0120162406
03-28-2018
Bell S.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bell S.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120162406
Agency No. ATL-15-0962-SSA
DECISION
On July 7, 2016, 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 June 10, 2016, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Teleservice Representative, GS-0962-08 at the Agency's Teleservice Center facility in Tampa, Florida.
Complainant experiences complications from several medical conditions, including panic attacks, anxiety, asthma attacks, and paranoia. Complainant indicated that these issues caused her to experience constricted breathing; blurred vision; inability to speak; shaking; uncontrollable crying spurts, inability to focus or hear; hyperventilation; chest and back pain; inability to drive, walk, or stay calm; agitation; uncontrollable drooling; flashbacks; and depression. In November 2010, Complainant submitted a doctor's note requesting that she be allowed to use the restroom hourly as needed.
In May 2011, Complainant also reported an incident of sexual harassment and assault by a co-worker.
In June 2014, Complainant met with her supervisor ("S1") (White of Hispanic descent) and informed him of her condition and claimed that she had requested a reasonable accommodation in 2011. S1 inquired with her second-level supervisor ("S2") (Puerto Rican and African-American) as to whether Complainant had previously requested accommodation. S2 emailed Complainant stating that she had never received a reasonable accommodation request from her. S2 informed Complainant that she should complete and submit the Agency's reasonable accommodation request form and submit it to S1.
On July 11, 2014, Complainant met with S1 to discuss her request for reasonable accommodation in the form of a reassignment. S1 discussed the reasonable accommodation process with Complainant and asked if Complainant had medical documentation to support her request. Complainant told S1 that she submitted medical documentation in 2011 and refused to submit any additional documentation. Complainant's only available medical documentation was the 2010 doctor's note stating that she needed to take frequent restroom breaks.
On August 22, 2014, S1 issued Complainant a decision on her request for reasonable accommodation denying her reassignment request based on her failure to submit sufficient medical documentation in support of the request. Nonetheless, S1 approved alternative accommodations, including approval to use liberal leave during the day should Complainant's medical condition require excessive time away from her workstation and use of flex time. On September 5, 2014, S2 upheld S1's decision finding that the available medical documentation did not demonstrate that reassignment would be an effective accommodation. S2 noted that Complainant could submit additional medical documentation in support of her request for reassignment as an accommodation. However, Complainant refused to submit any additional medical documentation. We note that Complainant raised these events in a prior EEO complaint, which was addressed by the Commission in EEOC Appeal No. 0120160366 (March 7, 2018) (finding that Complainant failed to demonstrate that the Agency's actions constituted denial of reasonable accommodation or disparate treatment).
Complainant indicated that since March 2015, S1 has been charging her leave for time away from her desk due to her race. Complainant asserted that a Hispanic female in her office had a similar reasonable accommodation, but she was not charged with leave for time away from her desk. Complainant argued that she has been asking for a transfer since 2011 as no adequate accommodation has been granted.
On June 5, 2015, Complainant requested a hardship transfer from S1. S1 submitted the request to S2. Complainant asked for the transfer to help control her flare-ups and bathroom visits, as well as allowing her to no longer have her workstation next to a chain smoker. Complainant indicated that she could not provide medical documentation because her medical provider indicated that providing documents would be a violation of the Privacy Act.
On August 17, 2015, Complainant received a formal letter from S2 denying her request based on Complainant's failure to provide sufficient medical documentation. S2 indicated that Complainant's request and medical documentation did not suggest how a change in duty station would improve Complainant's condition. As such, the request for a hardship transfer was denied.
On August 18, 2015, Complainant contacted an EEO counselor alleging discrimination. On August 24, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), disability, and reprisal for prior protected EEO activity when:
1. On or about August 17, 2015, her request for a reasonable accommodation in the form of a hardship transfer was denied.
2. She was subjected to harassment when, on or around March 2015, she was charged leave for time spent away from her desk and denied her hardship transfer.
The Agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency indicated that Complainant's claim of harassment from March 2015 was outside of the 45-day limitation period. The Agency accepted claim (1) for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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 her to discrimination as alleged.
In the FAD, the Agency noted that both incidents alleged in Complainant's formal complaint were part of Complainant's claim of harassment. As such, even though the Agency had dismissed claim (2), the Agency included the claim as part of Complainant's claim of a hostile work environment.
