Tyra F.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 9, 2018

0120171556 (E.E.O.C. Nov. 9, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tyra F.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120171556

Agency No. ATL-16-0732-SSA

DECISION

On March 22, 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
February 28, 2017, 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.

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.
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BACKGROUND

Complainant worked as a Case Intake Technician, GS-986-08 at the Synergy Business Center in
Columbia, South Carolina. Complainant was involved in a car accident in September of 2012, and
had sustained a back injury as a result. She averred that she had been diagnosed with Post-
Traumatic Stress Disorder (PTSD) and anxiety, for which she was given prescription medications.
She further averred that because of her conditions, she was unable to cope with stressful situations,
which included working up critical cases and serving as a receptionist at the front desk. She stated
these activities exacerbated her anxiety and PTSD because they forced her to confront
“catastrophic and depressing” circumstances when reviewing case files of patients or talking with
patients at the front desk. The suffering experienced by others, she maintained, forced her to relive
her car accident. Report of Investigation (ROI), Exhibit (Ex.) 7-1.

On April 18, 2016, Complainant submitted a written request for a reasonable accommodation in
the form of being relieved of front desk duties and of having critical cases assigned to her for work
up. She submitted medical documentation indicating that she should avoid external factors that
trigger her anxiety disorder and cited examples of such factors as being overwhelmed, being
overextended, and being in stressful interactions with others. A physician’s letter indicated that
Complainant was responding positively to the medications she was being given. ROI, Ex. 7-1, Ex,
7-2, Ex. 7-11.

In a letter addressed to Complainant dated June 23, 2016, the Group Supervisor (GS) informed
Complainant that she would need additional medical information to grant her reasonable
accommodation request because the information that she provided did not suggest that she could
not be assigned as critical or serve as a back-up receptionist from time to time. The GS stated that
management would need additional medical information to further assess Complainant’s requests
not to be assigned cases designated as critical or not to serve as a back-up receptionist from time
to time. The GS also stated that the medical documentation should describe the nature, severity,
and duration of Complainant’s impairment, the activity that her impairment would limit, the extent
to which the impairment limited her ability to perform the activity, and substantiation of why the
requested accommodation would be needed. ROI, Ex. 7-2, Ex. 7-10.

In July and August of 2016, Complainant submitted additional documentation from her treating
physician indicating that Complainant was sometimes unable to function due to PTSD and anxiety,
that she could not control her symptoms, that flare-ups were impossible to predict, and that her
symptoms prevented her from carrying out certain components of her work such as critical case
work-ups. Ex. 7-11. Complainant conceded that around this time, the GS informally decided not
to assign Complainant critical cases for work ups or receptionist details. Complainant also
acknowledged that on November 15, 2015, management agreed to provide Complainant with a
reasonable accommodation in which she would be exempted from responsibility for critical case
work-ups and from having to work at the reception desk. In lieu of the latter, the GS agreed that
Complainant could answer the telephone and help with mail at her own desk, rather than at the
reception desk. Management also agreed that the arrangement would last for six months, after
which it would evaluate whether the accommodation needed to continue. ROI, Ex. 7-2, 7-3, 7-4.
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On August 1, 2016, Complainant filed an EEO complaint in which she alleged that her Group
Supervisor (GS) and the Hearing Office Director (HOD) failed to provide her with a reasonable
accommodation for her disabilities (anxiety, post-traumatic stress disorder - PTSD) beginning on
July 21, 2015 and continuing thereafter.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of
the investigative report and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a final decision
without a hearing on January 23, 2017, and in accordance with Complainant’s request, the Agency
issued its decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant claims that Agency officials provided contradictory statements which
prove they were not credible. Complainant claims that in July and August 2016, she was assigned
critical cases and front desk duties. Accordingly, Complainant requests that the Commission
reverse the final decision.

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

Agencies are required to reasonably accommodate the known limitations of qualified individuals
with disabilities unless they can show that doing so would result an undue hardship upon their
operations. See 29 C.F.R. §§ 1630.2 (o), (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). The medical documentation submitted by Complainant,
together with her position description, establishes that she is able to perform the essential functions
of her Case Intake Technician position and is therefore a qualified individual with a disability.

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The only remaining issue is whether the Agency fulfilled its statutory obligation to provide her
with a reasonable accommodation. As a qualified individual with a disability, Complainant would
be entitled to an effective accommodation, but not necessarily the accommodation of her choice.
Kristie D. v. U.S. Postal Serv., EEOC Appeal No. 0120160236 (Feb. 6, 2018). On appeal,
Complainant appears to be arguing that the Agency failed to provide her with her requested
reasonable accommodation because she was occasionally asked to work up a critical case in one
instance and assigning her to front desk duty on another. But beyond her own assertions,
Complainant has not presented any statements from witnesses other than herself or documents
tending to show that these incidents actually occurred.

Assuming that the incidents did occur, the record reveals that both of these incidents occurred prior
to November 15, 2016, when the reasonable accommodation arrangement formally took effect.
Furthermore, in April 2016, Complainant requested to be relieved of front desk duties and to not
be assigned to work critical cases as a reasonable accommodation. ROI, Ex. 7-2, p. 3. The GS
recommended that management not assign critical cases to Complainant for work-ups and not
assign her reception duties. ROI, Ex. 7-9, p. 1. The GS subsequently requested additional
documentation in support of Complainant’s reasonable accommodation request in her letter to
Complainant dated June 23, 2016. ROI, Ex. 7-10, p. 3. Management engaged in interactive
discussions with Complainant regarding her accommodation request in April and September 2016.
ROI, Ex. 7-9. The Agency asked for medical documentation linking her condition to the tasks that
she was seeking to avoid having to perform, and when she subsequently provided the requested
information, the Agency granted her accommodation request, as evidenced by the agreement that
the parties entered into on November 15, 2016. Thus, the record reflects that any delay in the
instant matter resulted because the Agency was waiting on appropriate requested documentation
to support Complainant’s accommodation request. Complainant was subsequently granted the
accommodation she requested in November 2016, in which she would be exempted from
responsibility for critical case work-ups and from having to work at the reception desk. As a
result, Complainant cannot establish that the Agency failed to provide her with a reasonable
accommodation, or that there was an unreasonable delay in providing the accommodation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision.

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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. 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.
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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

November 9, 2018
Date