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

Equal Employment Opportunity Commission

Apr 15, 2021

Appeal No. 2019004911 (E.E.O.C. Apr. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mozelle G.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019004911 Agency Nos. DAL-17-0337-SSA and DAL-18-0123-SSA DECISION On July 8, 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 May 20, 2019,2 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented concern whether the Agency subjected Complainant to discrimination with regard to denying her reasonable accommodation request for compensatory time, treating her in a disparate manner in awarding compensatory time, failing to rate her higher than “fully successful” on her performance appraisal, and harassing her. 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. 2 The record reflects that the Agency mailed the May 20, 2019 final decision to Complainant on June 14, 2019. 2019004911 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Social Insurance Specialist (Claims Specialist), GS-105-11, at the Social Security Office in Moore, Oklahoma. On April 25, 2017, Complainant filed her first EEO complaint alleging that the Agency subjected her to discrimination. She subsequently filed a request to amend on May 30, 2017. The Agency accepted the following claims for investigation: 1. Whether the Agency failed to provide Complainant with a reasonable accommodation based on disability (physical and mental), which was requested on November 15, 2016, and which the Agency refused to adjudicate in correspondence dated December 22, 2016; and 2. Whether the Agency subjected Complainant to disparate treatment based on reprisal (prior EEO activity) when, on April 22, 2017 and May 6, 2017, her request to earn compensatory time was denied. On February 9, 2019, Complainant filed her second EEO complaint alleging that she was subjected to discrimination. The Agency accepted the following claims for investigation: 3. Whether the Agency subjected Complainant to disparate treatment based on disability, age (over 40), and reprisal when on November 8, 2017, she received a successful contribution Performance Assessment Communication System (PACS) appraisal; and 4. Whether the Agency subjected Complainant to a hostile work environment based on disability and reprisal between September 15, 2017 and July 2, 2018, including but not limited to, receiving a verbal reprimand, her PACS assessment, discussions regarding the organization of her desk, and discussions regarding whether she returned claimants’ calls in a timely manner. At the conclusion of the investigations into the complaints, the Agency provided Complainant with a copy of the reports of investigation and notified her of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The assigned AJ consolidated the complaints for review. However, on April 29, 2019, Complainant withdrew her request for a hearing. Consequently, the AJ returned the case to the Agency for a decision on the merits. On May 20, 2019, the Agency issued a final decision on the consolidated complaint pursuant to 29 C.F.R. § 1614.110(b). With regard to claim 1, the Agency found that Complainant was a qualified individual with a disability who was entitled to reasonable accommodation absent undue hardship. Having reviewed the record, the Agency concluded that it had reasonably accommodated Complainant’s request for compensatory time for medical appointments. 2019004911 3 In this regard, while the Agency acknowledged that it did not grant Complainant’s specific request for compensatory time, the Agency noted that Complainant’s chain of command had allowed Complainant to “make use of sick leave, advanced sick leave, and [Family and Medical Leave Act] leave that the Agency offered.” The Agency emphasized that the Commission has held that agencies may permit employees to use accrued paid leave or unpaid leave as a form of reasonable accommodation when leave is needed for reasons related to the disability. In finding no discrimination, the Agency emphasized that it was not required to provide paid leave beyond what was offered to similarly situated employees. Furthermore, the Agency rejected Complainant’s contention that it had failed to engage in the interactive process, as the record reflected that Complainant’s chain of command had indeed properly engaged Complainant. As for claim 2, concerning Complainant’s claim of disparate treatment with regard to the denial of her requests for compensatory time, the Agency found that management had a legitimate, nondiscriminatory reason for the denial. In this regard, the Agency maintained that management could not grant Complainant’s requests because compensatory time was not being offered to any employee. While the Agency acknowledged that Complainant argued that she was treated less favorably than managers in the office, who were allegedly offered compensatory time, the Agency concluded that there was no evidence to corroborate that allegation. For these reasons, the Agency found that Complainant could not prevail on her claim. For claim 3, concerning Complainant’s fully successful performance rating, the Agency concluded that Complainant was not aggrieved by the rating, as she failed to present any evidence showing that the rating resulted in harm or loss to a term, condition, or privilege of employment. The Agency reasoned that even assuming arguendo that the fully successful rating was an adverse action, Complainant would be still unable to prevail because she could not show that the rating was due to discriminatory animus. As for Complainant’s reprisal claim, the Agency found that management had a legitimate, nondiscriminatory reason for not rating Complainant higher than fully successful, as the record reflected that Complainant did not always produce timely and/or error free work. The Agency concluded that Complainant failed to provide any evidence of pretext, other than her own subjective assertions. With regard to claim 4, the Agency found that the record failed to show that the alleged incidents of harassment were due to Complainant’s protected classes. Furthermore, the Agency concluded that the alleged incidents constituted “ordinary workplace interactions” that were insufficiently severe or pervasive to constitute harassment. