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

Equal Employment Opportunity Commission

Sep 9, 2021

Appeal No. 2020002457 (E.E.O.C. Sep. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Yolanda S.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020002457 Hearing Nos. 560-2019-00083X & 560-2019-00125X Agency Nos. DAL-18-0288-SSA & DAL-18-066-SSA DECISION On January 29, 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 20, 2019 final decision (FAD) 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. BACKGROUND Complainant began working at the Agency in March 2008. In October 2013, Complainant began working as a Claims Specialist, GS-11, in the Agency’s Austin, Texas Field Office (AFO). A Claims Specialist determines initial and continuing eligibility for social security benefits based on a claimant’s submissions and Agency policy. A Claims Specialist generally gathers information through in-person or phone interviews with claimants. In November 2016, Complainant transferred to the Agency’s Tulsa, Oklahoma District Office (TDO) as a Claims Specialist. 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. 2020002457 2 On March 18, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (narcolepsy without cataplexy) when, on December 21, 2017, she learned management recommended the denial of her continued reasonable accommodation request. The Agency docketed the March 18 complaint as Agency No. DAL-18- 0228-SSA. On June 4, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (narcolepsy without cataplexy and chronic headaches) when, since March 2018, it failed to provide reasonable accommodation when it denied Complainant’s request to continue an approved accommodation allowing liberal leave, afterhours telework, and reduced client interviewing. The Agency docketed the June 4 complaint as Agency No. DAL-18- 0660-SSA. The Agency accepted Complainant’s complaints for EEO investigation. During the EEO investigations, Complainant stated she was diagnosed with Narcolepsy in early 2016 and “Narcolepsy makes sleeping, caring for oneself, learning, concentrating, thinking, communicating, and working more difficult than before because of constant fatigue.” Further, Complainant stated that she seems to get sick more often than prior to her diagnosis and that the medications cause side effects. Complainant stated that she is not able to work eight hours per day/five days per week and has difficulty listening to claimants while querying their records and asking them questions and doing so in the allotted timeframe. Complainant stated, in AFO, she had a primarily paper workload rather than interviewing claimants; did a half-day per week for walk-in claimants; and was not charged as absent without leave (AWOL) when she arrived late for work as long as she called in by 11:00 a.m. and that her late arrival only happened like twice per week. Complainant stated, when she transferred to TDO, she asked management to not charge her as AWOL when she was unable to call in by 8:45 a.m. and arrived late, to not schedule her for interviews or screening prior to 11:00 a.m., and to allow her to go to her desk and work in a quiet environment when she has severe headaches. Complainant stated, with the aforementioned accommodations, she would be able to perform the essential functions of her position, avoid disciplinary action, and ensure proper claimant coverage. The TDO Assistant District Manager (S1) stated, when Complainant transferred to TDO, she had an informal reasonable accommodation in place, which the office maintained for “quite some time.” S1 stated that management realized that Complainant’s narcoleptic symptoms were not temporary (as Complainant initially suggested an adjustment period) and engaged in the reasonable accommodation process. It determined that Complainant could not perform the essential functions of her position as an essential function of a Claims Specialist was to interact with the public to gain information to process claims. S1 stated that Complainant’s attendance deteriorated a great deal and she worked perhaps three hours per day, which was a hardship to the office. S1 noted that field office daily work hours ended nationally at 5:30 p.m. so there would be no supervision for Complainant if she worked 5:30 p.m. to 6:00 p.m. S1 stated that the Agency sought a new position for Complainant under the reassignment process, but she declined the GS-5 Claims Assistant position because it was a lower grade and required relocation. 2020002457 3 The Agency stated, as of September 2018, Complainant requested reassignment again and it was searching for positions. In pertinent part, the investigative record contains the documents that follow. • Request for Reasonable Accommodation, dated April 18, 2016, to AFO management, asking for “adjustment in assigned duties from taking appointments and being assigned walk-in duty to a paper . . . or internet based workload.” • Reasonable Accommodation Request Decision letter, dated April 27, 2016, from AFO management, stating the requested accommodation was denied because it would exclude Complainant from “client interaction,” which is an essential function of the job. However, management agreed, between May 3, 2016 to the end of June 2016, to provide temporary duty modification of assigning medical continuation disability reviews and including Complainant in the walk-in rotation. • Reasonable Accommodation Request, dated November 10, 2016, to TDO management. Complainant requested that management not charge her as AWOL when she is late to work and does not call in before 8:45 a.m., not schedule her for interviews or screenings before 11:00 a.m., and allow her the ability to go back to her desk to work if she has a severe headache. • Reasonable Accommodation Request Decision Letter, dated March 15, 2017, from TDO management. The letter stated that it provided a temporary modification of assigning Complainant only continuous disability reviews and including Complainant in the walk-in rotation. The Agency stated that it could no longer provide this temporary duty modification or exclusion from appointments prior to 11:00 a.m. The Agency stated that it granted Complainant a liberal leave policy when she reported to work late and if she contacted the office prior to the end of the morning flexible work band. • Request for Reasonable Accommodation, dated November 27, 2017, to TDO management, requesting liberal leave in the morning, the ability to work compensatory time until 6:00 p.m. when teleworking, and no more than one day per week interviewing via phone or walk-in clients through front-end interviewing. • Review of Reasonable Accommodation Request, dated December 17, 2017, stating that liberal leave has been in place since February 2017 and it is not assisting Complainant