Lauralee C.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionMar 7, 20180120160366 (E.E.O.C. Mar. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lauralee C.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120160366 Agency No. ATL-14-0834-SSA DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal from the September 17, 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 Teleservice Representative, GS-0962-08, at the Agency’s Teleservice Center in Tampa, Florida. Complainant experiences complications from several conditions including panic attacks, anxiety, asthma attacks, and paranoia. Complainant indicated that her condition causes her to experience constricted breathing; blurred vision; inability to speak; shaking; uncontrollable crying spurts, inability to focus or hear; hyperventilation; chest and back pain; inability to drive, walk, or stay calm; agitation; uncontrollable drooling; flashbacks; and depression. In November 2010, Complainant submitted a doctor’s note requesting that she be allowed to use the restroom hourly as needed. 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. 0120160366 2 In May 2011, Complainant reported an incident of sexual harassment and assault by a co-worker. In August 2011, Complainant emailed her second-level supervisor (S2) after seeing her alleged harasser in the bathroom and requested that the Agency “approve a hardship transfer and relocation expenses” for her to transfer to the Macon, Georgia office. Complainant discussed this with management and her third-level supervisor (S3) provided Complainant with information about requesting a hardship transfer, including the need to submit documentation in support of the request. Complainant claimed that she was told by a former supervisor that management had shredded any documentation she previously submitted; therefore, she refused to submit any additional medical documentation in support of her transfer request. Complainant’s request was not granted.2 On December 12, 2011, Complainant informed her supervisor that she was “no longer requesting reasonable accommodation for bathroom breaks.” In June 2014, Complainant met with her supervisor (S1) and informed him of her condition and claimed that she had requested a reasonable accommodation in 2011. S1 inquired with S2 as to whether Complainant had previously requested accommodation. S2 emailed Complainant stating that she had never received a reasonable accommodation request from her. S2 informed Complainant that she should complete and submit the Agency’s reasonable accommodation request form and submit it to S1. On July 11, 2014, Complainant met with S1 to discuss her request for reasonable accommodation. S1 discussed the reasonable accommodation process with Complainant and asked if Complainant had medical documentation to support her request. Complainant told S1 that she submitted medical documentation in 2011 and refused to submit any additional documentation. Complainant’s only available medical documentation was the 2010 doctor’s note stating that she needed to take frequent restroom breaks. Additionally, Complainant again requested a reassignment. On August 22, 2014, S1 issued Complainant a decision on her request for reasonable accommodation denying her reassignment request based on her failure to submit sufficient medical documentation in support of the request. Nonetheless, S1 approved alternative accommodations including approval to use liberal leave during the day should Complainant’s medical condition require excessive time away from her workstation and use of flex time. On September 5, 2014, S2 upheld S1’s decision finding that the available medical documentation did not demonstrate that reassignment would be an effective accommodation. S2 noted that Complainant could submit additional medical documentation in support of her request for reassignment as an accommodation; however, Complainant refused to submit any additional medical documentation. 2 In Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120132099 (Nov. 6, 2013), req. for reconsid. denied, EEOC Request No. 0520140107 (Apr. 11, 2014), Complainant claimed that the denial of her August 2011 transfer request was based on reprisal. As the Commission has addressed this matter previously, this issue will only be discussed as background information. 0120160366 3 On September 15, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability, and in reprisal for prior protected EEO activity when, on August 22, 2014, her request to be reassigned from the Tampa Teleservice Center as a reasonable accommodation was denied. 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). Complainant requested a FAD. In accordance with Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that management did not fail to reasonably accommodate Complainant. The Agency found that Complainant’s requested accommodation was not a form of accommodation. Complainant did not demonstrate how a transfer would allow her to perform the essential functions of her position. Further, management suggested alternative accommodations to address the medical conditions Complainant described as interfering with her duties. With respect to her claim that management failed to respond to her request for accommodation in 2011, Complainant’s supervisors denied that Complainant made a request for accommodation or that she submitted any medical documentation in support of a request in 2011. Complainant provided no evidence that she made a reasonable accommodation request and submitted medical documentation to management in 2011, as she alleged. The Agency determined that the only evidence Complainant submitted regarding this claim was her supervisor’s response to her request for a hardship transfer stating that if she wished to have a hardship transfer, she needed to provide the documentation to support it. The Agency found that there was no evidence in the record demonstrating that Complainant responded to the request. Even if her initial request was construed as a reasonable accommodation request, management responded when it requested supporting documentation. Complainant’s subsequent failure to respond to this request is the reason for any alleged delay in processing a transfer request. Accordingly, the Agency concluded that Complainant had not been denied reasonable accommodation. With respect to her disparate treatment claim, the Agency found that management had articulated legitimate, nondiscriminatory reasons for its actions. More specifically, management denied Complainant’s request for a transfer because her submitted medical documentation did not support it. Further, management granted her alternative accommodations to allow her to continue performing the essential functions of her position. 