0120093161
07-24-2012
Sarah E. Verman, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Agricultural Research Service), Agency.
Sarah E. Verman,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.
Appeal No. 0120093161
Agency No. ARS200800673
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 24, 2009 final decision concerning her equal employment opportunity (EEO) complaint. At the time of events giving rise to this complaint, Complainant worked as an Agricultural Science Research Technician at the Agency's facility in Beaumont, Texas. For the following reasons we AFFIRM the Agency's final decision.
Complainant alleged that due to her disability she was subjected to discrimination when the Agency failed to accommodate her request to be provided with written instructions and training. Additionally, Complainant alleges she was subjected to discriminatory harassment during her probationary period, and ultimately terminated in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., when:
1. On an unspecified date(s), her supervisor, S1, denied her request for written instructions and for a flexible work schedule;
2. On May 18, 2007, her trainer left out critical information causing her to break a piece of equipment and to damage equipment by cleaning it incorrectly;
3. On October 11, 2007, S1 yelled and screamed at her asking if she was an airhead and if she could even hear her;
4. On October 15, 2007, S1 hired another person and started training her to do the job she was hired to perform;
5. On or about October 2007, at her six (6) month review, S1 wrote her up for unanticipated absences and commented that she was not there to lead her crew;
6. On April 1, 2008, S1 rated her "Does Not Meet Expectations," on her annual performance appraisal and gave her until August 2008, to improve;
7. Since April 1, 2008, S1 did not provide the promised work plan and did not meet with her regularly to check her improvement;
8. On May 21, 2008, S1 sent her home on annual leave and informed her that she would seek to initiate termination; and
9. On May 29, 2008, S1 terminated her, said that she should look for another job, and took her keys.
At the conclusion of the EEO investigation, Complainant was provided a copy of the investigative file and requested a final agency decision (FAD). In the FAD the Agency found that Complainant failed to meet her burden of establishing by a preponderance of the evidence that the Agency's actions were based on impermissible discriminatory reasons. Complainant did not submit any statement on appeal.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 9, Sec. IV(A) at p. 9-10 (November 9, 1999) provides that the Commission has the discretion to only review those issues specifically raised on appeal. As noted, Complainant did not challenge any aspect of the Agency's final decision. Notwithstanding this fact, we find, with respect to her assertion that she was denied a reasonable accommodation, the record establishes that the Agency took reasonable actions to accommodate Complainant's disability and that when she requested additional accommodations on or around May 7, 2008, S1 requested a medical certification.1 In response, S1's unrebutted testimony is that Complainant threw the forms in the trash.2
The Agency has successfully established that after a year of training and accommodations, Complainant was still unable to perform the essential functions of her position.3 Additionally, it is unrebutted that Complainant was given an option of a voluntary resignation, but requested that she be terminated in order to collect unemployment benefits.4
After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (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
__7/24/12________________
Date
1 An employer may ask an individual for reasonable documentation about that person's disability and functional limitations when the disability or need for accommodation is not obvious. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) at 12-13. The Commission has recently held that:
If an individual's disability or need for reasonable accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to reasonable accommodation.
Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012).
2 Although given the opportunity, Complainant chose not to rebut S1's 22-page affidavit. ROI, Exhibit 6e, p.157.
3 Prior to Complainant's formal request for an accommodation, S1 afforded her a variety of modifications to her work environment and position. S1 lowered Complainant's production standards; reassigned essential functions of her position while allowing her to keep her salary and grade level; offered her time off from work and a modified work schedule; permitted her to take detailed notes and draw sketches during training; and provided her with a job coach.
4 Although undisputed by the Agency, we assumed, for the purposes of this decision only without so finding, that Complainant is an individual with a disability.
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0120093161
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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