Kiera H.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 21, 2019

0120170813 (E.E.O.C. Mar. 21, 2019)

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

Kiera H.,1
Complainant,

v.

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

Appeal No. 0120170813

Agency No. SF-16-0334-SSA

DECISION

On December 30, 2016, 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
November 30, 2016, 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 which found that Complainant was not
subjected to discrimination or denied a reasonable accommodation.

ISSUES PRESENTED

The issue presented in this case is whether Complainant was discriminated against and denied a
reasonable accommodation.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Claims/Customer
Service Representative, (CSR), GS-8 at the Agency’s Lodi, California Field Office in Sacramento,
California. On May 16, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability (diabetes) when:

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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1. on January 26, 2016, management denied her request to telework or to work at
home by exception (a work from home program that allowed employees to work
from home while convalescing from a temporary medical event).
2. the Agency denied Complainant a reasonable accommodation for her disability
since February 19, 2016, by denying her request to work at home by exception.

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. 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 or denied her a reasonable accommodation as
alleged.

The record showed that Complainant had Type 1 Diabetes with Autonomic Neuropathy, which
caused her blood pressure to drop drastically. This made it dangerous for her to drive to and from
work. Complainant also suffered from congestive heart failure, sleep apnea, autonomic
neuropathy, and peripheral neuropathy. Complainant acknowledged that she had been granted
numerous accommodations because of her condition.

Complainant maintained that, in September 2015, she initially requested telework from home by
exception after passing out on two occasions. Instead of teleworking, however she was able to
arrange rides with a coworker. Thereafter, on November 17, 2015, Complainant requested that
she be allowed to telework, but her request was denied because as a CSR her position required that
she be able to conduct face-to-face interactions with SSA customers. Complainant renewed her
request for telework from home by exception and it was processed as a request for reasonable
accommodation. Complainant learned that the Agency had started a telework pilot program in
some offices, which allowed employees to telework one day per pay period, and she wanted to be
a part of the project.

Management explained that the Agency’s telework-by-exception policy was called either
temporary telework or work at home by exception. According to management the telework by
exception policy could be used by an employee if they had a physician-certified medical condition
and the condition was temporary, meaning that it would last less than twelve months. In that event,
management had the authority to allow the employee to work from home for a limited period if it
was difficult for the employee to commute. Management also explained that the Agency had
launched a telework pilot project for similar offices, but that the Lodi office was not participating
in the project at the time of the events at issue. The program allowed bargaining unit employees
to telework one day per pay period.

Management indicated that it denied Complainant’s request to work at home by exception because
she did not have a condition that was temporary, and that would last less than twelve months.

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Moreover, management explained that Complainant’s office has no means to allow employees to
answer the Agency’s public telephone lines remotely, and this was a significant portion of
Complainant’s job. In addition, Complainant’s job required her to conduct face-to-face interviews,
which required her to be in the office. Management explained that to be eligible for telework, the
employee must be able to perform the primary functions of the job from an alternate duty station.
Management noted that an alternate duty station could also be another office, but Complainant did
not live closer to any other office. Management also noted that Complainant had been observed
driving herself to work, which indicated that she had the means to commute to work. It was also
noted that there were other means of reaching the office. Essentially, management indicated that
Complainant could not perform the essential job functions from home.

The Agency found that Complainant did not establish that she was discriminated against based on
disability. The Agency maintained that it articulated legitimate, nondiscriminatory reasons for its
actions, namely, that Complainant’s position required that she be present in the office. The Agency
found that Complainant provided no evidence that management acted with discriminatory animus
when it denied her telework, or her work at home requests, and the record showed that management
in the past had provided several other accommodations to Complainant, including Dragon
software, soft phones, and ergonomic equipment. The Agency also maintained that Complainant
was not denied a reasonable accommodation because she was not entitled to one as she could not
perform the essential functions of her position, because her position required that as the front office
person, she greet the public and answer the telephones. Management also indicated that it had
provided other assistance outside the reasonable accommodation program, such as placing her on
the Voluntary Leave Transfer Program list, allowing her to interview in a different area than others
in her position, and was flexible in approving leave. Management noted that there were no vacant
funded positions available and indicated that her work site was the closest office next to her home.

CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that the Agency failed to participate in the
interactive process. She argues that the Agency was fully aware that she was an individual with a
disability. Management was also aware that she had performed her job successfully for 15 years
so clearly, she was qualified, and yet the Agency did not provide an accommodation. Instead,
management indicated that Complainant had a ride with a coworker, which was no longer true.
She also noted that her driving was not a viable option, because she had passed out while driving
several times and this was not safe for her or the public. Complainant maintains that the Agency’s
telework pilot program, which allowed employees to work from home, was a possible option.
Also, Complainant contends that her job position description did not specifically require her to
have face to face contact with the public. Finally, Complainant asserts that the Agency did not
attempt to find her a position where she could work from home.

In response, the Agency contends, among other things, that Complainant works at the front counter
and is the first point of contact in the field office. The essential functions of Complainant’s position
required her to assist the public at the office’s service window and answer phones as needed.
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Complainant was normally scheduled to conduct face-to-face interviews with the public three days
a week from 9 am to 4 pm, and to answer phones two days a week. Management indicates that
only five Northern Area offices have the telework pilot available to eligible employees and the
Lodi office was not one of the pilot offices. Management also indicates that Complainant’s only
requested remedy was to work at home full time. However, both work at home by exception and
straight telework required that an employee be able to perform the duties of their positions at home,
which Complainant could not.

Further, the Agency asserts that Complainant was not entitled to a reasonable accommodation as
she could not perform the essential functions of her position from home. Moreover, Complainant
did not identify any alternative to working from home that would have enabled her to perform the
essential functions of her position. Finally, the Agency maintains that there were no vacant funded
positions available that were closer to Complainant’s home. The Agency noted that Complainant
had already been reassigned to the Lodi office under a hardship transfer request, apparently to
shorten her commute.

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”).

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he 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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination.

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At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1993); U.S. Postal Service v. Aikens, 460 U.S. 711,
715-716 (1983).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that assuming, arguendo, that Complainant established a
prima facie case of disability discrimination with regard to her claims, the Agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that Complainant could not work
from home because her position required her to interact with the public and answer phone calls,
which was something that she could not do from home. We find that Complainant did not show
that the Agency’s reasons were pretext for discrimination or that discriminatory animus was
involved in the Agency’s decision.

Reasonable Accommodation

The Commission's regulations require an agency to make reasonable accommodation for the
known physical and mental limitations of a qualified individual with a disability unless it can show
that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A
qualified individual with a disability is an “individual with a disability” who satisfies the requisite
skill, experience, education and other job-related requirements of the employment position such
individual holds or desires and, with or without reasonable accommodation, can perform the
essential functions of such position. 29 C.F.R. § 1630.2(m).

Essential functions are the fundamental job duties of the employment position the individual with
a disability holds or desires. 29 C.F.R. § 1630.2(n). A function may be essential, for example,
because the reason the position exists is to perform that function or there are a limited number of
employees available among whom the performance of that job function can be distributed. Id. at
§ 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's
judgment as to which functions are essential; written job descriptions; and the amount of time
spent on performing that function. Id. at § 1630.2(n)(3).

With regard to Complainant’s request for reasonable accommodation, we find that Complainant
has not established that she is entitled to reasonable accommodation, because even assuming,
arguendo, that she is an individual with a disability, the record indicates that she was not qualified.
To the extent that Complainant was unable to work in the office, she could not perform the essential
functions of her position. Here, the essential functions of Complainant’s position included
answering phones twice a week and meeting with customers face-to-face three times a week.2 The
accommodation of fulltime work at home would prevent her from performing these essential
functions. Complainant did not identify any alternative to working from home that would have
enabled her to perform the essential functions of her position.

2 In this instance, the Agency explained that it did not have the technology for Complainant to
work from home, and as such this prohibited her from telework and work from home by exception.
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The record clearly shows that the Agency had previously provided several accommodations to
Complainant to help her accomplish her job. We also note the Agency’s arguments on appeal that
Complainant has not presented any evidence that working at home was a necessary
accommodation, because she had other commute methods available to her including taking the bus
to work; and that there were no SSA offices closer to Complainant’s home than the Lodi office
and she had already been reassigned to the Lodi office under a hardship transfer request to shorten
her commute. Thus, Complainant did not identify any vacant funded positions to which she could
have been reassigned.

CONCLUSION

Accordingly, the Agency’s FAD is AFFIRMED.

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.
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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. 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

March 21, 2019
Date