0120073631
07-07-2010
Jonathan Flagg, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Jonathan Flagg,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120073631
Agency No. SF-05-0370-SSA
Hearing No. 480-2006-00322X
and
Appeal No. 0120081000
Agency No. SF-05-0122-SSA
DECISION1
On August 16, 2007, Complainant filed Appeal No. 0120073631 from
the Agency's July 30, 2007, final order (FO) in regard to Agency
No. SF-05-0370-SSA (Complaint 1) concerning his equal employment
opportunity (EEO) complaint alleging employment 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). Specifically,
Complainant alleged that the Agency discriminated against him based
on disability (Asperger's Syndrome, speech impediments, sleep apnea,
and anxiety), sex, and in reprisal for previous EEO activity when he was
harassed and subjected to a hostile work environment, in that the Agency
denied his request for reasonable accommodation on July 14, 2005. For the
following reasons, the Commission AFFIRMS the Agency's final order.
On December 19, 2007, Complainant filed Appeal No. 0120081000 from the
Agency's November 26, 2007, final Agency decision (FAD) in regard to
Agency No. SF-05-0122-SSA (Complaint 2) concerning his 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). Specifically, Complainant alleged that the
Agency discriminated against him based on disability (Asperger's Syndrome,
work-related stress, and sleep apnea) and in reprisal for previous EEO
activity when he was harassed and subjected to a hostile work environment,
identifying the following events: (a) regarding time and attendance,
(i) in response to his request for additional leave, the Agency sent
him a letter threatening his removal, if he did not return to work
as of August 26, 2005, and denied his request for additional leave;
(ii) management charged Complainant with Absent Without Official Leave
(AWOL) for August 24 and August 25, 2005; (b) on September 22, 2005,
management issued Complainant a formal reprimand, citing the AWOL
charge; (c) management continues to refuse Complainant's requests
for reasonable accommodation; (d) after his return from leave, the
Agency resumed Complainant's Performance Enhancement Plan (PEP); and
(e) management assigned him clerical duties instead of the duties of
his Claims Representative position. For the following reasons, the
Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of the events giving rise to these complaints, Complainant
worked as a Social Insurance Representative, commonly called a Claims
Representative (CR), at the Agency's Puente Valley District Office in
West Covina, California. Complainant began his service with the Agency
in January 1988 as a Benefits Examiner, was promoted to CR in 1991, and
worked in that position until his removal effective September 29, 2006.
The incumbent of the CR position must handle a varied workload, including
face-to-face interviews and processing claims. The essential functions
(also called "critical elements" by the agency) of the CR position
required the incumbent to (i) interview and inform members of the
general public regarding their rights and responsibilities under the
programs administered by the Agency, e.g., benefits for retirement,
disability, and Medicare; (ii) receive and fully process a variety
of claims and post-entitlement actions; (iii) reconcile discrepancies
between case allegations and evidence, and adjudicate the acceptability
and conclusiveness of all relevant factors; (iv) determine the entitlement
and take final action, authorizing or disallowing, the client's claim.
In late March 2003, the Agency placed Complainant on an Assistance Plan
(AP) for 120 days, through August 22, 2003, to improve his performance.
During the AP, his managers made adjustments in his duties, e.g., the
number of interviews was reduced, non-interview time was increased,
he was exempted from Service Representative of the Day (SR) rotation,
and he was not required to respond to the chimer.2 His performance
remained unsuccessful. Subsequently, on September 15, 2003, he was
placed on a Performance Enhancement Plan (PEP) to last for 90 days.
On December 3, 2003, Complainant began an extended period of leave,
not returning until late August 2005. After he returned to work, the
Agency resumed the PEP, adding 30 additional days for further review.
While on leave, in January 2004, Complainant was diagnosed with Asperger's
Syndrome, an autism spectrum disorder.3 Complainant notified his
managers about his diagnosis. The Agency informed him what information
and supporting documentation would be necessary, should he request a
reasonable accommodation.
