[Redacted], Felisha A., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionMar 31, 2021Appeal No. 2020000673 (E.E.O.C. Mar. 31, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felisha A.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020000673 Agency No. BOS-18-0250-SSA DECISION On October 14, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 11, 2019 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Senior Case Technician (SCT) at the Agency’s Office of Hearing Operations (OHO) in New Haven, Connecticut. On April 11, 2018, Complainant filed a formal EEO complaint alleging the Agency discriminated against her based on sex (female), disability, and age (over 40) when: 1. on December 27, 2017, management placed her on a Performance Assistance Plan (PAP); 2. on February 5, 2018, management suspended her for three days; 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. 2 2020000673 3. on February 6, 2018, management extended her PAP; 4. on March 21, 2018, management placed her on an Opportunity to Perform Successfully (OPS) plan; 5. since October 2017, management denied Complainant’s requests to call into work late; and 6. she was subjected to harassment from August 20, 2017 and ongoing, in terms of working conditions, excessive scrutiny of her work, disciplinary actions, time and attendance, performance plans, and efforts to force her retirement. On September 3, 2019, the Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b), based on the evidence developed during its investigation, finding no discrimination was proven. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS Denial of Reasonable Accommodation: Claim 5 Under the Rehabilitation Act and the Commission’s implementing regulations, a federal agency is required to make reasonable accommodations 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. Here, we will assume without deciding that Complainant is a qualified individual with a disability. Complainant claimed that on September 27, 2017, she requested as a reasonable accommodation that she be allowed to call in later than 9:30 a.m. (her usual start time) to report her intended absence from work for the day. Complainant stated that she was having a difficult time waking up due to sleep apnea. On October 4, 2017, the supervisor filled out a reasonable accommodation request form because Complainant had not done so. However, Complainant was asked to submit additional medical documentation to support her request. The only documentation she had submitted up to this point was a note from her doctor with a diagnosis of sleep apnea, but no elaboration on the type of reasonable accommodation Complainant needed. The supervisor stated that on October 26, 2017, Complainant’s request for additional time to submit the required supplemental medical documentation was approved. However, in February 2018, when the requested medical documentation had still not been submitted, the supervisor sent Complainant an email stating that the reasonable accommodation request was closed being based on inactivity. The supervisor informed Complainant, however, that she could renew her request for an accommodation and submit the additional medical documentation at any time. 3 2020000673 Based on this evidence, we concur with the Agency’s conclusion that there is no indication that the Agency violated the Rehabilitation Act by failing to provide Complainant with a reasonable accommodation for her known medical condition. The Agency’s request for medical documentation to support the accommodation request was reasonable under the circumstances, and Complainant does not dispute that she never submitted the documentation. Disparate Treatment: Claims 1 - 4 A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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; Furnco Construction 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 Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993). Based on the evidence developed during the investigation of the complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. As an SCT, Complainant was responsible for, among other things, providing legal and technical support to SSA’s administrative law judges (ALJs) in the processing of claims for social security benefits, including disability benefits. This included reviewing and analyzing cases to ensure the sufficiency of evidence or documents, and to ensure each case was ready for a hearing before an ALJ, referred to as preparing a “case workup.” Regarding claims 1 and 3, Complainant asserted that on December 27, 2017, and February 6, 2018, management placed her on a PAP and extended her PAP. The Operations Supervisor (female, over 40), also Complainant’s first line supervisor, stated that on December 27, 2017, she met with Complainant to discuss her concerns about her performance, and to issue her a PAP plan to assist her in improving her work performance, especially her ability to meet deadlines. She stated that Complainant’s PAP initially began on December 27, 2017, and was scheduled to last at least 30 calendar days. According to the supervisor, on three separate occasions in August and September 2017, she had assigned Complainant to complete identified case workups by a provided deadline. However, on all three times, Complainant had either completely missed the deadline or had only done a part of the assignment by the due date. Therefore, the supervisor initiated the PAP in order to help Complainant improve her work performance. 4 2020000673 On February 6, 2018, the supervisor met with Complainant again and informed her that her PAP would be extended through February 16, 2017. She noted that, in consideration of Complainant’s leave during the PAP and her suspension from January 29, 2018 through January 31, 2018, the additional time was designed to give Complainant more opportunity to improve her performance. Regarding claim 2, Complainant alleged that on February 5, 2018, management suspended her for three days. On October 5, 2017, the supervisor issued a proposal to suspend Complainant for three days for her failure to follow her directives concerning meeting deadlines for case workups and for her conduct unbecoming a federal employee in the form of “inappropriate, discourteous, and unprofessional” email exchanges with her supervisor concerning her failure to meet the deadlines. The record does not contain any evidence of a response from Complainant to the proposed disciplinary action. On January 28, 2018, the Hearing Officer Director, also Complainant’s second line supervisor, stated that she made the decision to implement the three- day suspension based on Complainant’s failure to follow management directives on three occasions and for conduct unbecoming a federal employee on four occasions. She further noted that Complainant’s three-day suspension “was based on the Agency’s progressive discipline policy.” Regarding claim 4, Complainant alleged that on March 21, 2018, management placed her on an OPS plan. The supervisor stated that Complainant made some improvements, but she was unable to consistently complete her workload in a timely manner. She stated that because Complainant’s performance remained below the successful contribution level in the performance of Participation and Achieves Business Results, she would institute an OPS plan for her. The Director stated that the OPS plan provided Complainant “120 days to show her ability to improve and meeting the expectations of her position.” Furthermore, the Director stated that the OPS plan was intended to assist Complainant. The undisputed facts fully support the Agency’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. Harassment Finally, to the extent that Complainant alleged that all the matters raised in the formal complaint constituted discriminatory harassment, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected basis - in this case, her sex, disability and/or age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 5 2020000673 Here, as we have already concluded, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her sex, disability and/or age. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 6 2020000673 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 31, 2021 Date Copy with citationCopy as parenthetical citation