0120103777
07-11-2012
Marisela Rios, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Marisela Rios,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120103777
Agency No. SF090779SSA
DECISION
On September 21, 2010, Complainant filed an appeal from the Agency's June 15, 2010, final decision (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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative at the Agency's Mountain View Field Office facility in Mountain View, California. On October 19, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic) and disability (Carpal tunnel syndrome, trapezius and neck strain, arthritis in the neck) when:
1. On July 2, 2009, Complainant was not selected for a 90-day detail promotion to a Bilingual Spanish Claims Representative; and
2. On October 14, 2009, management denied Complainant's request for a reasonable accommodation.
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 EEOC 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. Specifically, the Agency found that the selecting official, who was the District Manager (DM: Hispanic, no claimed disability), chose the selectee (S: Hispanic, no known disability) based on the recommendation of a management official who had supervised both employees and who told DM that S was the better employee. The Agency further found that Complainant failed to establish that the Agency's articulated reason was a pretext for discrimination. With regard to the denial of reasonable accommodation, the Agency found that the request was denied because Complainant failed to submit sufficient medical documentation to support her request.
CONTENTIONS ON APPEAL
Complainant argues initially that her appeal should be considered timely-filed. Complainant argues that she did not receive a copy of the Agency's decision because it was sent1 via electronic message to her work email address and she was out of the office for a prolonged period and was unable to access her work email account. Complainant also argues that she never received the Report of Investigation (ROI) and Notice of Right to a Hearing Before an Administrative Judge because it was sent to the wrong address. We note, however, that Complainant has not specified on appeal whether or not she would like a hearing before an Administrative Judge. Finally, Complainant on appeal raises new claims of reprisal that were not addressed in the Decision. The Agency requests that we dismiss the appeal as untimely. In the alternative, the Agency requests that we affirm its 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. (November 9, 1999) (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").
With regard to the issue of timeliness, we note that the Agency's decision indicates that it was sent via electronic message to Complainant's work email address on June 15, 2010. Complainant argues that "due to a work-related injury [Complainant was] not present at her office until 9/17/10." Following a review of the record, the Commission finds that the record in this case contains insufficient evidence reflecting complainant's receipt of the Notice on June 15, 2010. Because the Agency sent the decision via email, we determine that there is no evidence indicating that Complainant actually received the decision on the date alleged by the Agency. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy, v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). We therefore find that Complainant's appeal is timely.
With regard to Complainant's argument that she did not receive the ROI and Notice of Right to a Hearing Before an Administrative Judge because they were sent to the wrong address, we note that a copy of the Fed Ex tracking report shows that the ROI and Hearing Notice were delivered to Complainant's address of record on April 2, 2010. Given that Complainant did not respond, we find that the Agency correctly issued a decision on the merits without forwarding the complaint to an Administrative Judge for a hearing.
Nonselection for 90 day detail
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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. Second, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256.
In order to establish a prima facie case of discrimination based on national origin under Title VII, Complainant must demonstrate that: (1) she is a member of a protected class, (2) she was subjected to adverse treatment, and (3) she was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. United States Postal Service, EEOC Appeal No. 01A14419 (Mar 13, 2003); Ornelas v. Department of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). While Complainant has met the first two prongs of this test, by showing that she is Hispanic and was not selected for the position, she has not met her burden of establishing prong three since the selectee for the position was also Hispanic. Complainant has therefore failed to establish a prima facie case of discrimination based on national origin.
In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies that its decisions were motivated by complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, complainant must demonstrate that: (1) she is an "individual with a disability"; (2) she is "qualified" for the position held or desired; (3) she was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy her burden of proof, complainant must then demonstrate by a preponderance of the evidence that the agency's proffered reason is a pretext for disability discrimination. Id.
Assuming arguendo that Complainant is an individual with a disability under the Rehabilitation Act, and that she otherwise established a prima facie of case on the alleged basis of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its action. Specifically, DM, who was the selecting official for the 90-day detail, averred that the reason she picked S over Complainant was because after talking to S's supervisor, (SP: African American, no claimed disability) who was also Complainant's former supervisor, she decided that S had a better work ethic, that the quality of his work was better than Complainant's, he had better oral and written communication skills, a better attitude than Complainant, he showed more initiative and was more motivated to get work done and help others than was Complainant, his work was timely and accurate, and finally, DM "had issues with the integrity of" Complainant regarding incidents where Complainant allegedly falsified her timesheet and provided misleading and rude responses when questioned about a missing headset. See Report of Investigation (ROI) Exhibit 8, pp. 3-6. SP submitted an affidavit agreeing with DM's statements. See ROI, Exhibit 9. DM further denied knowing of Complainant's disability and denied discriminating against Complainant based on her disability, national origin, or accent, pointing out that she (DM) was also Hispanic and that she did not notice Complainant having an accent. See id.
