Corie E.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 7, 2018

0120160302 (E.E.O.C. Mar. 7, 2018)

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

Corie E.,1
Complainant,

v.

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

Appeal No. 0120160302

Agency No. PHI-14-0616-SSA

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the September 4, 2015 final
Agency decision (FAD) 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. The Commission’s review is de novo.
For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Service
Representative, GS-08, at the Agency’s Field Office in Columbia, Maryland. Complainant
experiences complications from manic depression and anxiety. Complainant stated that her
condition affects her concentration, memory, stomach, and blood pressure and that she
experiences headaches and anxiety attacks. Complainant stated that her ability to perform the
essential functions of her position are not affected as long as she takes her medication.

In April 2014, Complainant claimed that management informed her that her Family Medical
Leave Act (FMLA) documentation needed to be updated. On May 3, 2014, Complainant
submitted her updated FMLA paperwork to the District Manager (DM). Therein, Complainant’s

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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doctor stated that Complainant’s condition would not prevent her from performing her job
functions, but that episodic flare-ups could periodically prevent her from reporting to work.
Additionally, Complainant’s doctor noted that Complainant’s symptoms were mostly due to
work-related stress.

On May 28, 2014, Complainant submitted documentation from her doctor indicating that she
could only work four hours per day (7:00 a.m. to 11:00 a.m.) beginning May 30, 2014, due to
ongoing “stress issues.” Complainant’s doctor stated that he believed that she would be able to
return to full duty on September 1, 2014. On June 2, 2014, Complainant’s supervisor (S1)
informed Complainant that her FMLA request for leave without pay (LWOP) was approved. S1,
however, requested that Complainant submit additional medical documentation in support of the
specific work hours that her doctor suggested. Complainant did not submit any additional
medical documentation, but was nonetheless granted the modified schedule from May 29, 2014
until June 10, 2014. Between June 2, 2014 and June 10, 2014, Complainant claimed that
management did not reduce her workload and, instead, increased it. Complainant asserted that
she performed all the work she could do in four hours and then went home.

On June 11, 2014, Complainant called S1 and stated that she would not be able to report to work,
but did not inform S1 of what type of leave she would be requesting. Complainant later
submitted a note from her doctor stating that she would be out of work until September 1, 2014.
Complainant did not report to work on June 12, 2014, but emailed S1 later that day to request
that she be paid for the four hours per day until her “time [was] exhausted.”

On June 13, 2014, S1 sent Complainant a letter informing her that she was approved for four
hours of FMLA leave, but her submitted medical documentation was not sufficient to justify her
absence for the remaining four hours of her tour. Additionally, S1 noted that Complainant had
not made it clear what type of leave she was requesting for her absence. S1 requested that
Complainant submit acceptable medical documentation in support of her absence and to
complete the required leave documentation. In the meantime, S1 informed Complainant that she
would be placed in absence without leave (AWOL) status pending her submission of a proper
leave request with supporting documentation. On June 18, 2014, Complainant’s doctor wrote a
letter to S1 explaining that he placed Complainant on a reduced work schedule in an attempt to
reduce her stress; however, her stress at work continued. As a result, Complainant’s doctor
stated that he was removing Complainant from duty until her physical and mental health
improved. Complainant’s AWOL charged was removed and she was approved for annual leave
or LWOP for her absence.

On September 26, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of
disability and in reprisal for prior protected EEO activity when:

1. On May 29 and June 2, 2014, Complainant was asked to provide additional
medical documentation to support her request to work a reduced schedule;

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2. Between June 2 - 10, 2014, management increased Complainant's work load even
though she was approved to work a reduced schedule; and

3. On or about June 13, 2014, Complainant received a letter regarding proper leave
procedures, and was placed on absent without leave (AWOL).

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not respond within the timeframe provided
in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially determined that Complainant was an individual with a
disability. To the extent that Complainant was alleging denial of a reasonable accommodation,
the Agency noted that Complainant did not make a formal request for accommodation. DM
affirmed that once Complainant requested reduced work hours, he spoke to her about the
reasonable accommodation process. Complainant responded by email and accused him of
threatening her with reasonable accommodations and advised him that she did not want a
reasonable accommodation at the time. Nonetheless, Complainant’s request to work part-time
based on her condition was approved as was her request for extended leave. Management stated
that when Complainant stopped showing up for part-time work on June 11, 2014, additional
medical documentation was requested to support her absence. Accordingly, the Agency
determined that Complainant was not denied reasonable accommodation.

