Annalee D.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 23, 2016

0120140956 (E.E.O.C. Nov. 23, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Annalee D.,1
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120140956

Hearing No. 470-2011-00149X

Agency No. ATL-10-0773-SSA

DECISION

On January 3, 2014, Complainant filed an appeal from the Agency’s December 19, 2013, final
order concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it for review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Lead Senior Case Technician at the Disability Adjudication and
Review Office in Paducah, Kentucky. In an EEO complaint filed on August 10, 2010 and
amended on August 27, 2010, Complainant alleged that the members of her chain of command
had discriminated against her on the bases of disability (depression, cancer) and in reprisal for
protected EEO activity. She identified as the responding management officials: her immediate
supervisor, the Processing Group Supervisor (S1); her second-line supervisor, the Hearing
Office Director (S2); and her third-line supervisor, the Chief Administrative Law Judge of the
Hearing Office (S3). Hearing Transcript (HT) 46. Her specific allegations are discussed in
detail below.

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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Following the investigation, the Agency notified Complainant of her right to request a hearing
before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing, pursuant to which the AJ held a hearing on March 5
and 6, 2013. On September 12, 2013, the AJ issued a decision finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged. The Agency subsequently
adopted the AJ’s findings and conclusions in its final order.

Since June 2009, S1 had subjected Complainant to ongoing harassment

Complainant testified that for a number of years, S1 would print out copies of her leave
balances, highlight them, leave them on her desk, and discuss them at regular intervals,
including her performance reviews. HT 59. In May 2009, S1 had placed Complainant on a
leave restriction due to what she characterized as Complainant’s excessive absences from
work. Under the terms of the restriction, Complainant could no longer call in and tell S1 that
she was taking leave. Rather, S1 informed Complainant that she would have to obtain
supervisory approval in advance of taking leave. S1 noted in the memorandum documenting
her action that she was taking extraordinary measures because previous attempts to obtain
Complainant’s compliance with leave regulations had failed, and that S1 felt this action was
necessary due to the adverse impact upon the office created by Complainant’s excessive
unscheduled absences. HT 42, 44.

Complainant was hospitalized from June 22 through June 26, 2009, and in August of 2009, she
was placed in absence-without-leave (AWOL) status for those absences. Investigative Report,
Exhibit (Ex.) 9, pp. 2-3; HT 159-62. When asked at the hearing why she was concerned about
Complainant’s use of leave, S1 testified that Complainant was taking leave when she had none
available, and that she needed direction from the Human Resources Department as to what type
of leave she could approve. Ex. 22, p. 7; Ex. 23, p. 4; HT 176-80. Complainant, the Union
Representative, and S1 acknowledged that the leave restriction and AWOL charge had been
rescinded following their successful grievance on the matter. HT 44, 49-50, 118-19, 180-81.
The Representative testified that the grievances were founded on management’s violation of
leave policies mandated by the collective bargaining agreement and did not involve any
mention of disability discrimination or EEO activity. HT 169.

Since January 2010, S1 failed to accommodate Complainant’s disabilities

In November 2009, Complainant was diagnosed with kidney cancer and had to undergo
surgery. She returned to work on January 4, 2010 with a work restriction that limited her to
lifting up to ten pounds. HT 57-59, 62, 64, 126. She testified that whenever she had to lift
case files that weighed ten pounds or more, she received assistance from her co-workers, and
that the lifting restriction ended on April 19, 2010. HT 127-30. She also testified that in
November 2009, she had been granted leave under the Agency’s voluntary leave transfer
program. HT 128.

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Between January and April 2010, she had seen several medical specialists, including a
urologist and an oncologist, but suffered a relapse in June that required her to be hospitalized.
HT 64-68. S1 testified that since November 2009, she had granted Complainant whatever leave
she asked for, including 234 hours of advanced sick leave via the voluntary leave transfer
program. HT 181-85, 189, 236-42, 245, 248-51. S1 also testified that Complainant never
informed her about the existence of a lifting restriction or otherwise asked for an
accommodation. HT 244-45.