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL Complainant did not submit any contentions in support of her appeal. The Agency requests that the Commission affirm its final decision. 2019004911 4 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”). ANALYSIS AND FINDINGS Denial of Reasonable Accommodation Under the Commission’s regulations, 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 Appeal No. 0120120400 (Dec. 3, 2015). 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 (Oct. 17, 2002); see also Abeijon v. Dep’t of Homeland Sec., 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 Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Assuming arguendo that Complainant was a qualified individual with a disability, we conclude that the Agency did not fail to reasonably accommodate her disabilities. Our review of the record here shows that on November 16, 2016, Complainant contacted her immediate supervisor (S1) to request a reasonable accommodation. In her email, Complainant sought the opportunity to earn compensatory time whenever overtime was offered to other employees. See Consolidated ROI at 113. Complainant explained that she needed the compensatory time to attend to her medical appointments. S1 routed the request to the EEO Office. On the advice of the EEO Office, S1 met with Complainant to inform her that the issue of compensatory time was covered under the collective bargaining agreement, and thus could not be the subject of a reasonable accommodation. Id. 2019004911 5 During the meeting, S1 advised Complainant that while the Agency would be unable to grant’s Complainant’s request for compensatory time, the Agency was amenable to allowing Complainant to take other types of leave such as FMLA leave, sick leave, and advanced leave. Id. S1 subsequently memorialized the oral discussion by issuing Complainant a written memorandum on December 22, 2016. Id. The memorandum advised Complainant that “[a] reasonable accommodation decision was not made because [Complainant’s] request to work compensatory time is an entitlement afforded under the [collective bargaining] contract.” Id. at 339. The record reflects that the Agency also allowed Complainant, and other employees, to accrue 24 credit hours per pay period, which Complainant could have used for her medical appointments; however, Complainant stated during the EEO investigation that the 24 credit hours per pay period was not enough because she may potentially need more than that for her appointments. Id. at 106. Complainant also stated that the Agency failed to properly engage in the interactive process by not suggesting alternatives such as telework. Id. In this regard, while Complainant acknowledged that she did not suggest telework as a reasonable accommodation, Complainant maintained that she had no obligation to suggest alternatives. See Consolidated ROI at 107. Given the facts in this case, we find that the Agency reasonably accommodated Complainant by allowing her to choose among various forms of leave to attend to her medical appointments. We note that the Commission has long held that permitting the use of accrued paid leave or unpaid leave is a form of reasonable accommodation. See Celinda L. v. U.S. Postal Serv., EEOC Appeal No. 2019005338 (Oct. 2, 2020), citing EEOC Enforcement Guidance on Reasonable Accommodation. Furthermore, we note that the Agency also offered Complainant the opportunity to earn up to 24 credit hours, which she could have used for her medical appointments. While we are mindful that the Agency did not provide Complainant specifically what she desired, we find these accommodations to be sufficient to address Complainant’s disabilities. See Castaneda, supra (“Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice”). In reaching this conclusion, we also acknowledge Complainant’s contention that the Agency failed to properly engage in the interactive process by not exploring other alternative accommodations such as telework. When an agency fails to properly engage in the interactive process, we must determine whether such failure resulted in the improper denial of a complainant’s reasonable accommodation request. Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den’d, EEOC Request No. 05A30114 (Jan. 9, 2003) (holding that liability attaches when the failure to engage in the interactive process results in an agency’s failure to provide reasonable accommodation). We note that the record does not suggest that Complainant made the Agency aware that telework could have been effective. Moreover, even if the Agency allowed Complainant to telework, it would not have addressed Complainant’s need to take leave for her medical appointments. Upon review, we find that any alleged failure to engage in the interactive process did not result in the denial of reasonable accommodation, as the record clearly shows that the Agency effectively accommodated Complainant by allowing her to choose among various forms of leave for her medical appointments. 