Cherie F.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 20, 2018

0120171129 (E.E.O.C. Nov. 20, 2018)

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

Cherie F.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120171129

Agency No. DAL151007SSA

DECISION

On January 26, 2017, 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
December 16, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented in this case is whether the Agency’s final agency decision (FAD), erred in
procedurally dismissing two of Complainant’s claims, and finding that Complainant was not
denied a reasonable accommodation.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Paralegal Specialist,
GS-12 at the Agency’s Dallas SSA facility in Dallas, Texas. Complainant suffered from insomnia,
sleep apnea, depression and migraines.

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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Her conditions affected her ability to report to work on time. Beginning in 2009, the Agency
granted Complainant a reasonable accommodation that allowed her to use up to one hour of FMLA
leave on the mornings when her medical conditions affected her ability to report to work on time.
However, she was required to call a supervisor to request leave before the end of the 9:30 a.m.
flexible work band. In November 2012, management modified Complainant’s reasonable
accommodation to allow her to use FMLA leave to report to work up to two hours after the end of
the 9:30 a.m. flexible band, but she still had to call a supervisor before the end of the flexible band
to request leave.

Beginning in March 2014, Complainant made several requests to invoke her accommodation for
two hours of FMLA leave a day in advance of its use, and sometimes a week in advance.

On March 2, 2016, Complainant submitted a request to amend her reasonable accommodation to
remove any language that prohibited her from invoking FMLA in advance. Complainant’s
supervisor (S1) met with Complainant on March 15, 2016, to discuss her request to invoke her
FMLA reasonable accommodation in advance. During this interactive discussion, Complainant
indicated that her medical symptoms had not changed. Further, Complainant would neither
confirm nor deny whether she was able to predict her need for accommodation in advance, but she
told S1 that she would not need the accommodation every day and would usually need the
accommodation only on days when she was required to report to the office instead of teleworking.
S1 told Complainant that the reasonable accommodation previously approved for her on June 18,
2014 would remain in effect while her new request was under consideration.

On April 6, 2016, S1 denied Complainant’s request to modify her accommodation to remove
language prohibiting her from invoking her accommodation in advance. S1 found no nexus
between Complainant’s requested modification and the medical documentation she provided. He
further noted that the documentation Complainant provided was conflicting, Complainant was
unable to confirm whether she could predict her need for the accommodation in advance, and
Complainant provided no medical documentation to indicate she could do so. Accordingly, S1
continued Complainant’s June 18, 2014, reasonable accommodation, which allowed her to use
FMLA leave to report to work no later than 11:30 a.m., which was two hours after the end of the
morning flexible band, provided she called a supervisor between the hours of 6:30 a.m. and 10:30
a.m. to request FMLA leave. Complainant believed that she was subjected to discrimination when
she was not allowed to request advanced FMLA leave without having to call her supervisor for
approval.

Therefore, on December 4, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (Caucasian), disability (physical and mental), age
(57), and reprisal for prior protected EEO activity when:

1. On unspecified dates between 2011 and 2014, she was denied the opportunity to
request Family Medical Leave Act (FMLA) leave in advance;

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2. On August 24, 2015, she became aware that during the investigation of her prior
EEO complaint, that a member of management submitted to the EEO investigator
personally identifiable information obtained from her personnel folder and labeled
as Exhibits 17 and 18 in the EEO Investigative File;

3. Complainant alleged the Agency subjected her to discrimination based on
disability, when on April 6, 2016, management denied her reasonable
accommodation request for advanced FLMA unpaid leave.

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 Equal Employment
Opportunity Commission 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. Specifically, the Agency dismissed
claim no 1, for untimely EEO Counselor contact. The Agency found that Complainant did not
contact an EEO Counselor regarding this issue until August 3, 2015, which is beyond the 45-day
time limit. The Agency noted that Complainant had argued that since August 14, 2014, she had
been continuously denied the opportunity to request FMLA leave in advance. Complainant failed
to identify any specific dates of her FMLA requests or subsequent denials during EEO counseling
or in her formal complaint. During the investigation, in her affidavit, Complainant clarified that
she requested advanced FMLA leave 2011, 2013, and March 2014, but that her requests were
denied. Despite being given the opportunity to clarify. Complainant did not identify any incidents
following March 2014, in which she requested and was denied advanced FMLA leave. As such,
the Agency found this claim to be untimely.