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 or reprisal as alleged. The instant appeal followed. 0120160366 4 CONTENTIONS ON APPEAL On appeal, Complainant contends that Agency officials provided false statements during the investigation. Complainant argues that there were vacant positions for which she was qualified into which the Agency should have reassigned her. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS Denial of 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. § 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 noted above, Complainant raised issues related to the August 2011 transfer request denial in a previous complaint. However, assuming arguendo that the August 2011 request constituted a request for accommodation, Complainant refused her supervisor’s requests for medical documentation in support of this request. Complainant’s only submitted medical documentation was a 2010 doctor’s note that stated she needed to take frequent restroom breaks as needed. ROI, Ex. 15. Thus, Complainant failed to show in August 2011 that a reassignment would have been an effective accommodation. In June 2014, Complainant requested reasonable accommodation once again in the form of a reassignment to any office in Georgia to be closer to family. ROI, Ex. 7, at 3. S2 requested medical documentation in support of her request for accommodation. ROI, Ex. 12. Complainant admitted that she refused to submit additional medical documentation in support of her request for accommodation. ROI, Ex. 7, at 4. Complainant’s only medical documentation remained the 2010 doctor’s note only recommending frequent restroom breaks. ROI, Ex. 15. As a result, management determined that Complainant’s medical documentation did not support reassignment as an effective reasonable accommodation. ROI, Exs. 13 and 14. As an alternative, S1 granted Complainant usage of liberal leave when her condition required excessive time away and use of flex time. ROI, Ex. 14. Complainant was informed that management would consider any additional medical documentation she wished to submit in support of her request for accommodation; however, she refused to submit any additional documentation. Under the Commission’s guidelines, an agency may request additional information when presented with a request for reasonable accommodation in order to evaluate a complainant’s proposed accommodation in comparison to her current medical needs in order to determine what 0120160366 5 accommodation would best serve the needs of the agency and complainant. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002, Question 6 (Oct. 17, 2002). Moreover, when an individual’s disability or need for reasonable accommodation is not obvious, and she fails to provide reasonable documentation requested by the employer, the employer will not be held liable for failure to provide the requested accommodation. Id. Here, the record shows that Complainant refused to provide the Agency sufficient medical documentation to assist in addressing her condition. Nonetheless, the Agency offered Complainant several alternative accommodations to assist her in performing the essential duties of her position. While Complainant may not have been offered the exact reasonable accommodation of her preference, an employer is not required to provide the precise accommodation the employee or applicant wants, so long as the accommodation offered is an effective one under the circumstances of the situation. U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). Here, Complainant has presented no evidence that the provided alternative accommodations were ineffective. Therefore, the Commission finds that Complainant has not established that the Agency failed to provide her with a reasonable accommodation. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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. Corp. 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review of the record, and assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its actions. More specifically, as discussed above, Complainant’s request for reassignment was denied because Complainant failed to submit medical documentation in support of her request. ROI, Ex. 8, at 4-5; ROI, Exs. 13 and 14. Complainant was given the opportunity to submit medical documentation in support and refused to submit any additional documentation. ROI, Ex. 7, at 4. Complainant was granted alternative accommodations to allow her to perform the essential functions of her position, including the use of liberal leave and flex time. Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 0120160366 6 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. As Complainant chose to not request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant’s protected classes were a factor in any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that discriminatory or retaliatory animus was a factor in its actions. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged. 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. 0120160366 7 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. 0120160366 8 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 Copy with citationCopy as parenthetical citation