0120142105
02-01-2017
Fernanda H.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Fernanda H.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120142105
Hearing No. 510-201300409X
Agency No. ATL130104SSA; ATL-13-0233-SSA; ATL-13-0314-SSA
DECISION
Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's April 11, 2014 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. For the reasons that follow, we AFFIRM the Agency's final decision (FAD).
ISSUE PRESENTED
Whether the FAD properly found that Complainant did not establish that she was discriminated against or subjected to harassment based on race, disability, and reprisal for prior EEO activity with regard to the 10 incidents which formed the basis of her hostile work environment claim, and when she was denied a reassignment as a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative, (Teleservice Representative) GS-0962-8 at the Agency's Tampa Teleservice Center facility in Tampa, Florida. The Agency's FAD thoroughly discussed the facts in the record, and the instant decision incorporates them as stated. In three separate formal complaints filed on December 17, 2012, February 19, 2013, and March 14, 2013, Complainant alleged that the Agency subjected her to discriminatory harassment as evidenced by ten (10) separate incidents to include: a manager standing over her in a "threatening" manner, denial of a transfer request, a proposed suspension and others. Additionally, Complainant alleged that that she was denied reassignment as a reasonable accommodation in violation of the Rehabilitation Act.
At the conclusion of the investigation of the consolidated complaints, 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. Complainant initially requested a hearing but subsequently withdrew her request. In accordance with Complainant's request, the Agency issued the instant FAD 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. This appeal followed.
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").
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 or Rehabilitation Act 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).
Assuming, arguendo, Complainant established prima facie cases of discrimination based on race, disability, and reprisal for engaging in prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for the incidents Complainant cites to establish her claim, and that Complainant did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus. A review of the record supports the Agency's finding in the FAD that several of the alleged incidents did not occur as articulated by Complainant. Record evidence supports the FADs conclusion, and it seems reasonable, that members of Agency management felt it necessary to conduct a follow-up fact-finding interview with Complainant regarding the serious allegations of attempted murder because management did not perceive Complainant to have answered the necessary questions about her accusations. Several of the incidents which formed the basis of her complaints are related to management's attempt to investigate Complainant's allegations. The fact-finding reports for both of the follow-up interviews were placed in Complainant's 7B (Personnel File) because that is where these items are routinely placed. With respect to the issuance of a Notice of Proposed Suspension, Complainant's second line manager indicated that she issued the Notice in response to Complainant's uncooperative and rude behavior, as well as, her decision to provide inaccurate responses during the fact-finding interviews.
In sum, our review of the record confirms the Agency's assertion that each of the decisions it made with respect to Complainant's allegations that she feared for her safety in the workplace, the proposed suspension, and others, were based on its determination of how best to effectively manage the workplace environment and Complainant's previous conduct. Complainant was unable to establish that the Agency's actions were motivated by discriminatory animus. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
Failure to Accommodate with Reassignment
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. In order to establish that she was denied a 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. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance). For purposes of our analysis, we will assume, without so finding, that Complainant is a qualified individual with a disability under the Rehabilitation Act.
A review of the record supports the Agency's position that Complainant's accommodation request of reassignment was denied because she did not establish that a reassignment was necessary to enable her to perform the essential functions of her position. There is nothing in the record to indicate that Complainant was having trouble performing the duties of her position, and that she needed an accommodation. Instead, the record reflects that Complainant made a transfer request due to financial hardship based on her support of a family member living in Georgia. The request was ultimately denied because the family member Complainant would be supporting lived in the commuting area of the office. In sum, Complainant's request did not meet the criteria to qualify for a financial hardship transfer.
Harassment
With respect to any contention by Complainant's that she was subject to a hostile work environment with respect to the matters set forth in her complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 (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.
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
_2/1/17_________________
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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