U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Waltraud R.,1
Complainant,
v.
Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120181382
Agency No. ODAR170038SSA
DECISION
On March 15, 2018, 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 5, 2018, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Paralegal
Specialist/Case Manager, 0950, GS-9, at the Agency’s Office of Disability Adjudication and
Review, National Hearing Center facility in Chicago, Illinois.
On November 29, 2016, Complainant filed an EEO complaint alleging that the Agency subjected
her to harassment and discrimination on the bases of disability (physical) and reprisal for prior
protected EEO activity. She alleged that (1) on October 17, 2016, the Agency treated her
disparately when she was issued an Official Suspension notification for a period of three days,
with an effective date of October 26, 2016; (2) from October 29, 2014 to March 10, 2017, the
Agency subjected her to nonsexual harassment (hostile work environment), in terms of working
conditions, critical statements, teasing, assignment of duties, and vandalism of her car; and (3) on
October 21, 2015, the Agency failed to provide her a reasonable accommodation for her physical
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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disability when her ergonomic chair was switched with a broken chair. The Agency accepted
these claims.
Complainant also alleged the Agency subjected her to disparate treatment on the bases of
disability and reprisal when (4) on October 29, 2015, she received a low score in the
Participation element of her Performance Assessment Communications System (PACS)
appraisal; and (5) on or around August 11, 2016, she was denied 32 hours of administrative leave
to attend a training held in Baltimore, Maryland. The Agency dismissed these claims pursuant to
29 C.F.R. § 1614. 107(a)(2), for untimely EEO counselor contact. In so doing, the Agency found
that Complainant did not contact an EEO counselor until October 18, 2018, which, for both
claims, was beyond the 45-day time limit.
The Agency conducted an investigation with respect to the accepted claims, which produced the
following facts:
A Proposal to Suspend for 3 Calendar Days (Proposal to Suspend), dated August 29, 2016,
provides that Complainant was charged with conduct unbecoming a Federal employee. It notes
three specifications: (1) on November 24, 2015, Complainant was loud, disruptive, and
argumentative with her supervisor, when discussing a work issue in her office; (2) on November
24, 2015, Complainant sent an email, addressed to her supervisor, 3 Administrative Law Judges
(ALJ’s), and another employee, about the conversation discussed in instance (1), in which she
accused her supervisor of yelling at her and requested that in the future she refrain from
hollering, yelling, being nasty, and throwing tantrums; and (3) on July 5, 2016, Complainant sent
an email to a supervisory case manager, an ALJ, and another employee, indicating that the
supervisory case manager had told Complainant, during a discussion on July 1, 2016, that
Complainant was “mentally confused” and suggesting that the supervisory case manager had
challenged Complainant’s mental status.
A Decision to Suspend for 3 Calendar Days, dated October 17, 2016, indicates that the Agency
decided to suspend Complainant for conduct unbecoming a Federal employee, noting all three
specifications in the Proposal to Suspend were sustained. The suspension was effective October
26, 2016.
Complainant alleged that the assertions in the Proposal to Suspend were not correct and the
deciding official violated the collective bargaining agreement and denied her due process. She
also alleged that other employees engaged in inappropriate behavior but were not disciplined.
Members of management attested that Complainant displayed disruptive behavior and was
combative when issued directives. When she did not like her assigned tasks, she would claim she
was being harassed. Complainant was suspended because she had episodes of being non-
responsive to directions and engaged in loud confrontations with managers. Complainant had
been verbally counseled multiple times for sending emails to high level managers rather than
follow the chain of command. Managers were unaware of any employees who engaged in similar
conduct.
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Complainant alleged she was harassed by management, co-workers, and ALJ’s on multiple
occasions. Her allegations included her claims that employees turned off her computer while she
was working, vandalized her car, cut the brake lines on her car, stalked her, called her at all hours
of the night on her home telephone, and broke the outside mirrors of her car. She alleged that she
brought these things to management’s attention, but they issued no discipline and allowed
employees to harass her without impunity. She alleged that management’s failure to discipline
her co-workers was documented in emails that were sent to higher management officials and the
proposed suspension was to teach her a lesson about complaining about management.
