Lori Munroe, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionDec 17, 2009
0120073214 (E.E.O.C. Dec. 17, 2009)

0120073214

12-17-2009

Lori Munroe, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.


Lori Munroe,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 0120073214

Agency No. DEN051808SSA

DECISION

On July 6, 2007, complainant filed an appeal from the agency's June 6,

2007 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. The appeal is deemed timely and is accepted

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission AFFIRMS the agency's final decision.

ISSUES PRESENTED

(1) Whether the agency satisfied its obligation to provide complainant

with a reasonable accommodation, and whether the agency appropriately

requested medical documentation;

(2) Whether management subjected complainant to discriminatory harassment;

and

(3) Whether management subjected complainant to disparate treatment

because of her disability and/or prior EEO activity.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked as

a Claims Representative (CR), GS-11, in the Great Falls District Office of

the Denver Region, located in Great Falls, Montana. On January 18, 2006,

complainant filed an EEO complaint alleging that she was discriminated

against on the bases of disability (critical subglottic stenosis1)

when:

(1) she was subjected to harassment when, in August 2005, management

initially denied her request for reasonable accommodation2; and

(2) on February 23, 2006, management issued a decision on her request

for reasonable accommodation, as a result of which she was taken off

the Alternate Work Schedule (AWS), her desk day was taken away and she

was required to take in four claims per day and given more cases than

the other CRs.

Complainant further alleged that in reprisal for prior protected EEO

activity [under the Rehabilitation Act]:

(3) management required her to wear a watch and take her cellular

telephone with her to medical appointments. She was also required to

have the doctor's office call management if there was a delay and she

could not return to work at the expected time.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC 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).

Final Agency Decision

The FAD first noted that CRs conduct interviews to obtain, clarify, and

verify information about applicants' initial and continuing eligibility

for retirement, survivors, disability benifits, etc. CRs also adjudicate

and authorize payment for claims involving benefits and eligibility for

all programs administered by the SSA. CRs are generally scheduled one

"paper day" per week, during which time they do not conduct interviews,

but instead catch up on their paperwork.

The FAD further explained the following: on March 1, 2005, complainant's

doctor (D1) operated on her trachea to correct problems with her

breathing. Complainant was discharged from the hospital on March 15,

2005. D1 released complainant to return to work on April 1, 2005.

D1 stated that complainant continued to have a hoarse voice and he

recommended she only use her voice about half the time she spent at work.

In response, management assigned complainant only one interview in the

morning and one interview in the afternoon. The FAD found that on

April 12, 2005, complainant's first-level supervisor, the Assistant

District Manager (S1), stated that complainant would be handling the

office's appeal work until further notice. The FAD found that on

May 31, 2005, complainant met with her second-level supervisor (S2)

to inform her that conducting two interview appointments per day did

not give her adequate time to rest her voice. As a result, S2 decided

that complainant would conduct only one claims interview per day and

she would be assigned other non-interviewing work. The FAD found that

in addition, S2 asked complainant to provide a reasonable accommodation

request since her medical condition appeared no longer to be temporary

in nature. On June 3, 2005, complainant submitted a written request for a

reasonable accommodation.3 The same day, S2 requested that complainant

provide specific medical documentation to support her request for a

reasonable accommodation.

The FAD found that as requested, complainant provided a letter dated

June 28, 2005, in which D1 recommended that complainant continue to

limit the use of her voice. D1 also stated he did not know how long

it would take for complainant to return to a stronger voice quality.

The FAD found that on August 26, 2005, S2 denied complainant's

request for accommodation, noting that the medical documentation she

received did not specify how complainant's post-operative period had

a significant impact on her ability to speak. She further noted that

the essential duties of a CR involved conducting interviews. The FAD

noted that complainant objected to this determination and requested a

reassessment on September 12, 2005. S2 agreed to a reassessment and

requested additional medical documentation, which complainant provided

on November 3, 2005. Complainant's medical documentation included a

letter from a doctor (D2), which indicated that she continued to lack

endurance when speaking for extended periods of time. The FAD found

that in a letter dated January 10, 2006, S2 concluded that complainant's

medical documentation validated her claim of a chronic medical condition

that significantly limited her ability to perform major life functions

(i.e., speaking, walking) both on and off the job.