On or about May 27, 2004, Complainant requested reasonable accommodation
for his disability, i.e., Asperger's Syndrome, stress, and sleep
apnea, to include a reduced workload and that his duties be limited
as follows: perform Continuing Disability Reviews (CDR) (work and
medical); no assigned interviews other than those arising from CDRs
and only as arranged by Complainant; no chimer or SR duties; no CR
interviews late in the day; and a clerical assistant in the afternoon,
Monday through Friday, to handle mail and provide assistance with
filing and desk organization and other clerical assistance as needed.
Complainant also stated that he required an inflexible daily schedule,
performing a constant and repetitive workload. The medical documentation
submitted in support consisted of two letters from his physician (Dr. F)
dated in June 2004, and a letter dated May 14, 2004, from a social worker
stating the necessary accommodations for Complainant, which needed to
be in place before he returned to work.
On July 14, 2004, the District Manager, Complainant's second-level
supervisor (S2), denied his request. She stated that the Agency is
required to provide reasonable accommodation to qualified individuals
with a disability. She further informed Complainant that the purpose
of reasonable accommodation is to enable such employees to perform the
essential duties of their positions. Because Complainant sought to alter
the essential functions of his job, S1 found that grant of his request
would not enable him to perform the essential functions of his job,
and his request must be denied. Further, S2 opined that Complainant's
supporting documentation and work performance, including work under
the AP and PEP, did not show that he was a qualified individual with
a disability or establish that he was substantially limited in a major
life activity.
On August 3, 2004, Complainant contacted an EEO counselor regarding the
issues raised in Complaint 1, and, on July 27, 2005, he filed Complaint
1.4 Following an investigation and receipt of the Report of Investigation
(ROI) in February 2006, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). On June 21, 2007, the AJ issued summary
judgment (a decision without a hearing) in favor of the Agency, and the
Agency issued its Final Order, agreeing to implement the AJ's decision.
In February 2005, Complainant submitted a request to extend his leave
after August 23, 2005, when his 12 weeks of leave under the Family
Medical and Leave Act (FMLA) expired. Dr. F also provided additional
and more detailed medical information, stating that Complainant had
Asperger's Syndrome, acute stress disorder, and a major depressive
disorder (single episode), the latter two being work-related. She opined
that his "condition of Asperger's Syndrome in no way prevents him from
fulfilling the critical elements of his job," but she stated that his
ability to perform his duties rested on the Agency's compliance with
modifications previously described in letters dated May-June 2004,
e.g., a constant daily workload, no sudden changes in his daily routine,
and little or no face-to-face interaction with the public.
The Agency's Medical Officer (MO) reviewed the medical information
submitted by Complainant or on his behalf. In March 2005, she reported
that, in her view, Complainant was an individual with a disability;
however, because the requested reasonable accommodations would eliminate
some of the essential functions of his position, he was likely not a
qualified individual with a disability for the CR position. Further, she
recommended that the Agency perform a job search to determine whether
any positions within his limitations were vacant and available for
reassignment. Consequently, in November 2005, an Agency Human Resources
Specialist (HRS) conducted a search for positions within Complainant's
limitations. She identified several possibilities, although at a
lower salary, but Complainant rejected them as "beneath" his abilities.
Complainant had asked that he be considered for the position of Benefits
Authorizer, a job he had previously performed, but he did not identify
a vacant position or show that he could perform the essential functions
of that position with or without reasonable accommodation.
