EEOC Appeal 2020000125

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shon T.,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Appeal No. 2020000125
Agency No. 19-56-88
DECISION
On August 18, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
July 18, 2019, final decision 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Patent Examiner, GS-
1227-07, at the Agency’s Technology Center facility in Alexandria, Virginia.
On October 24, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of disability when:
1. 	From April 6, 2018 through July 5, 2018, the Agency denied him reasonable
accommodations, including voluntary overtime, the use of dictation software, and
reassignment; and
2. 	On July 5, 2018, the Agency issued Complainant a Notification of Termination
During Trial Period, which caused him to resign.
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.

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The Agency accepted the complaint and conducted an investigation, which produced the following
pertinent facts:
On August 8, 2016, Complainant was hired as Patent Examiner at the GS-7 grade, subject to a
one-year probationary period. However, on August 8, 2017, Complainant’s appointment was
converted to a Schedule A appointment, which extended his probationary period another year.
Complainant suffered a traumatic brain injury (TBI) as a child, which substantially limited his
walking, typing, and time required to articulate his thoughts verbally and in writing. He attested
that he requested a reasonable accommodation for note taking, a quiet working environment, and
for twice the usual time allowed to take the testing for the equivalent of the patent bar exam given
at the end of the one-year probationary period. He attested that, at the time of his termination, the
Agency was in the process of providing him with voice recognition typing software (Dragon
Naturally Speaking software or Dragon software), but this was never implemented. He also
attested that, in Fiscal Year 2018, he was provided a note-taking accommodation and that the
Agency also provided him extra time to take tests. He alleged, however, that the Agency denied
him voluntary overtime. He acknowledged that voluntary overtime was prohibited but asserted
that this was not communicated to him until his first week of employment. He attested that he
accepted the Dragon software, as it was recommended to increase his productivity, while pursuing
a transfer as an accommodation of last resort.
The Reasonable Accommodation Program Manager (RA Program Manager) attested that, in April
2018, Complainant requested to work more than 80 hours per bi-week as “voluntary overtime”
because he needed more time to complete his work assignments. His request was denied, and he
subsequently requested a reconsideration of that denial.
A Determination of Reasonable Accommodation Request dated April 6, 2018 and signed by the
Deputy Director, Office of Patent Training, indicates that Complainant requested “to voluntarily
work in excess of the 80-hour restriction” and that Complainant’s physician recommended extra
time for tests, note taking assistance, and a quiet testing environment. It provided that
Complainant’s request to work voluntary overtime was denied because: (1) it would require the
lowering of performance or production standards, which is not considered a form of reasonable
accommodation, and (2) it would be in violation of the Fair Labor Standards Act (FLSA), which
prohibits employees in Complainant’s position at the GS-7 level from working any time for which
they are not paid.
RA Program Manager reiterated the reasons for denying Complainant’s request to work voluntary
overtime. She said that she suggested the Dragon software as a possible option to accommodate
Complainant’s self-reported left-side hemiparesis, and Complainant expressed an interest in a
reassignment to a different position as an alternative accommodation. RA Program Manager
attested that she advised Complainant that if he was interested in pursuing the software or
reassignment as an accommodation, he would have to provide additional medical information that
specifically addressed and established the existence of the left-hand impairment and related