When asked at the hearing whether she requested a reasonable accommodation on June 30,
2010, in the form of advanced sick leave, Complainant responded that she was not sure of
exactly what type of leave was requested, but maintained that she was denied leave at the end
of June 2010. HT 109, 119. However, when shown a copy of the leave slip that she had
submitted to S1, Complainant admitted that S1 had signed it. HT 120-21.

On June 7, 2010, S3 did not hire Complainant for a paralegal position

Complainant and several other individuals applied for a paralegal position. S1, S2, and S3
stated during the investigation and at the hearing that they had given Complainant’s application
priority consideration before receiving the best-qualified list from the Human Resources
Department, but that they had reached a consensus that Complainant would not be able to
successfully perform in the position. Ex, 5, pp. 2, 5; Ex. 6, p. 2; Ex. 7, p. 2; HT 212-14,
373, 471-72. After returning Complainant’s priority consideration package to Human
Resources, S3 received the best qualified list, which included the names of Complainant, the
Selectee, and several other candidates. S3 testified that she, S1, and S2 had reviewed
Complainant’s application for a second time, in comparison with the other applicants, but that
they did not see any information in addition to what they had previously looked at. HT 478.
All three officials stated that they unanimously chose the Selectee because of her extensive
research, writing, and analysis experience as an Information Technology Specialist and in other
positions, her extensive record of achievement, which included five quality-step increases, and
her high production level over many years. Ex. 5; Ex. 6; Ex. 7; Ex. 14; Ex. 16; Ex. 17; HT
196, 201-03, 218, 376, 389, 391-92, 474. They also stated that they had concerns about
Complainant’s timeliness, her productivity, and the fact that much of her work product had
consisted of dismissals and hearing notices generated through standard templates that required
very little additional writing. Ex. 7, p. 6; HT 204-10; 384-85; HT 479-81. Complainant
became aware of her nonselection on June 7, 2010, when S2 sent out an email to the entire
staff announcing the decision. Ex. 6, p. 3.

On June 26, 2010, S1 forced Complainant to disclose confidential medical information

Complainant appears to be alleging that the Agency violated the Rehabilitation Act by
requiring her to produce confidential medical information to substantiate her need to take sick
leave. Ex. 5, p. 7. She testified that her physician had sent a letter dated June 30, 2010, that
included her diagnosis and prognosis to S1, and that S1 had taken a telephone call from the
doctor prior to June 30th, during which her condition was discussed. HT 122, 125. One of
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Complainant’s coworkers averred that she had had many conversations with Complainant
regarding her treatment by management, and that Complainant had showed her a memorandum
from S1 in which S1 had asked for specific information on Complainant’s diagnosis and
prognosis from her treating physician. Ex. 8, pp. 2-3. When asked on cross examination
whether she knew what the doctor and S1 had discussed during their telephone conversation,
Complainant admitted that she was not privy to that conversation and did not have any medical
records or notes relating to that conversation. HT 126.

Article 31, Section 4, Subsection B(1) of the collective bargaining agreement to which
Complainant was subject stated that requests for approval of sick leave exceeding three
consecutive workdays must be substantiated. Ex. 22, p. 7. S1 stated that she followed the
policy guidelines laid out in the collective bargaining agreement and the Agency’s personnel
policy manual in granting Complainant’s leave requests, and that Complainant had requested
and was approved for 8 hours of advance sick leave for June 29, 2010, and 24 hours of
advanced sick leave between June 30 and July 2, 2010. Ex. 7, pp. 7-8; HT 222-26, 233, 251-
53. S1 further testified that she never requested or received any additional medical information
beyond what was required in order to approve Complainant’s leave request. HT 253.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

ANALYSIS AND FINDINGS

Harassment

Harassment of employees that would not occur but for their disability is unlawful if sufficiently
patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(August 14, 1998). To prevail on her harassment claim, Complainant must prove, by a
preponderance of the evidence, that because of her disability, she was subjected to conduct so
severe or pervasive that a reasonable person in her position would have considered it hostile or
abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Where Complainant
alleges reprisal as a basis, she may instead prove that the Agency’s actions were harmful to the
point that they could dissuade a reasonable employee from making or supporting a charge of
discrimination. Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).
Only if Complainant satisfies her burden of proof with respect to all of these elements, intent
and either hostility or chilling effect, will the question of Agency liability for harassment
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present itself. See Complainant v. Dept. of Veterans Affairs, EEOC Appeal No. 0120132783
(Sept. 11, 2015).