The Agency denied Complainant's request for further leave, informing
Complainant that none was available to him, and directed him to return to
work on August 24, 2005.5 Complainant did not return until August 26,
2005, and the Agency charged him AWOL for the two days missed; it also
issued a reprimand to Complainant on September 22, 2005. In September
2005, the Agency resumed the PEP and added additional time for further
review. As part of the PEP, Complainant was afforded substantial training
about the Agency's functions, as well as instruction in personal and
office organization by outside consultants. After the PEP, S2 found
that Complainant's level of performance remained unacceptable, in that
he failed all of the Critical Elements under review and continued to make
errors.6 She acknowledged that, thereafter, Complainant was assigned to
perform clerical duties, because he could not perform the duties of the CR
position. The Agency terminated Complainant effective October 29, 2006.7
Complainant sought EEO counseling for the issues raised in Complaint
2 on September 28, 2005, and, after ADR failed, he filed Complaint 2
on June 6, 2006. Following an investigation and receipt of the ROI,
he did not respond to the Agency's Notice of his right to request a
hearing or a final decision. On November 26, 2007, the Agency issued
its final decision, finding that the Agency did not discriminate against
Complainant as alleged.
AJ's Decision on Complaint 1
On August 21, 2007, the AJ elected to issue a decision on the record
and granted summary judgment in favor of the Agency, finding that no
genuine issue of material fact existed. He found that Complainant did
not show that he was a qualified individual with a disability under
the Rehabilitation Act and that, even if Complainant had done so, the
Agency met its obligation to consider the reasonable accommodation of
reassignment; that, assuming Complainant established a prima facie case
of discrimination based on reprisal, he did not demonstrate pretext
in response to the Agency's articulated reasons; and that Complainant
failed to identify any similarly situated female employees who were
treated more favorably under the same circumstances. Finally, the AJ
found that Complainant did not show that the events cited in support
of his claim of harassment/hostile work environment were sufficiently
severe or pervasive to rise to the level of illicit activity, nor did he
demonstrate that the Agency's actions were based on his protected status,
i.e., his disability, sex, or in reprisal.
Final Agency Decision on Complaint 2
On November 26, 2007, the agency issued its final decision on Complaint
2, finding no discrimination. The agency concluded that complainant,
inter alia, had not established that the agency's conduct amounted to
harassment.
CONTENTIONS ON APPEAL
Complainant did not submit comments in support of either appeal.
The Agency submitted comments in response to Complainant's appeal of
Complaint 1, contending that Complainant did not show that he was able
to perform the essential functions of his position, with or without
reasonable accommodation. Also, the Agency argued that it provided
Complainant reasonable accommodation by eliminating some duties during
the AP and PEP and considered reassignment as a reasonable accommodation.
The Agency noted that Complainant did not show a causal connection to
his EEO activity in 2002, which was too long ago to demonstrate a causal
connection by temporal proximity. The Agency did not file comments in
response to the appeal of Complaint 2.
ANALYSIS AND FINDINGS
Standard of Review
The standard of review in rendering this appellate decision is de
novo, i.e., the Commission will examine the record and review the
documents, statements, and testimony of record, including any timely
and relevant submissions of the parties, and issue its decision based
on the Commission's own assessment of the record and its interpretation
of the law. See 29 C.F.R. � 1614.405(a); EEO Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Summary Judgment (Complaint 1)
Following the investigation of Complaint 1, Complainant requested a
hearing; however, the AJ issued a decision without a hearing in favor
of the Agency. We must initially consider whether the AJ properly
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when the AJ
finds that there are no genuine issues of material fact and no issues of
credibility to be resolved. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given
the substantive legal and evidentiary standards that apply to the case,
there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
An issue of fact is "genuine" if the evidence is such that a reasonable
fact-finder could find in favor of the non-moving party. Celotex
v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the
potential to affect the outcome of the case. The AJ may issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003). After review,
we find that summary judgment was proper, in that no genuine issues of
material fact or questions of credibility remained to be determined at
a hearing.
