Ted L.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionNov 9, 20180120171112 (E.E.O.C. Nov. 9, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ted L.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120171112 Agency No. NY-15-0802 DECISION On January 6, 2017, 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 5, 2016, final decision concerning his 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 is whether the Agency’s final decision (FAD) erred in finding that Complainant was not subjected to discrimination, harassment, or was denied a reasonable accommodation. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Case Intake Technical/Legal Assistant, GS-8 at the Agency’s Hearing Office in Brooklyn, New York. Complainant alleged that he was initially able to perform his duties the first year. However, because of a broken hip, on December 10, 2005, he was diagnosed with a permanent condition called Avascular Necrosis. 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. 0120171112 2 Complainant was limited to no heavy lifting, carrying, or pulling, or continuously getting up or down from his chair, and it was recommended that he avoid lifting more than five (5) pounds. Complainant also reported that he suffered from depression and a cracked tooth. Complainant indicated that after he injured his hip, he was unable to do assigned docketing, delivering, and filing paper cases without experiencing pain. On May 21, 2015, and May 22, 2015, Complainant requested an electronic case load, a printer at his desk, toner for the printer, a disabled parking space, a hard ground surface to roll on, and a scanner. Management had previously verbally approved his electronic case load but then it was verbally denied. Complainant averred that although he submitted medical evidence directly to his union representative, subsequently, management denied his request for accommodation. He also averred that management never responded to his request for a parking space, other than telling him that, only disabled employees were permitted to park in the parking space. Complainant stated that he was advised to re-submit his medical evidence in support of his requested accommodations since his medical records were only kept for two years. Complainant also alleged that he was subjected to harassment that resulted in a hostile work environment. He maintained that management incorrectly processed his leave, failed to provide him a reasonable accommodation, assigned him work four times the rate of his coworkers, and failed to provide training for the rotational receptionist position. On October 17, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (Hip, Avascular Necrosis) and reprisal for prior protected EEO activity when: 1. The Agency failed to provide him with appropriate reasonable accommodations based on disability (physical) beginning on May 20, 2015, and continuing. 2. The Agency subjected him to non-sexual harassment (hostile work environment) based on disability (physical) and retaliation (prior EEO activity) beginning on May 20, 2015, and ongoing in terms of job duties including time and attendance, training, and reasonable accommodation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. 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 FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination or harassment as alleged. The decision also found that Complainant did not show that he was denied a reasonable accommodation. Regarding Complainant’s claim that he was denied a reasonable accommodation, the Agency noted that, on May 21, 2015, Complainant requested as a reasonable accommodation that he be given an electronic case load, a printer at his desk, toner for the printer, a disabled parking space and a scanner. 0120171112 3 As Complainant had not provided medical documentation since 2011, he was instructed to provide updated medical documentation to support his requests. On May 29, 2015, Complainant provided the medical documentation. After review of the documentation, it was decided that an alternative accommodation would be provided to Complainant that fit within his restrictions. Specifically, rather than a complete electronic workload, Complainant was granted an accommodation of only having to handle (lift/carry) paper cases weighing under five pounds. He was offered the assistance of management any time that he needed it, and, a request for the printer was made, Complainant was told to contact management for toner, he was told that he did not need a scanner because he was not responsible for the mail but if he ever needed something scanned he could call on management. The Agency determined that with these accommodations he would be able to perform his duties and the duties of back-up receptionist. Management discussed with Complainant its alternative reasonable accommodation, on June 11, 2015, and provided written information on June 24, 2015, and July 16, 2015. Management indicated that there was an attempt to talk to Complainant on August 20, 2015, but he would not come to the manager’s office. Also, the Agency noted that Complainant failed to submit documentation that would lead to a reversal of the prior decision to deny the request for disabled parking. Complainant’s supervisor (S1) indicated that, on August 13, 2015, the Office of Personnel, Center for Disability Services (CDS) approved Complainant’s request for a stand-alone printer to be installed at the reception desk. CDS asked Complainant to allow 30 days to receive the standalone printer. However, by the time the printer arrived, Complainant had been removed from the back- up receptionist rotation due to continuing