0120162846
04-13-2017
Adina P.,1 Complainant, v. Michael R. Pompeo, Director, Central Intelligence Agency (CIA), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Adina P.,1
Complainant,
v.
Michael R. Pompeo,
Director,
Central Intelligence Agency (CIA),
Agency.
Appeal No. 0120162846
Agency No. 14-26
DECISION
On September 10, 2016, Complainant timely filed an appeal pursuant to 29 C.F.R. � 1614.403(a) from a final Agency decision (FAD) dated August 12, 2016, concerning her equal employment opportunity (EEO) complaint alleging employment 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 giving rise to her complaint, Complainant worked as a Mission Support Administrator, GS-7 at the Agency's CIA University, Registrar's Office, Concierge Team, in the Washington, DC metropolitan area. She was attached to the Directorate of Support, Mission Support office career service and was on tour with CIA University, meaning she worked there.
On August 11, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her disability (learning disability and difficulty with language except speaking) when she received a performance appraisal with negative ratings and comments for the period of July 3, 2013 through December 31, 2013, which was finalized on March 31, 2014.
Following an investigation, Complainant requested a FAD without a hearing. The Agency issued a FAD finding no discrimination.
Generally, without regard to a specific assignment, a Mission Support Administrator is expected to provide support, like monitoring email and the telephones of managers and/or office members, use knowledge of Agency or office guidelines to correctly complete forms and enter information into databases; write correspondence that conveys basic factual information with correct spelling and grammar, and with limited guidance ensuring it is well organized and appropriately formatted; deliver effective briefings on basic topics to small audiences, and guide less experienced staff. Report of Investigation (ROI), Tab E-11, at 657, 661 - 662.
Complainant starting working at CIA University in 1992. After starting at the Concierge Team in 2004, her duties were to deliver training materials to classrooms, arrange classroom furniture and ensure classrooms were stocked with supplies, post course signs on classroom doors, deliver copy paper, daily clean classroom tables and whiteboards, regularly pick up burn bags, and relay to students their telephone messages from the Concierge desk. ROI, Tabs E-1, at 187 - 188, 344; E-2, at 451 & 453. The Registrar, Complainant's second line supervisor at CIA University (S2), indicated Complainant was performing the "most menial of tasks." ROI, Tab E-2, at 451. In her three most recent annual appraisals on her performance of these duties (covering July 1, 2010 - July 2, 2013), Complainant was rated overall as minimally successful and marginal. It was explained therein that Concierge Team members had to remind Complainant of her daily tasks, mentor her on time management, and ensure tasks were completed. ROI, Tab E-1, at 186 - 188, 204 - 209. S2 stated that Complainant could not figure out which classrooms needed cleaning from the daily chart of classrooms in use, required close supervision by the Concierge Team to do this, and relied on her team to tell her what to do and when to do it. She indicated that prior to the appraisal period in question the Concierge Team lead tried to have Complainant perform concierge tasks outside menial labor and she was unable to do so. ROI, Tab E-2, at 474 & 478.
In early 2013, S2 asked the CIA University's Chief Learning Officer if the slot Complainant occupied could start doing regular Concierge duties. S2 explained that she was asked to provide a concierge person to support training in a new building without being given an additional slot, and the duties Complainant performed were absorbed by others - the cleaning crew, instructors, and other personnel. ROI, Tab E-2, at 451 & 456. The Chief Learning Officer granted S2's request.
S2 explained that regular concierge tasks were things such as developing correspondence with little or no help, independently developing slides, and working with spreadsheets to develop metrics. Id., at 462. Accordingly, on July 3, 2013, the Agency gave Complainant new performance expectations to prepare. ROI, Tab F-5 at 757 - 758. These included the following: become proficient in the Microsoft Office suite of tools - Word, PowerPoint, and Excel to create classroom signs and office forms, independently write her accomplishments in her appraisal, and provide metrics for classroom usage; updating CIA University's electronic board, and contribute to office briefings; become proficient in computer tools such as Chat, Calendar, email, and messaging to successfully communicate with her colleagues and customers; independently complete her time and attendance forms and on-line mandatory training; write correspondence conveying basic information; and demonstrate a basic understanding of the missions and function of CIA University.
Apparently for the record, Complainant submitted a written neuropsychological evaluation which was completed in October 2014. The neuropsychologist found the following: Complainant's working memory and processing speed are very low, going to her ability to sustain attention, concentrate, exert mental control, and process simple or routine visual material without making errors. She demonstrates impaired ability to learn and retain new information presented in oral or written form. She has borderline intellectual skills which presents challenges for training and instruction. He recommended that Complainant be in a supported work setting with a job coach until demonstrating adequate capability. Complainant might be considered for a job involving basic clerical or mailroom tasks - filing or sorting, and will do better when tasks occur within a routine which varies little day to day, rather than having to learn new skills and adapting to new situations daily. ROI, Tab 1, at 165 - 180.