Legal Framework
Where there is no direct evidence of discrimination, the Commission
examines complaints of discrimination according to the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
For a complainant to prevail, he or she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration, such as sex, disability, or reprisal,
was a factor in the adverse employment action. McDonnell Douglas, 411
U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once Complainant has established a prima facie case of discrimination,
the burden of production shifts to the Agency to articulate a legitimate,
nondiscriminatory reason(s) for its action(s). Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency
is successful, the burden reverts to the Complainant to demonstrate,
by a preponderance of the evidence, that the Agency's reason for its
action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his/her obligation to show, by
preponderant evidence, that the Agency acted on the basis of a prohibited
reason, i.e., his disability, sex, or in reprisal. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
For analysis of claims of disparate treatment based on reprisal for
prior EEO activity, following the three-part scheme of McDonnell Douglas,
Complainant can establish a prima facie case of reprisal discrimination
by showing that: (1) s/he engaged in a protected EEO activity; (2) the
acting Agency official(s) was aware of the prior protected EEO activity;
(3) subsequently, s/he was subjected to adverse treatment by the Agency;
and (4) a nexus, or causal connection, exists between the prior protected
activity and the adverse treatment. See Whitmire v. Department of the
Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). To demonstrate
a nexus based on temporal proximity, the period of time separating the
EEO activity and the event at issue must be very close. See Clark
County School District v. Breeden, 532 U.S. 268 (2001) (in order to
establish sufficient evidence of causality, the time period between
the employer's initial knowledge of the prior protected activity and
the adverse employment action must be "very close;" a three month time
period was not sufficiently proximate to establish a causal nexus);
EEOC Compliance Manual, Section 8, Retaliation, pp. 8-18 (to support a
finding of unlawful retaliation, there must be proof that the acting
Agency official(s) took the action at issue because of Complainant's
prior protected activity and sought to deter Complainant or others).
For a claim based on disability discrimination, as a threshold matter, a
Complainant must establish that s/he is an individual with a disability.
29 C.F.R. � 1630.2(g). Under the Commission's regulations, federal
agencies may not discriminate against individuals with disabilities and
are required to make reasonable accommodation for the known physical
and mental limitations of qualified individuals with disabilities,
unless an Agency can show that reasonable accommodation would cause
an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p); Appendix to
Part 1630--Interpretive Guidance on Title I of the Americans with
Disabilities Act; EEOC Enforcement Guidance: Reasonable Accommodation
and Undue Hardship Under the Americans With Disabilities Act (October
17, 2002); see also Definition of the Term Disability, Section 902 of
the EEOC Compliance Manual.8
An individual with a disability must show, in addition, that he is
a qualified individual with a disability. 29 C.F.R. � 1630.2(m).
A qualified individual with a disability is one who 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 reasonable accommodation, can perform the essential
functions of the position. Id.
Harassment
To support a claim of harassment/hostile work environment, a complainant
must show that the actions complained of were taken because of or based
on her or his protected status of disability, sex, or in reprisal and
be sufficiently patterned or pervasive; usually, a single incident
or a group of isolated, discrete incidents will not be regarded as
discriminatory harassment. To demonstrate an abusive or hostile work
environment, Complainant must show that "the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the condition of the victim's employment."
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). An alteration
to an employee's working conditions exists if a tangible, discrete
employment action is taken, e.g., hiring, firing, transfer, promotion,
non-selection, or the Agency's actions were sufficiently severe and/or
pervasive to create a hostile work environment.
Complainant's Claims
Disability/Reasonable Accommodation. Complainant is not a qualified
individual with a disability within the meaning of 29 C.F.R. �
1630.2(m). Because of his failure to successfully complete the AP
and PEP, Complainant has not shown that he satisfied the requisite
skill, experience, education, and other job-related requirements of
the employment position he held or desired or that he could, with
or without reasonable accommodation, perform the essential functions
of the position. Id. For this reason, the Agency is not mandated to
provide him a reasonable accommodation under the Rehabilitation Act for
the CR position.
Further, we find that the Agency provided Complainant with an effective
reasonable accommodation, i.e., he was placed on an AP and PEP, receiving
singular assistance and feedback on his performance; the Agency excluded
some of the critical elements and the marginal functions of his position
while he worked under the AP and PEP; the Agency allowed Complainant to
take an extended leave of 21 months, granting him use of advanced and
other leave; and, the Agency considered the reasonable accommodation
of reassignment when it conducted a search for vacant, funded positions
within his restrictions and offered them to complainant.9 We note that a
Complainant is not entitled to the reasonable accommodation of his choice.