The Agency, having articulated a legitimate nondiscriminatory reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason is a mere pretext for discrimination. Burdine, 450 U.S at 256. Complainant argues that she received numerous awards from the Agency for her work and that employee evaluations showed she was reliable and made few errors, that she had worked at the Agency longer than S and that she had mentored him in the past, that she was capable and motivated, that she was born in the USA while S was not and that English was not his first language, that she had a college degree while S does not, and that she was punctual and "had a good sick and annual leave balance [while S] did not" ROI, Exhibit 7, pp.15 - 17. Complainant further averred that DM's affidavit explaining the reasons for selecting S over Complainant "engage[s] in racial stereotypes and that "I speak with an accent but I have excellent writing and communication skills." Id. Complainant denied that she lacked initiative or that she never volunteered to do extra assignments and contends that she had more responsibilities than did S. Id. Complainant next averred that her alleged lack of candor should not be used against her in an EEO complaint because the matter "is part of a grievance . . .. If I cannot use this incident as part of a retaliation and hostile work environment complaint it not [sic] be considered" as part of this EEO complaint. Id., p. 18. Complainant maintains that a management official told her she could take the headset and that if that management official was mistaken "I should not be responsible for bad judgment or a wrong decision made by management." Id.
Following a review of the record we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that the Agency's articulated reason for its action is a mere pretext for discrimination, or otherwise showing that the Agency's action involved discrimination. We note initially that Complainant weakens her argument that S's selection was due to discrimination based on national origin and disability by stating "I believe [S] is a personal acquaintance of Management and was highly recommended for the position regardless of his abilities." ROI, Exhibit 7, p. 16. With regard to Complainant's contention that her employee evaluations showed she was reliable and that she made few errors, we note that a review of Complainant's 2008 and 2009 evaluations merely show that Complainant achieved a "successful" evaluation, while her 2009 evaluation included a notation under "Interpersonal Skills" that stated "You usually treat the public and co-workers with courtesy and respect yet at times have been disrespectful and discourteous with management." see ROI, Exhibit 20, p. 13. With regard to her claim that she received awards, we note that Complainant's own application shows that the most recent award she received was in 2006. See ROI, Exhibit 13, p. 18. Finally we note that a review of the record indicates that Complainant and DM may have had interpersonal difficulties because of an email that Complainant sent to DM regarding the issue of a missing headset and that this may have had an effect on DM's decision not to select Complainant for the position. Such interpersonal difficulties, however, do not amount to prohibited discrimination under Title VII or the Rehabilitation Act.
Denial of Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish disability discrimination, complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she 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.
The record shows that on August 14, 2009, Complainant requested a reasonable accommodation, claiming she had carpal tunnel syndrome, trapezius and neck strains, and arthritis in the neck. See ROI, Exhibit 22, pp. 10-11. Complainant stated:
my job requires extensive computer typing in a sitting position, answering the phones, reaching and straining to reach claimaints to handle their documents since I work behind a counter. I have swelling in my hands and pain in my neck and upper back. Its difficult to type without a brace or answer thephones without proper equipment. The front counter (illegible) distance between (illegible) and me and makes me strain constantly to reach for their documents, aggravating my pain. I am requesting repositioning of the front counter space to create less distance or at least have an ergonomic chair that counters my back so when I reach back to sit, my lower back can rest properly from the strain.
Id.
In support of her request Complainant submitted various medical documents. See ROI, Exhibit 22. The Agency responded to her request in a letter dated October 14, 2009, stating that the medical information had been reviewed by the Agency's Medical Officer and that the request had been denied on the grounds that "the medical information you provided does not establish that your condition, limited use of hands an [sic] fingers, substantially limits a major life activity". Exhibit 21, p. 3. The Agency did, however, indicate that an ergonomic chair had been approved for Complainant on September 23, 2009.
