Liz M.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Feb 3, 2016

0120140416 (E.E.O.C. Feb. 3, 2016)

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

Liz M.,1
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120140416

Agency No. ODAR-11-0448-SSA

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
September 30, 2013 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 Case Technician
in the Agency’s Office of Disability Adjudication and Review (ODAR) in Akron, Ohio. On
April 27, 2011 (and amended numerous times), Complainant filed a formal complaint alleging
that the Agency discriminated against her and subjected her to a hostile work environment on
the bases of race (African-American), color (Black), disability, and in reprisal for prior
protected EEO activity as evidenced by multiple incidents including, inter alia, management
spoke to her inappropriately and made her workload unbearable; management denied her
requests to be moved to another group; she received an unfair performance review for fiscal
year 2011; management issued her a reprimand for insubordination; her reasonable
accommodation requests were denied; she received a 14-day proposed suspension which was

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.
0120140416

2
subsequently upheld; her requests for leave were denied; management refused to sign her
“Meet-and-Deal” requirement form which denied her the opportunity to apply for positions;
she received a 30-day proposed suspension; she was not selected for two promotions; her
supervisor (S1) made advances towards her and watched her; and the Chief Administrative
Law Judge had her escorted from the workplace by security officers and when she returned to
the office, a security officer informed her that she had to leave and escorted her to the first
floor of the building.2

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission 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 articulated legitimate, nondiscriminatory
reasons for its actions. For example, Complainant identified five instances where she received
negative appraisals. Complainant asserted that these negative appraisals were issued to her
because of her prior EEO activity and her disability. Complainant’s first-level supervisor (S1)
stated that Complainant’s work product contained numerous errors and her poor attitude
contributed to her negative appraisals. S1 specifically listed “Engages in Learning” and
“Interpersonal Skills” as areas where Complainant’s performance was lacking. S1 cited an
incident where Complainant was offered refresher training after she input queries incorrectly,
but Complainant refused. The record indicated that Complainant’s appraisals have all been
consistent. All five negative appraisals indicated Complainant conducted herself in an
unprofessional manner and failed to improve her skills.

With respect to her requests to be reassigned to another group, Complainant’s second-level
supervisor (S2) affirmed that management does not have an obligation to reassign an employee
and employees are not reassigned without a compelling reason. S2 added that management’s
first responsibility is to the Agency and the unit. S2 asserted that he chose not to reassign
Complainant for fear of bringing her problems into another group. Another group supervisor
(GS1) confirmed that concern for office morale and productivity were reasonable justifications
for refusing Complainant's reassignment requests and that the decision was made in the best
interest of the Agency.

Regarding the written reprimands, the record indicated that Complainant received two written
reprimands. S1 affirmed that he issued both reprimands because Complainant disobeyed a
direct order. The September 28, 2011 reprimand was given to Complainant for her refusal to
work the front desk. Complainant’s position description listed “duties assigned” under duties

2 The Agency dismissed several additional claims for failure to state a claim and for untimely
EEO counselor contact. Complainant did not challenge these dismissals on appeal; therefore,
the Commission will not address them in this decision, but will consider the claims as
background evidence in support of Complainant’s overall hostile work environment claim.
0120140416

3
to be performed by the Case Technician. Complainant admitted that she refused to work the
front desk, but claims she was not feeling well. S1 reported that the January 31, 2012
reprimand was issued because Complainant again refused to comply with a management
directive to go to his office. Complainant admitted that she refused to go to S1’s office, and
claims she did so because “it was the only way to stay in control.”

As to her suspension, management stated that it has a responsibility to management employees
in the office. Management proposed and subsequently upheld Complainant’s suspension for 14
days because she shouted at S1, used inappropriate language, and refused to complete an
assigned project.

With regard to the “Meet-and-Deal” forms, S1 indicated that he withheld his signature because
he felt she was unqualified to deal with the public. S1 cited as examples Complainant’s
inability to act professionally in the office, her refusal to work the front desk when directed to,
and a work product that has not improved in her time at the office. The Meet-and-Deal form
indicated three factors to be considered: oral communication, interpersonal skills, and
motivation, and S1’s examples applied directly to those factors. The record reflected that
Complainant had a history of insubordination and inappropriate language towards her
supervisors, as well as her refusal to work the front desk or attend hearings.