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limitations and/or his inability to perform the essential functions of his current positions due to his
disabilities.
A Medical Provider Statement dated June 11, 2018, from a psychologist (PhD) indicated that
Complainant has impairments in cognitive processing speed, resulting in the need for more time
to complete expressive language tasks, secondary to TBI. It also provides Complainant would
require more time to complete select tasks and some adaptive assistance for writing. It also
indicates limitations performing manual tasks, standing, and communicating, including motor
complications relating to typing and vocal-motor issues. It also provided Complainant has no
cognitive/intellectual disabilities for high level technical work, as he is a trained scientist and
successful 	researcher. 	It 	further 	provided 	that, 	when 	given 	extra 	time 	and 	adaptive
writing/communication equipment, Complainant was capable of high-level performance, but he
required computer (writing) assistance and the ability to sit/stand as needed.
RA Program Manager attested that, on June 22, 2018, she had a telephone conversation
Complainant’s psychologist to discuss his recommendations. The psychologist confirmed that
Complainant’s impairments limited his ability to meet the stringent time parameters required of a
patent examiner and stated that there was no accommodation that would allow Complainant to
perform the essential functions of his current job as a patent examiner due to the permanency of
Complainant’s condition and his resulting limitations. RA Program Manager also attested that the
psychologist stated that he was not sure if the Dragon software would be an effective
accommodation in light of Complainant’s slightly slurred speech and opined that a transfer or
reassignment 	to 	a 	less 	time-based 	and 	time-pressured 	position 	would 	be an 	appropriate
accommodation.
RA Program Manager attested that the Dragon software was requested and installed on
Complainant’s laptop by June 29, 2018, and, on July 2, 2018, Complainant was trained on how to
use the software. Regarding Complainant’s pending request for reassignment, RA Program
Manager attested that Complainant was terminated while the Agency was processing his request
for reassignment. She attested that Complainant had performance issues that pre-dated his requests
for a reasonable accommodation and these performance deficiencies are what prompted his
termination.
Regarding Complainant’s performance, Complainant’s supervisor (Supervisor1) attested that,
while he did not have any role in the decision to terminate Complainant, the Director of the
Technology Center (Director) was concerned about Complainant’s performance and asked about
him. 	Supervisor1 indicated that he provided information regarding Complainant’s performance
issues, including an email stating that Complainant was not showing any improvement in the major
quality activities or in his ability to independently perform patent examining functions.
Supervisor1 attested that Complainant was unable to grasp very basic concepts in patent
examination. Supervisor1 said that although he appeared to understand, he was not incorporating
feedback and the basic concepts into his work product, and sometimes he would confuse concepts.

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He attested that he made sure Complainant’s reasonable accommodations were available and that
he used them when supervising Complainant, such as pausing to allow time for him to take notes,
recapping meetings in emails so he could refer back to them and taking notes during interviews
with applicants and providing them to Complainant.
Complainant’s Performance Summary and Rating dated October 24, 2017, shows that, on a scale
of 1 to 5, Complainant was given a score of 2 in Quality (weight of 70% resulting in 140 points),
5 in Docket Management (weight of 20% resulting in 100 points), and 3 in Stakeholder Interaction
(weight of 10% resulting in 30 points) for a total of 270/500 points. His overall performance rating
was Marginal (200 to 289 points). The comments include that Complainant’s ability to
demonstrate independent performance of the assigned examination functions was slow to develop.
Complainant’s 	Employee 	Evaluation/Assessment/Individual 	Development 	Plan 	shows 	that
Complainant’s progress and performance were evaluated at several points from month 3.5 through
month 20. The evaluations indicate that Complainant’s performance was rated as either a 1 (needs
improvement) or 2 (meets expectations) in every category at every evaluation point. While his
ratings for months 3.5 and 6 were 2 in every category, his ratings declined significantly in months
8, 11, 14, 17, and 20 and included numerous ratings of 1 in each of the rating periods. The
comments in these later months indicate Complainant’s progress and ability to demonstrate
independent performance of assigned functions was slow in development, he struggled with
understanding the applications and framing the claimed subject matters, his searches or prior art
were not thorough enough, and his cases were returned frequently for multiple kinds of improper
rejections.
The record contains documentation showing Complainant’s productivity and includes emails
documenting Complainant’s problems successfully performing assigned tasks.
A Notification of Termination During Trial Period (Notification), dated July 5, 2018, from the
Director of the Technology Center (Director) to Complainant indicates that Complainant was
being terminated, effective July 5, 2018 at the close of business, because he failed to meet the
requirements of the position. The Notification provides that Complainant was hired on August 8,
2016, subject to a one-year probationary period and, on July 19, 2017, a Settlement Agreement
was executed between Complainant and the Agency converting him to a Schedule A appointment
at Complainant’s request. The Notification explains that the Schedule A appointment required an
additional one-year trial period, which extended Complainant’s probationary period to August 8,
2018. The Notification further provides that, based on Complainant’s 20 months with the Agency,
his performance had not progressed at the expected rate of a new patent examiner. It provides that
Complainant’s progress has been slow and he has not demonstrated that he can efficiently perform
the assigned functions.
An email from Complainant to the Agency’s management, dated July 5, 2018 at 4:52 p.m.,
indicates that Complainant resigned his position.

