[Redacted], Freddy V., 1 Petitioner,v.Christopher C. Miller, Acting Secretary, Department of Defense (Office of the Secretary of Defense), Agency.

Equal Employment Opportunity Commission

Dec 16, 2020

Petition No. 2020003676 (E.E.O.C. Dec. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Freddy V.,1 Petitioner, v. Christopher C. Miller, Acting Secretary, Department of Defense (Office of the Secretary of Defense), Agency. Petition No. 2020003676 MSPB No. DC-0752-19-0463-I-2 DECISION On June 4, 2020, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or 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. ISSUE PRESENTED The issue presented is whether the Commission should concur with the MSPB’s finding that Petitioner did not establish that the Agency discriminated against him on the basis of disability (cognitive learning and anxiety disorder) and in reprisal for protected activity when he was removed from his position. 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2020003676 2 BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Administrative Support Assistant, GS-0303-07, at the Agency’s Washington Headquarters Services (WHS), Vietnam War Commemoration facility in Washington, D.C. Petitioner was initially hired as a Community Relations Specialist. In March 2015, Petitioner’s position changed to Administrative Support Assistant to more adequately reflect the duties that he performed. The position description for the Administrative Support Assistant required Petitioner to: • assist the Vietnam War Commemoration in the management of all administrative support functions; administer programs and serve as the primary source of information; prepare and maintain required administrative reports and correspondence; assist in internal operations; • develop and maintain effective working relationships with veterans’ organizations, special event coordinators, protocol officers, and suppliers through timely follow-up; participate in the development and execution of commission events by working with staff to make arrangements for set-up and post-event stand-down; assist in coordinating the release of information to the media and public about events; research ongoing activities and developments of veterans’ organizations and share the results with leadership; perform research regarding the Commemoration’s ability to conduct events; • perform clerical and administrative work; provide advice and guidance to staff on administrative, clerical, and procedural requirements; perform principal support assistant duties for the Guest Reception area to include meeting and greeting visitors; notify Directorate Chiefs of visitors’ presence and escort guests to designated meeting areas; screen and transfer phone calls; log and deliver phone messages left on the Commemoration Voicemail System; • serve as a focal point for questions or issues called into the Commemoration and disseminate to the appropriate individual; respond to veteran organizations on issues and questions pertaining to commemorative events planned by local, regional, or national agencies; • receive and distribute all incoming Commemoration correspondence including mail and packages to intended recipient; process all outgoing Commemoration correspondence for mailing by coordinating with postal organizations for pick-up and delivery; use established database or spreadsheet to maintain tracking of data in digital form; and • perform other duties as assigned. On October 3, 2016, a new Assistant Director for Administration (Assistant Director) began supervising Petitioner. Petitioner stated that prior to Assistant Director’s supervision, he had received “acceptable” annual performance ratings since 2010. In June 2016, when questioned why Petitioner had received a “met” in all of his performance standards but did not receive a performance award, Assistant Director’s predecessor stated that “the rating of ‘met’ is generous, but there isn’t sufficient documentation nor is there management appetite for a lower rating.” 2020003676 3 Assistant Director testified that when she began supervising Petitioner, she learned that a significant portion of Petitioner’s essential tasks had been temporarily removed or reassigned because of significant problems. She said that when she first arrived at the office, she noticed that Petitioner’s coworkers performed his tasks and people would not go to him to request things. Prior to Assistant Director’s arrival, Petitioner’s performance plan indicated that he was rated acceptable in the areas of: (1) Receptionist; (2) Mail Specialist; and (3) Administrative Support. Regardig his receptionist duties, Petitioner was responsible for meeting and greeting visitors; assisting and directing/escorting guests to the appropriate office; maintaining a Commemoration Visitor’s log; retrieving and tracking off duty messages from the Toll line and providing to the appropriate Branch for action. His mail specialist duties entailed preparing letters/packages for mailing worldwide and ensuring accurate addressing for proper delivery; and receiving all incoming mail for the office and delivering to the appropriate Branch or person. In his administrative support capacity, Petitioner was required to maintain the office phone roster; gather and organize information to be used for processing new incoming employees; and receiving and delivering faxes to the appropriate Branch or person. Petitioner was limited to no more than four related issues during the rating period in each area. Assistant Director testified that, in her observation of Petitioner’s performance, Petitioner failed to properly make photocopies, failed to deliver packages, forgot instructions on how to process emails, misspelled names, forgot instructions, and generally could not complete his duties. Assistant Director’s testimony further indicated that Petitioner struggled with producing a monthly office roster, the phone roster, and the list of staff member birthdays without significant errors; tracking tasks for team meetings through notes; entering basic data from business cards into a database; following a two-sentence script on phone calls; tracking and sorting