01A13729
08-19-2002
Son O. Paye, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Appeal No. 01A13729 Agency No. 00EASMD007
Son O. Paye v. Department of Defense, (Defense Commissary Agency),
01A13729
August 19, 2002
.
Son O. Paye,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Appeal No. 01A13729
Agency No. 00EASMD007
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Sales Store Checker, GS-2091-03, at the agency's Fort
Gordon Commissary, Fort Gordon, Georgia. Complainant sought EEO
counseling and subsequently filed a formal complaint on September 1,
1999, alleging that she was discriminated against on the bases of race
(Asian) and disability (lower back strain) when, on December 18, 1998,
she was terminated from her position.
Complainant alleges that beginning in 1989, she suffered a series
of job-related injuries to her neck, shoulder, and lower back.
Complainant's job required her to stand at a cash register during her
tour of duty, accept items purchased by customers for the purpose
of scanning, accept payment and return a receipt and/or change to
the customer. Critical elements of complainant's performance plan
required complainant to operate the cash register accurately at a
monthly average pace of $1,000.00 to $1,200.00 per hour, and scan an
average of 25 to 35 items per minute; verify each customer check or
voucher to ensure that it contains the necessary information, with no
more than three to five incorrect occurrences in a three-month period;
efficiently process purchases, ensuring that customers are charged the
correct amount; maintain accuracy of the cash drawer, having no more
than three overages/shortages totaling $18.00 (cumulative) per quarter;
and maintain cleanliness and security of the work area.
Complainant was issued a performance letter advising that she was
performing at less than a fully successful performance rating level
in two critical elements, i.e., sales per hour and scanning rate;
and overage/shortages in numbers and amounts which exceeded the
standard. The letter advised complainant that she would be placed on
a three-month Performance Improvement Period (PIP) to allow her the
chance to demonstrate an acceptable level of performance for retention.
Following the initiation of the PIP, complainant went on light-duty
status for a period of time due to her complaint of lower back pain;
and the PIP was extended. Subsequently, complainant was issued a Notice
of Proposed Removal based upon her continued failure to meet the same
two critical performance elements. Thereafter, a decision was issued
effecting her removal.
The FAD states that at the conclusion of the investigation,
complainant was informed of her right to request a hearing before an
EEOC Administrative Judge or alternatively, to receive a final decision
by the agency, and that Complainant requested that the agency issue a
final decision.
In its FAD, the agency concluded that management had articulated
legitimate, nondiscriminatory reasons for complainant's termination,
and that complainant was not removed from her position because of her
race or disability.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the FAD contradicts the conclusion
drawn by the case EEO investigator that the agency did not meet its
responsibilities in this case. Complainant also submitted new argument
concerning her working relationship with her supervisor. The agency
did not file a response.
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
alleging discrimination is a three-step process as provided by McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of race discrimination. The agency
states that complainant was terminated because she could not perform two
critical elements of her job, i.e., sales per hour and scanning rate; and
overage/shortages in number and in amounts that exceeded the standard.
This is a legitimate, nondiscriminatory reason for the agency's action.
Therefore, the burden returns to complainant to demonstrate that the
agency's reasons were a pretext for discrimination, that is, that the
agency's reasons were not true and that the agency was more likely
motivated by discriminatory reasons. The complainant has not met her
burden in this regard. Complainant has not provided sufficient evidence
that would persuade us that the agency's reasons for its actions were
a pretext for discrimination.
Rehabilitation Act-Reasonable Accommodation
In analyzing a disparate treatment claim under the Rehabilitation Act,
we apply the burden-shifting method of proof set forth in McDonnell
Douglas, supra. Under this analysis, in order to establish a prima facie
case, complainant must demonstrate that: (1) she is an "individual with
a disability"; (2) she is "qualified" for the position held or desired,
i.e. can perform the essential functions with or without accommodation;
(3) she was subjected to an adverse employment action; and (4) the
circumstances surrounding the adverse action give rise to an inference
of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th
Cir. March 26, 2001).
Assuming, arguendo, that complainant established that she was an
individual with a disability covered by the Rehabilitation Act, we find
that she is not qualified within the meaning of 29 C.F.R. � 1630.2(m).
This section defines the term "qualified individual with a disability"
as meaning, with respect to employment, a disabled person who, with or
without a reasonable accommodation, can perform the essential functions
of the position held or desired. Complainant was terminated because
she could not perform two critical elements of her job, i.e., sales per
hour and scanning rate; and overage/shortages standards. The evidence
is insufficient to show that complainant was a qualified individual.
In addition, complainant has failed to establish a nexus, or causal
relationship, between her disability and the performance problems that
resulted in her removal. See Lynch v. Department of the Army, EEOC
Petition No. 03950128 (September 7, 1995).
Notwithstanding any obligation the agency may have to provided reasonable
accommodation, there are several modifications or adjustments that are
not considered forms of reasonable accommodation. An employer does
not have to eliminate an essential function, i.e., a fundamental duty
of the position. This is because a person with a disability who is
unable to perform the essential functions, with or without reasonable
accommodation, is not a "qualified" individual with a disability.
Nor is an employer required to lower production standards -- whether
qualitative or quantitative -- that are applied uniformly to employees
with and without disabilities. See EEOC Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act (March 1, 1999).
We note, however, that the question of whether a person is a "qualified
individual" is not limited to the job complainant held. See 29 C.F.R. �
1630.2(m). Reassignment to a vacant position is a form of reasonable
accommodation. However, the agency was not required to consider
accommodating complainant's request, i.e., to take care of shopping
carts or the customer line, since complainant did not demonstrated that
the agency had such an existing vacant position.
Also, while the agency must provide a reasonable accommodation that is
needed because of the side effects of medication or treatment related to
the disability, complainant has failed to establish a nexus, or causal
relationship, between her disability and the performance problems that
resulted in her removal. See Lynch v. Department of the Army, supra.
Even assuming complainant was a qualified individual, she failed to
establish that her request for additional training would have allowed
her to perform the essential functions and standards of the position.
The Commission notes that an employee must show a nexus between the
disabling condition and the requested accommodation. See Wiggins
v. United States Postal Service, EEOC Appeal No. 01953715 (April 22,
1997).
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 19, 2002
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.