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

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2020000345 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marleen G.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020000345 Hearing No. 530-2019-00294X Agency No. PHI-18-0019-SSA DECISION On October 10, 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 September 9, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Attorney, GS-13, at the Agency’s Office of Disability Adjudication and Review Hearings (ODAR), Seven Fields Hearing Office in Mars, Pennsylvania. On January 3, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability (Anxiety, Hypertension, and Irritable Bowel Syndrome (IBS)) and reprisal for prior protected EEO activity (2011 and 2015 EEO complaints) when: 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. 2020000345 2 1. from August 22, 2017 and continuing, the Agency failed to provide Complainant reasonable accommodation (reassignment), and 2. about September 20, 2017, the Agency subjected Complainant to hostile work environment harassment by denying her reasonable accommodation. The Agency accepted Complainant’s EEO complaint for investigation. During the EEO investigation, Complainant stated that she drafts decisions for Agency judges and, as a Senior Attorney, she writes the more difficult decisions. Complainant stated that she works with management and administrative law judges to ensure she knows the most recent rules and laws that impact the Agency administrative process and is aware of a judge’s instructions. Complainant stated that she had hypertension and IBS prior to 2015, but in February 2016, she had an emotional breakdown (anxiety) due to stress from her first level supervisor (S1), second level supervisor - Hearing Office Director (S2), and a Seven Fields Hearings Office Chief Judge (CJ). Complainant stated that her doctor and mental health counselor recommended her reassignment from the high stress work environment due to S1, S2, and CJ, to heal her anxiety. Complainant stated that the stress and anxiety has worsened her hypertension and IBS. Complainant stated that hypertension medications cause her side effects that affect her ability to drive and work, and her doctor stated that IBS medications have too many side effects. Complainant added that she does not want to take anxiety medication for fear of effects on her ability to think, job performance, and digestion. Complainant stated, in June 2017, she asked for reassignment out of the Seven Fields Hearing Office, but that request was denied in September/October 2017, and she then requested the ability to work from home. Complainant stated, under the collective bargaining agreement in place, she was allowed to work from home three days per week like other employees. Complainant stated that she is harassed by having to continue working and engaging with S1, S2, and CJ, and no one will tell her what accommodations have been made. Complainant’s Group Supervisor2, S1, stated that Complainant has the responsibility to write disability benefits and non-disability decisions for eleven judges, and she is qualified to perform the essential functions of her position. S1 stated that she sought to meet with Complainant to discuss reasonable accommodation, but Complainant refused to meet with her directly and told her to only contact her through email communication. S1 stated, on October 13, 2017, she requested medical documentation to support Complainant’s request to work from home and Complainant stated that she would not provide any more documentation after she was provided telework under the collective bargaining agreement. S1 stated that she did not harass Complainant or discriminate against her. 2 The Seven Fields Hearing Office organizational chart shows that there were two Group Supervisors there. 2020000345 3 The National Reasonable Accommodation Coordinator (NRAC) stated that Complainant requested reconsideration on the September 2017 denial, but did not submit additional information. NRAC stated that she did not discriminate against Complainant. The Agency noted that Complainant retired voluntarily in September 2018 and stated that the matter is now moot. The investigative record contains the documents that follow. ° Letter dated June 22, 2017 from Complainant’s Doctor (D1) stating, in September 2016, her previous doctor recommended reassignment due to a stressful work environment and he also “would recommend transfer to a different office work environment.” ° An email dated August 28, 2017 from Complainant’s Supervisor, S1, stating: Should additional and sufficient medical documentation not be provided within the 10 day period, the basis for my denial [of reasonable accommodation] recommendation would be “Employee not disabled” because the provided documentation has not established that the ADA definition of disability is met. °A letter dated August 29, 2017 from Complainant’s Doctor, D1, stating in pertinent part: [Complainant’s] health continues to suffer from her work environment and difficulty interacting with management. She was recently placed on sick leave from July 31, 2017 to August 4, 2017, due to an exacerbation of symptoms resulting from work related stress. I continue to work with her to Manage her medical conditions, but she remains at significant cardiac risk due to her high stress levels in her current work environment. I continue to believe that her immediate removal from her current workplace is medically necessary and in the best interest of her health. ° An email dated September 1, 2017 from Complainant to S1 stating that she was providing additional medical documentation. ° A letter dated September 1, 2017 from Complainant’s Mental Health Counselor (MHC) stating, in 2016, Complainant sought medical treatment from a physician for symptoms of an “emotional breakdown” due to work-related stress and treatment. MHC stated that Complainant’s counseling has focused on reducing Complainant’s anxiety caused by threats and intimidation by management including S1, biased performance evaluations, unfair workloads, and fear of retribution. MHC recommended reassignment to another office to allow Complainant to heal from her anxiety. MHC stated that Complainant experiences diminished concentration, dizziness, apprehension, forgetfulness, poor and 2020000345 4 interrupted sleep, intrusive thoughts, difficulty coping, fear of interactions with management, and physical manifestations such as hypertension, heart palpitations, and digestive problems. ° A letter dated September 18, 2017 from D1 reiterating Complainant’s symptoms, and stating that Complainant also has Post Traumatic Stress Disorder and “[she] has a good prognosis for recovery with her removal from her current work environment . . . Reassignment to another office is a reasonable accommodation that would remove [Complainant] from her anxiety producing environment and triggers.” ° A letter dated September 20, 2017 from the Agency’s National Reasonable Accommodation Coordinator, NRAC, denying Complainant’s request to transfer to another ODAR office. NRAC stated that Complainant failed to show a nexus between the restrictions presented and the accommodation requested. The Agency stated that it was implementing new managerial techniques to positively impact Complainant’s daily experiences. ° A letter dated October 4, 2017 from NRAC affirming the denial of accommodation request for previously stated reasons. NRAC added, “[A]n agency is not required to reassign an employee for the purpose of changing supervisors.” 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 timely requested a hearing, but subsequently withdrew her request. Consequently, 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 harassment as alleged. The instant appeal from Complainant followed. 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”). 2020000345 5 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 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 her reasonable accommodation. Complainant stated that she experienced Anxiety, PTSD, and exacerbation of Hypertension and IBS due to management by S1, S2, and CJ. Complainant requested reassignment and provided medical documentation to support her request, essentially stating that the work environment was stressful, and she needed to get away from her current managers to heal. Complainant requested a change in supervision, stating S1, S2, and CJ were the source and trigger of her symptoms. The Commission has held that an employer does not have to provide an employee with a new supervisor as a form of reasonable accommodation. Enforcement Guidance on Reasonable Accommodation, Question 33. Hence, denying a transfer from the Seven Fields Hearing Office where S1 was one of two Group Supervisors, S2 was Hearing Office Director, and CJ was Chief Judge was not unreasonable, since the Agency was not obligated to provide this accommodation. Following denial of reassignment, the Agency approved three days per week of telework for Complainant, consistent with Agency policy under a collective bargaining agreement. Complainant retired in September 2018. 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. 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 2020000345 6 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). Here, we find that Complainant failed to establish discriminatory harassment based on denial of reasonable accommodation. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on race, disability, or reprisal. 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 2020000345 7 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. 2020000345 8 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 3, 2021 Date