behavior difficulties. Therefore, the printer at the front desk was not necessary. The FAD found that while Complainant was a qualified individual with a disability, management took reasonable actions to effectively accommodate his disability. The Agency indicated that an Agency was not required to provide the precise reasonable accommodation an employee requested, so long as the Agency provided a reasonable accommodation that was effective. Further, Management asserted that it did not create a hostile work environment for Complainant. Management explained that the incidents complained of were work related matters involving time and attendance, training, work assignments, and accommodation. The Agency found that Complainant did not show that his protected bases were considered regarding these incidents. Complainant also did not show that the incidents even when considered together were severe or pervasive enough to establish a hostile work environment. Specifically, regarding time and attendance, management maintained that employees were responsible for putting leave information into the system and they only approved it. Management indicated that on only two occasions, did Complainant maintain that his WebTA balances were incorrect and on both occasions, the balances were amended to reflect the correct information. With regard to training, Complainant maintained that he was not provided training to perform the receptionist duties and that it was not his job to perform the receptionist job. He also asserted that the receptionist job was used by management to get rid of employees after they filed EEO complaints. 0120171112 4 Management explained that, to the contrary, all Grade 8 legal assistants were required to provide rotational back-up receptionist assistance as a result of the loss of other Grade 8 legal assistants and the departure of a second Contact Representative. Thus, Complainant was assigned on a rotational basis to provide back-up reception coverage from May 2015 to August 2015. The months that Complainant provided back-up reception, he was assigned as back-up receptionist no more than twice per month in a rotation with other Grade 8 employees in the office. Further, the backup receptionist position was considered part of his position description. Complainant’s position description read, in relevant part, that Complainant “communicates daily, either in face- to-face situation or by telephone, with claimants,†and further stated “performs other duties as assigned.†Management assigned Complainant to back-up receptionist duties due to these aspects of Complainant’s position description. S1 also indicated that an individual’s EEO history was not relevant to being assigned the receptionist position. Complainant was removed from the back-up coverage rotation at the end of August 2015, due to his continuing poor behavior and failure to adequately serve the public at the front desk. Moreover, management indicated that reception coverage training was provided on March 3, 2015, and management was always available for questions. Finally, management provided that the receptionist position was not used to get rid of employees. With respect to Complainant’s allegation that he was assigned four times the amount of work compared to his co-workers, and that he had been assigned the position of receptionist on numerous occasions, management denied Complainant claims. Management indicated that work was assigned as it is completed and Complainant never complained of any difficulty in completing his work. Accordingly, the FAD found that Complainant did not prove discrimination. CONTENTIONS ON APPEAL Complainant did not submit a brief on appeal.2 The Agency requests that its FAD be affirmed. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,†and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the lawâ€). 2 Complainant submitted a letter six months after his brief was due which requested that he be granted a hearing. As this letter is untimely, it will not be considered. 0120171112 5 Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all his protected bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as was discussed above. We find that Complainant did not demonstrate that the Agency’s reasons were pretext or that discriminatory animus was involved regarding Complainant’s claims. Further, we find that Complainant did not show that he was denied a reasonable accommodation. The record shows that the Agency offered Complainant alternative accommodations than the ones he requested. As the Agency indicated, the Commission has long held that an employee is not entitled to the accommodation of their choice, but only to an effective accommodation, i.e., one which allows him to perform his duties. In the instant case, we find that Complainant did not demonstrate that the accommodation offered by the Agency was ineffective or unreasonable. Finally, we find that Complainant did not demonstrated that he was subjected to a hostile work environment. We find that even considering all his claims in total, these matters are work related incidents that are not severe or pervasive enough to establish a hostile work environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). CONCLUSION Accordingly, we AFFIRM the Agency’s FAD which found that Complainant did not demonstrate that he was subjected to discrimination, harassment, or denied a reasonable accommodation. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. 0120171112 6 Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 0120171112 7 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 November 9, 2018 Date Copy with citationCopy as parenthetical citation