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The instant appeal followed. Complainant filed no brief or other statement in support of his appeal.
In response to Complainant’s appeal, the Agency reiterates its findings and asserts that, despite its
efforts to accommodate Complainant, he simply could not perform to the Agency’s standards and
Complainant’s allegations of discrimination are unsupported by the evidence. The Agency also
asks that we affirm its final decision.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “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”).
Reasonable Accommodation Claim
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See
generally 	29 	C.F.R. 	Part 	1630. 	In 	order 	to 	establish 	that 	he 	was 	denied 	a 	reasonable
accommodation, a complainant must show that: (1) he is an individual with a disability, as defined
by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. §
1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement
Guidance: 	Reasonable 	Accommodation 	and 	Undue 	Hardship 	under 	the 	Americans 	with
Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No.
915.002 (Oct. 17, 2002). Under the Commission’s regulations, an agency is required to make
reasonable accommodation to 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.
See 29 C.F.R. §§ 1630.2(o) and (p).
Here, the Agency does not dispute that Complainant is an individual with a disability and,
therefore, covered by the Rehabilitation Act. Therefore, the next inquiry is whether Complainant
is a “qualified individual with a disability.” 29 C.F.R. §1630.2(m).

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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. Id. “Essential
functions” are the fundamental job duties of the employment position that the individual holds or
desires. 29 C.F.R. § 1630.2(n).
Here, RA Program Manager explained that Complainant’s medical provider indicated that
Complainant’s impairments limited his ability to meet the stringent time parameters required of a
patent examiner and stated that there was no accommodation that would allow Complainant to
perform the essential functions of his current job as a patent examiner, due to the permanency of
Complainant’s condition and his resulting limitations. Additionally, as noted above, Complainant,
as a probationary employee, was subject to periodic performance assessments and his progress
was noted as failing to meet expectations beginning around the sixth month. Complainant’s
Performance Summary and Rating dated October 24, 2017, shows that his overall performance
rating was “marginal.” In total, Complainant’s performance assessments suggest that he was able
to perform some of basic job functions during the early months of his training period, but as
expectations increased during the training process, he was unable to adequately perform the
essential functions of the patent examiner position. Therefore, in light of Complainant’s medical
provider’s reported statement that there was no accommodation that would allow Complainant to
perform the essential functions of his current job as a patent examiner because of his limitations
and Complainant’s performance record indicating that he failed to meet performance standards,
we find the record sufficiently establishes that Complainant never adequately performed the
essential functions, with or without reasonable accommodation, and, therefore, was never
“qualified” for the position.
However, the discussion of “qualified” does not end at Complainant's position of record. The term
“qualified individual with a disability,” with respect to employment, is defined as a person with a
disability who, with or without a reasonable accommodation, can perform the essential functions
of the position held or desired. 29 C.F.R. § 1630.2(m). The term “position” is not limited to the
position currently held by the employee, but may also include positions that the employee could
have held as a result of reassignment. Therefore, in determining whether an employee is
“qualified,” an agency may have to look beyond the position which the employee presently
encumbers. 	Enforcement 	Guidance 	on 	Reasonable 	Accommodation; 	see 	also 	Interpretive
Guidance on Title I of the Americans With Disabilities Act, Appendix, to 29 C.F.R. Part 1630.2(o).
Employers cannot deny a reassignment to an employee solely because he is designated as
“probationary.” EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, Notice No. 915.002, Q. 25 (Oct. 17, 2002).
An employee with a disability is eligible for reassignment to a new position, regardless of whether
he is considered “probationary,” as long as the employee adequately performed the essential
functions of the position, with or without accommodation, before the need for a reassignment
arose. Id.