Complainant also alleged that managers conspired and lied about her to co-workers, resulting in
co-workers yelling and screaming at her or otherwise taking out their frustrations on her. She felt
isolated and as if she were the object of their jokes. She alleged management allowed this to
continue and if she said anything in return, management viewed it as inappropriate conduct or
being argumentative and would place her on performance reviews.
Management attested that Complainant never complained about teasing but would claim
harassment, particularly when she was assigned something she did not want to do.
A manager attested that while Complainant has made multiple complaints, none of them have
ever been founded, in spite of investigations, including a hostile work environment investigation
based on Complainant’s allegations of harassment from July 2015 to May 2016 that found no
hostile work environment. She attested that Complainant questioned managers regarding work
assignments and refused to follow supervisors’ directives. When Complainant did not get the
answer she wanted, she would continue to argue in emails, sending them to higher level
executives. Other managers attested to Complainant’s sending chains of such emails.
Complainant has the following physical disabilities: fibromyalgia, Sjogren’s syndrome,
rheumatoid arthritis, osteoarthritis, myofascial syndrome, and neuropathy. She stated that the
Agency provided her with an ergonomic chair and a printer at her cubicle for her use while she is
in the office. She alleged that a manager took the chair and told Complainant to fetch a chair out
of the break room, in violation of her medical restrictions, then, replaced Complainant’s chair
with a broken one.
Management explained that Complainant requested and received an ergonomic chair as a
reasonable accommodation. Complainant alleged that someone had taken her chair and replaced
it with a broken one. Complainant then made a reasonable accommodation request for a second
chair, which was approved. In the interim, Complainant was provided an ALJ’s chair, which is
bigger and more comfortable than the regular chairs. Complainant ultimately received a second
ergonomic chair.
A memorandum from a manager to Complainant, dated December 22, 2015, indicates that in
November 2010, Complainant requested an ergonomic chair as a reasonable accommodation.
She was provided a chair that fit her needs as described by her medical provider.
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On October 20, 2015, Complainant reported her ergonomic chair was broken and the Agency
provided her another chair, while they worked on securing her a new ergonomic chair. A new
ergonomic chair was ordered, and it was expected to take 6 to 8 weeks to complete the order.
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 decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant requests sanctions against the Agency and argues that claims (4) and (5)
should not have been dismissed. She also reiterates her contentions, including that the Agency
subjected her to ongoing harassment, noting multiple instances, including those that are the
subject of the instant complaint as well as alleges instances that occurred after the filing of the
instant complaint. She also suggests that the Agency’s actions were “foreseeable constructive
discharge” to force her out.
In response, the Agency asserts that Complainant’s argument for sanctions has no merit and that
claims (4) and (5) were properly dismissed. It also asserts that Complainant cannot establish a
prima facie case of disability or reprisal for her suspension and cannot show that the Agency’s
legitimate, non-discriminatory explanation was a pretext for discrimination. It also asserts that
Complainant’s reasonable accommodation requests were granted and asks that we deny
Complainant’s appeal in its entirety.
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 law”).
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Dismissed Claims
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
Claim (4) allegedly occurred on October 29, 2015 and claim (5) allegedly occurred on or around
August 11, 2016. However, Complainant did not initiate contact with an EEO counselor until
October 18, 2016, which is well beyond the forty-five (45) day limitation period, in both cases.
The Commission has consistently held that a complainant must act with due diligence in the
pursuit of her claim or the doctrine of laches may apply. See Becker v. United States Postal
Service, EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches
applied when complainant waited over two years from the date of the alleged discriminatory
events before contacting an EEO Counselor); O'Dell v. Department of Health and Human
Service, EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an
equitable remedy under which an individual's failure to pursue diligently her course of action
could her claim. Complainant has failed to provide sufficient justification for extending or tolling
the time limit.
Disparate Treatment Claim
Complainant has alleged the Agency treated her disparately when she was suspended for 3 days.
