Nicole M.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency.

Equal Employment Opportunity Commission

Jul 20, 2018

0120162382 (E.E.O.C. Jul. 20, 2018)

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

Nicole M.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Centers for Medicare and Medicaid Services),
Agency.

Appeal No. 0120162382

Agency No. HHS-OS-0040-2015

DECISION

On July 15, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
May 23, 2016, final decision 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Legal Assistant, GS-8,
in the Office of Medicare Hearings and Appeals (OMHA), located in Cleveland, Ohio. On August
11, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her
based on race (Caucasian), sex (female), color (white), and disability (wrist surgery) when: (1)
management officials made derogatory comments regarding her request for a reasonable
accommodation (telework) and told a co-worker about her prior EEO activity (April 23, 2015 and
July 14, 2015); and (2) management officials delayed the processing of her request for a reasonable
accommodation and subsequently denied it (June 11, 2015).

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.
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After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.

FACTUAL BACKGROUND

On April 16, 2015, Complainant made a verbal request to her first-line supervisor (S1) to telework
while recovering from wrist surgery2 that was scheduled for May 12, 2015, and also submitted
medical documentation indicating that she “may work from home for 4-6 weeks” following the
surgery. On April 20, 2015, Complainant discussed her telework request with the Administrative
Branch Chief, the Human Resources manager (HRC), who informed her that she needed to submit
a formal request explaining the need for telework as a reasonable accommodation, with further
medical documentation that explained how her surgery would impair her ability to work. On April
20, 2015, Complainant sent HRC via email additional paperwork including: (1) a Federal
Occupational Health Service form requesting reasonable accommodation, dated April 20, 2015,
(2) a letter to her second-line supervisor (S2) stating that due to her May 12, 2015 surgery she was
requesting four to six weeks of episodic telework “in which [she] will not be allowed to drive for
approximately that length of time or perform certain [Activities of Daily Living (ADL)], and (3)
another copy of the April 16, 2015 note from her physician.

Between April 20, 2015 and April 22, 2015, Complainant and HRC exchanged several emails
regarding additional medical documentation that the Agency needed from Complainant to process
her reasonable accommodation request. Complainant and the Reasonable Accommodation
Coordinator (RAC) also exchanged several phone calls and emails regarding necessary
documentation to process Complainant’s reasonable accommodation request. RAC reiterated
HRC’s statement that Complainant must provide specific documentation from her physician
addressing the diagnosis and prognosis of her condition, the nature and severity of the condition,
the duration of the condition, the extent of the condition’s impact on her ability to perform essential
job functions (including what the condition specifically prevents Complainant from doing),
whether the condition substantially limits one or more major life activities, and the specific
accommodation requested with an explanation of how the accommodation would allow
Complainant to perform essential job functions.

Complainant claims that on April 24, 2015 (a couple of days after she filed her request for a
reasonable accommodation), she was in the office walking back and forth to the copy machine and
heard HRC talking on the phone with RAC. Complainant explains that HRC’s office door was
open and she heard him say, “Good morning, [RAC]. Thanks for returning my call.” Complainant
further asserts that HRC ended up closing his door, but she could hear him in the hallway
discussing her reasonable accommodation request.

2 Complainant asserts that she was having surgery on her left wrist to repair a torn tendon, remove
a cist, and clean out arthritis.
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Complainant states that HRC said multiple times that she was a “shady employee,” that he could
talk to RAC all day with the issues with her employment. Complainant further asserts that HRC
said he would not put it past her to make things up. According to Complainant, HRC also stated
that she had not completed her work when she had teleworked in the past. In addition,
Complainant asserts that HRC told RAC that S2 “gave in” and placed her in a private office after
she complained about chronic migraines.

On April 28, 2015, S2 informed Complainant that he would hold her telework request in abeyance
until the Federal Occupational Health (FOH) agency provided a recommendation based upon her
submitted medical documentation, because she had not provided sufficient documentation to RAC.
As an interim accommodation, S2 provisionally authorized Complainant to use her accrued leave
balances following her surgery, and told Complainant to let him know if her leave balances were
insufficient to meet her needs so they could discuss her leave options. S2 forwarded his
communications with Complainant to RAC to keep her informed of the process.