Next, the Agency found that alleged incidents were insufficiently severe or pervasive to establish
a hostile work environment. Further, the Agency determined that there was no evidence that the
conduct at issue was based on discriminatory or retaliatory animus. More specifically, with
respect to claim (1), DM affirmed that management accepted Complainant’s request that she
work part-time/reduced hours and placed her on a modified schedule. DM added that when
Complainant stopped showing up for work on June 11, 2014, he requested additional medical
documentation in support of her absence. Complainant later requested to be off work for an
extended period of time. When Complainant submitted medical documentation in support of her
absence, her request was granted. As to claim (2), S1 denied that Complainant’s workload was
increased and confirmed that Complainant was never penalized or reprimanded for producing
less work. DM added that Complainant’s workload was reduced simply because she could only
work four hours. DM denied that Complainant was given additional work and noted that there
was no quota, employees were just required to complete as much work as they could during a
normal work day. Finally, regarding claim (3), DM affirmed that the letter at issue was sent
because Complainant did not properly contact management. Complainant was placed on AWOL
from June 11, 2014, until management received the proper documentation. Once the
documentation was received, Complainant’s AWOL charges were removed and she was placed
on annual leave or LWOP.

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The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal
followed.
CONTENTIONS ON APPEAL

On appeal, Complainant contends that her disability was very well known and her requests for
reasonable accommodation were denied. Complainant claims that her medical documentation
reducing her hours was questioned repeatedly. Further, Complainant alleges that she was
subjected to harassment by management increasing her workload instead of decreasing it.
Accordingly, Complainant requests that the Commission reverse the FAD.2

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 her protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission finds that the alleged incidents were not sufficiently severe or pervasive to
establish a hostile work environment. Even assuming that the alleged conduct was sufficiently
severe or pervasive to create a hostile work environment, the Commission finds that

2 The Commission notes that Complainant requested a hearing for the first time in her appeal.
As discussed above, the record reveals that the Agency mailed Complainant the report of
investigation and notice of her right to request a hearing on May 20, 2015. Complainant does
not dispute that she failed to request a hearing during the 30-day timeframe as specified in the
notice. Furthermore, Complainant has not claimed or shown that she was improperly denied a
hearing. Consequently, the Commission finds that Complainant’s hearing request was untimely
submitted.
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Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory
animus. For example, with respect to claim (1), Complainant submitted updated FMLA medical
documentation on May 2, 2014, which indicated that it would be medically necessary for
Complainant to be absent during flare-ups for her medical condition. ROI, Ex. 4b. On May 28,
2014, Complainant submitted a medical note from her doctor stating that she could only work
four hours per day, from 7 a.m. to 11 a.m. starting May 30, 2014 through September 1, 2014.
ROI, Ex. 4c. S1 approved the request for LWOP under FMLA, but requested medical
documentation justifying the specific work hours requested. ROI, at 4d. Complainant did not
submit the requested documentation, but she does not dispute that management granted her
request for a modified schedule. ROI, Ex. 4, at 4; ROI, Ex. 5, at 3.

As to claim (2), S1 and DM denied increasing Complainant’s workload. ROI, Ex. 5, at 3; ROI,
Ex. 6, at 3. DM stated that Complainant’s workload was reduced simply because she could only
work four hours. ROI, Ex. 6, at 3. DM affirmed that employees were not given quotas; rather,
they are just required to do as much work as they can during a normal work day. Id.

Finally, regarding claim (3), Complainant called S1 on June 11, 2014, to report that she would
not be reporting to work. ROI, Ex. 4f. Complainant’s doctor later faxed a note stating that
Complainant needed to be excused from work through September 1, 2014, for “medical
reasons.” ROI, Ex. 4e. Complainant did not report to work the next day and did not contact
management until 6:21 p.m. that evening requesting that management continue to pay her for
four hours per day until her “time is exhausted.” ROI, Ex. 4f. On June 13, 2014, S1 issued
Complainant a letter requesting more detailed medical documentation in support of her extended
absence and a leave request indicating how much and what kind of leave she wished to request.
Id. The letter noted that Complainant would be placed on AWOL until the requested
documentation was submitted. Id. Complainant submitted a letter from her doctor dated June
18, 2014, providing more information about her condition. ROI, Ex. 4g. DM approved
Complainant’s request for LWOP under FMLA through September 1, 2014. ROI, Ex. 4h.

The Commission concludes that Complainant has not shown that she was subjected to a
discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant
claims that she was subjected to disparate treatment, the Commission finds that, as discussed
above, Complainant has not demonstrated that the Agency’s explanation for its actions was
pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was
not subjected to discrimination, reprisal, or a hostile work environment as alleged.

Denial of Reasonable Accommodation

Finally, to the extent that Complainant is alleging that she was denied 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.
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§ 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.

As discussed above, the record reveals that Complainant requested to work four hours per day
from 7:00 a.m. to 11 a.m., beginning May 30, 2014. ROI, Ex. 4c. Agency management
requested additional documentation regarding Complainant’s doctor’s reasons for those specific
duty hours; however, they granted the modified schedule even after she failed to submit the
requested documentation. ROI, Ex. 5, at 3. On June 10, 2014, DM attempted to discuss
reasonable accommodation options and Complainant claimed that he had threatened her with an
accommodation and emphasized that she was not requesting one. ROI, Ex. 6a. Complainant
later went out on medical leave and was approved for LWOP under AWOL. Complainant has
presented no evidence that the Agency was unwilling to reasonably accommodate her or
otherwise denied her reasonable accommodation. Accordingly, the Commission finds that the
Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation
Act.

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.
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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.
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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 7, 2018
Date