Complainant's first line supervisor (S1), as rater, and S2 as reviewer rated Complainant's overall performance as Marginal, which means not achieving, in her appraisal covering the period of July 3, 2013 - December 31, 2013. S1 wrote therein that despite working diligently to learn Microsoft Office suite of tools, she was unable to complete simple tasks in the applications of Word, PowerPoint, and Excel, still had difficulty correctly completing her time and attendance, and had difficulty communicating with information technology (IT) support when she needed to get basic communication applications to work for her.2 S2 added therein that Complainant did not increase her skills with Microsoft Office tools beyond the familiarization level nor independently complete simple tasks in a reasonable amount of time. ROI, Tab F-5, at 760.
The Executive Officer, who sat next to Complainant during the appraisal period in question stated Complainant needed almost daily help from IT support to log onto her computer and she gave Complainant daily assistance in finding her email inbox, instant messaging, calendar and so forth, and after daily sessions reminding her of where they were she would sometimes remember. She added that every pay period Complainant had difficulty completing her time and attendance and asked for assistance from her or S1. ROI, Tab E-7, at 600 - 601.
In her statement, S2 corroborated the above and added that during the appraisal period in question Complainant regularly needed IT support assistance to find documents she was working on, was unable to keep track of her work, and regularly had to correct her basic correspondence to S1. S2 wrote that after several months, Complainant still required assistance from co-workers to perform the simplest tasks on most computer applications and only showed a modicum of improvement beyond the awareness level. S2 stated that Complainant had difficulty or was unable to create posters with the name of the class for class doors and was unable to set up a single column in a spreadsheet with a simple tally. Prior to the appraisal period in question S1 regularly asked members of the Concierge Team to assist Complainant with simple computer tasks. During the appraisal period in question Complainant did not complete tasks within a reasonable amount of time and was so slow team leads had to complete her work. ROI, Tabs B-1, at 55, E-2, at 455, 461, 466 - 468, 474 - 475.
Complainant conceded that she sometimes had problems getting onto computer applications like spell check, but wrote that she learned how to do so independently with practice. She stated that she did not think she locked herself out of her computer almost daily. She conceded needing extra time to perform tasks and not performing up to standard. Complainant wrote that a person mentoring her would need expertise presenting information via writing, verbal, demonstration and repetition, or be a job coach. ROI Tab E-1, at 119, 121, 135, 142 & 152. She felt her appraisal was abusive and should have reflected her progress, such as completing online training courses she could not complete before. Id. at 127 & 133. Complainant proposed appraisal language like "learned to make... [classroom] signs," "e-mailed her arrival time daily," "completed the beginner courses in... Word... PowerPoint... Excel... and Outlook," "able to access Calendars... to set up meetings," and "had difficulty communicating with IT sometimes but not every time." ROI, Tab A-2, at 51 - 52.
Complainant contended that prior to the period in question she was granted the accommodation of being permitted to ask staff for assistance to use computer applications but this was later withdrawn with the explanation that she was not allowed to ask staff for assistance since she needed to complete her work objectives independently. ROI, Tab E-1, at 120 - 121. S2 stated S1 told Complainant that she should not disturb other employees while taking online training (which is largely what she did during the appraisal period in question). ROI, Tab E-2, at 468. But Complainant later indicated that during the appraisal period in question she received help opening computer applications from S1, the Executive Officer, two team leads, and one other, but she did not necessarily ask them every day. ROI Tab E-1, at 141. This is consistent with the Executive Officer's statement.
Complainant contended that in the Summer or Fall of 2013, she asked S1 and S2 to help her investigate reasonable accommodations that would assist her to better use the computer, write and edit documents, and so forth. She contended that she showed them a website that had reasonable accommodation ideas for people with learning disabilities like hers, like assistive technology but they did not take any action. ROI, Tab E-1, at 121 - 122. S2 denied that Complainant asked her for a reasonable accommodation. ROI, Tab E-2, at 462.
In January 2014, after failing the performance appraisal in question, Complainant was returned to her career service's "manning table" pending a new assignment. ROI, Tabs E-2, at 465, E-11, at 643. There, she was assigned a career development officer, who became her new first line supervisor (S3). S3's task was to assist Complainant to increase her knowledge, skills and abilities with the goal of finding her a new position. The assistance included having Complainant formally shadow people for a month followed up with assigning her a mentor for another month. Id., at 643 & 656, Tab E-12, at 666 - 667.