The Agency first addressed Complainant's claim of disparate treatment regarding the denial of the hardship transfer. The Agency found that management provided legitimate, nondiscriminatory reasons for its action. The Agency held that after Complainant made her request for a transfer due to her medical condition, management requested she provide medical documentation to support her request. Without providing the requested support, Complainant submitted her request for a hardship transfer. S2 denied the transfer due to lack of medical support as substantiated by her decision denying the request and her affidavit. The Agency then held that Complainant did not provide support to her claim that the denial was pretext for racial discrimination. Further, the Agency noted that management stated that those who were granted transfers had provided medical documentation to substantiate their request. As such, the Agency concluded that Complainant failed to establish that the denial of the hardship transfer constituted unlawful discrimination based on her race.
The Agency then addressed Complainant's claim of denial of reasonable accommodation. The Agency determined that management did not fail to reasonably accommodate Complainant. The Agency found that Complainant did not demonstrate how a transfer would allow her to perform the essential functions of her position. Further, management suggested alternative accommodations to address the medical conditions Complainant described as interfering with her duties. The Agency determined that the only evidence Complainant submitted regarding this claim was her supervisor's response to her request for a hardship transfer stating that if she wished to have a hardship transfer, she needed to provide the documentation to support it. The Agency found that there was no evidence in the record demonstrating that Complainant responded to the request. Management responded when it requested supporting documentation. Complainant's subsequent failure to respond to this request is the reason for any alleged delay in processing a transfer request. Accordingly, the Agency concluded that Complainant had not been denied reasonable accommodation.
Finally, the Agency addressed Complainant's claim of harassment. Complainant alleged that she has been subjected to harassment based on her race, disability, and prior EEO activity. However, the Agency held that Complainant failed to provide any evidence to suggest that management's actions were based on her protected classes. The Agency determined that Complainant failed to show that the use of leave for breaks away from her desk was severe or pervasive. The Agency noted that Complainant was charged leave for walking away from her work which is considered a normal managerial decision. Accordingly, the Agency concluded that Complainant failed to show that she was subjected to harassment as alleged.
This appeal followed.
ANALYSIS AND FINDINGS
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").
Denial of Reasonable Accommodation
The Commission notes that an Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. To establish a denial of reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she 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. The Commission will assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability.
Under the Commission's guidelines, an agency may request additional information when presented with a request for reasonable accommodation in order to evaluate a complainant's proposed accommodation in comparison to her current medical needs in order to determine what accommodation would best serve the needs of the agency and complainant. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002, Question 6 (Oct. 17, 2002). Moreover, when an individual's disability or need for reasonable accommodation is not obvious, and she fails to provide reasonable documentation requested by the employer, the employer will not be held liable for failure to provide the requested accommodation. Id. Here, the record shows that Complainant refused to provide the Agency sufficient medical documentation to assist in addressing her condition. Nonetheless, the Agency offered Complainant several alternative accommodations to assist her in performing the essential duties of her position. While Complainant may not have been offered the exact reasonable accommodation of her preference, an employer is not required to provide the precise accommodation the employee or applicant wants, so long as the accommodation offered is an effective one under the circumstances of the situation. U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). Here, Complainant has presented no evidence that the provided alternative accommodations were ineffective. Therefore, the Commission finds that Complainant has not established that the Agency failed to provide her with a reasonable accommodation.
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Upon review of the record, and assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its actions. More specifically, as discussed above, Complainant's request for reassignment was denied because Complainant failed to submit medical documentation in support of her request. Complainant was given the opportunity to submit medical documentation in support and refused to submit any additional documentation.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
As Complainant chose to not request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that discriminatory or retaliatory animus was a factor in its actions. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged.
Harassment
In her harassment claim, in addition to the incident discussed above, Complainant alleged that she was required to take leave when she took breaks from her work area. Complainant argued that a Hispanic coworker with a similar reasonable accommodation is not required to request leave when she steps away from her work station. S1 averred that Complainant has been provided with a liberal leave policy in the event she must step away from her work station for extended periods of time due to her medical condition. We note that the Commission has stated this was provided as an accommodation to Complainant based on her medical condition in EEOC Appeal No. 0120160366 (March 7, 2018).
To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, age and/or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
Here, as already concluded above, there is no evidence to support a finding that Complainant's race, disability or prior protected activity played any role whatsoever in the decision regarding the hardship transfer. Moreover, the responsible management officials provided a legitimate, non-discriminatory explanation for Complainant being charged with leave for being away from her desk. In sum, Complainant failed to prove that her race, disability or retaliatory animus played any role in the incidents she proffered as evidence of her harassment claim. Other than Complainant's assertions, there is no evidence that a similarly situated employee was treated more favorably.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
March 28, 2018
__________________
Date
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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