electronic files; distinguishing between the location of files; following protocol with visitors; and independently creating or updating simple documents. On July 3, 2017, Assistant Director issued Petitioner a performance improvement plan. Assistant Director asserted that the performance improvement plan was necessary due to numerous written and verbal communication errors; failure to follow instructions on basic procedures in a repeated manner; and failure to self-correct errors through notes, questions, follow-up, and review. Assistant Director noted that the performance improvement plan would be given to a higher-level rater. The record does not indicate that Petitioner was ultimately placed on the performance improvement plan. On August 10, 2017, Petitioner and his mother met with the WHS Reasonable Accommodation Program Manager to discuss accommodation options for Petitioner’s learning disability. The Program Manager testified that Petitioner requested assistance with guidance on the equipment that could assist him in doing his job due to declining job performance. She stated that Petitioner indicated that he had problems recalling information and multi-tasking, but he did not know specifically what he needed. Prior to this meeting, Petitioner had not been receiving accommodations. However, his previous supervisors had removed or reassigned many of his duties. 2020003676 4 Shortly after meeting with the Reasonable Accommodation Program Manager, Petitioner and his mother informed Assistant Director that Petitioner suffered from a disability and that he had requested reasonable accommodation from the WHS Reasonable Accommodation Program Office. Petitioner stated that his needed accommodations included more time to process information; a patient supervisor who did not get angry because of his disability; a stress-free, supportive environment; more time to complete tasks; written instructions; clearly defined duties with time to master them; a distraction-free work environment; no multi-tasking; and repetition. On December 4, 2017, the Disability and Reasonable Accommodation Program Manager emailed Assistant Director stating that, “it is apparent that due to his prescribed cognitive limitations in reading comprehension, problem solving, and processing information, that the tasks associated with his position are not doable for him. Therefore, I highly recommended…that you give some serious consideration to his reassignment to a new position as an accommodation that will be more aligned with his skillsets and capacity to perform, even at a lower grade level.” On April 27, 2018, Assistant Director issued a determination on Petitioner’s reasonable accommodation request. In the determination, Assistant Director stated that the Agency engaged in an extensive interactive process and concluded that, unfortunately and despite diligent efforts, neither Petitioner nor the Agency had been able to identify any accommodations that were both effective and reasonable. Assistant Director stated that Petitioner had been provided multiple accommodations and continued to struggle to adequately perform the essential tasks of his position. Assistant Director noted that a significant portion of Petitioner’s essential tasks had been removed and/or reassigned to others prior to her becoming Petitioner’s supervisor, that she had begun reintroducing these tasks, and that she had begun giving Petitioner verbal and written feedback. She further documented efforts to accommodate Petitioner before and after his August 2017 request for accommodation. On or about June 1, 2018, Assistant Director issued Petitioner a performance evaluation for April 1, 2017 through March 31, 2018. Petitioner was rated on three elements: Receptionist, Mail Specialist, and Administrative Support. Petitioner received a rating of “3-Fully Successful” in the elements of Receptionist and Mail Specialist. He received a rating of “1-Unacceptable” in the element of Administrative Support. On July 23, 2018, Assistant Director requested a search of available/vacant positions at the GS-7 grade level or lower to which Petitioner could be reassigned. In the email, Assistant Director noted that it was determined in April 2018, that a reassignment was not available, and she wanted to recheck for the possibility of reassignment. On the following day, Assistant Director was informed that a review resulted in approximately 10 positions, but there were no matches for Petitioner’s skills requirements. 2020003676 5 On January 7, 2019, S1 proposed Petitioner’s removal for inability to perform the essential duties of his position. Petitioner, through counsel, submitted a written response on January 29, 2019. On April 5, 2019, the Agency issued a Decision on Proposed Removal, which sustained Petitioner’s removal. Petitioner filed a Board appeal alleging that the Agency discriminated against him on the bases of disability (cognitive learning and anxiety disorder) and reprisal for prior protected EEO activity when he was removed from his position for medical inability to perform the essential functions of his position. A hearing was held and thereafter the MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency’s removal action was appropriate. The MSPB AJ stated that, based on the evidence and testimony, Petitioner was unable to perform his duties. In support, the MSPB AJ noted that Assistant Director provided specific examples of Petitioner’s work deficiencies and Petitioner’s coworkers testified about the times Petitioner committed errors. The MSPB AJ noted Petitioner’s performance appraisal, which showed that Petitioner failed to produce a monthly roster; failed to assist in the tracking of tasks for the administration team meeting; had a serious deficiency and failure to enter basic data from business cards into an Excel spreadsheet; failed to independently photocopy documents; failed to track and sort electronic files; failed to follow a two-sentence script on phone calls; and failed to follow instructions. He noted that, while Petitioner provided witnesses, the witnesses either worked with Petitioner in an extremely limited capacity or supervised Petitioner