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, 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 at n. 13;
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs
v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears
the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502 (1993).
Even if we assume that Complainant established a prima facie case of discrimination, her claims
ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. The Agency explained that Complainant was disciplined for conduct unbecoming a
Federal employee. Her charge included instances where she had been loud, disruptive, and
argumentative with her supervisor; and sent inflammatory emails to higher level managers about
discussions with her supervisor.
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Therefore, we find that, although Complainant has alleged discrimination and a retaliatory
animus, she has not established by a preponderance of the evidence, that the legitimate, non-
discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or
motivated by some unlawful discriminatory animus with respect to this claim.
Harassment Claim
Complainant alleged the Agency subjected her to harassment, noting numerous instances,
including those involving working conditions, critical statements, teasing, assignment of duties,
and vandalism of her car. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the
Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67
(1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions
of the complainant's employment and create a hostile or abusive working environment.” See also
Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). The Court explained that an
“objectively hostile or abusive work environment [is created when] a reasonable person would
find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510
U.S. at 21-22. Thus, a claim of harassment is actionable only if, allegedly, the harassment to
which the complainant has been subjected was sufficiently severe or pervasive to alter the
conditions of the complainant's employment.
We find that Complainant has failed to establish a prima facie case of harassment. Complainant’s
harassment allegations can generally be described as relating to being spoken to or about
unfavorably and/or disagreements with managerial decisions. With respect to her allegations
relating to being spoken to or about unfavorably, including the alleged critical statements and
teasing, we find they are insufficiently severe or pervasive to have altered the conditions of her
employment. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion,
attempted to charge him with AWOL, and disagreed with the time the complainant entered into a
sign in log, were found to be insufficient to state a harassment claim). The allegations, assuming
they are true, were isolated incidents that are insufficient to support a prima facie case of
harassment. See Rennie v. Dalton, 3 F.3d 1100 (7th Cir. 1993).
We find Complainant’s other allegations, including those relating to assignments and work tasks,
to be disagreements about managerial decisions. Without evidence of an unlawful animus, we
have found that similar disputes do not amount to unlawful harassment. See Complainant v.
Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the
issues between the complainant and the supervisor were because of personality conflicts and
fundamental disagreements over how work should be done and how employees should be
supervised, and there is no indication that the supervisor was motivated by discriminatory
animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No.
0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and
petty annoyances between a supervisor and a complainant do not rise to the level of harassment).
We note that Complainant has alleged other allegations, including that her car was vandalized,
she was stalked, and co-workers tampered with her computer and called her at night.
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However, the record is insufficient to support these allegations. Therefore, although Complainant
asserts that the Agency acted discriminately, there is insufficient evidence to support the
assertion that Complainant’s disability or EEO activity played a role in the incidents at issue.
Thus, her allegations, even if true, are insufficient to support this claim.
Reasonable Accommodation Claim
Complainant also alleged that the Agency denied her a reasonable accommodation with respect
to an ergonomic chair. The Rehabilitation Act of 1973 prohibits discrimination against qualified
disabled individuals. See generally 29 C.F.R. Part 1630. To establish that Complainant was
denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a
disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability
pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable
accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act (Enforcement Guidance on Reasonable
Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). 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. See 29 C.F.R. §§ 1630.2(o) and (p).
The Agency does not dispute that Complainant is an individual with a disability; nor, does it
dispute that Complainant is a “qualified individual with a disability.” 29 C.F.R. §1630.2(m).
Thus, the only remaining issue is whether the Agency failed to provide her a reasonable
accommodation. The record establishes that Complainant was provided an ergonomic chair in
accordance with her requested reasonable accommodation. When her chair broke, a replacement
was ordered. In the meantime, she was provided the most comfortable chair available, a ALJ’s
chair. While there was a period of time between the order and delivery of the chair, the record
does not establish that the Agency denied her request. Rather, it establishes that the Agency
reasonably acted to accommodate Complainant’s disability.
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.
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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
July 11, 2019
Date
