[Redacted], Shantay H., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 2, 2021

Appeal No. 2020002710 (E.E.O.C. Aug. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shantay H.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2020002710 Agency No. CHI-19-0570 DECISION On March 10, 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 February 15, 2020, 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. ISSUE PRESENTED The issue presented on appeal is whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on disability. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0105-11 Claims Specialist at the Agency’s District Office in Hillside, Illinois. Complainant was a part-time employee working four eight-hour days, a total of 32 hours per week. Complainant did not telework at the time of events giving rise to this complaint. 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. 2020002710 2 Complainant identified her disabilities as fibromyalgia, neck and back pain, chronic depression, anxiety disorder, and post-traumatic stress disorder (PTSD). Complainant averred that, when she experienced a flare up from fibromyalgia and/or her neck and back pain, it was very difficult for her to drive to work or even get out of bed. According to Complainant, driving to work while experiencing these symptoms meant she would be less productive at work. On December 4, 2018, Complainant requested a reasonable accommodation of two to three days of telework per week. The Assistant District Manager (S1) met with Complainant to discuss her reasonable accommodation request on December 19, 2018. According to S1, the meeting was delayed because of scheduled and unscheduled leave. The Local Reasonable Accommodation Coordinator (LRAC) stated that the meeting was delayed because Complainant was on leave. S1 stated that he explained the reasonable accommodation process to Complainant and requested medical documentation to substantiate her request. S1 averred that, on January 9, 2019, Complainant provided two notes, one from her pain specialist and one from her psychologist, and told S1 that she would provide additional medical documentation by the end of the month. According to S1, on January 25, 2019, Complainant provided a note from her rheumatologist and told S1 that she would submit additional medical documentation within two weeks. S1 stated that Complainant submitted a note from her psychiatrist on February 19, 2019, and submitted a note from her primary care provider on February 25, 2019. Complainant averred that each doctor’s note described her disabilities, her work restrictions, and her need for accommodation and should have been sufficient on its own. According to Complainant, the doctor’s notes considered collectively made her need for accommodation obvious. On March 15, 2019, S1 offered Complainant one day per week telework as an alternate accommodation to the two to three days she had requested. S1 averred that the medical documentation did not establish a connection between Complainant’s disabilities and her request for two to three days of telework. S1 added that the Hillside District Office had a high daily volume of in-person visitors. S1 stated that, with one day of telework per week, Complainant would come to the office Monday, Wednesday, and Friday, reducing the burden of back-to-back commuting days without affecting operational needs. According to S1, because Complainant rejected the offered accommodation, he referred her request to the Agency’s National Reasonable Accommodation Coordinator (NRAC) in accordance with the reasonable accommodation policy. According to Complainant, in March 2019, S1 told her that he was the only one who had the authority to offer her one day of telework per week. Complainant stated that S1 wasted her time because he failed to tell her in December 2018 that he could only approve one telework day and because he did not inform her for three months. Complainant averred that S1 also failed to provide her medical documentation directly to the NRAC. Complainant alleged that S1 warned her that, if she appealed his decision to the NRAC, he would not approve her to telework the one day per week. According to Complainant, S1 only allowed her to telework one day per week on an interim basis after she contacted an EEO Counselor to initiate the instant complaint. 2020002710 3 The Area Director (S2) stated that Complainant initially accepted the offered accommodation of one telework day per week. According to S2, Complainant changed her mind and only insisted on at least two days per week after learning that her reasonable accommodation request had not been sent to the NRAC. S2 denied delaying a decision on Complainant’s reasonable accommodation request, noting that Complainant had requested more time to provide medical documentation. According to the LRAC, the Agency has 45 days to make a decision on a reasonable accommodation request, excluding the time during which any requested medical documentation is outstanding. Complainant stated that denying her the requested telework days was discriminatory because another Claims Specialist (C1) had been allowed to telework for two weeks after she had surgery. S2 averred that C1 was allowed to work from home temporarily for about two weeks after recovering from surgery under the Agency’s Work at Home by Exception (WAHBE) policy, which allows telework for a documented temporary medical condition such as surgery or a high-risk pregnancy. S2 noted that Complainant’s request for two or three days of telework per week was not temporary. Complainant alleged that there is a prejudice against “invisible” disabilities like fibromyalgia and depression. Moreover, Complainant averred that many Agency offices allow frequent telework, even for employees who do not have a disability. On May 13, 2019, the NRAC denied Complainant’s request for additional telework. According to the May 13, 2019, decision, the medical documentation did not support a nexus between Complainant’s limitations and her accommodation request. On May 24, 2019, Complainant requested reconsideration of the NRAC’s decision and included an additional May 17, 2019, note from her rheumatologist. On July 2, 2019, the NRAC affirmed her May 13, 2019, decision. In the July 2, 2019, decision, the NRAC stated that the additional medical documentation from her rheumatologist suggested that Complainant was totally unable to work while taking medications to treat fibromyalgia flare ups without explaining how Complainant could telework while taking these medications. On May 23, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (mental and physical) when: 1. From December 4, 2018, until March 15, 2019, the Agency failed to timely process her reasonable accommodation request; and 2. Beginning on March 15, 2019, the Agency denied her request for two or three days per week of telework, even though a coworker (C1) was able to work more than one telework day per week. 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). 