The FAD then found that S2 still requested additional medical information

in order to determine the nature of the accommodation needed. On February

23, 2006, S2 noted that complainant's doctor recommended that complainant

continue to limit her talking to two hours at a time and if an interview

continued for more than two hours she should stop to rest her voice and

then resume. Accordingly, S2 concluded that complainant should receive

the following accommodation:

Your current alternate work schedule (AWS) of working nine hours a day

eight days per pay period, eight hours one day per pay period, and a day

off each pay period, does not fully permit you to utilize the length

of your workday to maximize the interviewing schedule. Therefore, by

incorporating the following schedule work assignment modifications, your

request for reasonable accommodation limiting your voice is approved.

Your weekly tour of duty will be a 5-day/8-hour a day flexible schedule.

You will be assigned up to the two disability interviews or up to four

RSHI interviews, or a combination thereof, each workday. CR's routinely

conduct RSHI interviews in less than an hour. Therefore, you will be

assigned two RSHI interviews within a two-hour period. Reassignment of

interviews will be consistent with your doctor's recommendations of not

routinely exceeding two hours of interviewing in the morning, a two-hour

rest, and two hours of interviewing in the afternoon.

The FAD found that on March 23, 2006, S2 met with complainant (and

her attorney) and a Union representative to discuss her situation.

At that time, complainant proposed that she retain her 5-4/9 work

schedule, continue to have one non-interviewing day and either remove

any interviewing work or have her perform no more than one interview

per day as a permanent reasonable accommodation. The FAD found that on

April 4, 2006, S2 wrote to complainant rejecting complainant's proposal

because it did not allow complainant to perform the essential functions

of her position. S2 noted that complainant's proposal would result

in her conducting interviews about 12 hours every two weeks while the

essential functions of her position required her to be available to

interview at least 40 hours a pay period. S2 stated that she was open

to other suggested modifications that would allow complainant to perform

the essential functions of her position and were within the restrictions

set by her physician. She stated if they could not come to an agreement,

she would determine whether complainant was able to perform her job and,

if not, consider alternatives, "which might include initiating proceedings

to separate" complainant from her position.4

In terms of its legal analysis, the FAD initially noted: "[w]ith respect

to the first claim, therefore, the complainant no longer can claim

management failed to properly determine she was a qualified individual

with a disabling condition. Because [S2] subsequently decided she did meet

the disability criteria, the complainant's assertion of discrimination

with respect to the first claim is, in essence, moot." The FAD then

proceeded to find that management did not dispute that she had now

shown that she was a qualified individual with a disabling condition,

and management proposed what it felt met operational concerns and was in

compliance with complainant's medical limitations. The FAD noted that

complainant had maintained that the only acceptable accommodation would

have been to allow her to conduct only one initial claims interview per

day. The agency maintained that such an accommodation was not reasonable

as it would have been disruptive and would have fundamentally altered

office operations. The FAD additionally noted that complainant did not

have the right to insist on the accommodation of her choice, provided

that management has offered to implement an effective accommodation

that is reasonable on its face. The FAD also found that complainant

offered no evidence to support a finding that the proposed accommodation

substantially violated her medical limitations.

The FAD additionally found that complainant did not establish that she

was subjected to harassment, noting that "[s]he did not identify any

instance in which [S2] made any comments about her disabling condition

that could be viewed as offensive. The complainant primarily was

upset about management's August 26, 2005, determination denying her

accommodation request. The complainant did not identify any specific

conduct on the part of management that was anything more than an inquiry

into the nature of her medical condition and her limitations. This does

not meet the standards defined for establishing even a prima facie claim

of nonsexual harassment."

The FAD then found that the agency did not subject complainant to

disparate treatment based on disability-based animus by removing her AWS

schedule, her desk day and by requiring her to take in four claims per day

and work on more cases. The FAD noted that S2 explained that her proposed

accommodation would have removed complainant from her 5-4/9 work schedule,

but that this was because if complainant worked 10 days every two weeks

she could handle two interviews per day for a total of 20 interviews every

two weeks. On the other hand, if she remained on her current schedule

working nine days every two weeks she could only complete 18 interviews.

