0120160856
05-03-2018
Kecia C.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kecia C.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120160856
Agency No. ATL150021SSA
DECISION
On December 11, 2015, 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 November 10, 2015 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
ISSUE PRESENTED
Whether Complainant established that management failed to reasonably accommodate her disabilities and subjected her to a hostile work environment when, on several occasions, her leave requests were denied and she was placed in an Absent Without Official Leave (AWOL) status.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Benefits Authorizer Trainee at the Agency's SSA, Southeastern Program Service Center facility in Birmingham, Alabama.
Complainant describes her disabilities as chronic lower back pain, as well as anxiety and panic disorder. She states these are permanent disabilities, but she can function and work. Complainant testifies her chronic lower back pain hurts all day, and she takes medication for her anxiety and panic disorder. She states the medication has side effects and makes her drowsy, weak and dizzy because they are a narcotic. She states she was provided an ergonomic chair after her doctor wrote a prescription. She indicates there are certain things that can trigger her anxiety and panic disorder.
On January 30, 2015, Complainant filed an EEO complaint alleging management failed to accommodate her disabilities and subjected her to a hostile work environment when, on several occasions, her leave requests were denied and she was placed on Absent Without Official Leave (AWOL) status for those absences.
The Agency accepted the complaint and conducted an investigation. The record shows that the investigator prepared a draft affidavit for Complainant based on discussions with her. The EEO investigator contacted Complainant multiple times to obtain Complainant's review and signature to the affidavit, but she failed to respond. The EEO investigator also provided Complainant the opportunity to submit a rebuttal to the managers' affidavits, but Complainant did not respond. Therefore, Complainant's version of events is based on her unsigned draft affidavit, her formal complaint and related EEO counseling report, and her statement submitted on appeal.
The investigation showed that during the time at issue, Complainant's first line supervisor was S-1. In October 2015, S-1 was replaced by S-2. S-3 is her second-level supervisor.
On May 5, 2014, Complainant began benefits authorization training. After beginning training, her managers began receiving reports from Complainant's instructors that she was late and frequently in and out of class. S-1 conducted formal leave counseling with Complainant. That action included advising Complainant that management had concerns about her absences and tardiness to the training.
From June 9, 2014 through July 31, 2014, the Agency contends Complainant had seventeen (17) instances of leave usage and tardiness. S-1 informed Complainant that if her leave record did not improve, she would be placed on leave restriction. On September 11, 2014, S-1 issued Complainant a Leave Restriction letter because S-1 believed that Complainant's attendance had not improved.
The Leave Restriction letter required Complainant to submit medical documentation within fifteen (15) days of her return to the office for the period of sick leave taken. The Leave Restriction letter stated that a failure to provide medical documentation within the fifteen-day period would result in denial of her request for leave and a charge of AWOL.
According to Complainant, on September 12, 18, 25, 26, October 1, and 13, she was placed in an AWOL status for an approximate total of 38 hours. She stated that she provided a leave request for all dates in order to attend medical appointments. She expressed her belief she was charged AWOL based on her disability because she sees these doctors every month. She alleges that management restricted her from receiving the medical treatment she required.
According to management witnesses, Complainant requested and was initially approved for sick leave on September 12, 18 and 19, 2014. However, upon return, Complainant did not provide supporting medical documentation within the required 15-day timeframe. On October 7, 2014, S-2 placed Complainant on AWOL for three (3) days. Complainant was absent again on September 25 and 26, 2014 and October 1 and 13, 2014. She again failed to submit medical documentation for the absences. On October 24, 2014, S-2 notified Complainant that he had placed her on AWOL for those absences.
S-2 stated that the AWOL was issued because Complainant failed to provide medical documentation for her absences within the timeframe required by her Leave Restriction letter. S-1 and S-2 stated that they had no other employees fail to provide required medical documentation for sick leave. According to the Agency's report of investigation, Complainant was asked to identify other employees who committed the same leave violations as her, but were not placed on AWOL status. Complainant is reported to have said that she could not identify any employees.
Complainant, however, alleged she was subjected to a hostile work environment because she was asked to submit medical documentation to support her leave requests, which she states she did, albeit late, but her leave requests were not approved. Instead she was charged AWOL. Complainant also states that S-2 would approach her with personal information in open class that should have been only discussed in private, had her sign documents in her training class, and talked down to her. S-2 denied Complainant's allegations of harassment.
