[Redacted], Beth T., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionAug 3, 2021Appeal No. 2020000008 (E.E.O.C. Aug. 3, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beth T.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020000008 Hearing No. 560-2018-00274X Agency No. DAL-17-0670-SSA DECISION On September 24, 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 August 28, 2019 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 Bilingual Claims Specialist, GS-0105-11, at the Agency’s office in Moore, Oklahoma. Complainant asserted that her child suffers from mental and physical disabilities, which required her to accompany the child to a variety of treatments. Due to these commitments, on May 31, 2017, Complainant asked her first-line supervisor (S1) for permission to Work from Home by Exception (WAHBE). Under this policy, the Agency permits an employee to work from home if the employee has difficulty commuting because of medical reasons. 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. 2020000008 2 The policy requires the employee to identify the medical condition and explain how the condition makes commuting difficult. The policy permits an employee to work from home for up to a year but allows that extensions may be made. In her May 31, 2017, request, Complainant identified her child’s conditions as the reason for her request and asserted that she needed to be present at the child’s treatments. On June 1, 2017, S1 responded that the Agency would not grant Complainant’s request because the WAHBE policy did not apply in situations where telework was requested to accommodate family members with medical conditions. Five days later, on June 6, 2017, Complainant sought, as a reasonable accommodation, the ability to telework on Mondays, Wednesdays, and Fridays, so that she could attend her child’s treatments. On August 15, 2017, the Agency denied Complainant’s request and explained that the Rehabilitation Act contemplates accommodations for employees with disabilities, not employees’ family members. Complainant noted that her job duties require her to, among other duties, interview the public over the telephone and in person. Complainant ultimately received protection under the Family and Medical Leave Act (FMLA) for leave used to attend her child’s appointments. Complainant objected that she needs to take between three to five hours of leave per week, but if she was allowed to work from home, she would only need to take 30 minutes. On October 18, 2017, Complainant emailed S1 and said that her uncle was in hospice care and that she might need to leave to see him. S1 responded to let him know when Complainant needed to leave. The record contains a screenshot from an internal office messaging application later on October 18, 2017, in which Complainant messaged S1 that she needed to leave, did not know when she would be back, and that she would text S1. The messaging application indicated that S1 could not receive the message at the time and his status was set to “Do Not Disturb.” Later that day, S1 texted Complainant and said that he wished Complainant had told him or other members of management that she was leaving. S1 asked what time Complainant left and what type of leave she wanted to use for the time. S1 responded that he simply did not receive the internal office message and received no other message from Complainant. Complainant also did not inform any other supervisor she was leaving. Complainant contended that she was subjected to harassment after she submitted her requests. According to Complainant, S1 stopped talking to her for a week, and stopped conversing with her in Spanish. Another employee usually greeted her but did not anymore. Once, when she was at the printer, she noticed the Area Director (S3) behind her and offered to move out of the way. According to Complainant, S3 responded, “do that” or “you do that,” under her breath. S3 denied the allegation. Complainant also referenced an incident in late October 2017, when she had to leave work and would not be available to conduct interviews late in the day. 2020000008 3 S1 responded that Complainant needed to find coverage for the late interviews. Complainant noted this incident because S1 usually asked for volunteers to cover late interviews. However, the next day, S1 told Complainant not to worry about coverage, and that S1 would find coverage. Around the same time, Complainant alleged that S3 removed pictures associated with Complainant’s child’s disabilities from a memory board in the office. S3 explained that the memory board was intended to display pictures from events or awards ceremonies in the office, and that she routinely changed the pictures. At that time, she changed the pictures to commemorate Halloween festivities. Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), sex (female), disability (associational), and in reprisal for prior protected EEO activity when: 1. management denied Complainant’s request for WAHBE; 2. the Agency subjected her to a hostile work environment in terms of working conditions, including rude comments; and 3. management denied Complainant’s request for WAHBE [as a reasonable accommodation]. 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). Complainant requested a hearing, but the AJ assigned to the matter dismissed the hearing request and remanded the complaint to the Agency. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that management subjected her to discrimination or reprisal as alleged. The instant appeal followed. 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”). 2020000008 4 Denial of Reasonable Accommodation 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 undue hardship. 29 C.F.R. § 1630. The Commission has held, however, that individuals with a relationship or association with a person with a disability are not entitled to receive reasonable accommodations. EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at n.5 (Oct. 17, 2002). In the instant case, Complainant claims that she was denied reasonable accommodation based on the medical needs of her child, a person with medical conditions, when she was denied a request concerning her ability to work from home. Complainant did not assert that she needed an accommodation for her own medical condition to perform the duties of her position. We find that the Agency was not obligated to provide Complainant a reasonable accommodation under these circumstances because the requested accommodation was not related to Complainant’s ability to perform the essential functions of her job, but rather was related to her child’s condition. Accordingly, the Commission finds that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. To the extent Complainant alleges she was subjected to disparate treatment on the basis of race, sex, or in reprisal for prior protected EEO activity when the Agency denied her WAHBE request, the Agency explained that its WAHBE policy applies only to individuals with a condition that prevents them from commuting to work. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency’s explanation is further supported by the plain language of its WAHBE policy. Complainant offers no argument tending to controvert the Agency’s explanation or establish that the Agency denied her request because of her race, sex, or in retaliation for prior EEO activity. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal. 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 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). 2020000008 5 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. 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. Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile work environment, we find that Complainant has not shown that any of the alleged incidents were motivated by discriminatory or retaliatory animus. 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. 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. 2020000008 6 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). 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. 2020000008 7 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 3, 2021 Date Copy with citationCopy as parenthetical citation