In this case, the alleged harassment consists of S1 raising concerns with Complainant regarding
her use of leave prior to May 2009, S1’s decision to place Complainant under a leave
restriction in May 2009, and her placement on AWOL status for what appeared to S1 to be
undocumented absences. Routine work assignments, instructions, and admonishments are by
definition neither severe nor pervasive enough to rise to a level of abuse on part with a racial
epithet or otherwise engender a hostile work environment. Complainant v. Department of State,
EEOC Appeal No. 0120123299 (February 25, 2013). S1’s admonishments regarding
Complainant’s use of leave fall under this category. Moreover, the leave restriction and AWOL
charges were withdrawn following a successful grievance in which neither disability
discrimination nor reprisal had been raised as an issue.

Denial of Reasonable Accommodation

The Agency is required to reasonably accommodate the known limitations of a qualified
individual with a disability, unless it can show that doing so would cause an undue hardship to
its operations. See 29 C.F.R. §§ 1630.2 (o) and (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. Dept. of
Agriculture, EEOC Appeal No. 0120120400 (Dec. 3, 2015). Here, the only accommodations
that Complainant appears to have requested were accrued sick leave and advanced sick leave,
and S1 had granted her leave requests.

Nonselection

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on her claim of discriminatory nonselection,
Complainant would have to prove, by a preponderance of the evidence, that the selecting
officials were motivated by unlawful considerations of her disability and protected EEO
activity in connection with their decision not to hire her as a paralegal specialist on June 8,
2010. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can establish motive by presenting
evidence tending to show that the reason articulated for not selecting her was a pretext, i.e.,
not the real reason but rather a cover for discrimination. St. Mary’s Honor Society v. Hicks,
509 U.S. 502, 515 (1993). Pretext can be demonstrated by showing such weaknesses,
inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action
that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v.
U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for
reconsideration denied EEOC Request No. 0520080211 (May 30, 2008).
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In nonselection cases Complainant could demonstrate pretext by showing that her qualifications
for the position were plainly superior to those of the Selectee. Hung P. v. Dept. of Veterans
Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). We note, however, that when hiring
or promoting, agencies have broad discretion to choose among equally qualified candidates as
long as the selection is not based on unlawful considerations. Complainant v. Dept. of
Homeland Security, EEOC Appeal No. 0120141478 (Jul. 31, 2015). In this case, all three
officials who were involved in the selection at issue stated under oath that the Selectee was
their unanimous choice, and that the Selectee’s qualifications for the position included
extensive writing experience within a variety of job contexts and five quality-step increases
over the course of her career.

Disclosure of Confidential Medical Information

Complaint appears to be arguing that, rather than accept her signed leave slips to substantiate
some of her leave, S1 had forced her to disclose confidential medical information. The
Americans with Disabilities Act, and by extension Section 501(g) the Rehabilitation Act,
prohibits the disclosure of medical information except in certain limited situations:

• Management regarding necessary work restrictions and accommodations;
• First aid and safety personnel if emergency treatment is necessary;
• Government officials investigating compliance with statutory requirements;
• Workers compensation offices or insurance carriers, as appropriate; and
• Maintaining records and tracking the processing of reasonable accommodation requests.

See 42 U.S.C. § 12112 (d)(3); 29 C.F.R. § 1630.14(c); Policy Guidance on Executive Order
13164: Establishing Procedures to Facilitate the Provision Of Reasonable Accommodation,
Question 20 (Oct. 20, 2000). Since S1 needed information on Complainant’s diagnosis and
prognosis in order to provide her with the accommodation that she presumably requested,
namely advanced sick leave, S1’s request fell within the first statutory exception to non-
disclosure of confidential medical information.

Ultimately, we agree with the AJ that Complainant has not sustained her burden of proof with
respect to her claim of disability discrimination and reprisal in connection with the four
incidents at issue in her complaint.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:
1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

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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 23, 2016
Date