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

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2019005952 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diane F.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019005952 Agency No. CHI-18-0118-SSA DECISION 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 9, 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 Complainant worked as a Claims Specialist, GS-0998-11, at the Agency’s Field Office in Pekin, Illinois. On February 17, 2018, Complainant filed an EEO complaint in which she alleged that the Agency subjected her to discrimination and a hostile work environment based on disability (mental and physical) and prior protected EEO activity when: 1. On October 26, 2017, Complainant received critical remarks and an overall rating of 3.0 on her Fiscal Year (FY) 2017 Performance and Communications Assessment (PACS) Appraisal from a District Manager, her immediate supervisor (S1); 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. 2019005952 2 2. On November 14, 2017, S1 increased her workload, prevented her from working credit hours on Saturdays, and denied her request for reassignment to the Peoria Field Office; and 3. Since April 18, 2016, S1 and the Manager of the Peoria, Illinois Field Office (MPI) failed to provide Complaint with a reasonable accommodation for her disabilities. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 stated that she experiences complications from a number of physical and mental conditions, including: neurological complications due to Lyme disease; subacute thyroiditis; an unspecified sleep disorder, post-exertional malaise, and dysautonomia. She averred that her conditions affected multiple daily life activities, including walking, standing, exerting herself, thinking, and managing pain. She reported that it takes her longer to do things and that she had to use a wheelchair pushed by her husband if she had to traverse longer distances. Further, she stated that it was hard for her to go shopping. IR 82-83. Incident (1): Under the PACS performance system, employees were rated on four elements: interpersonal skills; participation; demonstrates job knowledge; and achieves business results. Three ratings were possible: (1) - unsuccessful; (3) - successful; and (5) - outstanding. S1 averred that she rated Complainant at level (3) in each performance element, based upon her assessment of Complainant’s performance during FY 2017. When asked what ratings she believed she should have received, Complainant responded that she could accept a 3 rating because her understanding was that “hardly anyone gets a (5) rating,” and if this was the case, the discussion of her performance should reflect an accurate portrayal of her work. She claimed that S1 diminished her positive contributions and highlighted negative aspects of her performance. S1 affirmed that Complainant’s performance was successful in all of her performance elements, and that she listed those areas where Complainant did well and noted those areas where her performance could improve. IR 83-86, 176-77, 197. Incident (2): Complainant alleged that S1 denied her the opportunity to work credit hours on Saturdays, denied her request to be reassigned to the Peoria Field Office, and had increased her workload. In particular, she stated that she had six appeals assigned to her after she had returned from a visit to her doctor. IR 86-90. S1 and MPI responded that they did not deny anyone credit hours. Rather, she did not begin offering her staff the opportunity to work credit hours until October 2017, and that the policy pertaining to credit hours applied to everyone. As to Complainant’s contention regarding reassignment to Peoria, both S1 and MPI averred that they did not have the authority to make decisions on reassignments to other offices. 2019005952 3 As to Complainant’s assertion regarding an increased workload, S1 denied that Complainant was given a heavier workload than other staff members, and that there had been no change in work assignments since October 1, 2016. To the extent that Complainant had to handle more appeals, it was due to the fact that there were “no-show” appointments. All five Claims Representatives were subject to the same conditions. IR 177-81, 198-201. Incident (3): Complainant had submitted several requests for a reasonable accommodation between April 18, 2016, and April 26, 2018, including: (1) extra breaks; (2) use of a cart; (3) reassignment to Peoria, Illinois; and (4) working social security (T2) workloads only. In his response dated April 26, 2018, the National Reasonable Accommodation Coordinator (NRAC) informed Complainant that she would be allowed to use her own leave if she needed to take extra breaks and would be given the use of a cart. The NRAC also informed Complainant that she would recommend that the third and fourth requests be denied, noting that reassigning Complainant to Peoria would double her commuting distance and increase her workload, and that limiting her work to processing social security was unnecessary because she was performing at the successful level. Complainant was granted the chair and the extra breaks. Agency management also placed a chair near the printer so that she could use it, putting it in such a position that it would not be a tripping hazard. IR 92-101. 104-05, 113, 117-18, 120-24, 181-84, 201-06,211, 223-25, 237-38, 241, 289. In addition to claiming that she had been subjected to discrimination, Complainant also characterized the above-referenced occurrences as incidents of harassment. IR 94-101. A technical expert that Complainant identified as her second-line supervisor asserted that there had been numerous occasions where Complainant had gotten angry with her and behaved rudely and inappropriately toward her between 2016 and 2018. IR 212-16. ANALYSIS AND FINDINGS Standard of Review 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 2019005952 4 An Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9; Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). In order to establish that she 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). Assuming that Complainant is a qualified individual with a disability, we find that the Agency has provided her with reasonable accommodations, in the form of a chair near the printer, a cart, and extra breaks when she needed to take them. The National Reasonable Accommodation Coordinator determined that there was no reason to restrict or limit her workload or to reassign her from the Pekin Field Office to the Peoria Field Office based on her condition. The employer may choose among reasonable accommodations so long as the chosen accommodation is effective. U.S. Airways v. Barnett, 533 U.S. 391, 400 (2002). Here, Complainant has presented no evidence that the provided accommodations were ineffective. After reviewing the record in its entirety, we find that the Agency has fulfilled its statutory obligation under the Rehabilitation Act. 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, 802 (1973). Her first step would generally be to 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 Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since S1 and MPI articulated legitimate and nondiscriminatory reasons for each of their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to incident (1), S1 stated that the “successful” rating awarded to Complainant in her FY 2017 PACS appraisal was consistent with Complainant’s performance during that time frame. Management reported that while Complainant had areas of level 5 performance, she did not maintain this performance for the entire year. Further, management affirmed that Complainant’s score and feedback was accurate as indicated on the PACS appraisal. Regarding incident (2), S1 averred that no one on her staff was denied the opportunity to work credit hours, that she was not involved in any decision to reassign Complainant to Peoria, and that Complainant’s workload was not increased relative to those of the other Claims Specialists on her staff. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). 2019005952 5 Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). When asked why she believed that the incidents she described were discriminatory, Complainant responded that S1 and other management officials began to bully her after she submitted her reasonable accommodation request to MPI. IR 86, 88-89, 91, 94. Beyond these, her own assertions, Complainant has presented neither affidavits, declarations, or unsworn statements nor documents which contradict or undercut the explanations provided by S1 and MPI, or which would cause us to call into question the veracity of those individuals or of any other management official who provided an affidavit. We therefore find that Complainant has not presented evidence sufficient to establish the existence of an unlawful discriminatory or retaliatory motivation on the part of any management official connected with the above-described incidents. Hostile Work Environment To the extent that Complainant is alleging that she was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, 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. 2019005952 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. 2019005952 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 February 2, 2021 Date