With regard to claim no. 2, the Agency dismissed Claim No. 2 for failure to state a claim. The
Agency noted that 29 CF.R. §1614.107(a)(8) provides, in relevant part, that an agency shall
dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction
with the processing of a previous complaint must be raised in connection with the underlying
complaint, not as a new complaint. See EEOC Management Directive 110, Federal Sector
Complaints Processing Manual, Chapter 5, Section in.F., 1V.A.12, and IV.D (November 9, 1999).
The Agency noted that he tdecisions of the Office of Federal Operations have routinely affirmed
the dismissal of such claims. The Agency found that its dismissal was appropriate as Complainant
should have notified the EEO Director of her complaint.

Finally, with regard to claim no. 3, the Agency determined that Complainant was not denied a
reasonable accommodation because the Agency provided her with an effective accommodation.
The Agency found that Complainant did not show that the Agency’s reasons were pretext for
discrimination.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that the Agency erred in dismissing claim
no. 1, because the Agency’s actions are ongoing. Complainant also maintains that S1 placed more
stringent requirements on her than are normally placed on other employees who requested sick
leave. She argues that there is no rule regarding leave or FMLA that an employee must show a
nexus between their disability and her need for leave.

Further, she maintained that the Agency also erred in dismissing claim no. 2, by calling it a spin-
off complaint. Complainant maintains that the information collected by the investigator was false
and should not have been included in the investigation.

In response, the Agency contends, among other things, that the FAD should be affirmed. The
Agency argues that its procedural dismissals were correct in that Complainant did not show that
an incident occurred within 45-days of contacting an EEO Counselor. Further, the Agency argues
that it was correct in dismissing claim no. 2, as a spin-off complaint because Complainant’s
argument was about the processing of her complaint, albeit the investigation. Finally, the Agency
asserts that it provided Complainant an effective reasonable accommodation, even if it was not the
accommodation that she wanted.

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”).

The Commission’s regulations require an agency to make reasonable accommodation for the
known physical and mental limitations of a qualified individual with a disability unless it can show
that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A
qualified individual with a disability is an “individual with a disability” who satisfies the requisite
skill, experience, education and other job related requirements of the employment position such
individual holds or desires and, 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 job duties of the employment position the individual with
a disability holds or desires. 29 C.F.R. § 1630.2(n). A function may be essential, for example,
because the reason the position exists is to perform that function or there are a limited number of
employees available among whom the performance of that job function can be distributed.
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Id. at § 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer’s
judgment as to which functions are essential; written job descriptions; and the amount of time
spent on performing that function. Id. at § 1630.2(n)(3).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that the Agency properly dismissed claim no. 1, for untimely
EEO Counselor contact as each denial of advanced FMLA leave was an independent discrete act,
and, Complainant did not demonstrate that an incident occurred within the 45-day time period that
preceded her EEO Counselor contact. We find this claim was properly dismissed.

We also find that the Agency properly dismissed claim no. 2. We find that Complainant’s
dissatisfaction with the processing of her complaint was in fact a spin-off complaint. A spin-off
claim should be reported to the EEO Director for investigation and processing, but is not a separate
claim of discrimination.

Further, with respect to claim no. 3, we note that the Agency does not dispute that Complainant is
a qualified individual with disability who is entitled to a reasonable accommodation. Therefore,
the issue before us is whether Complainant was denied a reasonable accommodation. Given the
specific facts of this case, we find that Complainant was provided with an effective
accommodation although it was not the accommodation that she sought. In this regard, we note
the lack of medical documentation supporting her need for advance FMLA leave. Likewise,
according to the record, Complainant would neither confirm nor deny whether she was able to
predict her need for accommodation in advance, but indicated that she would not need the
accommodation every day and would usually need the accommodation only on days when she was
required to report to the office instead of teleworking. We find that Complainant has not
demonstrated that the accommodation she was provided was not effective or that discriminatory
animus was involved. While Complainant clearly disagrees with the Agency’s accommodation,
and her need to contact management when she is going to take leave, she has not shown that she
was denied an effective accommodation that allowed her to perform the essential functions of her
position or that she was subjected to discrimination. Finally, with respect to Complainant’s
contentions on appeal, we find that other than her conclusory statements, she has not provided any
evidence which suggests that she was subjected to discrimination. We find, the preponderance of
the evidence does not support her claim that she was subjected to discrimination or denied a
reasonable accommodation.

CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD which found that Complainant was not subjected to
discrimination or denied a reasonable accommodation.

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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.
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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 20, 2018
Date