[Redacted], Susan B., 1 Complainant,v.Andrew Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jun 17, 2021

Appeal No. 2020003049 (E.E.O.C. Jun. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Susan B.,1 Complainant, v. Andrew Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020003049 Agency No. NY-19-0699-SSA DECISION On April 8, 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 March 6, 2020 final decision concerning her equal employment opportunity (EEO) complaint. She alleged 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 Claims Specialist, GS-0105-11, at the Agency’s Social Security Administration (SSA) Field Office in Arecibo, Puerto Rico. On August 3, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of sex (female), disability (Mental and Physical), and in reprisal for prior protected EEO activity when: 1. In May 2019, management offered other employees eight hours of overtime (OT), but failed to offer overtime to Complainant; 2. Management failed to provide Complainant a reasonable accommodation based on disability since June 1, 2018, regarding a transfer, early lunch time (11:45 a.m.), and desk lighting; 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. 2020003049 2 3. On several occasions in June 2019, management offered OT to others, but denied Complainant OT; 4. On several occasions in July 2019, management offered OT to others, but denied it to Complainant; 5. On June 20, 2019, Complainant’s manager delayed and then denied her request for nine hours of religious compensatory time (RCT); 6. On an ongoing basis, (since June 1, 2018 to December 6, 2018) she was subjected to harassment and a hostile work environment, in terms of her working conditions, intimidating tactics, unreasonable time restraints, and refusal to accept the medical documentation supporting her reasonable accommodation requests and time and attendance. Complainant identified her former first-level supervisor (S1-1) and her second level supervisor (OS) as responsible for the alleged discrimination. S1-1 (male) was her first level supervisor between July 2018 and April 2019 and was then promoted to the position of District Manager at the Manati office. Investigation File (IF), F2. The District Manager was her second line supervisor (male) until May 17, 2019. The Operations Supervisor (OS) (male) has been in the position at Arecibo since July 12, 2018. Complainant experiences chronic migraines, pain in her ankles, left hand pain, back and hip pain. Management acknowledged her submitted medical documentation showing that she experiences complications from several mental and physical conditions, including, but not limited to, post- traumatic stress disorder, Degenerative Disc Disease, lower back, right ankle, knee, hip pain, bilateral hand pain, and Chronic Gastritis. The record also showed that she established that her medical conditions prevent her from: (1) concentrating; (2) sitting for long periods; (3) standing for long periods; (4) seeing clearly; (5) hearing; (6) limits her range of motion; and (7) limits heavy lifting. It was undisputed that she was performing the essential functions of her position. Denial of Reasonable Accommodation Complainant submitted a request for reasonable accommodation on March 27, 2018. She requested a transfer to the Aguadilla field office, LCD monitor filter/protector, and a change in lighting above her cubicle. Complainant had requested a transfer because of her mobility issues and because of her migraine headaches. She indicated that the Aguadilla location would involve a shorter commute and the longer commute to her current office exacerbates her arthritis and migraines. She also indicated her migraines become worse due to long exposure while driving into the bright sunlight. The record includes a letter, dated May 15, 2018, and signed by the National Reasonable Accommodations Coordinator, which stated the Agency denied her request for accommodation. The stated reason for denying the requested accommodations to Aguadilla field office was because the medical documentation did not explain how a reassignment to the Aguadilla office would address her limitations such that she was able to perform the essential function of her job. 2020003049 3 The Agency also noted that it denied her a transfer because “there [were] no available permanent workstations.” The Agency added that the requested monitor filters/protectors were not necessary because the ones requested functioned the same as what Complainant already had and those were not damaged. Further, Agency officials noted that the lighting above Complainant’s cubicle had been changed. IF, Exhibit F 14a. Complainant submitted another reasonable accommodation request on November 5, 2018, requesting a transfer to an office closer to her home and to be placed permanently on the early lunch schedule. Complainant did not submit any new medical documentation in support of her request for a transfer to Aguadilla or another office. In addition, Complainant’s medical documentation did not state that she needed to eat lunch at a specific time, only that she needed to eat three meals a day and three snacks per day. The Agency did not grant her request based on Complainant’s failure to produce documentation supporting the need for the requested accommodations to perform her essential duties. Denial of Overtime The record reveals that the one opportunity for overtime in May 2019 occurred at the Manati office on May 11, 2019. Complainant submitted a request for overtime and the request was approved. S1-1 stated Complainant was approved for OT for all of the identified dates in June 2019, with the exception of June 1, 2019, June 14, 2019 and the days she was on leave or worked RCT. On June 1, 2019, the Manati was closed and no OT was offered. For the June 14, 2019 request, S1-1 stated that he instructed her to resubmit her OT request identifying what she would work on, but she failed to do so. Regarding her July requests, the record indicates that Complainant requested and was granted OT on four occasions. While Complainant claimed she was denied OT on July 7, 2019, the record reveals that the office was closed, and no one was offered OT. S1-1 emphasized that he informed employees two to three days in advance of OT opportunities and it was each employee’s responsibility to submit a request to work OT. Denial of Religious Compensatory Time Complainant stated that she supplied all of the information, which was in the electronic system, but OS delayed responding to her request for religious compensatory time (as was evident by the email trail) and then denied her request, without an explanation. S1-1 affirmed that he approved Complainant’s request for RCT. Hostile Work Environment Complainant stated that when S1-1 worked in Arecibo Office in June 2018, he would walk closely behind her, follow her around, which was intimidating to Complainant. 