0120141508
08-05-2016
Glynda S.,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
Glynda S.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120141508
Hearing Nos. 531-2013-00105X
531-2013-00106X
Agency Nos. COI-12-0230-SSA
COI-12-0559-SSA
DECISION
On March 10, 2014, Complainant filed an appeal from the Agency's February 6, 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 following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency discriminated against or subjected Complainant to a hostile work environment on the bases of disability, and in reprisal for prior EEO activity when it repeatedly asked for medical documentation for her reasonable accommodation requests since November 22, 2011; repeatedly charged her with absence without leave (AWOL), and leave without pay (LWOP) since November 2011; issued her a letter of counseling on February 10, 2012; and suspended her for seven days on May 1, 2012.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an EEO Specialist at the Agency's Office of Civil Rights and Equal Opportunity in Woodlawn, Maryland. On November 22, 2011, Complainant requested advanced sick leave, or the ability to telework from November 28, through December 6, 2011, because she was scheduled to receive radioactive iodine treatment, and needed to avoid prolonged contact with others. In support of her request, Complainant submitted a document entitled "Radiation Safety Instructions." Complainant's second line supervisor (S1) forwarded Complainant's request to the Agency's Medical Officer (MO). On November 23, 2011, the MO informed S1 that Complainant's document did not state that she had a disability, and that it did not support her request for advanced sick leave. On November 28, 2011, S1 emailed Complainant to inform her that her request for advanced sick leave or telework was denied, and that she would be placed on LWOP.
On November 30, 2011, Complainant sent S1 a note from her doctor (DR1), stating that she needed to be absent from work, until December 6, 2011, when she could be seen by another doctor (DR2), who would determine when Complainant could return to work. On December 6, 2011, Complainant emailed the Acting Deputy Associate Commissioner (ADAC) asking if she could speak with him about her requests for advanced sick leave and telework. The ADAC did not grant Complainant's requests for advanced sick leave and telework, and referred her back to S1 for a response.
On December 7, 2011, Complainant returned to work, and informed S1 that she had a disability, and needed an accommodation. S1 informed Complainant that the MO would determine her eligibility for advanced sick leave and telework. S1 also provided Complainant with copies of the Agency's policies regarding the Family and Medical Leave Act (FMLA), advanced sick leave, annual leave, LWOP, and procedures for requesting leave.
On December 22, 2011, Complainant submitted her request for a reasonable accommodation through the Agency's "Reasonable Accommodation Wizard" system. The request was redirected to S1, who emailed Complainant informing her that she would need to provide medical documentation in support of her request for a reasonable accommodation.
On January 6, 2012, Complainant provided a statement from DR2, dated December 23, 2011, which noted that Complainant had been unable to come to work due to her radioactive treatments from November 29, through December 6, 2011. DR2 also faxed results of Complainant's lab results. On January 31, 2012, the MO sent a letter to Complainant regarding her request for advanced sick leave and telework. The MO stated that the documents supported granting Complainant advanced sick leave from November 29, through December 6, 2011. However, he stated that he was not approving Complainant's request to telework because the documents did not show how working from home would eliminate any barriers at work that interfered with her ability to perform the essential functions of her position.
On February 10, 2012, S1 met with Complainant, and issued her a counseling letter regarding her leave usage. S1 informed her that she had a zero leave balance, which was unusual for someone who had been employed by the Agency for over ten years. S1 further noted that in most cases, Complainant would take leave without scheduling it in advance, or obtaining prior approval. S1 stated that she spoke with Complainant in September and November 2011, to inform her that her use of leave was causing an undue hardship in the office.
On February 22 and 23, 2012, Complainant requested advanced sick leave. Upon request, she provided medical documentation on February 27, 2012. On February 29, 2012, S1 informed Complainant that the medical documentation was insufficient to support her request, and that she would be charged with AWOL.