On April 30, 2015, Complainant notified S2 that she did not have sufficient leave to cover her
medical needs. S2 directed Complainant to identify her needs for additional leave, and informed
her that he would discuss it with her supervisor before authorizing leave.3 On May 8, 2015,
Complainant’s physician faxed additional medical documentation to RAC. The documentation
noted that the probable duration of Complainant’s condition was four to six weeks and that she
could return to work the day after surgery, working from home doing “desk work.” Complainant’s
physician also restricted her from lifting, pushing, or pulling, or driving for the four-to-six-week
recovery period. The physician also noted that Complainant’s condition would not render her
unable to perform any of her job functions and would not cause episodic flare-ups that would
periodically prevent her from performing her job functions. In addition, the physician informed
RAC that Complainant would require help with bathing, dressing, and meal preparation until her
splint was removed, after which time she would be able to drive and would have “full control” of
her daily living activities.

On May 11, 2015, Complainant submitted a memorandum to S1 updating her request for
accommodation. In this memorandum, Complainant notified S1 that she had leave balances of
23.0 hours of annual leave, 4.25 credit hours, and 13.0 hours of sick leave available. Complainant
revised her request to “approximately 4 weeks of episodic telework,” or four weeks of advanced
sick leave, if the telework was not approved. On that same day, S2 denied Complainant’s request
for advanced sick leave and provisionally authorized the use of accrued leave balances for
recuperation. Subsequently, after discussing her options with S1, Complainant elected to use
accrued leave to cover the date of her surgery and recuperation, and reserved the right to make
further leave requests if her recuperation did not allow her to perform duties in the office.

3 Between April 30 and May 11, 2015, Complainant took annual leave that had been previously
scheduled and went on a vacation to Florida.

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Complainant’s surgery took place on May 12, 2015. Complainant exchanged several emails with
S1 the following week regarding the progress of her accommodation request. On May 18, 2015,
S1 provided Complainant with interim accommodation options including: (1) reporting for duty
after leave balances were exhausted with the light duty assignment of answering phones at the
Reception Desk, or (2) requesting leave without pay or leave advancement for a specific period
after using her remaining leave balances.

On May 20, 2015, RAC informed Complainant that she had discussed Complainant’s medical
documentation with S1 and S2. S2 had informed RAC that he did not want to grant Complainant
telework as an accommodation because she had performance issues when she teleworked
previously. S2 indicated he would provide Complainant with light duty assignments according to
her medical restrictions when she returned to the office. When Complainant returned to duty, she
was placed on light duty at the Reception Desk, and told to do whatever duties she could. On May
27, 2015, HRC submitted a request for Family Medical Leave Act (FMLA) leave on
Complainant’s behalf, to allow her to use FMLA status to take additional leave without pay as
necessary while recovering from her surgery, which was subsequently authorized. On June 11,
2015, S2 informed Complainant that he had determined her requests for full-time telework, or
alternatively, advanced sick leave, were unnecessary because she had demonstrated an ability to
perform work in a sufficient amount, albeit in a limited capacity, at the field office. He noted that
the Agency had accommodated Complainant’s needs by allowing her to use her accrued leave and
credit balances as necessary for her recuperation period.

Complainant also asserts that on July 14, 2015, the union representative (U1) told her about a
conversation he had with HRC who told him that Complainant had filed an EEO complaint against
him (HRC). U1 explains that, as the union steward, he interacts with HRC frequently. However,
he notes that Complainant was the one who told HRC that she had filed an EEO complaint. U1
states that HRC told him that someone had filed an EEO complaint to keep him informed as to
what was going on in the office, but he never mentioned a name. Moreover, U1 states that, to his
knowledge, HRC did not tell anyone else about the EEO complaint.

Complainant claims HRC’s derogatory comments and efforts to delay her reasonable
accommodation were based on her race, color, and sex because HRC is known not to associate
with the female Caucasians in the office. Specifically, she contends that Caucasian females have
complained multiple times about his conduct towards them. She further states she had observed
that he treated Black employees differently. She also states that in the lunchrooms or halls, White
females may say hello to him, and he does not respond, but he would greet Black employees very
cordially. Complainant asserts that HRC did not have a problem dealing with Caucasian males.

Complainant also asserts that these incidents were related to her disability because HRC was aware
that her activities would be limited, yet continued to question her disability and delay her
accommodation.