years prior to his removal. The MSPB AJ further found that Petitioner failed to establish his affirmative defenses that the Agency discriminated against him by failing to accommodate his disability and retaliating against him. Regarding Petitioner’s failure-to-accommodate claim, the MSPB AJ found that, although Petitioner was an individual with a disability, he was not a “qualified” individual because he could not perform the essential functions of his position. The MSPB AJ determined that there was a nexus between Petitioner’s medical condition and observed deficiencies in his performance. Moreover, the MSPB AJ determined that the Agency demonstrated by a preponderance of the evidence that providing all the requested reasonable accommodations would cause an undue hardship. Specifically, relief of one-third of Petitioner’s duties would constitute a significant amount of his duties and mandating that an Administrative Support Assistant be relieved of all receptionist duties would place an undue hardship on the Agency. The MSPB AJ accepted the Agency’s argument that, based on the nature of the position, it would not be possible to completely avoid having Petitioner multi-task without placing an undue burden on the Agency. He further determined that the Agency did not harass Petitioner, and restricting feedback would have placed an undue burden on the Agency. The MSPB AJ concluded that Petitioner failed to make a prima facie case of disability discrimination or reprisal for EEO activity. Petitioner then filed the instant petition. 2020003676 6 ARGUMENTS IN PETITION In his petition, Petitioner argues that the MSPB AJ erred in concluding that one search for a reassignment satisfied the Agency’s duty to explore reassignment. Petitioner asserts that the Agency did not conduct an Agency-wide search and only initiated the search after the EEO Investigator requested documentation showing that the Agency explored reassignment. Petitioner adds that the search was conducted many months after the Agency determined that Petitioner’s accommodations were not working. He further states that the MSPB AJ made an error of fact when he concluded that Agency officials engaged in a months-long search of vacancies within the Agency. Petitioner contends that Agency officials testified that they did not conduct an Agency- wide reassignment search. Petitioner contends that he could perform the essential functions of his position and that the MSPB AJ erroneously concluded that he could not. In support, Petitioner states that the Agency failed to provide evidence that he was medically unable to perform and relied on medical documentation that was over a year old. Petitioner contends that the Agency should have requested additional medical documentation to make an informed decision, or in the alternative, the Agency should have offered him a medical evaluation. He further argues that the Commission should conclude that Assistant Director was not credible because testimony provided by his coworkers indicated that he was pleasant to work with despite Assistant Director’s statement that a significant number of his essential duties were reassigned to others, and Assistant Director provided no names or witnesses. He also claims that the Agency presented no documentation regarding the accommodations that were provided or special computer software to aid in performing his duties. In addition, Petitioner notes that Assistant Director refused to allow him to attend a writing class even though he used Windows Narrator and did not find it helpful. Petitioner asserts that his physician credibly testified that he was medically able to perform and that the MSPB AJ was wrong to ignore that testimony. He adds that the MSPB AJ further erred by concluding that Petitioner did not “recover” from his disabilities because he was permanently disabled. Petitioner urges the Commission to find that he is a “qualified” individual with a disability based on the totality of the record, which he asserts shows that he was able to perform the essential functions of his position with or without accommodation. In support, Petitioner adds that he had been able to work with multiple supervisors and coworkers since 2010. Petitioner reiterates his argument that the Agency failed to provide him with a reasonable accommodation and did not prove that providing reasonable accommodation would be an undue hardship. He maintains that it was inappropriate for the Agency to terminate him without addressing his accommodation requests. Finally, Petitioner argues that the MSPB AJ erred in finding that the Agency did not subject him to disparate treatment or reprisal. The Agency maintains that Petitioner could not perform the essential functions of the position and that the MSPB AJ correctly concluded that he was not a qualified individual. The Agency asserts that the assessment that Petitioner could have been successful with different supervision is pure speculation and the physician providing the testimony did not know Petitioner’s essential duties and lacked the necessary information to conclude that Petitioner could perform his essential duties. 2020003676 7 The Agency asserts that the MSPB AJ identified with considerable specificity the tasks that Petitioner could not perform and correctly characterized Petitioner’s description of emails from Assistant Director as baseless rather than harassing. The Agency contends that the MSPB AJ correctly concluded that Petitioner was not subjected to disparate treatment or reprisal; the Agency did not fail to accommodate Petitioner; the Agency conducted sufficient searches for reassignment; and Petitioner did not recover from his medical condition. STANDARD OF REVIEW 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). ANALYSIS AND FINDINGS Failure to Accommodate Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result in undue hardship upon their operations. See 29 C.F.R. §§ 1630.2(o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). In order to establish that Petitioner was denied a reasonable accommodation, Petitioner must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance Upon receipt of a request for accommodation, the burden is on a “covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation.” 