSPB AJ concluded that - in light of Petitioner's poor pre-PIP performance, his difficulty focusing on his work, the absence of interaction with his supervisor and his coworkers while on telework, his unexplained periodic and numerous absences from his office during the workday, and his actual absence from home while on telework - telework was not an accommodation that would assist Petitioner in performing the duties of his position.
Petitioner then filed a petition for review with the full Board, but the Board denied his petition. In doing so, the Board noted Petitioner's argument on review that he could perform his duties without reasonable accommodation because he did so for several years. The Board, however, found that Petitioner's argument was inconsistent with his 2010 request for accommodation.
Arguments in Petitioner's Petition
Petitioner then filed the instant petition. In his petition, Petitioner argued that the Agency discriminated against him by failing to accommodate his disability. Among other things, Petitioner asserted that, contrary to the MSPB AJ's statement in the initial decision, he never claimed that he could not perform the essential functions of his position without accommodation. In addition, Petitioner asserted that the Agency falsely accused him of misusing his telework benefit, that telework is a commonly used accommodation for anxiety disorders such as OCD, and that the MSPB failed to analyze undue hardship with regard to telework. Moreover, Petitioner asserted that, even if the Agency had a legitimate objection to his request for telework, it never engaged in the interactive process to explore reasonable alternatives. Finally, Petitioner asserted that the Commission should not give deference to the MSPB AJ's credibility determinations because they were not based, explicitly or implicitly, on the demeanor of the witnesses testifying at the hearing.
Analysis and Findings
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
An agency is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business.
29 C.F.R. � 1630.9(a). The term "qualified," with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other
job-related requirements of the employment position such individual holds and, with or without reasonable accommodation, can perform the essential functions of the position.
29 C.F.R. � 1630.2(m).
A reasonable accommodation is a modification or adjustment to the work environment, or to the manner or circumstances under which a position held or desired is customarily performed, that enables a qualified individual with a disability to perform the essential functions of that position. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, General Principles (Oct. 17, 2002). An accommodation must be effective in meeting the needs of the individual. Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Id. An agency must consider each request for reasonable accommodation and determine: (1) whether the accommodation is needed; (2) if needed, whether the accommodation would be effective; and (3) if effective, whether providing the accommodation would impose an undue hardship. Id. at Question 32.
Upon review of the record, we agree with the MSPB's finding of no disability1 discrimination. Essentially, the MSPB determined that Petitioner did not establish a denial of reasonable accommodation because he was not "qualified" - i.e., he could not perform the essential functions of his position, with or without reasonable accommodation. We find that the MSPB's determination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole.
Regarding Petitioner's argument that he never claimed he could not perform the essential functions of his position without accommodation, we agree with the MSPB that this argument is inconsistent with his 2010 request for reasonable accommodation. By definition, a reasonable accommodation - in the context of job performance - is a change that enables the individual to perform the essential functions of the position. The record reflects that Petitioner requested reasonable accommodation for his OCD in 2010. In April 2010 emails, S1 asked Petitioner, "What accommodation(s) would assist you in performing the essential functions of your job?" and Petitioner responded, "I believe that useful accommodations would include: you providing praise and positive reinforcement, a flexible work schedule, and teleworking."
Regarding Petitioner's argument that the Agency should have granted his request for telework, we agree with the MSPB that telework in this case was not an effective accommodation - i.e., one that would enable Petitioner to perform the essential functions of his position. Specifically, we emphasize that the MSPB AJ credited the testimony of several management officials in finding that Petitioner had previous difficulties with time and attendance, telework, and time and attendance during telework. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � VI.B (Nov. 9, 1999). Although Petitioner argued that the MSPB AJ's credibility determinations were not based explicitly or implicitly on the demeanor of the witnesses testifying at the hearing, we disagree. We note that the MSPB AJ expressly characterized S2's testimony as "straight forward and consistent." Moreover, we note that the MSPB AJ made the credibility determinations after observing and listening to the testimony of the management officials. Further, we note that the MSPB AJ cited documentary evidence supporting the testimony of the management officials. Finally, as to Petitioner's argument that the MSPB failed to analyze undue hardship with regard to telework, we find that the MSPB did not need to reach the issue of undue hardship due to its previous determination that telework was not an effective accommodation in Petitioner's situation.
Regarding Petitioner's argument that the Agency never engaged in the interactive process to explore reasonable alternatives to telework, we find that this is insufficient to establish a denial of reasonable accommodation. We have previously held that an agency's failure to properly engage in the interactive process, does not, by itself, demand a finding that a petitioner was denied a reasonable accommodation. See Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002). Rather, to establish a denial of reasonable accommodation, a petitioner must establish that the failure to engage in the interactive process resulted in the agency's failure to provide a reasonable accommodation. See id. Here, Petitioner did not identify an alternative to telework that would have enabled him to perform the essential functions of his position, and that was denied to him as a result of any lack of engagement from management.
Conclusion
Based on a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no disability discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
_5/19/15_________________
Date
1 For purposes of analysis only, we assume, without so finding, that Petitioner is an individual with a disability within the meaning of the Rehabilitation Act.
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0320150024
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320150024