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

Equal Employment Opportunity Commission

Apr 12, 2019

0120170784 (E.E.O.C. Apr. 12, 2019)

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

Erich A.,1
Complainant,

v.

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

Appeal No. 0120170784

Agency No. PHI-15-0645-SSA

DECISION

On December 20, 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
September 26, 2016, final decision concerning his equal employment opportunity (EEO)
complaints 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision (FAD).

ISSUES PRESENTED

Whether the Agency properly found that Complainant was not subjected to discrimination, nor
was he the victim of discriminatory harassment, based on his race (African American), color
(Black), disability (chronic traumatic encephalopathy), sex (male), national origin, and retaliation
when:2

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.
2 The Commission notes that Complainant’s claim included additional bases of parental status and
conduct not adversely affecting performance. These bases are not recognized as bases for
discrimination under the statutes we enforce. The instant decision therefore will not address these
aspects of Complainant’s complaint.
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1. On June 25, 2015 he was not selected for a GS-13 Supervisory Attorney Advisor position
advertised under Vacancy Announcement 1414605;
2. on or around May 6, 2015, after his performance was not fairly or accurately evaluated, he
was placed on a performance assistance plan;
3. on February 26, 2014, and continuing until July 31, 2015, his requests for reasonable
accommodations were denied;
4. he was subjected to non-sexual harassment and a hostile work environment beginning
around September 2014 through July 31, 2015; and
5. on and unspecified date he was denied official time for processing of EEO complaints.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Attorney Advisor,
GS-12, at the Agency’s Office of Disability Adjudication and Review facility in Wilkes-Barre,
Pennsylvania. The FAD clearly articulated the facts of record.3 This decision incorporates those
facts by reference and will not reiterate them. On December 4, 2015, Complainant filed an EEO
complaint alleging that the Agency discriminated against him as articulated in the statement of
issues presented articulated above.

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) on allegations 1 - 5 based on race, color,
disability, national origin and retaliation. 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 Agency issued a final decision in accordance with 29 C.F.R.
§ 1614.302. The decision concluded that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

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

3 The Commission notes that Complainant amended his initial claim to include an allegation of
constructive discharge. The Agency later bifurcated that mixed case claim, processing it in a
separate FAD, dated July 18, 2016. Complainant appealed that decision to the MSPB as instructed.
On November 30, 2016, the MSPB, in an initial decision, dismissed the appeal for lack of
jurisdiction. The instant decision will not address the merits of the constructive discharge
allegation or the July 18, 2016 FAD, and any reference is for background information only.
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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”).

ANALYSIS AND FINDINGS

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff’d 545 F.2d 222 (1st Cir.
1976) (applying McDonnell Douglas to retaliation cases). 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. Co. 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, 441 U.S. at 804 n.14. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502,
519 (1993).

Claims 1 and 2: Non-selection, Performance Evaluation & Performance Assistance Plan

Assuming, arguendo, Complainant established prima facie cases of discrimination based on race,
color, disability, sex, national origin, and retaliation, we find that the Agency articulated legitimate,
non-discriminatory reasons for the incidents Complainant cites, and that Complainant did not
demonstrate that any conduct on the part of the Agency was based on discriminatory animus.

With respect to Complainant’s non-selection allegation, several management officials testified that
the Best Qualified List (BQL) was populated by applicants who scored 27 points or higher on the
online questionnaire. Complainant scored six points. Not only did he not make the BQL,
Complainant was unable to establish that his qualifications were observably superior to the
selectee. The record is void of any evidence that Complainant was placed on a performance
assistance plan on, or around May 6, 2015. The record also reflects that Complainant received a
successful rating the entire time he was employed with the Agency, and Complainant failed to
offer any rebuttal evidence regarding his rating on appeal.

Claim 3: Denial of Reasonable Accommodation

Under the Commission’s regulations, 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.
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Reasonable accommodation includes modifications to the manner in which a position is
customarily performed in order to enable a qualified individual with a disability to perform the
essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17,
2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits
discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish
disability discrimination, 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.

A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400
(2002). “[T]he word ‘accommodation’ ... conveys the need for effectiveness.” Id. “An ineffective
‘modification’ or ‘adjustment’ will not accommodate a disabled individual’s limitations.” Id. In
the context of job performance, this means that a reasonable accommodation enables the individual
to perform the essential functions of the position. See Guidance. A complainant who seeks to hold
an agency liable for failing to accommodate a disability need not show that they have suffered an
adverse employment action. An agency is required to accommodate an employee’s disability
whether or not a failure to do so is motivated by discrimination based on that disability.

For purposes of analysis only we will assume, without so finding, that Complainant is a qualified
individual with a disability. As a result of his asserted disability status, Complainant requested: (1)
additional telework days; (2) a reduction of work production; and (3) additional time for training.
We find that Complainant, fails to show that he was denied a reasonable accommodation by the
Agency as the record reflects that management took reasonable actions to accommodate
Complainant’s requests.

At Complainant’s request, management took reasonable actions to accommodate the issues he was
having around timeliness of work production. As part of the interactive process, management
requested additional documentation to support Complainant’s disability and need for a reasonable
accommodation. Immediately after the accommodation request was made, and prior to receiving
any documentation, Complainant’s Group Supervisor (S1), provided detailed responses to his
requests and offered to provide additional time for remedial training without requiring medical
documentation. Complainant’s initial response to management’s request included a prescription
for a brain MRI; his football card; and several news articles that discussed his 1986 football injury,
stress among African American men and chronic traumatic encephalopathy (CTE)4 in general.

