[Redacted], Addie V., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 5, 2021

Appeal No. 2020001595 (E.E.O.C. Aug. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Addie V.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020001595 Agency No. ATL-19-0280 DECISION On December 21, 2019, 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 November 13, 2019, 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. 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 Senior Case Technician, GS-986-08, at the Agency’s Office of Hearing Operations in Tampa, Florida. Complainant asserts that she started demonstrating symptoms of Cerebellar Ataxia in 2012 when she lost her hearing and had a stroke resulting in a loss of fine motor skills and the use of her right hand. In 2016, Complainant’s speech began to degrade. At the time of this complaint, Complainant was unable to verbally communicate. 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. 2020001595 2 Hostile Work Environment Complainant alleged that she was subjected to a hostile work environment based on several incidents. Complainant contended that her stroke in April 2012, was caused by a verbal attack by a coworker (CW1). Complainant said that she reported the incident to her supervisor (S1), but no corrective action was taken. CW1 recalled the incident differently. Complainant and CW1 were assigned to work the front desk, and Complainant had gone to make photocopies when her phone rang. CW1 stated that she put her call on hold and answered Complainant’s reception line. CW1 affirmed that Complainant was angry that CW1 answered the phone and began yelling at her. Around the same time, Complainant claimed that a group of employees created a “Go Fund Me” poster to raise money for a co-worker’s husband. Complainant thought that this was improper and reported the matter to her second-level supervisor (S2). Complainant claimed that “Bring Your Child to Work Day,” a program she organized, was later boycotted by staff in retaliation. In addition, Complainant raised an incident in which S1 told her not to answer an email from the administrative judge to whom Complainant was assigned. After Complainant answered the email, S1 threatened to write her up for insubordination. In another incident, Complainant claimed that after she participated in an EEO complaint as a witness, the Group Supervisor (GS) ordered her to stand in the very rear of a work group photo rather than in the middle. Complainant concluded that this was premediated and malicious harassment. Complainant says that GS began questioning Complainant regarding her church activities and refused to accept Complainant’s questions during work meetings. GS noted that he never supervised Complainant. As to the group photo, GS said he arrived late to the photo shoot, and was told by the photographer where to stand in the picture. S1 averred that Complainant is a tall person, and the taller employees were asked to stand in the back of the picture. In 2017, Complainant was assigned to another administrative judge (AJ1). Complainant contended that AJ1 refused to communicate with her in accordance with EBP standards. Subsequently, Complainant asserted her speech became unintelligible, and she took leave protected by the Family and Medical Leave Act (FMLA) in June 2018. AJ1 denied refusing to communicate with Complainant. AJ1 asserted that he is flexible with communications and strives to use more means of communicating than is required in an effort to improve and enhance the workflow. According to Complainant, in September 2018, AJ1 yelled at Complainant saying that she has had two years to get a diagnosis. Complainant did not provide further information about this incident and AJ1 denied making the comment. Complainant claimed, however, that her work accommodations were revoked shortly after this incident. 2020001595 3 In December 2018, Complainant asked her then-supervisor (S2) to complete a form for short- term disability benefits. However, Complainant alleged that S2 refused to complete the form. Complainant asserted that S2 should have checked a box saying that her FMLA leave was due to “sickness” but S2 insisted on checking the box indicating “other.” S2 explained that she completed the form to the best of her ability, but Complainant wanted S2 to indicate that Complainant had stopped working completely. However, at the time, Complainant had not invoked FMLA leave, so S2 did not want to provide false information. Reasonable Accommodation Requests Complainant asserts that she submitted multiple requests for reasonable accommodation over the years. S2 acknowledged that Complainant requested modifications to her job as a reasonable accommodation in September 2017. In October 2017, S2 discussed Complainant’s requests and agreed to temporarily allow Complainant to work only electronic cases and not work receptionist duties. S2 emphasized that her decision was temporary and intended to allow Complainant to provide relevant medical documentation so that the Agency could make a formal decision. The record contains a reasonable accommodation decision from the Agency dated October 24, 2018. The decision reflects that Complainant sought five accommodations: (1) work-up of electronic cases only, and not paper cases; (2) no work-up of unrepresented claimant cases; (3) full-time telework; (4) no front desk duties; and (5) no verbatim hearing reporter (VHR) duties. The Agency agreed to provide Complainant with speech software to assist her with word processing. Because the Agency believed this to be an effective accommodation, the Agency denied Complainant’s request to be excused from working up paper cases and unrepresented claimant cases, and from performing front desk duties. The Agency then rejected Complainant’s request for full-time telework. The Agency explained that Complainant did not provide documentation showing she had difficulty commuting to work. Further, the medical documentation Complainant provided indicated that mold in her home was exacerbating her neurological symptoms. Accordingly, it appeared to the Agency that permitting additional telework would make Complainant’s symptoms worse, not better. Turning to Complainant’s fifth request, the Agency noted that Complainant was previously excused, as an accommodation, from covering any hearing monitor duties. The Agency agreed to continue this accommodation. S2 asserted that, on November 6, 2018, she informed Complainant that the speech recognition software had arrived. But Complainant took leave every day thereafter and never returned to the office. Complainant retired on December 18, 2018. Complainant objected that another employee (CW2) was granted full-time telework, but S2 explained that CW2 was not granted telework as a reasonable accommodation, but rather through the Agency’s Work-At-Home-By-Exception policy. 