Martine L.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 4, 2020

2019003011 (E.E.O.C. Aug. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Martine L.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019003011 Agency No. NY-18-0047-SSA DECISION On January 19, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a final Agency decision (FAD) dated August 29, 2018, which she received on January 7, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Contact Representative, GS-962-08, at the Jamaica Teleservice Center in Jamaica, New York. On December 14, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her disability (migraine headaches) when: 1. It failed to reasonably accommodate her disability from March 29, 2017, onward, and based on reprisal for prior protected EEO activity under the Rehabilitation Act when: 2. On October 2, 2017, management told her to revise her request for Family Medical Leave Act (FMLA) renewal. 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. 2019003011 2 The Agency accepted the complaint and conducted an investigation. The evidence developed during the investigation established that on March 24, 2017, Complainant, via the Agency’s online reasonable accommodation process information & data system (RAPIDS), requested telework as a reasonable accommodation, and included a letter dated March 9, 2017, by a nurse practitioner with the New York Headache Center. The nurse practitioner wrote that Complainant has debilitating migraine headaches triggered by bright lights and loud noises, was being regularly seen at the Center, and the fluorescent lights at her work station made her migraine attacks worse after they started. According to the medical note, the symptoms of most severe headaches are light and noise sensitivity, nausea, inability to concentrate, and memory problems. She added that headaches can be so debilitating that they necessitate rest in a dark, quiet environment. Finally, the nurse practitioner indicated Complainant would benefit from teleworking from home on days she has headaches so she can adjust the lighting and work environment to minimize the duration of the migraine attack. A field in RAPIDS that described Complainant’s reasonable accommodation request tracked the March 9, 2017 letter from the nurse practitioner. ROI, Ex. 11 at 1, Ex. 13, at 5. Referring to her accommodation request, in her EEO investigative affidavit Complainant stated her “doctor” recommended she would benefit from working at home 2-3 days a week where she could control noise and light. While the record suggests that her first, second, and third line supervisors (S1, S2 & S3) did not see Complainant’s reasonable accommodation request, they all expressed the belief that she requested to telework 2-3 days a week as a reasonable accommodation. When telework is requested as a reasonable accommodation, Agency practice was for the Director of the Jamaica Service Center Director, to whom S3 reported, to act on the request after getting input from Agency’s Center for Accommodations and Disability Services (CADS). At the direction of a superior, S1 approved in writing the alternative accommodation of Complainant using a room at the Jamaica Teleservice Center that allowed her to control the lighting and minimize noise when she had a migraine headache. Thereafter about a month passed before Complainant sought to exercise this accommodation. Confusion ensued when Complainant and S1 discovered that the lights could not be cut off in most rooms because they had motion sensor light switches that did not permit this, and Complainant went home. S1 advised S3 of the switch problem, and Complainant was informed by management the next day that the management conference room was available for Complainant. It had a traditional light switch. The record, by a preponderance of the evidence, shows this conference room had little traffic. S2 stated that if it was occupied, management would have cleared it for Complainant. Complainant only used the management conference room once. On October 5, 2017, via RAPIDS, Complainant again requested the reasonable accommodation of teleworking 2-3 days a week from home. She submitted updated medical documentation that when she had migraine attacks she was unable to use public transportation and needed to work from home where she could control her environment. After the same review and decision process that was used above was completed, S1 granted Complainant’s request in writing. 