The FAD found that she also stated she recommended complainant have no

non-interviewing days because the rationale for this practice did not

apply to complainant because she already had time off from interviewing

each day to complete her paperwork. The FAD found that S2 further

stated that complainant was never removed from her AWS because she

opposed the recommended accommodations and this matter was still under

consideration. Furthermore, S2 stated that complainant has continued

to only conduct one initial claim interview per day. The FAD found no

evidence that the agency's reasons were pretexts for discrimination.

As to the reprisal claim, the FAD noted that, on December 21, 2005,

complainant returned to work later than expected from her doctor's visit.

Upon her return, she stated she e-mailed S2 and explained the reason

for her delay. She stated that this led to a meeting with S1 and S2

regarding what she should do if she were late again. According to

complainant, S1 made a number of "recommendations" including that she

wear a watch, take her cell phone, and notify the medical facility where

she was receiving treatment as to the time she was expected back in

the office. Complainant stated that they further suggested that if the

delays prevented her from returning as anticipated, she should have the

doctor's office call to notify them of her delay. The FAD noted that

management agreed that these suggestions were made (and that they were

only suggestions), and concluded there was no evidence that management's

actions were motivated by discriminatory animus.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the agency improperly found her claim

that management harassed her when it denied her a reasonable accommodation

request, was moot. She additionally contends that the agency did not

do a proper "undue hardship" inquiry concerning her need for reasonable

accommodation. She also states that the agency improperly framed, and

then improperly evaluated the issues in her complaint. Specifically,

she contends that the agency should have evaluated issue (2) as part and

parcel of the harassment claim, as well as under a disparate treatment

framework. She additionally asserts that the agency erred in determining

that she was not the victim of retaliation after her managers counseled

her for returning late from a medical appointment. She asks that the

Commission reverse the FAD, and make findings of discrimination and

retaliation.

In reply, the agency contends that complainant failed to show that the

alleged incidents were sufficiently severe to qualify as discriminatory

harassment. The agency also notes that the agency did not dismiss as

"moot" complainant's claim of alleged harassment. In addition, the

agency notes that "undue hardship" was not the basis upon which the

agency initially denied complainant's reasonable accommodation on August

26, 2005. The agency explains that at that time, the request was denied

because the agency properly determined, based on the documentation

it possessed, that she was not "disabled" and as such, not entitled

to a reasonable accommodation. The agency notes that once complainant

provided additional medical documentation, the agency made a determination

that she was a disabled person as defined by the Rehabilitation Act and

offered her a reasonable accommodation, which she rejected. The agency

contends that the FAD should be affirmed.

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 EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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

Fist, we note that although the FAD described complainant's assertion

of discrimination with respect to the first claim "in essence, moot,"

this is harmless error, as the FAD went on to analyze whether the agency

met its obligation to provide complainant with reasonable accommodation

pursuant to the Rehabilitation Act. We agree with the FAD's finding that

the agency met its obligations under the Rehabilitation Act concerning

complainant's request for a 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.5 29 C.F.R. ��

1630.2(o) and (p). The agency engaged in an interactive process with

complainant, and during the entire time period, provided complainant

with a number of accommodations which reduced the amount of time she

was required to speak. Even when her reasonable accommodation request

for more reduction in voice usage was denied, the record suggests

that complainant was still being permitted to use her voice much less

than other CRs. Finally, we note that the ultimate accommodation that

complainant was offered, she rejected, even though the record indicates

that it was effective. Complainant is entitled to an "effective"

accommodation, but not necessarily the accommodation of her choice.

In the context of job performance, an "effective" accommodation means

that the reasonable accommodation enables the individual to perform the

essential functions of the position. See EEOC Enforcement Guidance on

Reasonable Accommodation and Undue Hardship Under the Americans with

Disabilities Act, Notice No. 915.002 (October 17, 2002). Complainant has

not offered persuasive evidence that the various accommodations offered

to her were ineffective.

As to complainant's claim that she was taken off the AWS, her desk day

was taken away and she was required to take in four claims per day and

given more cases than the other CRs, there is no evidence that this was

done based on discriminatory animus. Management articulates that these

adjustments were made in order to ensure that complainant would be able

to perform the essential functions of her job, and complainant has not

shown evidence of pretext.