Regarding her leave denial claims, Complainant has been placed on Absent without Leave
(AWOL) three times and had leave denied in two of those instances. The first instance of
AWOL occurred on April 18, 2012, and the second and third instances occurred on October 9,
2012 and January 16, 2013. Complainant claimed that she was denied leave on April 18,
2012, and on January 16, 2013. Management stated that all requests for advanced leave must
be accompanied by medical documentation. Both S1 and S2 confirmed that Complainant failed
to provide the necessary medical documentation. According to S1 and S2, Complainant only
provided a note from her doctor confirming that she had an appointment on April 17, 2012.
Complainant alleged that she was too sick to return to work for five days; however, she
acknowledged that she failed to provide the necessary documentation. As to the October 9,
2012 instance, Agency policy required employees to take a lunch break if they work at least six
hours in a work day. On October 9, 2012, Complainant worked six hours, but refused to take
a lunch break and refused to submit a leave request. As a result, S1 charged her six hours of
AWOL. Finally, as to the January 2013 AWOL instance, Complainant was scheduled to work
the front desk that day starting at 8:00 a.m., and failed to inform management that she would
be late. As a result, S1 charged Complainant with AWOL for her failure to adhere to the
Agency’s leave policies.

Regarding her promotion, Complainant alleged that management withheld her promotion and
within grade increase because of her participation in prior EEO activity. Management
explained that Complainant's promotion was withheld because of her leave without pay
(LWOP) balance. GS1 confirmed that an employee's time-in-grade computation is affected
when that employee has over 80 hours of LWOP.

0120140416

4
With respect to the incident where Complainant was escorted out of the building, the Chief
Administrative Law Judge (Chief ALJ) affirmed that Complainant refused a management
directive to remove a covering from her cubicle. Complainant claimed that she placed the
scarf across her cubicle to provide her privacy from S1, who she has accused of stalking her.
Both GS1 and the Chief ALJ confirmed that they contacted the Regional Legal Counsel who
instructed them to take the tent-like covering down. The Chief ALJ stated that Complainant
was insubordinate and confrontational causing them to have to request assistance from security
guards from the Federal Courthouse. Witnesses reported that Complainant attempted to
physically stop S1 from removing the tent which justified the decision to remove Complainant
from the office and place her on administrative leave.

Regarding her non-selection for two promotions, S2 explained that he did not select
Complainant for the positions based on Complainant’s history of insubordination, poor work
quality, and overall unprofessional attitude. S2’s explanation was bolstered by S1’s comments
about Complainant’s history of negative appraisals, and her inability to improve her attitude
and performance.

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
discriminated or retaliated against as alleged.

With respect to her hostile work environment claim, the Agency determined that the alleged
incidents (including the above-discussed incidents, work assignments and assignment
distribution, lunch break times, and being given “direct orders”) were not sufficiently severe
or pervasive to establish a hostile work environment. Further, there was no evidence that the
alleged incidents were based on Complainant’s protected classes.

Regarding her sexual harassment allegations against S1, the Agency found that the evidence
failed to support her claim. Complainant claimed that S1 constantly stared at her, was
infatuated with her, and followed her to her desk every day. The Agency determined that,
even if the record evidence did not show that S1 was in a constant struggle to manage
Complainant, the alleged conduct failed to constitute sexual harassment. Complainant admitted
that an internal investigation was conducted which found no evidence of sexual harassment.
Witnesses denied that S1 acted in any inappropriate manner. Complainant claimed that S1
became “psychologically” sexually aroused upon seeing her reactions when he requested
meetings with her. S1 denied being infatuated with Complainant or sexually harassing her.
Accordingly, the Agency found that there was no evidence that S1 sexually harassed her.

Finally, as to her failure to accommodate claims, Complainant specifically requested three
accommodations: 1) that management not require her to work the front desk, 2) that she not be
required to sit in on hearings, and 3) that she be permitted to take her lunch at 1:00 p.m. every
day. Complainant based the first two accommodation requests on her mental condition.
Complainant failed, however, to provide any medical documentation regarding a mental
disability. S1 issued Complainant a memorandum issued on May 7, 2012, indicating that
0120140416