A review of the medical information provided by Complainant to the Agency at the time of her request shows that she had, among other things, a diagnosis of bilateral carpal tunnel syndrome and bilateral trapezius and cervical strain. See ROI, Exhibit 22, pp. 6, 8. The document indicated that she suffered from pain described as "severe" and nine out of ten, with ten being maximum pain, as well as numbness and tingling in both hands that caused her to waken when she was asleep. Id. Complainant presented an "excuse slip" from her physician that stated that she had been seen for bilateral carpal tunnel syndrome, and under "restrictions," the note said "please allow only 4 hours total per day of repet. [sic] use of fingers and hands" and "please perform work station evaluation." Id., p. 7. On May 10, 2010, Complainant was recommended to undergo physical therapy three times a week for four weeks. Id., p. 18.
The Agency argues that after Complainant's initial request was rejected, Complainant was "invited . . . to provide additional medical documentation to support her request," and was notified that she could request an independent evaluation. See Agency's Appeal Brief, p. 11. The Agency further argues, however, that Complainant failed to provide additional information or seek an independent opinion and "[t]hus the interactive process broke down due to Complainant's inaction. The Agency, therefore, cannot be held liable." Id. The Agency contends that Complainant was provided an ergonomic chair but that a request for a transfer to an office closer to her physical therapy appointments was denied because such a transfer "would not assist her in performing the essential functions of her job."
On appeal, Complainant does not appear to dispute the Agency's contention that she was provided an ergonomic chair. We note that the Agency's October 14, 2010 letter addressing Complainant's reasonable accommodation request notified Complainant that she could submit additional information and that she could request an independent review of the Agency's decision to deny her request. The letter further stated that the Agency's Medical Officer "indicated it is unclear how a transfer to another office would remove a barrier to your performing the essential functions of your job and indicated you may consider having therapy at another location." ROI, Exhibit 21, p. 3. The record, however, does not indicate that Complainant responded to the letter and specifically, does not indicate that Complainant addressed the issue of whether or not she could have her physical therapy at a different location instead of transferring her work place to a location closer to her therapist.
Under the Commission's guidelines, an agency may request additional information when presented with a request for reasonable accommodation in order to evaluate a complainant's proposed accommodation in comparison to her current medical needs in order to determine what accommodation would best serve the needs of the agency and complainant. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002, at question 6 (October 17, 2002). Moreover, when an individual's disability or need for reasonable accommodation is not obvious, and she fails to provide reasonable documentation requested by the employer, the employer will not be held liable for failure to provide the requested accommodation. Id.
In this case, while the medical information provided to the Agency was sufficient to show that she had Carpal Tunnel Syndrome and upper back and neck strain, the information did not address her claimed need for a transfer to an office that was closer to her physical therapist. For example Complainant did not provide local maps of the area or other documentation showing that no other physical therapist was available, nor did she show that the therapist she was seeing provided treatment that was not provided by other therapists. While such information is not necessarily medical, it nevertheless addresses Complainant's accommodation request. Because Complainant failed to address the issue, we find that complainant failed to prove that she was denied a reasonable accommodation in violation of the Rehabilitation Act. See Diane H. Palumbo v. Department of Veterans Affairs, EEOC Appeal No. 0120073023 (April 20, 2010) (Commission found that agency did not fail to provide reasonable accommodation because complainant had not provided updated documentation that would establish her current need for a reasonable accommodation); Lucille Miles v. United States Postal Service, EEOC Appeal No. 0120054224 (January 19, 2007) (Commission held that agency did not fail to provide reasonable accommodation since complainant did not provide updated documentation to substantiate her claim that she needed extended leave as a reasonable accommodation); (Ross v. Department of the Treasury, EEOC Appeal No. 01982708 (August 3, 2001)(Commission held that where a complainant fails to provide necessary documentation, the agency cannot be held liable for failure to accommodate complainant's disability).
With regard to Complainant's allegations of reprisal following her filing the EEO complaint, such claims are raised for the first time on appeal and are not addressed in this decision.
CONCLUSION
After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred. At all times, the ultimate burden of persuasion remains with a complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were pretextual or motivated by intentional discrimination. Complainant has failed to carry this burden.
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 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 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
July 11, 2012
__________________
Date
1 Complainant further argues that the decision was not mailed to her representative. However a review of her Formal Complaint reveals that, at the time, she had not provided a mailing address for her representative.
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0120103777
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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