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 Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 2020002710 4 Complainant did not submit a statement or brief in support of her appeal. In response to Complainant’s appeal, the Agency asks that the Commission affirm its final decision. STANDARD FOR 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 (EEO MD-110), 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 Complainant alleged that the Agency delayed acting on her December 4, 2018, request for reasonable accommodation and that the Agency denied her request for two or three telework days per week as a reasonable accommodation. Complainant appeared to attribute some of the delay to unnecessary requests for medical documentation. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), No. 915.002 (Oct. 17, 2002). 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). “The term “qualified,” with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). When an employee's disability or need for an accommodation is not known or obvious, an employer may ask an employee for reasonable documentation about his or her disability, limitations, and accommodation requirements. See EEOC Enforcement Guidance on Disability- Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, Question 7 (July 27, 2000). 2020002710 5 Upon a complainant's request for reasonable accommodation, an employer may require that documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. See Enforcement Guidance on Reasonable Accommodation at Question 6. An employer should respond expeditiously to a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 10. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors include: (1) the reason(s) for delay; (2) the length of the delay; (3) how much the individual with a disability and the employer each contributed to the delay; (4) what the employer was doing during the delay; and (5) whether the required accommodation was simple or complex to provide. See Robyn D. v. Dep’t of the Air Force, EEOC Appeal No. 2021000644 (May 19, 2021). Upon review, we do not find that the Agency unnecessarily delayed in responding to Complainant’s reasonable accommodation request. The Agency explained that the 15-day delay in meeting with Complainant to discuss her December 4, 2018, request for accommodation was because Complainant had been out on leave. Moreover, there was not a significant delay between Complainant submitting the last of the medical documentation on February 25, 2019, and S1 offering Complainant one day of telework per week on March 15, 2019. To the extent Complainant argues that the Agency failed to follow its reasonable accommodation policy when it delayed sending her reasonable accommodation request to the NRAC, we disagree. See Report of Investigation (ROI) at Exhibit 20. According to the Agency’s reasonable accommodation procedures, the NRAC only participates in the reasonable accommodation process if management officials have recommended denying an employee’s request for accommodation. We therefore disagree that the Agency did not follow its reasonable accommodation procedures when it did not involve the NRAC until after Complainant declined the accommodation offered by management. In the record, S1 and S2 stated that Complainant asked for more time to provide additional doctor’s notes, whereas Complainant stated that S1 told her she needed to provide additional medical documentation in support of her reasonable accommodation request. However, we note that the medical documentation initially provided on January 9, 2019, consisted of a December 22, 2018, note from Complainant’s pain specialist, which was vague, and a January 2, 2019, note from Complainant’s psychologist, which addressed Complainant’s depression and anxiety but did not address her physical symptoms. ROI at 106-07. Therefore, even if S1 did ask Complainant for additional medical documentation as alleged, the preponderance of the evidence in the record would not establish that the request for additional medical documentation was unreasonable. 2020002710 6 We further find that the preponderance of the evidence in the record establishes that the Agency reasonably accommodated Complainant by offering one day of telework per week on March 15, 2019. Complainant has not established the need for more than one day of telework per week. A January 21, 2019, note from Complainant’s rheumatologist recommended that she be allowed to telework two days per week, but the rheumatologist estimated that Complainant experienced a one-day flare up of her fibromyalgia symptoms per week. ROI at 108. The February 14, 2019, note from Complainant’s psychiatrist and the February 22, 2019, note from her primary care physician did not explain the nexus between Complainant’s limitations and her request for two or three days of telework per week. ROI at 109-10. In the May 17, 2019, note from Complainant’s rheumatologist, the rheumatologist stated that Complainant experienced fibromyalgia flare ups one to two days per week and added that, when Complainant experienced a flare up, she had to leave work early to go home and take medications that made her unable to work at all. ROI at 111. We find that, while the updated note from the rheumatologist suggests that Complainant may experience fibromyalgia flare ups for more than one day per week, it fails to establish how additional telework would enable Complainant to perform the essential functions of her position if the medications render her totally unable to work. Accordingly, we find that Complainant has not established by preponderant evidence that she was denied a reasonable accommodation. Disparate Treatment Complainant also raises a claim of disparate treatment, as she alleged that C1, who does not have a disability, was allowed to telework more than one day per week after having surgery. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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 Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). The Agency’s legitimate, nondiscriminatory reason for allowing C1 to telework more than one day per week is that C1 asked to telework for two weeks after a surgery under the Agency’s WAHBE policy for temporary medical conditions. Complainant’s request for telework as a reasonable accommodation was for a permanent medical condition. Complainant generally alleged prejudice against “invisible” disabilities, but we find that she has not established disability-based animus by any of the individuals involved in her reasonable accommodation request, and she has not otherwise established by the preponderance of the evidence that the Agency’s legitimate, nondiscriminatory reason was pretextual. 2020002710 7 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 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 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. 2020002710 8 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. 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 2, 2021 Date