Meaghan F.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionNov 2, 20160120152932 (E.E.O.C. Nov. 2, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Meaghan F.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120152932 Agency No. ATL-14-0676-SSA DECISION The Commission accepts Complainant’s appeal from the July 16, 2015 final Agency decision (FAD) 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 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 at the Agency’s Teleservice Center in Birmingham, Alabama. Complainant has suffered from chronic migraines since 2000, and states she recently was diagnosed with anxiety and depression. On June 9, 2014, Complainant claims that her supervisor (S1) advised her that she had been taking too much leave and that she would have to give him advance notice when using leave. Complainant alleges that S1 informed her that a written record of the counseling session would be placed in her personnel file. Complainant believes that it was inappropriate for S1 to counsel her regarding leave usage because, on May 19, 2014, she had provided him a note from her doctor indicating that she was being treated for chronic daily headaches; that migraines are unpredictable; and that she may need to be absent from work if they could not be 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. 0120152932 2 controlled by medication. Additionally, Complainant believes that it was inappropriate for S1 to place the counseling in her personnel file. On October 27, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of disability when, on June 9, 2014, she was subjected to a leave counseling session that was subsequently placed in her SF 7-B Personnel File. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency, as an initial matter, dismissed Complainant’s claim of a hostile work environment for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Next, the Agency assumed arguendo that Complainant established a prima facie case of disability discrimination and found that management had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, S1 stated that he had spoken to Complainant on several occasions regarding her leave usage. S1 noted that Complainant was sometimes absent for weeks or months at a time and that as of June 9, 2014, she had exhausted all available leave sources. S1 added that as her supervisor, it was his responsibility to ensure she understood how critical her leave situation had become. Finally, S1 confirmed that whenever a formal counseling session is held with an employee, a written record of that counseling is placed in the employee’s file. Complainant argued that it was inappropriate to counsel her about her attendance because she had provided S1 with a doctor’s note explaining her condition. The Agency noted that her note stated that Complainant may experience a “flare up from time to time” and she may miss work if the migraines cannot be controlled by medication. The Agency found that the note did not support Complainant’s absence from work for weeks at a time. For example, Complainant failed to report to work between March 23, 2014 and May 10, 2014. Complainant’s total leave usage between August 2013 and May 2014 was 1,109.60 hours or approximately 139 days. Complainant had zero leave balances, had been advanced numerous annual and sick leave hours, and she had used more than 375 hours of leave without pay (LWOP). Thus, the Agency found that Complainant’s medical documentation did not support her excessive leave usage and, as a result, S1’s decision to counsel Complainant regarding her leave usage was reasonable under the circumstances. Additionally, Complainant argued that placing a record of the counseling in her personnel file was inappropriate because if management merely intended to remind her of her leave situation, a verbal counseling would have sufficed. S1 and Complainant’s third-level supervisor (S3) confirmed that whenever a formal counseling interview takes place, a written record of it is placed in the employee’s personnel file. The Agency determined that their statements were supported by the Agency’s Personnel Policy Manual. 0120152932 3 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 as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant reiterates numerous arguments previously made. Complainant contends that the Agency’s leave counseling violated Agency policy. Complainant claims that her medical documentation was sufficient to support her absences. Complainant disputes the Agency’s contention that the leave counseling was not a disciplinary action. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS 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). In the instant case, assuming arguendo that Complainant established a prima facie case of disability discrimination, the Commission finds that Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. In particular, S1 stated that he held the counseling session with Complainant based on the severity of Complainant’s leave situation. ROI, Ex. 7, at 4. S1 confirmed that Complainant had used all available leave; utilized the maximum amount of sick leave; been advanced the maximum annual amount of advanced sick leave; and used well over 240 hours of LWOP. Id. S1 noted that he spoke with Complainant on numerous occasions prior to June 2014, regarding the critical state of her leave. Id. at 3. Complainant submitted a doctor’s note stating that she may be absent from “time to time” if her migraines could not be controlled by medication; however, S1 maintained that an open letter saying an employee may be absent is not sufficient documentation to justify extended absences. Id. at 6. Finally, S1 affirmed that any time a formal counseling session is held with an employee, a written record of that counseling is placed in the employee’s 7-B file. Id. at 5. S3 confirmed that a written record of leave 0120152932 4 counseling is not considered a disciplinary action and it would simply be used in informational session. ROI, Ex. 8, at 3. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. EEOC Request No. 05960403 (Dec. 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 not to 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 evidence that Complainant's disability was 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 the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination as alleged. Finally, to the extent that Complainant is alleging that she was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant’s claim is precluded based on the Commission’s finding that she failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000). 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 (M0416) 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: 0120152932 5 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 must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests 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 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 0120152932 6 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 November 2, 2016 Date Copy with citationCopy as parenthetical citation