Complainant, with the assistance of her union representative, contends that the Agency caused her undue stress. Essentially, they argue that Complainant should not have been required to submit medical documentation for each absence because, in accordance with Article 31, Section 4 C, of the National Agreement for Social Security Administration, that "[t]he use of sick leave for scheduled medical appointments caused by recurring and previously documented medical conditions will not be considered a leave pattern that indicates an abuse of leave." She further alleges that management refused to accept the late (beyond the 15-day requirement) medical documentation she submitted that her treating physician wrote regarding the dates in question.
Complainant and her representative contend that management knew about Complainant's condition, but continued to target the Complainant by placing her on leave restriction resulting in her being charged with AWOL. Complainant and her Union Representative assert that the "antagonist approach and tactics" used with Complainant caused her to miss additional days because of the stress she felt from management.
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 proved that the Agency subjected her to discrimination as alleged.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, the Complainant contends that the Agency failed and continues to fail to provide her with an acceptable accommodation. Her primary contention is that because of her disabilities, anxiety, depression, and related conditions, she is unable to come to work regularly. While the Agency is not taking the position that she is unable to perform her job, it is requiring the submission of a medical certification for each absence. Complainant contends that she has supplied the required medical certifications, but the Agency is not accepting them because they are late.
ANALYSIS AND FINDINGS
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").
Reasonable Accommodation
Under the Rehabilitation Act and Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and (p); see also, EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (October 17, 2002). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (February 17, 1994).
Assuming that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, we find that Complainant has not shown that the Agency failed to reasonably accommodate her. The record establishes that management was aware of Complainant's disabilities and she was permitted to take unplanned leave because of her medical conditions.2 However, because Complainant's frequent absences and tardiness were affecting her training due to its unpredictable nature, management imposed a requirement that Complainant provide medical documentation for each absence related to her disability within fifteen days of her return to work. Complainant contends that she provided the documentation. The Agency contends that the Complainant's compliance with that requirement was usually late. As a result, the Agency would not accept the late documentation. Consequently, Complainant was being charged with AWOL each time she did not meet the Agency's requirement.
Complainant contends that the nature of her disability made it impossible for her to "immediately comply" with the Agency's requirement. Complainant asserts that the severity of her illness causing the episodic absences made it impossible for her to comply with the Agency's requirement immediately upon her return to work after an episode. She contends that she provides the medical documentation "as soon as she can." However, we note that the Agency's requirement for providing medical verifications was not due immediately upon Complainant's return from an absence. Instead it was due within fifteen days following Complainant's return to work.
What appears to be missing from Complainant's argument and responses, given the amount of time from her return to work to submit her physician's documentation, is an explanation by the Complainant addressing why that amount of time was insufficient. Without an adequate explanation of the impact of a fifteen-day restriction on providing a signed physician's note, the Agency's requirement appears to be reasonable. The vague and open-ended explanation by the Complainant is insufficient. Accordingly, the Commission determines that the Agency's requirement is reasonable, and did not constitute discrimination by the Agency.
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 the complainant's employment. 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, supra at 21-22.
Here, Complainant is also asserting a discriminatory hostile work environment was created by the requirement that she provide medical documentation to support her absences. Complainant's absences, while unavoidable and unpredictable due to the nature of her disabilities, are still, nevertheless, subject to reasonable monitoring and reporting. Without such a requirement, Complainant, an employee, would be left with unfettered freedom regarding when she comes to work. The Agency is dependent on employees coming to work and performing their jobs. Under the facts presented in this case, due to the frequency of Complainant's absences and the impact on the Agency's operations, the need to provide medical documentation within 15 days to support the use of sick leave was not unreasonable, and did not amount to unlawful harassment. Regarding other allegations of harassment, such as the supervisor allegedly talking about private matters in public or talking down to her, Complainant has failed to provide evidence that these incidents occurred as she alleged. The supervisor denies them, and there is no contrary evidence, including a signed affidavit from Complainant, to support her claims.
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 FAD.
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__5/3/18________________
Date
1This 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 There is also evidence that the Agency provided other accommodations, such as a preferred location for her office and an ergonomic chair.
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