In March 2012, Complainant requested advanced sick leave, telework, and leave under FMLA as a reasonable accommodation. Complainant provided medical documentation from another doctor (DR3), and discharge instructions from a hospital. The MO approved her request for advanced sick leave from March 19, through March 21, 2012. However, the MO denied Complainant's request for telework and FMLA leave because DR3 did not recommend that she telework, and stated that there should be no further limitations on her ability to perform her job due to her medical condition.
In April 2012, Complainant left the office within minutes of sending a leave request to S1, and did not speak with anyone in management to obtain approval; S1 charged Complainant with AWOL.
In July 2011, Complainant traveled for work and used her government credit card. The Agency reimbursed her $900 for the expenses in August 2011. In October 2011, S1 learned that Complainant had not paid the bill for her government credit card. When S1 asked Complainant why she had not yet paid the bill, she stated that she had not received the $900 because the Department of Treasury intercepted it for an outstanding debt. S1 instructed Complainant to pay the bill. In November 2011, S1 learned that Complainant had still not paid the bill, and informed her that her credit card was suspended. On February 10, 2012, Complainant informed S1 that she had paid the bill, but when S1 asked for documentation showing that the bill was paid, Complainant did not respond. Complainant paid the bill on February 27, 2012. On March 5, 2012, S1 issued Complainant a proposal for a 10-day suspension for: (1) failure to timely pay a balance owed on her government travel card; (2) failure to follow instructions; and (3) lack of candor for telling S1 that she had paid the bill on February 10, 2012, which was not true. On May 1, 2012, the ADAC issued the decision to suspend Complainant for seven calendar days, from May 3, to May 9, 2012.
On May 11, 2012, Complainant did not contact anyone to request leave, and did not come to work; S1 subsequently charged Complainant with AWOL. On July 23, 2012, Complainant informed her then first line supervisor (S2) that she needed to stay home to wait for the gas company. She stated that she would update S2 about her status later in the day, but did not call back. On July 24, 2012, Complainant informed S2's supervisor that she would be leaving 11/4 hours early, but did not obtain approval prior to leaving work. On July 27, 2012, S2 met with Complainant to discuss her leave usage. S2 informed Complainant that she was charging her with one hour of LWOP for July 23, 2012, and 1/4 hour of AWOL for July 24, 2012.2 Also on July 27, 2012, S1 informed S2 that she had previously counseled Complainant on her leave use and failure to follow procedures in requesting leave.
On June 4, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her, and subjected her to a hostile work environment on the bases of disability (hyperthyroidism), and in reprisal for filing a prior EEO complaint.3 On August 2, 2012, she filed another EEO complaint and the two complaints were consolidated; the following claims were accepted for investigation:
1. Since November 22, 2011, S1 asked her to provide additional medical documentation in support of her requests for reasonable accommodation;
2. On February 10, 2012, S1 issued her a Letter of Counseling regarding her excessive leave usage;
3. On May 17, 2012, she was charged eight hours of AWOL for May 11, 2012;
4. On July 27, 2012, she met with S2 to discuss her leave situation, and S2 stated that she was charging Complainant as AWOL, after discussions with S1;
5. Since November 2011, she has been placed on LWOP and AWOL; and
6. From May 3-9, 2012, she was suspended.
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); and Complainant requested a hearing. While Complainant submitted some documents during discovery, on March 19, 2013, she informed the Agency that she would not provide any additional responses to their discovery requests. On May 10, 2013, the AJ issued an order granting the Agency's Motion to Compel Discovery. When Complainant did not comply with the order by the deadline, the Agency filed a Motion for Sanctions. On July 12, 2013, the AJ issued an order dismissing Complainant's complaint, and remanded it to the Agency to issue a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
In regards to Complainant's claim that the Agency discriminated against her when it failed to provide a reasonable accommodation when it denied her request to telework, the Agency found that Complainant had not shown that she was unable to perform the essential functions of her position, and did not provide any medical documentation showing that she needed to work from home. Additionally, in regards to Complainant's claim that she was denied an accommodation when the Agency did not approve her requests for advanced sick leave, the Agency found that Complainant was granted advanced sick leave, and had not shown any instances when her requests for advanced sick leave were denied. Accordingly, the Agency found that Complainant had not shown that she was discriminated against on the basis of her disability when the Agency failed to provide a reasonable accommodation.