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There is no “bright-line” test to determine how long the employee must perform the essential
functions 	of 	the 	position 	with 	or 	without 	reasonable 	accommodation 	to 	be 	eligible 	for
reassignment. However, “the longer the period of time in which an employee has adequately
performed the essential functions, with or without reasonable accommodation, the more likely it
is that reassignment is appropriate if the employee becomes unable to continue performing the
essential functions of the current position due to a disability.” Id. If, however, the probationary
employee has never adequately performed the essential functions, with or without reasonable
accommodation, then he is not entitled to reassignment because he was never “qualified” for the
original position. Id.
Because we find Complainant was a probationary employee who was never qualified for the
position he held, which was patent examiner, the Agency was not obligated to reassign him prior
to his termination. See Shelley v. U.S. Postal Serv., EEOC Appeal No. 0720070076 (June 14,
2012) (finding that the complainant, a probationary employee, was unable to establish that he was
qualified because he could not establish that he could perform the essential functions of his position
for which he was hired after he was hospitalized due to a medical condition after working for the
agency for several days.)
In addition to his request for reassignment, Complainant also requested Dragon Naturally Speaking
software and authorization to work voluntary unpaid overtime as reasonable accommodations. As
noted above, the Agency installed the software on Complainant’s laptop by June 29, 2018, and, on
July 2, 2018, trained Complainant to use it. Therefore, we find the Agency fulfilled this request.
With respect to the requested voluntary unpaid overtime, the record establishes that the FLSA
prohibits agencies from allowing GS-07 level employees, such as Complainant, to work unpaid
overtime. See 5 U.S. Code § 5542(a)(1). Furthermore, working unpaid overtime would have
resulted in lowering Complainant’s performance standards and the Commission has held that the
Agency is not required, under the Rehabilitation Act, to lower performance standards of a position
as a reasonable accommodation. See e.g., Olson v. Department of Treasury, EEOC Appeal No.
01983200 (July 19, 2001); Graziano v Department of the Navy, EEOC Agency Appeal No.
0120070745 (April 15, 2009). For these reasons, we find the Agency was not obliged to provide
Complainant the requested unpaid overtime.
After receiving a request for reasonable accommodation, an agency “must make a reasonable effort
to determine the appropriate accommodation.” 29 C.F.R. pt. 1614. app. § 1630.9. Thus, “it may be
necessary for the [agency] to initiate an informal, interactive process with the individual with a
disability . . . [to] identify the precise limitations resulting from the disability and potential
reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see
also 29 C.F.R. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Q. 5. Here, the
record shows that the Agency was engaged with Complainant towards accommodating his
disability and provided Complainant with accommodations including assistance with note taking
and special software. Upon receipt of information from Complainant’s medical provider, the
Agency followed up with the medical provider to ascertain and clarify Complainant’s limitations
relating to his disability.

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We find the Agency made a reasonable effort to determine what, if any, accommodations were
appropriate. For all these reasons, we find the Agency did not fail to provide Complainant a
reasonable accommodation.
Disparate Treatment Claim
Complainant has alleged that the Agency treated him disparately in issuing him a notice of
termination. A claim of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to
prevail, 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 was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs
v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears
the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502
(1993).
Even if we assume that Complainant established a prima facie case of discrimination, his claim
ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. The Agency explained that Complainant was issued the notice of termination for
performance reasons. The Agency explained that Complainant’s progress over the 20 months that
he was employed at the Agency was slow, and he did not demonstrate that he could efficiently
perform the assigned functions. We note that Complainant was still in his probationary period
when he was issued the notice of termination. The Commission has long held that where a
complainant is a probationary employee, he or she is subject to retention, advancement, or
termination at the discretion of an agency so long as these decisions are not based on a protected
category. See Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing
Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). Although Complainant has alleged discrimination,
he has not established by a preponderance of the evidence that the legitimate, non-discriminatory
reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some
unlawful discriminatory animus with respect to these claims.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within which to submit a brief or
statement in opposition. 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of
the request. 	Any supporting documentation must be submitted together with the 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.

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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
November 18, 2020
Date