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

Equal Employment Opportunity Commission

Aug 10, 2021

Appeal No. 2020002077 (E.E.O.C. Aug. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Margaret N.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020002077 Hearing No. 450-2017-00149X Agency No. DAL-16-0562-SSA DECISION On January 14, 2020, 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 December 16, 2019 final order 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Bilingual Contact Representative, GS-7, at the Agency’s office in Tyler, Texas. Complainant began Agency employment in May 2014. In her position, Complainant was responsible for interviewing the public in-person or via telephone about benefits, eligibility, payments, and other related issues. She had daily interaction with the public. On July 18, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic) and disability (Dyslexia, Attention Deficit 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. 2020002077 2 Hyperactivity Disorder, Post Traumatic Stress Disorder, Obsessive Compulsive Disorder, Depression, Memory Loss, Tinnitus, Endometriosis, and Irritable Bowel Syndrome) when: 1. Since May 2014 and ongoing, the Agency subjected Complainant to hostile work environment harassment, such as failing to provide information about the Agency’s online reasonable accommodation request system; denying union representation during discussions; disclosing confidential information to her mentor; delaying the processing of Family and Medical Leave Act (FMLA) leave, voluntary leave transfer requests, and reasonable accommodation requests; intervening in Complainant’s customer interactions; coercing Complainant to disclose her medications; contacting Complainant’s doctor’s office; and suggesting disability retirement due to medical conditions. 2. Since May 2014, the Agency delayed Complainant’s request for reasonable accommodation. 3. Since May 2014 and ongoing, the Agency denied Complainant reasonable accommodation. The Agency accepted Complainant’s complaint for EEO investigation. During the investigation, Complainant stated due to her medical conditions, she has limited mobility, feels nauseous, is easily startled, hears ringing in her ears, has dizziness and blurred vision, has difficulty expelling waste, has trouble retaining information, cannot remember simple tasks, loses words, forgets information or a question if distracted, has difficulty learning, and has simultaneous competing thoughts in her head. Complainant stated, in May 2014, management hired her under the Schedule A hiring authority for persons with disabilities. She stated that her position requires her to work with the public - handling payees, answering telephones, obtaining social security cards and new identification cards. Complainant stated that she was not fully trained due to medical-related absences and asked to be so. Complainant stated that her training mentor (M1) was not fully available to train her so her “hands on” training was never completed. Complainant stated that she can perform duties without additional training, but it becomes increasingly stressful and sometimes causes an emotional breakdown. Complainant stated, in September 2014, she requested a new mentor because M1 was frequently absent due to her own medical conditions. Complainant stated that her supervisor shared her confidential request with M1, who sat next to her, and it made their relationship tense. Complainant stated that she also requested: a new service window so that she could be away from the conversations of others, a noise blocker so that she could concentrate, an office so that she could hear when on the phone with the public, the ability to work Saturdays or part-time light duty to make up lost time, and the ability to go home to use the restroom as needed. Complainant later alleged that she was forced to retire due to the Agency’s failure to provide these reasonable accommodations. 2020002077 3 Complainant stated that the Operations Supervisor (S1), who was her immediate supervisor, treated Hispanic employees and clients differently. She stated that S1 kept refusing to pass her FMLA request to the next level and returning it to Complainant. Complainant stated her request was approved once she contacted the District Manager and was told specific language to add to the request. Complainant stated that S1 asked to meet with her, but told her she did not need union representation present and then told her how she felt Complainant was trying to “undermine” her. Complainant also stated that S1 just continued to request more medical documentation and it was never enough. She felt it was a pattern of harassment. S1 stated that there is an online tool used for reasonable accommodation requests. S1 stated that the automated request is forwarded to her to approve/disapprove at the local level. S1 stated, on March 15, 2016, she informed Complainant of the processes for FMLA and reasonable accommodation. S1 stated that Complainant was absent from work between November 15, 2015 and March 7, 2016 and, when she returned, she tended to arrive late or needed to depart early. S1 stated that Complainant informed her that her medication made her drowsy and that it was difficult for her to retain information, so she informed Complainant about FMLA. S1 stated when Complainant submitted her FMLA forms there was insufficient information about the frequency of the flare-ups, so she asked Complainant about the missing information. S1 stated that Complainant requested accommodation on April 5, 2016. S1 stated that management provided a new job mentor, a dual ear headset, liberal leave, a flexible schedule as long as she worked eight hours, and the ability to depart the facility to use the restroom using FMLA leave. S1 noted that Complainant’s request for telework or a job coach (who sat with her all day and did not perform other work) had to go to the Regional Office for approval. S1 stated that Complainant informed Texas management of her intent to transfer to the Arkansas office before any remaining accommodations could be considered by the Regional Office. S1 stated that she did not deny Complainant union representation. S1 stated that she did not harass Complainant, but did ask her about instances in which she was late, absent, or had to leave early. The Assistant District Manager of Tyler Office (S2) stated that Complainant was not reporting to work or was reporting late so the Agency met with her and her union representative to work on FMLA and then clarify her requests for reasonable accommodation. S2 stated that management was eager to get Complainant back to work so it worked promptly to provide accommodations. S2 stated that Complainant then indicated that she planned to transfer to its Little Rock, Arkansas District Office (LRDO) in two weeks so some of the accommodations were no longer needed in Texas. S2 stated that management then began working on Complainant’s transfer request. In pertinent part, the record contains the documents that follow. · Letter dated May 20, 2016 from Complainant’s Psychiatrist stating: [Complainant] is diagnosed with Post Traumatic Stress, Major Depressive Disorder, and Adult Attention Deficient