The Agency also found that Complainant had not established a prima facie case of discrimination based on disability when her leave requests were denied; she was issued a counseling letter; and she was charged AWOL and LWOP because she did not show that similarly situated employees, who were outside of her protected classes, were treated more favorably; and she did not present any evidence that afforded a sufficient basis from which to draw an inference of discrimination. Additionally, the Agency found that Complainant had not established a prima facie case of discrimination for reprisal for prior EEO activity because there was no nexus between her protected activity and the adverse actions.
The Agency assumed that Complainant had established a prima facie case of discrimination based on disability and reprisal, and found that the management officials articulated legitimate, nondiscriminatory reasons for its actions. For claim 1, S1 stated that when Complainant submitted medical documentation, she consulted with the MO, and when the documentation was insufficient, she "spelled out" what information was necessary.
For claim 2, S1 stated that she issued the counseling letter because Complainant had a zero leave balance, and was using leave as soon as she was accruing it. In regards to claim 3, S1 stated that on May 11, 2012, Complainant did not report to work, or advise anyone that she was not reporting to work that day, so she was recorded as AWOL. For claims 4 and 5, S2 stated that Complainant informed her that she needed to wait at home for the utility company, and did not report into work or call to inform S2 of her status. S2 stated that she requested that Complainant fill out a leave slip, but that Complainant did not do so.
For claim 6, S1 stated that she advised Complainant to pay her credit card bill in October, November, and December of 2011, but that she did not comply. Additionally, S1 stated that on February 10, 2012, Complainant stated that she paid the bill, which was not true, and that Complainant did not pay the bill until February 27, 2012. The ADAC stated that his decision to suspend Complainant was due to her failure to pay her the bill; failure to follow instructions; and lack of candor in the situation. The Agency then found that Complainant had not shown that the proffered reasons were pretext for discrimination, and that the Agency did not discriminate against Complainant on the bases of disability and in reprisal for prior EEO activity.
In regards to Complainant's claim that she was subject to a hostile work environment based on disability, and in reprisal for prior EEO activity, the Agency found that Complainant had not established that she was subjected to any unwelcome verbal or physical conduct; that the conduct was based on her protected bases; or that the conduct was sufficiently severe or pervasive to create a hostile, abusive, or offensive work environment or unreasonably interfered with her work performance. As such, the Agency found that Complainant was not subjected to a hostile work environment on the bases of disability, or in reprisal for her prior EEO activity.
Complainant filed the instant appeal, but did not submit a brief in support of her appeal. On May 12, 2014, the Agency filed an opposition brief asking the Commission to affirm its final decision.
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
Failure to Provide 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. In order to establish that Complainant 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).
Assuming, arguendo, that Complainant is a qualified individual with a disability; we find that she has not shown that the Agency discriminated against her on the basis of disability when it denied her requests for reasonable accommodations. In regards to her request for advanced sick leave as an accommodation, the record shows that she requested, and was granted, advanced sick leave on November 29 through December 6, 2011; and March 19-21, 2012. While the Agency noted that there were no instances identified where Complainant was denied advanced sick leave, the record does show that a request for advanced sick leave for February 22 and 23, 2012, was denied due to insufficient medical documentation. Accordingly, we find that the Agency did not discriminate against Complainant on the basis of her disability when it failed to provide her a reasonable accommodation in the form of advanced sick leave.