with late arrivals (she arrives late three to five times per week) or performing the essential functions of her position; local management cannot approve working beyond business hours (5:30 p.m.) when teleworking; and Complainant’s request removes the essential functions of her position in interviewing clients to determine benefit eligibility. The Agency stated that Complainant’s late arrivals have an adverse impact on the Agency and its ability to conduct business. • Reasonable Accommodation Decision dated March 20, 2018, stating that Complainant has not been arriving to the office before 1:00 p.m. daily and it cannot authorize indefinite liberal leave (annual leave or leave without pay) 2020002457 4 usage. The Agency stated that it would authorize liberal leave for another six months to see if Complainant’s medical team can assist her with improvements. The Agency stated that if there are no improvements, it will continue to work with Complainant to locate an effective accommodation, including potential reassignment. The Agency stated there was no nexus between Complainant’s disability and her request to work until 6:00 p.m. on telework days or to limit interviewing to one day per week. The Agency stated that the requested accommodations are an undue hardship and lower performance standards. • An email dated September 6, 2018 from Complainant to S1 stating that she cannot accept a Claims Clerk, GS-5 position and cannot relocate out of the commuting area at the time. She stated that she would consider positions that paid closer to her GS-11 salary even if not a Claims Specialist position. At the conclusion of the EEO investigations, the Agency provided Complainant with a copy of the reports of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The FAD found that the Agency took reasonable steps to engage and then accommodate Complainant and the requested accommodations posed an undue hardship to the Agency. The FAD found that the requested accommodations were tried for extended periods and were found to be ineffective. The FAD stated that Complainant’s daily absences from the office impacted her ability to perform her customer-service oriented position and the Agency’s ability to fulfill its mission. The FAD found that the Agency sought to work with Complainant to find a reassignment position and did so, but Complainant declined the position. 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”). 2020002457 5 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 is an Agency Claims Specialist, working with claimants to initiate and continue social security benefits. Generally, the Claims Specialist position interviews claimants in-person or over-the-phone on an appointment or walk- in basis. Complainant stated, in early 2016, she was diagnosed with Narcolepsy and it “makes sleeping, caring for oneself, learning, concentrating, thinking, communicating, and working more difficult than before because of constant fatigue.” Complainant stated that she is not able to work eight hours per day/five days per week and has difficulty listening to claimants while interviewing them (querying their records and asking them questions) and doing so in an allotted timeframe. Complainant initially worked in the Agency’s Austin Office, AFO, where she states she had a primarily paper workload rather than having to interview claimants, she did a half-day per week for walk-in claimants, and she was not charged as AWOL when she arrived late for work as long as she called in by 11:00 a.m. Complainant stated, in November 2016, she transferred to the Tulsa Office, TDO. Complainant stated, due to her Narcolepsy, she asked TDO management to not charge her as AWOL when she was unable to call in by 8:45 a.m. and arrived late, to not schedule her for interviews or screenings prior to 11:00 a.m., and to allow her to go to her desk and work in a quiet environment when she has severe headaches. Complainant asserted, with the aforementioned accommodations, she would be able to perform the essential functions of her position, avoid disciplinary action, and ensure proper claimant coverage. The Agency stated, when Complainant transferred to TDO in 2016, she had an informal reasonable accommodation in place from AFO, which the office maintained for “quite some time.” Management stated, once the narcoleptic symptoms appeared permanent following a medical treatment adjustment period, it engaged in the reasonable accommodation process with Complainant. The record shows the Agency provided modification of duties to include less client interaction and a liberal leave policy (use of annual leave and leave without pay) for Complainant’s absences and late arrivals. 2020002457 6 The Agency stated, ultimately it determined that Complainant could not perform the essential functions of her position - to interact with the public to gain information to process claims - as her attendance deteriorated immensely and she only worked about three to four hours per day. The Agency stated that Complainant’s time away was an undue hardship due to the customer service nature of its office and it could not offer indefinite liberal leave. Further, the Agency stated there was no nexus between Complainant’s disability and her request to work until 6:00 p.m. on telework days (when nationally, field offices closed at 5:30 p.m.) or to limit interviewing to one day per week. The Agency stated that the accommodations Complainant requested were ineffective so it sought reassignment for Complainant and offered her a GS-5 Claims Assistant position, which she declined. Complainant stated that she declined the position because she needed wages equivalent to her GS-11 salary and could not relocate from the commuting area at that time. Complainant, however, did not identify another vacant funded position to which she could be reassigned. The investigative record shows that the Agency continued to work with Complainant between 2016 and at least until late 2018, which is the time of the instant complaints, to find accommodation for her medical condition. Based on the circumstances herein, we find that the Agency did not discriminate against Complainant based on disability when, between November 2016 and September 2018, it provided duty modifications, liberal leave, and, when these accommodations proved ineffective, offered Complainant reassignment to a GS-5 Claims Assistant position. We find that the Agency fulfilled its obligation under the Rehabilitation Act. See EEOC Enforcement Guidance on Reasonable Accommodation. 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. 2020002457 7 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. 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. 2020002457 8 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 September 9, 2021 Date