0120132219
03-28-2014
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120132219
Hearing No. 531-2012-00125X
Agency No. HQ-11-0411-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 22, 2013, final decision concerning her equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission affirms the Agency's final agency decision (FAD) which found that Complainant failed to demonstrate that she was subjected to discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an IT Specialist, GS-12 at the Agency's Office of Telecommunications and Systems Operations facility in Baltimore, Maryland. Complainant has been diagnosed with Multiple Sclerosis (MS) and Vulvar Viscosities. She states that both conditions are aggravated by stress and both are permanent in nature but they do not affect her ability to do her job. On July 3, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to harassment on the bases of disability (multiple sclerosis and vulvar varicosities) and reprisal for prior protected EEO activity when:
1. From September 2009 to the present, management ignored Complainant's physical condition in spite of having medical documentation of her illness;
2. From October 2009 to the present, Complainant was denied on-the-job training;
3. On May 19, 2011, Complainant's request for leave under the Family Medical Leave Act (FMLA) was denied;
4. On February 11, 2011, Complainant's request for a quiet work space was denied; and
5. Complainant's request for advanced sick leave for January 31, 2011, through February 2, 2011, was not granted.
Following an investigation by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ) but later withdrew her request so a FAD was issued. In its FAD, the Agency determined that Complainant was an individual with a disability and was able to perform the essential functions of her position. Also, with respect to her reprisal claim, the Agency found that for purposes of its analysis, Complainant established a prima facie case of reprisal discrimination.
Notwithstanding, the FAD found that even when considering all of Complainant's allegations together they did not rise to the level of unlawful harassment or indicate a hostile work environment. Moreover, management argued that it articulated legitimate, nondiscriminatory reasons for its actions, namely, with respect to issue (1), the Agency maintained that there was no evidence in the record, either testimonial evidence or documentation which suggests that management "ignored" Complainant's medical condition. Further, the Agency maintained that Complainant was provided an abundance of training opportunities. Also, steps were taken to provide her with a heater, including increasing the temperature in Complainant's work area, and the denial of leave requests contested by Complainant were not a result of ignoring Complainant's medical condition, but rather the result of a need for appropriate updated medical documentation.
Regarding issue (2), management maintained that Complainant's claim that she was denied on-the-job training did not occur as Complainant alleged. According to the Agency, the evidence shows that Complainant received ample one-on-one training, as well as classroom training. Management also maintained that there was no evidence presented which showed that other employees were treated more favorably than Complainant with respect to training.
With regard to issue (3), management maintained that it denied Complainant's request for leave under the FMLA because of a lack of supporting medical documentation. Management indicated that the same was true for issues (4) and (5), Complainant's request for a quiet space to work, and, her request for advanced sick leave. Management asserted that no evidence was presented which suggested that its behavior toward Complainant was motivated by her disability or prior EEO activity.
Finally, the Agency indicated that because Complainant failed to show that management's conduct was the product of an illegal motive her claim of harassment fails.
CONTENTIONS ON APPEAL
Complainant did not file a brief on appeal. The Agency requests that its FAD be affirmed.
ANAYLSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above and Complainant failed to show that the Agency's reasons were pretext for discrimination. A fair interpretation of Complainant's overall position appears to be that, because the Agency was aware of her disabilities, it ignored her medical condition when various requests were not immediately granted. We note, however, that the Agency appears to have been seeking medical documentation in support of Complainant's requests. We find that Complainant failed to show that her requests were denied because of her prior protected EEO activity or her disability. We have also determined that Complainant failed to demonstrate that she was subjected to harassment. We find that even if all the incidents are considered they are not severe or pervasive enough to have established a hostile work environment.
Accordingly, the preponderance of the evidence of record does not establish that discrimination occurred. The Commission hereby AFFIRMS the Agency's FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__3/28/14________________
Date
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0120132219
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132219