Raymond W.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionJun 29, 20180120161624 (E.E.O.C. Jun. 29, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raymond W.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120161624 Agency No. OCO-15-0588-SSA DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated March 3, 2016, finding no discrimination regarding his 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. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Customer Service Technician, GS-5, in the Data Operations Center Customer Service Branch, Office of Earnings and International Operations, Office of Central Operations, Philadelphia Region, in Wilkes Barre, Pennsylvania. On August 6, 2015, Complainant filed his complaint alleging discrimination based on disability when: (1) The Agency failed to provide him with a reasonable accommodation when on April 2, 2015, his doctor’s note requesting an accommodation was ignored and his supervisor (S1) discouraged him from requesting a reasonable accommodation; and 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. 0120161624 2 (2) The Agency subjected him to disparate treatment when on April 28, 2015, he was terminated from employment. After completion of the investigation of the complaint, Complainant did not request a hearing before an EEOC Administrative Judge (AJ). The Agency then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. 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 (EEO MD-110), Chap. 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"). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. The record indicates that on May 5, 2014, Complainant began his employment at the Agency as a Customer Service Technician, GS-5, subject to one year probationary period, in the Data Operations Center Customer Service Branch. Complainant indicated that he suffered from asthma and allergies and had a chronic constriction of his airways; and he also had allergies to dust, dust mites, and mold. Complainant indicated that in February 2015, he began experiencing symptoms after being assigned to go through ERISA (Employment Retirement Income Act) paperwork by S1. Complainant claimed that the documents had dust on them, he contacted S1 about the matter, and S1 asked him for a doctor’s note to support his conditions. The record indicates that Complainant submitted his doctor’s note dated February 24, 2015, wherein the doctor stated, “Please excuse [Complainant] from handling ERISA papers or archived paper due to his dust allergy.” S1 indicated that she was not aware of Complainant’s medical conditions until he submitted the February 24, 2015 doctor’s note. S1 stated that after her receipt of the note, she offered Complainant, who worked the night shift, to transfer to the day shift or the mid-shift as no ERISA workload was assigned to those shifts (i.e., ERISA was only a night shift workload and as such it was a part of Complainant’s job workload). Complainant refused to change his shift. Complainant does not dispute this. 0120161624 3 The record indicates that on February 27, 2015, S1 consulted her supervisor and a Human Resources Specialist regarding the matter and based on their recommendation, she requested Complainant provide more detailed medical information since the doctor’s note was too vague. S1 also provided Complainant with a SSA-501 form (Request for Reasonable Accommodation) to complete. Meanwhile, S1 stated that Complainant was provided with dust masks, gloves, and desk cleaning wipes to help him complete the ERISA assignment. Despite Complainant’s claims, S1 denied she discouraged him from submitting a SSA-501 form. Complainant indicated that on April 2, 2015, he performed the ERISA work and experienced allergy symptoms. S1 indicated that Complainant was not assigned any of the ERISA workload but for that one day on April 2, 2015. S1 stated that Complainant never brought in the completed SSA-501 form or any medical documentations as requested; rather Complainant verbally told her that his doctor would not complete the form. Complainant admitted he never submitted the form. Regarding claim (2), Complainant’s Section Manager (M1) indicated that as recommended by S1, he issued Complainant the termination letter during his probationary period. Specifically, M1 noted that the termination was based on Complainant’s continued performance deficiencies relating to his confusion dealing with topic changes from call to call; his failure to follow management’s directive to process work; his inappropriate behavior towards his supervisor and coworker; and his misuse of duty time. Specifically, M1 stated that despite extra assistance and mentoring, Complainant was observed having performance difficulties and refused to process a workload assignment. M1 also indicated and Complainant does not dispute that on March 13, 2015, Complainant sent S1 an instant message through Lync that contained a picture of an eye with a picture of a heart underneath it and the letter “U” underneath the heart (I love you); and on April 15, 2015, his coworker, female, reported to management that he sent disturbing and inappropriate instant messages to that coworker during duty time. Assuming (without deciding) that Complainant was an individual with a disability, we find that Complainant failed to show that he was denied a reasonable accommodation. Complainant has not shown that he was required to work with the ERISA paperwork after he informed the Agency of his medical problem doing that work. The record clearly indicates that Complainant failed to provide the Agency with the reasonably requested medical documentation. Furthermore, Complainant refused to be assigned to work in a day or mid-shift instead of a night shift and failed to provide any evidence why this would not effectively accommodate his conditions. After a review of the record, we find that Complainant failed to show that he was treated less favorably than a similarly situated employee under similar circumstances or that the Agency’s reason for terminating him during his probationary period was a pretext for discrimination. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 0120161624 4 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. 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. 0120161624 5 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 June 29, 2018 Date Copy with citationCopy as parenthetical citation