2020003049 4 She went to OS, but he offered her no help - she said the harassment got worse after she complained. Complainant claimed that S1-1 would deny her requests for OT and for LWOP, even when she had medical documentation in support of LWOP. She averred the harassment stopped when S1-1 left. 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). In the decision, the Agency concluded that Complainant failed to show that management subjected her to discrimination or reprisal as alleged. This appeal 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”). Denial of Reasonable Accommodation Under the Rehabilitation Act and the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9(a). We will assume, without so finding, that Complainant is a qualified individual with a disability. Here the evidentiary record before us reveals that Complainant submitted two reasonable accommodation requests in March 2018 and November 2018. The March 2018 request included a request to transfer to the Aguadilla field office, LCD monitors filter/protectors, and a change in the lighting above her cubicle. The record reveals that this request was mostly denied because there were no available permanent workstations at the Aguadilla field office, the requested filters were the same Complainant already had and the current filters were not otherwise malfunctioning, and the lighting had already been changed. In addition, Complainant’s medical documentation did not support her need to transfer to the Aguadilla filed office. Complainant did not submit any additional medical documentation that would support a transfer but submitted a second request for accommodation in November 2018. 2020003049 5 In that request, Complainant requested a transfer to an office closer to her home and to be placed permanently on the early lunch schedule. Management again denied the request because Complainant’s submitted medical documentation did not identify nor link specific limitations related to her medical condition to the requested accommodations. We note that the Commission has held that where a need for reasonable accommodation is not obvious, and the individual fails to provide reasonable documentation requested by the employer, the employer will not be held liable for failure to provide the requested accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002, Question 6 (rev. Oct. 17, 2002); see Chadwick v. Dep't of Homeland Sec., EEOC Appeal No. 0120152446 (Dec. 8, 2017). Based on the record evidence, we concur with the Agency's conclusion that Complainant failed to show that she was entitled to the requested reasonable accommodation for her known medical conditions. The Agency’s request for medical documentation to support the accommodation request was reasonable under the circumstances and Complainant did not show that the requested accommodations were necessary to allow her to perform the essential functions of her position. Accordingly, the Commission finds that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment Section 717 of Title VII states that federal agencies must make all of their personnel actions free of sex discrimination. See 42 U.S.C. § 2000e-16 (all personnel actions in federal employment “shall be made free from any discrimination based on race, color, religion, sex, or national origin”). Reprisal is also unlawful under Title VII. Similarly, Section 501 of the Rehabilitation Act bans discrimination against individuals with disabilities in the federal workplace. A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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 Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Here, assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to Complainant’s claims that she was denied OT on numerous occasions, the record during the relevant period showed that Complainant had been granted OT at the same rate as the male comparator and those with no prior EEO activity. 2020003049 6 She was either granted OT or, for the times when she was not allowed, there was no OT available or the building was closed. Further, S1-1 affirmed that Complainant’s request for religious compensatory time was not denied; rather, he approved it as requested. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry her burden here. Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency's explanations for its actions were pretext intended to mask discriminatory or retaliatory motivation on the bases alleged and against the named supervisors. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment To establish a claim of harassment a 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or 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). Complainant asserted that based on her protected classes, she was subjected to a hostile work environment as evidenced by several incidents of what she believed to be discriminatory and/or retaliatory harassment. The Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Even if we assume that the conduct complained of was sufficiently severe or pervasive, Complainant does not offer any evidence, aside from her conclusory statements, that the conduct was based on discriminatory or retaliatory animus as discussed more fully above. Complainant specifically claimed that S1-1 followed her around the office and at times invaded her physical space. Complainant also alleged that S1-1 delayed his responses to her requests for overtime and leave. S1-1 denied following Complainant around or otherwise intimidating her. Numerous witnesses stated they never witnessed S1-1 exhibiting intimidating behavior or physically invading her space; rather, S1-1 walked around the office monitoring employee performance. Further, as discussed above, S1-1 denied delaying or otherwise disallowing Complainant overtime, leave, or compensatory time. The record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. 2020003049 7 The Commission notes that the anti-discriminatory statutes are not a civility code. Rather, they forbid “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). There is no evidence reflecting the existence of discriminatory or retaliatory animus toward Complainant based on her protected classes. Thus, the Commission concludes that Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment. CONCLUSION Consequently, we AFFIRM the Agency’s final decision for the reasons stated herein. 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). 2020003049 8 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. 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 17, 2021 Date