Enforcement Guidance, supra, at Question 9.
Disparate Treatment based on Sex. Complainant failed to establish a prima
facie case of discrimination based on sex, in that he did not identify a
similarly-situated female employee who was treated more favorably under
the same circumstances. Moreover, even if he had done so, the Agency
articulated legitimate, nondiscriminatory reasons for its actions,
in response to which Complainant did not demonstrate pretext through
preponderant and probative evidence. Complainant's allegations and
speculations, without more, are insufficient to demonstrate pretext.
Reprisal. While Complainant can meet three of the elements to establish
a prima facie case of discrimination based on reprisal, he has not
shown that a nexus, or causal connection, exists between the protected
activity and the adverse treatment. To support a finding of unlawful
retaliation, Complainant must present proof that the acting Agency
official(s) took the adverse action at issue because of Complainant's
prior protected activity or sought to deter Complainant or others from
pursuing their EEO rights. EEOC Compliance Manual on Retaliation,
(May 20, 1998), pp. 8-16. Complainant has not shown that his prior EEO
activity caused Agency officials to deny his requests for reasonable
accommodation or the alleged acts in his complaint. Further, even if
he had established a prima facie of discrimination based on reprisal, as
stated, the Agency articulated legitimate, nondiscriminatory reasons for
its actions, in response to which, Complainant did not demonstrate pretext
through preponderant probative evidence. Complainant's allegations and
speculations, without more, are insufficient to demonstrate pretext.
Harassment. In the instant case, we find that Complainant failed to show
that the Agency's actions constituted harassment or were sufficiently
severe or pervasive to rise to the level of illegal harassment or created
a hostile work environment. See Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997), citing Harris v. Forklift Systems,
Inc., supra (harassment is actionable if it is sufficiently severe or
pervasive to alter the conditions of the Complainant's employment).
Moreover, Complainant has not shown that the alleged harassment affected
a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment. See Humphrey
v. United States Postal Service, EEOC Appeal No. 01965238 (October 16,
1998).
CONCLUSION
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the Agency's final order, because the Administrative
Judge's issuance of a decision without a hearing was appropriate,
and a preponderance of the record evidence does not establish that
discrimination occurred; and to AFFIRM the Agency's final decision,
because complainant has not established that discrimination occurred as
alleged.
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
July 7, 2010
Date
1 In the interest of administrative economy, and because of the proximity
of the events giving rise to Complainant's two complaints, his appeals
have been consolidated for decision. See 29 C.F.R. � 1614.606.
2 Each day, CRs, in rotation, are assigned to answer the chimer, or
telephone, located in the lobby, for members of the public who come to
the facility and request assistance.
3 Asperger's syndrome is marked by impaired social interaction,
repetitive patterns of behavior and restricted interests, moderately
normal language and cognitive development, clumsiness, and often by
above-average performance in a narrow field against a general background
of deficient functioning. National Institute of Heath, Medline Plus,
at http://www.nlm.nih.gov/medlineplus/.
4 The parties engaged in alternative dispute resolution (ADR) but were
unable to resolve their differences.
5 Complainant had used 1,500 hours of sick leave, 416 hours of annual
leave, 3.75 hours of credit time, 912 hours of leave without pay (LWOP),
and 480 hours under the FMLA.
6 The record is replete with complaints from members of the public and
assessments from supervisors and managers about his numerous errors,
which required correction by other staff. From September 1-October 25,
2005, supervisors reviewed 33 cases Complainant completed, of which 31
(or 94%) had significant errors. See Final Report, November 15, 2005.
7 The record does not contain information about Complainant's
termination.
8 All documents cited in this decision and other information are available
on the Commission's website at www.eeoc.gov.
9 An Agency is not required to create a job for Complainant as a
reasonable accommodation. To the extent that Complainant sought a
different job, he must show that there is a vacant position and that
he can perform the essential functions of the job, with or without a
reasonable accommodation.
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0120073631
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073631