S3 stated that he worked with Complainant for several months and she could not clearly explain nor use Microsoft Word, Excel, PowerPoint, or the browser Internet Explorer. Complainant was unable to use Explorer to find the Mission Support website, despite S3 and the mentor extensively explaining how to perform a basic search. Complainant could not prepare routine, grammatically correct written materials, and in lessons designed to assist her prepared an inaccurate and grammatically incorrect briefing using PowerPoint and repeatedly asked for (lengthy) extensions. Complainant wrote a qualification statement filled with grammar and spelling errors, and told S3 that on a scale of 1 to 5, with 1 being the lowest, her ability to use Word, Excel and PowerPoint was a 1. S3 stated that Complainant requires significant oversight and assistance to complete routine transactional requests, and cannot review multiple and discrepant information and draw meaningful conclusions. Tab E-11, at 658 - 659. In her statement, the mentor corroborated S3's account. She stated that mentoring Complainant was time consuming and she did not progress or gain any additional skills. She added that Complainant did not use spell check or ensure text boxes and formats were aligned and spaced properly. ROI, Tab E-12, at 667 & 669 - 670.
At some point, Complainant's career service assigned her new work - mainly scanning documents for electronic retention. ROI, Tabs E-1, at 115, F-4. Complainant received a performance appraisal for the period of July 1, 2014 to June 30, 2015, with an overall rating of Fully Successful and positive comments complimenting her scanning work. Complainant wrote that she enjoys this surge assignment and wishes to remain there until she can find a permanent position. ROI Tab E-1, at 156.
In its FAD, the Agency found that Complainant did not raise reasonable accommodation with the EEO counselor and in her complaint, and waived the right to do so after not responding to its September 2, 2014, letter advising her that she could amend her complaint to add denial of reasonable accommodation. The Agency found that Complainant was an individual with a disability, but was not qualified to perform the essential functions of her position at CIA University after she was expected to perform regular concierge duties. The Agency found that assuming without finding that Complainant made out a prima facie case of disability discrimination, it articulated a legitimate, nondiscriminatory reason for its actions - the appraisal ratings and narratives were accurate. The Agency found that Complainant failed to prove pretext.
On appeal Complainant argues that she did not waive her right to raise denial of reasonable accommodation, and received the negative appraisal in question after being denied reasonable accommodation. In opposition to the appeal, the Agency argues that Complainant waived a denial of reasonable accommodation claim and the FAD should be affirmed.
ANALYSIS AND FINDINGS
As an initial matter, we find that Complainant raised denial of reasonable accommodation with the EEO counselor and in her complaint, and did not waive this. She relayed to the EEO counselor that management did not take her learning disability into account. In her complaint form Complainant wrote that "... appraisal... was prepared... without taking into account... need for accommodation..." and that she wanted the Agency to take "into account disability and accommodation needs." ROI, Tabs A-1 at 47, B-1 at 54. Complainant alleged that she had a learning disability and the Agency wrote in the appraisal that she put forth "diligent" efforts but was not able to increase her skills beyond the familiarization level. We find that the denial of reasonable accommodation was inherently part of Complainant's disability claim. It appears that the investigator saw things the same way because she thoroughly investigated Complainant's reasonable accommodation claim, explicitly developing the record on this.
Under the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). To determine whether Complainant is entitled to a reasonable accommodation, we must first analyze whether she is a "qualified individual with a disability" within the meaning of the Rehabilitation Act.
The Agency does not contest that Complainant is an individual with a disability. An individual with a disability is "qualified" if she satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without accommodation, can perform the essential functions of such position." 29 C.F.R. � 1630.2(m).
We agree with the Agency that Complainant was not qualified to perform the essential functions of her position of Mission Support Administrator assigned to the Concierge Team at CIA University performing the regular duties thereof - the position she held - (with or without reasonable accommodation). We make this finding even assuming Complainant showed S1 and S2 a website with suggested technological accommodations for individuals with learning disabilities like hers and they took no action on this.
Even after months of effort, with repeated nearly daily assistance, Complainant was unable to perform anything even approaching her essential functions while assigned to the Concierge Team at CIA University to perform the regular duties thereof. This is consistent with the neuropsychological evaluation report Complainant submitted on her abilities and limitations and her performance after she left CIA University while her career service intensively tried to prepare her for regular Mission Support Administrative work using shadowing and mentoring and she gained no skills. Given the strong evidence in the record, we find that the appraisal in question accurately and without discrimination measured Complainant's performance.3
S2's statement that the appraisal ratings and comments by her and S1 were strictly based on Complainant's performance is credible. ROI, Tab E-2, at 470. Complainant has not shown she was subjected to discrimination. The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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 Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 13, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 S1 retired sometime prior to Complainant filing her complaint and declined to participate in the EEO investigation.
3 We are not determining whether Complainant was qualified for a position she desired. That issue is not before us. We note that Complainant is pleased with her current assignment.
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