29 C.F.R. § 1630.2(o)(3). In this case, it is undisputed that Petitioner is an individual with a disability. Based on the evidence of record, however, we agree with the MSPB AJ’s determination that the evidence does not establish that Petitioner is a qualified individual with a disability. A “qualified individual with a disability” is one who satisfies the requisite skill, experience education, and other job-related requirements of the employment position and who with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental duties of a job, that is, the outcomes that must be achieved by someone in that position. Gwendolyn G. v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). 2020003676 8 Following a review of the record, we find that Petitioner has not shown that he could perform the essential functions of his position with or without reasonable accommodation. The Agency specifically referenced numerous administrative functions that Petitioner needed to be able to perform and Petitioner’s demonstrated inability to perform such functions. We note that despite Petitioner not being a qualified individual with a disability, the record shows that the Agency nevertheless engaged in the interactive process and attempted to provide Petitioner with his requested accommodations, including additional time and extended deadlines, notetaking equipment, written instruction and feedback, repetitive tasks, and clearly defined duties. Further, the Agency removed some of the essential functions of his position. Petitioner argues that because two elements of his performance plan were rated as acceptable, he demonstrated that he could perform the essential functions of his position. However, we find that the removal of one-third of his duties supports the Agency’s argument that Petitioner was not performing his essential functions. An agency is not required to remove any of the essential functions of a position as a reasonable accommodation. Enforcement Guidance at Question 16. In support of his argument that he was able to perform the essential functions of his position prior to Assistant Director’s arrival, Petitioner states that his prior performance evaluations were all acceptable. However, email correspondence supports Assistant Director’s statement that her predecessors had not provided Petitioner with completely accurate performance appraisals. For example, in June 2016, a management official noted that Petitioner’s rating had been generous based on management attitudes and requested recommendations on a training class or program that would help Petitioner be more effective in his job. We note that Petitioner argues at great length that the Agency should have provided him with a reassignment. Petitioner has not demonstrated that he could perform the essential functions of the position that he held, and we find that he has not established that he is a qualified individual with respect to a reassignment. An employee seeking reassignment as a reasonable accommodation generally must make a facial showing that there existed a vacant, funded position whose essential functions the employee could perform. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002) (complainant can establish that vacant, funded positions existed by producing evidence of particular vacancies or by showing that s/he was qualified to perform a job or jobs that existed at the agency and there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period). Here, in support of his reassignment argument, Petitioner requests to supplement the record with a document indicating that vacant, funded positions existed that he could perform. We note that the Commission shall “consider the entire record of the proceedings of the MSPB and on the basis of the evidentiary record before the Board.” 29 C.F.R. § 1614.305(c). We find that the investigation and hearing testimony established that no vacancies existed that would have eliminated the obstacles Petitioner experienced in performing his essential duties. Assistant Director conducted a search in April 2018, and Agency officials conducted an additional search in July 2018 because of the investigation into the present matter, without finding a position to reassign Petitioner. 2020003676 9 Petitioner had a full opportunity to present his case during the hearing on his appeal before the MSPB AJ and he offered no evidence that a suitable vacancy existed. Accordingly, Petitioner has not shown that the Agency failed to accommodate him. While we find that the Agency should not have taken so long to formally respond to Petitioner’s reasonable accommodation request, there is no indication that the delay resulted in Petitioner not being accommodated. In any event, Petitioner has not established that he was a qualified individual with a disability or there were vacant funded positions to which he could have been reassigned. Therefore, we concur with the MSBP AJ that the Agency did not violate the Rehabilitation Act regarding his claim of denial of a reasonable accommodation. Disparate Treatment To prevail in a disparate treatment claim, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Petitioner 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 was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). In the instant case, we find that even if we assume, arguendo, that Petitioner established a prima facie case of reprisal and disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Petitioner was removed from his position because he could not perform the essential functions of his position. The Commission has long held that an agency has broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan 16, 1997). Accordingly, the Commission agrees with the MSPB’s ultimate finding that Petitioner did not establish that his removal was based on disability discrimination or in reprisal for prior protected activity. 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. 2020003676 10 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 Petitioner’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 December 16, 2020 Date