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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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (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”).

Disability Claims – Harassment and Failure to Accommodate

Initially, we note that the events in this case arose after January 1, 2009, the effective date of the
Americans with Disability Act (ADA) Amendment Act of 2008, which made significant changes
to the definition of disability under the ADA and the Rehabilitation Act. Pursuant to the ADA
Amendments Act, “disability” under the ADA is defined as: (1) a physical or mental impairment
that substantially limits one or more of the major life activities of such individual; or (2) a record
of such an impairment; or (3) being regarded as having such an impairment as described in
paragraph (1) of this section. This means that the individual has been subjected to an action
prohibited by the ADA as amended because of an actual or perceived impairment that is not both
“transitory and minor.” See 29 C.F.R. § 1630.2(g).

The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See
29 C.F.R. § 1630. In order to establish that Complainant was denied a 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. See Enforcement Guidance:
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,
EEOC No. 915.002 (Oct. 17, 2002). 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).

Upon review of the record, we agree with the Agency in concluding that Complainant failed to
establish that she is an individual with a disability because the record establishes that
Complainant’s medical condition was temporary in duration, lasting only four to six weeks
following Complainant’s wrist surgery. The undisputed record shows that the duration of
Complainant’s medical condition was limited to the time it would take her to recuperate from her
wrist surgery. Complainant’s physician consistently stated that Complainant would be able to
return to work with no restrictions after the four-to-six-week period.
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Specifically, the physician noted that Complainant would be in “full control” of her activities of
daily living once her splint was removed, and that he did not expect her to suffer any episodic
flare-ups related to her condition after the four-to-six-week recuperation period ended.
Accordingly, we find that the Agency correctly concluded that Complainant’s medical condition
was transitory and minor, and therefore not a qualifying disability entitling her to a reasonable
accommodation. See Idell M. v. Dep’t of Agriculture, EEOC Appeal No. 0120140792 (Aug. 4,
2016) (finding complainant was not entitled to a reasonable accommodation when recovering from
surgery on her left foot after all medical documentation indicated that the condition was
temporary); see also Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 0120122572
(Dec. 4, 2014) (finding no evidence of qualifying disability within the meaning of the ADAAA
when Complainant had a leg injury that required two surgeries and her recuperation periods were
no more than two to four weeks).4

Claims based on Sex, Race and Color

To prevail in a disparate treatment claim, 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 by demonstrating that she was subjected
to an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the 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.
Texas 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 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily
protected class; (2) that 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).

Complainant asserts that a similarly situated male coworker (C1) was permitted to telework
without requiring medical documentation. However, we agree with the Agency in finding
numerous differences between Complainant’s situation and C1’s situation that render this
argument unpersuasive. Specifically, the record shows that Complainant had been restricted from
telework during the relevant time-frame due to performance issues.

4 Complainant asserts on appeal that her disability is arthritis, not her wrist surgery. However, the
record is devoid of evidence to support the finding that Complainant’s arthritis substantially
limited any major life activity.
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In addition, the undisputed record shows that C1 became abruptly incapacitated due to a hip
condition that caused him to collapse at work prior to his scheduled surgery, and his supervisor
requested that he be permitted a telework accommodation since there was no other employee that
could perform his work as the direct assistant to an Administrative Judge preparing cases for
hearing. In addition, the record shows that C1 was not permitted full-time telework, but rather
partial telework during the few weeks he was out recuperating from hip surgery.

We find insufficient evidence of discriminatory animus with respect to Complainant’s disparate
treatment and harassment claims. Specifically, we find the record devoid of evidence of animus
toward female employees. In addition, while the record indicates that HRC had previously been
criticized for exhibiting a friendlier disposition with his Black coworkers than his White
coworkers, such disparate behavior was quickly corrected once it was brought to HRC’s attention.
Without additional evidence of racial bias, we find that Complainant fails to establish her claims
of disparate treatment and harassment as alleged.

Additionally, we find that Complainant did not establish that HRC improperly discussed
Complainant’s EEO activity with U1 or otherwise failed to keep the fact of her EEO activity
appropriately confidential.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision concluding that
Complainant failed to establish her claims as alleged, by a preponderance of the evidence.

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
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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.

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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

July 20, 2018
Date