5
Complainant's request for a reasonable accommodation had been denied. The memorandum
stated that the Agency’s Medical Office made this determination on the grounds that
Complainant’s medical documentation failed to identify which tasks Complainant was limited
in performing. Further, the memorandum noted that certain tasks from which Complainant
was seeking exemption, such as interaction with the public, were essential tasks of
Complainant's position. Complainant based her third accommodation request on her diabetic
condition. Management stated that, while Complainant provided sufficient medical
documentation indicating her condition, she failed to produce medical documentation indicating
that she unequivocally needed to eat lunch at that specific time. Nonetheless, S2 granted
Complainant permission to eat her lunch or check her blood sugar whenever it was necessary.
Since management granted Complainant permission to eat lunch whenever she chose, the
Agency determined that it had fulfilled its obligations under the Rehabilitation Act. Thus, the
Agency found that Complainant had been accommodated as required under the Rehabilitation
Act. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant simply argues that the evidence supports her complaint. Complainant
contends that she has been discriminated against and requests that the Commission reverse the
FAD.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on her statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a ““reasonable person” in
Complainant's position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

0120140416

6
Here, Complainant alleged that based on her protected classes, management continuously
subjected her to a hostile work environment as evidenced by multiple incidents. The
Commission finds that the record does not show that the Agency subjected Complainant to a
discriminatory hostile work environment. Moreover, even assuming that the alleged conduct
was sufficiently severe or pervasive to create a hostile work environment, Complainant failed
to show that the Agency's actions were based on discriminatory or retaliatory animus. The
record reflects that the alleged incidents were more likely the result of routine supervision,
managerial discipline, personality conflicts, and general workplace disputes and tribulations.

Furthermore, the Commission finds that Complainant has not established, by a preponderance
of the evidence, that she was subjected to sexual harassment. S1 denied that he ever made any
advances or comments to Complainant, and there is no corroboration that S1 actually made any
sexual advances. Complainant alleged that S1 became psychologically aroused by seeing her
reaction when he requested to meet with her. Complainant failed to offer any corroborating
evidence to support her contentions that S1 subjected her to any such behavior. Thus, the
Commission finds that Complainant did not establish that she was subjected to unwelcome
sexual conduct. As a result, the Commission finds that Complainant has not established that
she was subjected to a discriminatory or retaliatory hostile work environment or sexual
harassment as alleged.

Finally, to the extent that Complainant is alleging disparate treatment with respect to her
claims, the Commission finds that she has not shown that the Agency's reasons for its actions
were a pretext for unlawful discrimination or reprisal. As a result, the Commission finds that
Complainant was not subjected to discrimination, reprisal, or a hostile work environment as
alleged.

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 a qualified individual with a
disability unless the Agency can show that accommodation would cause an undue hardship.
See 29 C.F.R. §§ 1630.2(o) and (p). The Commission will assume without deciding that
Complainant is an individual with a disability.

The record reveals that Complainant requested several accommodations. First, Complainant
requested that she not be required to work the front desk because those duties caused her to
feel “over-stimulated.” In addition, Complainant requested that she not be required to monitor
hearings due to her mental condition because she could not listen to the “sad stories of
claimants.” Complainant refused to meet with S1 to discuss the request. ROI, Ex. 9-3, at 1.
S2 denied Complainant’s request because she had had approximately 50 days to obtain
documentation from her medical providers to support the types of limitations she alleged
prevented her from performing certain work assignments, (i.e., working at the front desk,
monitoring hearings, and occasionally lifting heavier paper files) and she had failed to do so.
Id. at 1-2. When an individual's disability or need for reasonable accommodation is not
0120140416

7
obvious, and the individual fails to provide reasonable documentation requested by the
employer, the employer will not be held liable for failure to provide the requested
accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act, No. 915.002, Question 6 (as revised Oct.
17, 2002). Accordingly, the Commission finds that Complainant was not denied reasonable
accommodation in violation of the Rehabilitation Act as to these two requests.

Next, Complainant requested that she be permitted to take her lunch break at 1:00 p.m. each
day due to her diabetic condition. S2 confirmed that Complainant provided medical
documentation to support the fact that she needed to eat and check her blood sugars for her
diabetic condition whenever she is working at the front desk, and management allowed her to
eat and check her blood sugar as necessary. ROI, Ex. 9-3, at 2. 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. See U.S.
Airways v. Barnett, 535 U.S. 391, 400 (2002). Complainant has not offered any evidence that
the granted accommodations were ineffective. Therefore, the Commission finds that
Complainant failed to prove that the Agency denied her reasonable accommodation in violation
of the Rehabilitation Act.

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 (M0815)

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
0120140416

8
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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

February 3, 2016
Date