2019004911 6 Disparate Treatment We turn now to claims 2 and 3, wherein Complainant alleged that she was subjected to disparate treatment with regard to her requests for her compensatory time and her performance appraisal. For Complainant to prevail, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination based on sex and reprisal, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 2, S1 stated that she denied Complainant’s request for compensatory time on April 22, 2017 and May 6, 2017, because the Agency was not offering compensatory time to any employee at that time. S1 explained that she told Complainant that Complainant could request to work credit hours. S1 emphasized that she did not convey this information in a harsh or rude manner and did not say anything else. See Consolidated ROI at 299-300. For claim 3, regarding Complainant’s appraisal, S1 stated that she did not rate Complainant higher than “fully successful” because there were issues concerning the timeliness and accuracy of Complainant’s work. While S1 emphasized that these issues did not mean that Complainant was failing, Complainant did not distinguish herself in any way. S1 also denied that she was biased against people with disabilities. See Consolidated ROI at 478. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. See, e.g., Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). 2019004911 7 In arguing pretext for claim 2, Complainant stated that while the Agency argued that compensatory time was not offered to any employee, she was aware of at least two employees who were authorized to take compensatory time within the last year. In this regard, Complainant emphasized that the previous District Manager allowed employees to take compensatory time. However, the current District Manager discontinued the practice for budgetary reasons “since management did not care to be in the position of having to pay for unused compensatory time at the end of the budget year.” See Consolidated ROI at 292. We note that Complainant also attributed the change to management not wanting “to be in the position of having to pay for unused compensatory time at the end of the budget year.” See Consolidated ROI at 292. We fail to see how that constitutes discrimination, as the reason for the change, in Complainant’s own words, was for budgetary reasons. For claim 3, Complainant asserted that S1, in rating her, did not follow the Agency’s guidance on how to evaluate an employee. Complainant contended that had S1 done so, she would have received the highest rating. Complainant maintained that S1 failed to rate Complainant higher than fully successful because Complainant is an older, disabled female veteran who had engaged in EEO activity. See Consolidated ROI at 383. Furthermore, Complainant asserted that statistical evidence showed that the Agency as a whole rated disabled employees lower than non-disabled employees.3 In this regard, Complainant contended that “[t]he standard deviation is so great that, statically [sic] speaking, one must assume that something is wrong.” Id. at 465. She maintained that there was something “inherent, impermissible, and discriminatory” in her appraisal. Id. However, we note that S1 participated in the hiring process for Complainant and hired Complainant despite being aware of Complainant’s status as a disabled veteran. See Consolidated ROI at 113. We discern no evidence in the record to suggest that the rating given to Complainant was for any reason other than Complainant’s failure to sufficiently distinguish herself to warrant a higher rating. To the extent Complainant believes that there must be something “inherent, impermissible, and discriminatory” about her appraisal because statistical evidence showed that disabled employees throughout the Agency were systemically rated lower than non-disabled employees, we find that contention to be unpersuasive. For these reasons, we conclude that Complainant cannot prevail on her disparate treatment claims. Hostile Work Environment Claims We turn now to Complainant’s hostile work environment claims. As an initial matter, we find that a finding of harassment is precluded on claims 1, 2, and 3 due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000). 3 The statistical evidence was obtained by the union in 2014, as part of its Agency wide grievance on PACS. See Consolidated ROI at 605-606, 608 and 678. 2019004911 8 Thus, we will only determine whether the Agency subjected Complainant to harassment when between September 15, 2017 and July 2, 2018, she was subjected to alleged harassment including, but not limited to, receiving a verbal reprimand, discussions regarding the organization of her desk, and discussions regarding whether she returned claimants’ calls in a timely manner. To establish a claim of 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). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have been “sufficiently severe and pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Serv., Inc., 23 U.S. 75 (1998). With regard to Complainant’s allegation that she was subjected to harassment, we will assume arguendo that the events occurred as Complainant described and were unwanted. However, she has not shown that the conduct occurred because of her protected classes, and we find that the alleged instances of harassment were related to Complainant’s job duties or her conduct. To the extent that Complainant argues that S1 acted unprofessionally towards her, the Commission notes that Title VII is not a civility code. Rather, it forbids “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). Complainant has not shown that S1’s conduct had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that the conduct at issue was not sufficiently severe or pervasive enough to result in a hostile work environment. CONCLUSION Based on a thorough review of the record, 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 2019004911 9 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). 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. 2019004911 10 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 April 15, 2021 Date