Disorder. . . . The above listed medical conditions are chronic in nature and will have 2020002077 4 periods of symptom exacerbation. Mood dysregulation, anxiety, irritability, and poor concentration/organization are some of the symptoms associated with those diagnoses. [Complainant] would be best served by working in a quiet environment - away from others where she is better able to focus on the task at hand. She may need more time than others to complete tasks and more assistance from others in learning new tasks. · Letter dated May 23, 2016 from Complainant requesting a hardship transfer to the Agency’s Little Rock, Arkansas office due to her husband’s change of employment. She requested leave without pay until her family could complete moving their belongings from Texas to Arkansas.2 · May 23, 2016 statement by Agency’s Harassment Prevention Officer of intention to conduct an internal fact-finding investigation for Complainant’s allegation of harassment by S1.3 · Letter dated July 19, 2016 from the LRDO Operations Supervisor stating that LRDO paired a binaural headset with Complainant’s phone; offered Complainant the ability to move to a workstation away from noise but she declined; and provided a cubicle noise blocker, daily assistance on workload topics, a developmental mentor, and desired training. The Operations Supervisor also confirmed that LRDO received Complainant’s notice of disability retirement. At the conclusion of the EEO 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) or an immediate final agency decision. Complainant requested a hearing. On December 13, 2019, the assigned AJ issued a decision by summary judgment in favor of the Agency. In that decision, the AJ found that management provided Complainant with a mentor, who had some absences due to her own medical conditions, and then a subsequent mentor. The AJ stated that Complainant, not the Agency, failed to ensure she completed on-the- job training. The AJ stated that Complainant failed to submit work for review as was required and did not avail herself of other peer or supervisory support in the workplace. The AJ stated that Complainant expected her supervisor to allow her union representation at every discussion between them and the evidence showed that management permitted union representation when necessitated by union contract. The AJ found that Complainant did not “actively apply” for reasonable accommodation or FMLA until April 2016 and, in May 2016, management approved a hardship transfer for Complainant to LRDO. 2 Complainant began work at LRDO on June 6, 2016. 3 Subsequently, the fact-finding investigation found no evidence of discriminatory actions. 2020002077 5 The AJ found that the Texas office informed LRDO of the status of Complainant’s reasonable accommodations and LRDO paired Complainant’s binaural headset with its telephones, provided a cubicle noise blocker, assigned a new mentor, provided additional training, and offered a quieter workspace. The AJ found that any delay in accommodation was more related to Complainant’s absences from work or failure to provide complete medical information. The AJ concluded that what Complainant alleged as supervisory harassment was routine supervision and training. The AJ stated that Complainant authorized management to contact her physician and they contacted the doctor to get information that was omitted from forms. The AJ stated that Complainant retired within two months of her hardship transfer. The AJ found the FMLA, reasonable accommodation, and voluntary leave transfer requests were addressed promptly by the Agency. Summarily, the AJ found that Complainant failed to show that the Agency’s actions were motivated by discriminatory factors. Subsequently, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant 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”). 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 an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (October 17, 2002); see also, Abeijon v. Dep’t of Homeland Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily 2020002077 6 entitled to their accommodation of choice. Castaneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). Assuming, without finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, we find that Complainant has not shown that the Agency failed to provide reasonable accommodation. Complainant stated, due to her medical conditions, she has limited mobility, feels nauseous, is easily startled, hears ringing in her ears, has dizziness and blurred vision, has difficulty expelling waste, has trouble retaining information, cannot remember simple tasks, loses words, forgets information or a question if distracted, has difficulty learning, and has simultaneous competing thoughts in her head. In addition, Complainant stated that her medication made her drowsy. The record contains medical documentation stating: “[Complainant] would be best served by working in a quiet environment - away from others where she is better able to focus on the task at hand. She may need more time than others to complete tasks and more assistance from others in learning new tasks.” Complainant was absent from work intermittently between November 2015 and March 2016. On April 5, 2016, Complainant requested accommodations. The Agency stated, in its Tyler, Texas Office, it provided Complainant a new job mentor, a dual ear headset, liberal leave, a flexible schedule with corresponding eight hours of work, and the ability to depart the facility to use the restroom using FMLA leave. It stated further accommodation was forwarded to the Regional Office for higher level review. Shortly thereafter, Complainant informed the Texas Office, in two weeks, she was transferring to LRDO due to a change in her husband’s employment. LRDO provided accommodations consistent with that provided by the Tyler, Texas office. Two months after transferring to LRDO, Complainant informed LRDO that she was submitting for disability retirement. Based on the circumstances present in the instant case, we find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. We find the AJ’s factual analysis accurate. Harassment To establish a claim of 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; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, 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. 2020002077 7 Complainant must also prove that the conduct was taken because of a protected basis - in this case, her national origin or disabilities. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, we find that Complainant failed to establish discriminatory harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on national origin or disability. Even if we consider, individually and in total, the incidents occurred as alleged, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the Agency’s actions were motivated by discriminatory animus. See Harris, supra. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. 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 2020002077 8 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. The court has the sole discretion to grant or deny these types of requests. 2020002077 9 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 10, 2021 Date