2020001595 4 On March 18, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and in reprisal for prior protected EEO activity when: 1. beginning in 2012, and continuing, the Agency failed to provide Complainant with a reasonable accommodation; and 2. since April 2012, the Agency subjected Complainant to harassment in terms of working conditions, excessive workloads, and denial of reasonable accommodation requests.2 At the conclusion of 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 Equal Employment Opportunity Commission 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 or reprisal as alleged. Complainant filed the instant appeal without submitting any arguments or contentions in support. 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”). Denial of Reasonable Accommodation An agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC 2 Complainant also alleged that she was subjected to a constructive discharge. The Agency processed this claim separately as a mixed-case complaint and issued a final agency decision with appeal rights to the Merit Systems Protection Board (MSPB). 2020001595 5 Appeal No. 0120120400 (Dec. 3, 2015). For purposes of this decision, we assume that Complainant is an individual with a disability. In September 2017, Complainant requested through the Agency’s reasonable accommodation process the following accommodations: (1) recusal from paper case work-up; (2) no work-up of unrepresented claimant cases; (3) full-time telework; (4) no front desk duties; and (5) no VHR duties. Complainant claimed that to accommodate her medical condition, management initially allowed her to work only electronic files and removed her from receptionist duties. Complainant alleged, however, that the Agency revoked those accommodations on October 24, 2018, while also denying her request to telework full time. Additionally, Complainant had requested a one- handed keyboard. Complainant later withdrew that request and agreed to try the NextUp speech software that management offered. Management additionally offered Complainant alternative keyboards and an ergonomic mouse, but she declined those items. S1 acknowledged that management temporarily allowed Complainant to work only electronic cases and removed receptionist duties through September 2018. By October 2018, Management approved the NextUp speech software, self-paced training, and assistance handling paper cases as needed. The Agency denied Complainant’s request to be permanently excused from working- up paper cases, unrepresented claimant cases, and front desk duties as it was believed that the NextUp speech software would be an effective accommodation pursuant to Complainant’s doctor’s recommendations. In addition, the Agency denied Complainant’s request for full-time telework because Complainant’s medical documentation did not explain how full-time teleworking would enable her to perform the essential functions of her position. Management did allow Complainant to telework three days a week, a flexible 4/10 schedule, and liberal leave when needed. Finally, management noted that Complainant was not required to perform VHR duties. Complainant then went out on extended leave, later applied for disability retirement, and did not return to the office prior to the software arriving. The Commission has long held that individuals protected under the Rehabilitation Act are not entitled to the accommodation of their choice, but to an effective accommodation. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002) (alternative proposed accommodations must be “effective”). Complainant has not offered sufficient evidence demonstrating that the granted and alternative accommodations offered to her were ineffective. Accordingly, the Commission finds that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Hostile Work Environment To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) 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; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering 2020001595 6 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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis -- in this case, because of her disability or for engaging in prior protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Complainant asserted that based on her protected classes, she was subjected to a hostile work environment as evidenced by several incidents of what she believed to be discriminatory and/or retaliatory harassment. The Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. The record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. The Commission notes that the anti-discriminatory statutes are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). There is no evidence reflecting the existence of discriminatory or retaliatory animus toward Complainant based on her protected classes. Thus, the Commission concludes that Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment. CONCLUSION 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. 2020001595 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020001595 8 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 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 5, 2021 Date