Harassment

We note that as complainant claims that the agency fragmented her

harassment claim, we consider all of the claims raised by complainant in

her complaint, jointly. To establish a claim of harassment a complainant

must show that: (1) they belong to a statutorily protected class;

(2) they were subjected to harassment in the form of unwelcome verbal

or physical conduct involving the protected class; (3) the harassment

complained of was based on their 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).

The harasser's conduct should be evaluated from the objective viewpoint of

a reasonable person in the victim's circumstances. Enforcement Guidance

on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (March

8, 1994).

With respect to element (5), an employer is subject to vicarious

liability for harassment when it is created by a supervisor with immediate

(or successively higher) authority over the employee. See Burlington

Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998);

Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93

(1998). However, where the harassment does not result in a tangible

employment action the agency can raise an affirmative defense, which is

subject to proof by a preponderance of the evidence, by demonstrating:

(1) that it exercised reasonable care to prevent and correct promptly

any harassing behavior; and (2) that complainant unreasonably failed to

take advantage of any preventive or corrective opportunities provided

by the agency or to avoid harm otherwise. See Burlington Industries,

supra; Faragher, supra; Enforcement Guidance: Vicarious Liability

for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002

(June 18, 1999). This defense is not available when the harassment

results in a tangible employment action (e.g., a discharge, demotion,

or undesirable reassignment) being taken against the employee. In the

case of co-worker harassment, an agency is responsible for acts of

harassment in the workplace where the agency (or its agents) knew

or should have known of the conduct, unless it can show that it took

immediate and appropriate corrective action. Id. Upon review of the

record, we find no persuasive evidence that the alleged harassment in

this case was based on management's disability-based animus.

Medical Inquiry/Request for Medical Documentation

In her appellate brief, complainant suggests that on June 3, 2005,

the agency requested medical information that was overly broad.

See Complainant's Brief at 7-8. In particular, she notes that she

inquired of S2 why she would need to provide the results of labs and

X-rays, in order for the agency to assess her reasonable accommodation

request. We note that where the employee's disability or the need for

the accommodation was not known or obvious at the time of her request, it

is consistent with business necessity for an employer to ask an employee

for reasonable documentation about her disability and its functional

limitations that require a reasonable accommodation. See Enforcement

Guidance: Disability-Related Inquiries and Medical Examinations of

Employees Under the Americans with Disabilities Act (ADA), (July 27,

2000) at 20.

Here, we find that S2's memorandum to complainant dated June 3, 2005,

although lengthy and specific, was not overly broad. Initially, we note

that new medical documentation was requested on the basis that it now

appeared that complainant's impairment might be permanent, and the agency

reasonably sought updated information on the condition, as well as what

she would and would not be able to do in her role as CR. S2 indicated in

the letter that complainant should provide lab and X-ray results, etc.,

but only from her "most recent medical evaluation." We find that all of

the information requested would be pertinent to determining which job

duties complainant would be limited in performing and to what extent,

as well as how a reasonable accommodation would enable her to perform

all of the essential functions of her position.

Reprisal

In the absence of direct evidence of discrimination, the allocation

of burdens and order of presentation of proof in a 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). First, complainant must 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. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256. Management indicated that

they suggested that complainant do such things as carry a cell phone and

watch to her medical appointments, in order to ensure that complainant

would not be late returning to work in the future. Although complainant

was apparently offended by such suggestions, there is no evidence that

management made such statements because complainant engaged in 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 FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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), 9-18 (November 9, 1999). All requests

and arguments 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 (S0408)

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 (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an

attorney with the Court does not extend your time in which to file

a civil action. Both the request and the civil action must be filed

within the time limits as stated in the paragraph above ("Right to File

A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

_______12/17/09___________

Date

1 This is a condition which affects the throat and voice.

2 Complainant stated the accommodation she needed was to spend no more

than four hours per day - two hours in the morning and two hours in

the afternoon - conducting duties that required voice usage, such as

interviews. Otherwise, she states she could perform unlimited computer

work and processing paperwork.

3 Complainant merely requested "reduction in use of voice." Report of

Investigation (ROI), Ex. 13.

4 The FAD noted that on April 12, 2006, complainant, who was 29

weeks pregnant, went on medical leave. In addition, as of July 2006,

management had taken no formal action regarding complainant's objections

to the proposed reasonable accommodation.

5 For purposes of this decision, we will assume, arquendo, that

complainant is in fact an individual with a disability.

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0120073214

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120073214