0320150030
08-12-2015
Petitioner, v. Loretta E. Lynch, Attorney General, Department of Justice, Agency.
Petitioner,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice,
Agency.
Petition No. 0320150030
MSPB No. DA0432130109I1
DECISION
On January 6, 2015, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and 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 giving rise to this complaint, Petitioner worked as a Humans Resources Officer (HRO), GS-0201-13, Step 7, at the Agency's Office of the United States Attorney for the Eastern District of Texas in Beaumont, Texas. Petitioner alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), disability (Strabismus/Estropia), and reprisal for prior protected EEO activity when:
1. the Agency failed to provide him a reasonable accommodation for his disability; and
2. he was removed from his position on January 26, 2012.
Petitioner appealed the Agency's decision to remove him to the MSPB. A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision on January 21, 2014. The AJ found that on April 25, 2011, the Administrative Officer, who was also Petitioner's supervisor (S1), advised him that he was failing to meet Critical Performance Element One (Advisory Service) of his Performance Work Plan and placed him on a 90-day performance improvement plan (PIP). At the end of the 90 days, S1 determined that his performance improved to a "minimally acceptable level." He was warned that if this critical performance element fell to an unacceptable level within one year, he could be reassigned, demoted, or removed. On December 8, 2011, The First Assistant United States Attorney (FA) issued Petitioner a notice of proposed removal for unacceptable performance. After Petitioner provided a response, he was issued a notice of removal effective January 26, 2012.
The AJ found that the performance standard for Critical Performance Element One was repeatedly communicated to Petitioner and that he was notified that his performance was unacceptable. The AJ found that S1 testified that when she first arrived in the Eastern District in 2009, Petitioner would "arrive late to meetings; drum his fingers on the table during meetings: become easily agitated; and make uncomfortable comments such as 'you act like you know everything anyway, so do it yourself.'" Petitioner also missed deadlines she would give him, failed to make it a priority to read and pay attention to her emails, and sometimes gave her incorrect advice regarding human resources issues. Further, the AJ found that Petitioner was afforded a reasonable opportunity to improve his performance but failed to do so. The AJ found that it was undisputed that from September 2011 to December 2011, Petitioner continued to miss deadlines and failed to provide timely and correct advice regarding assignments given to him by S1. The AJ found that Petitioner's performance, as related to Element One, did not meet the appropriate standard. The AJ found that:
the record contains numerous instances detailing [Petitioner's] failure to provide timely responses to management's inquiries. In addition, it appears that [Petitioner's] responses were not always thorough, and did not always provide the correct answer. Further, S1 testified that [Petitioner] refused to place importance on tasks which she deemed priorities. . . . . It is clear that [Petitioner] was not supporting S1 and the tasks and goals on which she placed high priorities.
With regard to Petitioner's allegation that the Agency failed to provide him a reasonable accommodation, the AJ found that Petitioner did not do so. Specifically, the AJ found that Petitioner testified that he had difficulty with his vision. He stated that glasses and contact lenses help, but that if he reads for a prolonged time, he had double vision. Petitioner preferred to proofread printed materials and that larger font is easier on his eyes. Petitioner provided that in 2008, he requested from his supervisor at the time that he use a software program called Zoom Text, which enlarged the text on the computer screen. Petitioner received the program, but it caused problems with his computer. Petitioner continued to work with the IT manager to fix the issues.
Petitioner stated that during a meeting on September 12, 2011, he told FA that his eyes were crossing. Petitioner stated that he informed FA that S1 had taken issue with his proofreading skills and that when his eyes were crossed he was unable to see the documents clearly. FA recommended that Petitioner have his eyes checked and discussed lighting options to help him.
Petitioner requested a reasonable accommodation on October 9, 2011. Specifically, Petitioner requested the Agency to provide him with equipment to magnify printed documents, magnification software that would work well with Microsoft products and U.S. Attorney's Office applications, a mobile device with a larger keypad, and to be able to telework whenever he had extensive reading to complete.