The record reflects that there were three separate requests from management for documentation to
establish Complainant’s status as a qualified individual with a disability entitled to an
accommodation. Complainant never provided the requested documentation. The Commission has
held that an employer may ask an individual for reasonable documentation about that person's
disability and functional limitations when the disability or need for accommodation is not obvious.

4 CTE is defined as a degenerative brain disease that evidence indicates is caused by brain trauma.
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EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) at 12-13. If an
individual’s disability or need for reasonable accommodation is not obvious, and the person
refuses to provide the reasonable documentation requested by the employer, then the individual is
not entitled to reasonable accommodation. Hunter v. Social Security Administration, EEOC
Appeal No. 0720070053 (Feb. 16, 2012). We find that Complainant’s ability to successfully
perform most of the duties of his position supports a contention that his need for an accommodation
was not obvious, and that it was reasonable for the Agency to request documentation. The record
makes clear that Complainant failed to provide the requested documentation, and therefore cannot
assert that he was denied a reasonable accommodation.

Claim 4: Harassment

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and
create a hostile or abusive working environment.” See also Oncale v. Sundowner Offshore
Services. Inc., 23 U.S. 75 (1998). The Court explained that an “objectively hostile or abusive work
environment [is created when] a reasonable person would find [it] hostile or abusive” and the
complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment
is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the
circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Id. at 23. An abusive or hostile working
environment exists “when the workplace is permeated with discriminatory intimidation, ridicule
and insult that is sufficiently severe or pervasive to alter the condition of the victim’s employment.”
Meritor, 477 U.S. at 65. Usually, unless the conduct is pervasive and severe, a single incident, or
group of isolated incidents, will not be regarded as discriminatory harassment. Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep’t of Labor, EEOC Request No.
05950152 (Feb. 8, 1996); Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10,
1996).

An alteration to an employee’s working conditions exists if a tangible, discrete employment action
is taken, e.g., hiring, firing, transfer, promotion, non-selection, or the Agency’s actions were
sufficiently severe and/or pervasive to create a hostile work environment. The harasser’s conduct
is evaluated from the objective viewpoint of a reasonable person in a complainant’s circumstances.
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994).

At the outset, the Agency concluded that Complainant was unable to establish that anything
unlawful occurred on the instant facts as none of the Agency’s actions here appear to have occurred
as a result of any asserted protected basis. Additionally, the Agency concluded that Complainant
failed to establish a claim of harassment because he failed to show that that he was subjected to
severe or pervasive treatment such as to create an unlawful work environment on any basis.
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Instead, the incidents complained of here appear to have been reasonable actions of Complainant’s
supervisor and other management officials taken in the course of discharging their supervisory
responsibilities. We agree that the incidents identified were simple differences of opinion about
application of office procedures and management philosophy. We also agree with the Agency’s
findings in the FAD that the incidents, considered together and taken as a whole, do not rise to the
level of a discriminatorily hostile workplace.

Claim 5: Denial of Official Time

EEOC Regulation 29 C.F.R. § 1614.605(b) provides that, “if the complainant is an employee of
the agency, he or she shall have a reasonable amount of official time, if otherwise on duty, to
prepare the complaint and to respond to agency and EEOC requests for information.”
“Reasonable” means “whatever is appropriate, under the particular circumstances of the complaint,
in order to allow a complete presentation of the relevant information associated with the complaint
and to respond to agency requests for information.” EEO MD-110, Chap. 6 § VII.C.1. The
number of hours to which a complainant is entitled “will vary, depending on the nature and
complexity of the complaint and considering the mission of the agency and the agency’s need to
have its employees available to perform their normal duties on a regular basis.” Id. When an
agency denies a request for official time, “the agency must include a written statement in the
complaint file noting the reasons for the denial.” Id. § VII.C.6. When the denial occurs before the
complaint is filed, “the agency shall provide the complainant with a written explanation for the
denial, which it will include in the complaint file if the complainant subsequently files a
complaint.” Id.

The Commission has stated that a claim regarding the denial of official time states a separately
processable claim alleging a violation of the Commission’s regulation and does not require a
determination of whether the denial was motivated by discrimination. Such a claim should not be
processed in accordance with 29 C.F.R. 1614.108 because the focus is not on the motivation, but
rather on the justification of why the complainant was denied a reasonable amount of official time.
Essentially, the Commission has held that it has the authority to remedy a violation of 29 C.F.R.
§ 1614.605 without a finding of discrimination. See Edwards v. U. S. Postal Serv., EEOC Request
No. 05960179 (Dec. 23, 1996).

We find that Complainant’s allegation that he was denied official time to work on his EEO
complaints is without merit. While management requested a breakdown of the time Complainant
engaged in non-work-related activities, there is no indication in the record that management denied
any requests from Complainant for time to work on his EEO complaints. The Agency typically
allows eight hours for each complaint through the investigation phase. In an email sent in April
2015, Complainant indicated that he used eight hours of time on his case that had not been filed
yet. In an email sent in May 2015, Complainant stated that he spent the bulk of his 27 work hours
on his three EEO complaints. While not required to do so, it is clear that management provided
Complainant with additional hours over the recommended amount per EEO case. Management
simply requested information from Complainant on how much time was used for this purpose.

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CONCLUSION

After a review of the record in its entirety, including consideration of any 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.
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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

April 12, 2019
Date