For Complainant's request to telework as a reasonable accommodation, we find that she did not provide medical documentation to support telework as an accommodation of her disability. On February 10, 2012, S1 provided Complainant a letter outlining that her medical documentation would need to contain the following information:
1. Severity and length of her condition;
2. How her condition affects her life activities;
3. Her limitations as they relate to her job duties;
4. If she is unable to perform all of her duties, what duties she is able to perform; and
5. Any recommended treatment.
In March 2012, S1 forwarded additional medical documents provided by Complainant to the MO. On July 3, 2012, the MO stated that the DR3's statement did not demonstrate how telework would be an effective accommodation. Specifically, the MO stated that it was unclear how Complainant's condition would limit her ability to come to work since the DR3 stated that her issues were "resolved following successful treatment."
We note that an individual is not entitled to reasonable accommodation when the disability, or need for accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer. See Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012). In this case, S1 specified what information was needed, and Complainant did not provide the requested medical documentation. Accordingly, we find that Complainant has not shown that the Agency discriminated against her on the basis of disability when it failed to provide telework as a reasonable accommodation.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant had established a prima facie case of discrimination based on disability, and in reprisal for prior EEO activity, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In regards to claim 1, S1 stated that she requested additional medical information from Complainant when her submitted documents were insufficient to support her requests. S1 consulted with the MO, and granted Complainant advanced sick leave when subsequent medical documentation supported it, but that her documentation was not sufficient to support her request to telework.
For claim 2, S1 stated that she issued the counseling letter due to Complainant's excessive use of leave. S1 stated that she had warned Complainant earlier that her use of leave was causing an undue hardship on the office. In regards to claim 3, S1 stated that she charged Complainant with AWOL for May 11, 2012, because she did not inform anyone that she would not be coming into work. For claim 4, S2 stated that she charged Complainant with LWOP because she did not have enough accrued leave available. S2 also stated that she charged Complainant with AWOL for the time that she was not at work, and had not received proper authorization. For claim 5, S1 stated that she informed Complainant about the proper procedures to request leave, and that she needed to inform a management official of her need to leave, rather than just say, "I'm leaving." S1 stated that when Complainant did not follow the procedures, she charged her AWOL.
In regards to claim 6, S1 stated that she repeatedly informed Complainant that failure to pay her government credit card bill could lead to disciplinary action. S1 also stated that Complainant informed her that she had paid her bill via FedEx on February 10, 2012, but that she did not respond to S1's request for proof. The ADAC stated that he sustained the charges in the proposed suspension because he found that Complainant did not follow S1's instructions, and showed a lack of candor when S1 asked her about the bill.
Complainant has not presented any evidence that the Agency's proffered reasons are pretext for discrimination. Accordingly, we find that Complainant has not shown that the Agency discriminated against her on the bases of disability, and in reprisal for prior EEO activity when it repeatedly asked for medical documentation for her reasonable accommodation requests; repeatedly charged her with AWOL, and LWOP; issued her a letter of counseling; and suspended her for seven days.
Further, in regards to Complainant's allegation that she was subjected to a hostile work environment based on her disability and in reprisal for prior EEO activity, we conclude that a finding of harassment is precluded by our finding that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases, as discussed above. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). As such, we find that the Agency did not subject Complainant to a hostile work environment on the bases of disability, or in reprisal for prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding that Complainant has not shown that the Agency discriminated against her, or subjected her to a hostile work environment on the bases of disability, and in reprisal for prior EEO activity when it repeatedly asked for medical documentation for her reasonable accommodation requests since November 22, 2011; repeatedly charged her with AWOL, and LWOP since November 2011; issued her a letter of counseling on February 10, 2012; and suspended her for seven days on May 1, 2012.
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
___8/5/16_______________
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.
2 S2 applied 51/4 hours of annual leave, and 11/4 hours of credit hours for July 23, 2012; and 1 hour of credit hours for July 24, 2012.
3 Complainant filed an EEO complaint approximately four or five years prior to the instant complaint, which was settled with a reassignment to her current position.
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