On October 14, 2011, FA responded to Petitioner's request and asked Petitioner for additional documentation regarding his condition. Petitioner saw an ophthalmologist on October 28, 2011. Petitioner was diagnosed with Esotropia, Myopia, and Astigmatism. The prognosis was good and Petitioner's first step of treatment was changing his eyeglass/contacts prescription and the second step would be strabismus surgery. Petitioner's ophthalmologist stated that he did not have any restrictions to his work. At the hearing, Petitioner conceded that his ophthalmologist did not recommend magnification equipment, special software, a new mobile device, or telework. After he submitted his request, Petitioner received a new mobile device with a larger keyboard and the IT department tried out new software for his computer.
The AJ found that Petitioner was a qualified individual with a disability. However, the AJ stated that Petitioner did not show that the removal action was due to his disability. Specifically, the AJ found that Petitioner was able to perform his job functions, though he did not perform at an acceptable level. Petitioner did not demonstrate that he needed the accommodations he requested, and conceded that those accommodation he requested were his own recommendations and not those of his ophthalmologist. The AJ found that Petitioner failed to show that the Agency failed to accommodate him.
The AJ further found that nothing in the record showed that the Agency discriminated against him based on his race or sex or in retaliation when he was terminated. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely his failure to perform in an acceptable manner, as stated above. In an attempt to show that the Agency's proffered reasons were pretext, Petitioner argued that his subordinate (CW1) was treated more favorably by S1 than he was. The AJ found that Petitioner failed to show that CW1 was treated more favorably by S1 than he was or that anyone else outside of his protected classes was treated better. Further, with regard to Petitioner's reprisal claim, the AJ noted that FA and S1 testified that they had no knowledge of any prior EEO activity. The AJ found that there was no nexus between the prior EEO activity and the PIP, because Petitioner was already placed on the PIP by the time he contacted the EEO office in April 2011.
Petitioner sought review of the initial decision by the full Board. In its December 10, 2013 decision, the Board denied the petition for review and affirmed the initial decision. The Board noted that Petitioner did not establish that he was retaliated against as alleged. Further, the Board questioned whether Petitioner was an individual with a disability. However, the Board found that there was "no basis to conclude that any difficulties [Petitioner] may have had with his vision are responsible for his repeated failure to timely open e-mails and comply with deadlines, his failure to conduct thorough research and provide clear advice on technical questions, or his failure to correctly relay instructions when delegating assignment."
Petitioner then filed the instant petition maintaining that he is an individual with a disability. Further, Petitioner states that he was entitled to an accommodation. Petitioner additionally argues that the Agency discriminated against him when he was terminated because it failed to provide him an accommodation.
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).
Reasonable Accommodation
Assuming Petitioner is a qualified individual with a disability, we turn to the issue of whether the Agency failed to provide him with a reasonable accommodation. In his Petition, Petitioner argues that the Agency knew of his medical limitations despite not being provided any medical documentation contemporaneous to his request for an accommodation. However, an Agency is entitled to know that an individual has a covered disability that requires a reasonable accommodation. Therefore, the Agency may ask for information about the disability, the activities it limits, and the need for accommodation -- but only if the disability and/or need for accommodation is not obvious, or if information already submitted by the individual is insufficient for the Agency to make these determinations. Id. An Agency may not otherwise ask for medical information based on a person's request for a reasonable accommodation. In this case, because Petitioner's impairment affected his ability to see, it was not unreasonable for the Agency to request medical documentation to explain the nature of his impairments and any recommendations for accommodating those impairments. However, the record reflects that Petitioner's ophthalmologist stated that Petitioner was cleared to work without any specific accommodations. Further, the Agency provided Petitioner with a new mobile device with a larger keyboard and the IT department tried out new software for his computer in accordance with his personal requests. As such, we agree with the MSPB finding that the Petitioner did not establish that the Agency failed to provide him with a reasonable accommodation because there was no evidence presented that he needed an accommodation to perform his job.
Removal
Here, we find that assuming arguendo that Petitioner established a prima facie case of race discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as found by the AJ and stated above. Because we find the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Petitioner's burden to show that the Agency's proffered reasons were a pretext for discrimination. We find that Petitioner did not offer any more than his assertions that the Agency was motivated by race, sex, or retaliatory animus. Further, we note that nothing in the record supports a finding that the Agency was motivated by discriminatory animus.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_8/12/15_________________
Date
2
0320150030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320150030