2019003011 3 Specifically, Complainant was approved to work at home two days a week on a trial basis for six months, at which time the effectiveness would be evaluated. The six-month period would begin once Complainant received telework equipment. Complainant was allowed to select telework days, and chose Thursdays and Fridays. Regarding issue 2, on October 2, 2017, Complainant submitted to S1 a U.S. Department of Labor Certification of Health Care Provider for Employee’s Serious Health Condition (FMLA) form, completed by her nurse practitioner on September 28, 2017, to support reauthorizing her FMLA. The certification contained language about Complainant’s need to telework as a reasonable accommodation. S2, believing Complainant did not appreciate the difference between a request for FMLA and reasonable accommodation, decided that the telework request must be stricken from the certification form before the FMLA reauthorization request was acted upon. This was communicated to Complainant. Complainant complained to S3, and they and S2 met on October 3, 2017. S3 immediately reauthorized Complainant’s FMLA. According to S1 and S2, S3 did so when Complainant changed the paperwork at the meeting. S2 and S3 encouraged Complainant to separately reapply for reasonable accommodation, which she did on October 5, 2017. She used a clean copy of her certification to support the request. Complainant did not advise her managers that the alternative accommodation of using the management conference room was unsatisfactory until around or after the October 3, 2017 meeting, or inform them that the accommodation of teleworking from home two days a week was ineffective. Following the EEO 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 Administrative Judge with the EEOC. After Complainant did not respond, the Agency’s EEO function issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency found as follows: Complainant was a qualified individual with a disability. While an employee is entitled to an effective accommodation, she is not entitled to the accommodation of her choice, and it is the responsibility of the employee to request a reasonable accommodation. Management provided Complainant accommodations after she requested them, and Complainant did not inform management of a need for a different accommodation. Accordingly, Complainant did not prove discrimination regarding issue 1. Complainant did not make out a prima facie case of reprisal discrimination on issue 2 because no adverse action was taken. Even if Complainant made out a prima facie case, management articulated a legitimate, nondiscriminatory reason for telling Complainant to delete her request for the reasonable accommodation of telework from her FMLA reauthorization request - the processes for reviewing requests for reasonable accommodation and FMLA reauthorization are separate. Complainant did not prove this explanation was a pretext. The instant appeal followed. On appeal, Complainant makes no comment. In reply, the Agency argues that the FAD should be affirmed. 2019003011 4 ANALYSIS AND FINDINGS Under the Rehabilitation Act and the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). The Agency found and does not contest that Complainant is a qualified individual with a disability. Individuals are only entitled to an effective reasonable accommodation, not the accommodation of their choice. Moos v. Social Security Administration, EEOC Appeal No. 01A33798 (June 24, 2004). Generally, it is the responsibility of the employee to request reasonable accommodation. Complainant v. Securities and Exchange Commission, EEOC Appeal No. 0120120154 (Nov. 22, 2013). Based on a review of Complainant’s first reasonable accommodation request, we find that the Agency did not violate the Rehabilitation Act when it offered her the alternative accommodation of using the management conference room as needed, since this seemed to address her documented need to adjust her environment to help alleviate a migraine attack. Complainant did not inform management that this was not accommodating her disability essentially until making her second request for reasonable accommodation to telework 2-3 days a week. Her second request was granted by allowing her to telework twice a week. Again, after trying this accommodation, Complainant did not inform management that this was not suitable. Given all this, we find that the Agency did not violate the Rehabilitation Act on issue 1. To prevail on issue 2, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). To establish a prima facie case of reprisal, Complainant must show that: (1) she engaged in a protected EEO activity, (2) the Agency was aware of the protected activity, (3) subsequently, the Agency engaged in an action that would reasonably likely deter EEO activity, and (4) there is a nexus between the protected activity and the incident at issue. Kennedy v. USPS, EEOC Appeal No. 01993681 (Nov. 21, 2001). The prima facie inquiry may be dispensed with for this claim, however, since the Agency articulated legitimate and nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation was a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Management explained that it asked Complainant to delete her request for the reasonable accommodation of telework from her FMLA reauthorization request because the reasonable accommodation and FMLA reauthorization processes are separate. 2019003011 5 While deletion was unnecessary, the fact that management approved Complainant’s FMLA request the following day militates against a finding that managements’ explanation was a pretext. CONCLUSION The Agency’s FAD is AFFIRMED. 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. 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. 2019003011 6 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 August 4, 2020 Date