[Redacted], Jane A., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 25, 2022

Appeal No. 2020003799 (E.E.O.C. Jan. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jane A.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2020003799 Agency No. PHI-19-0893-SSA DECISION On June 17, 2020, 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 May 18, 2020, 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. At the time of events giving rise to this complaint, Complainant worked as a Claims Specialist, GS-0105-11, in the Aramingo District Office in Philadelphia, Pennsylvania. Complainant has been in this position for over 10 years. Complainant experiences complications from several conditions including, an auto-immune disease called Sjogren's disease, Post-Traumatic Stress Disorder (PTSD), panic attacks, anxiety, and depression. Complainant stated that she cannot have a lot of contact with the public because she feels stressed and anxious all the time. Additionally, Complainant asserted that she becomes extremely fatigued to the point of complete incapacitation from Sjogren's disease. Complainant claimed that she has requested a transfer to a less stressful position on several occasions, but management has denied her request. Complainant alleged that management has known about her condition since she requested a reasonable accommodation in 2008. 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. 2020003799 2 Reasonable Accommodations Complainant stated that, due to her medical conditions, she has issues with interviewing claimants face-to-face, and she is sometimes unable to come into the office. Complainant requested reasonable accommodation on several occasions. In March 2016, Agency management granted Complainant the following accommodations: Complainant’s scheduled face-to-face appointments and interviews were reduced to two interviews per day and replaced with telephone appointments and Complainant would only be required to work in the front interviewing area two days per month. In September 2017, Agency management extended Complainant’s accommodation. Management continued to reduce Complainant’s face-to-face interviews to two a day, she was allowed to use a quieter work station during front end- interviewing, management limited Complainant’s walk-in interview duties to one day per week, and management did not require Complainant to perform reception back-up duties during the monthly rotation. Complainant was later reassigned to a new supervisor (S1) in or around February 2018. In February 2019, Complainant requested another reasonable accommodation. Complainant requested a change in work environment, less daily contact with the public, and advanced sick leave when needed. Complainant specifically requested a transfer to the Workload Support Unit. In March 2019, Complainant submitted medical documentation in support of her request. On April 11, 2019, Agency management offered Complainant a change in supervision; assigning Complainant all phone appointments and no face-to-face interviews each day; and walk-in, face- to-face interview duties for three hours on Wednesday mornings. Complainant accepted the offered accommodations but stated she would still pursue reassignment. Complainant was reassigned to a new supervisor (S2) in May 2019. Work Performance Issues In February 2018, Complainant received a counseling memorandum from her then-supervisor. That memorandum identified numerous performance deficiencies, including untimely work; inaccurate work; and failure to follow supervisory instructions. The memorandum noted that Complainant had difficulty completing work assignments, posting accurate information, and balancing her workloads. Complainant was transferred to work under S1 thereafter. S1 stated that in May 2018 through August 2018, she issued Complainant a management directive for discourteous behavior; a leave counseling memorandum for poor attendance; and a proposed suspension for misconduct after several outbursts. In February 2019, S1 placed Complainant on a 30-day Performance Assistance (PA) Plan. In the PA Plan, S1 stated that based on information gathered from case reviews, managerial observations, and other data, Complainant was deficient in the performance elements of “Achieves Business Results” and “Demonstrates Job Knowledge.” 2020003799 3 S1 identified several instances of Complainant’s deficient work performance including, multiple unfinished claims; failure to send out proper notices; failure to follow up on cases to ensure completion; failure to pay attention to her workload; untimely completion of work; and failure to respond to management’s emails. To assist with improving Complainant’s performance, management provided Complainant with refresher training and workshops; guidance from the Technical Expert; and two special project days to assist with processing her backlogged workload. Complainant refused to sign the PA Plan. The record contains several Bi-Weekly Progress Reports from S1 to Complainant. In those progress reports, S1 advised Complainant that her performance deficiencies persisted. S1 identified significant instances of incomplete, deficient, or incorrectly submitted work. In addition, S1 noted that Complainant struggled with several routine duties. Complainant refused to sign the progress reports. Complainant was transferred to a new supervisor (S2) in May 2019. S2 determined that Complainant had not successfully completed the PA Plan and therefore placed her on an Opportunity to Perform Successfully (OPS) Plan on May 21, 2019. The OPS Plan noted that Complainant was being accommodated with only phone appointments and walk-in interviews for three hours on Wednesdays. Nonetheless, S2 advised Complainant in the OPS Plan that her performance was at an unacceptable level in the critical elements of Demonstrates Job Knowledge and Achieves Business Results. In particular, S2 noted that Complainant continued to submit untimely and incomplete work, committed processing errors, and had an extensive backlog of work. The OPS Plan indicated numerous actions that management would undertake to assist in improving Complainant’s performance, including additional time with the Claims Technical Expert; bi-weekly progress reviews; and additional review on topics where Complainant was deficient. Complainant claimed that management knows she is unable to handle the stress of her regular duties but has placed her under additional stress and scrutiny by placing her on the OPS. Complainant alleged that she has requested a transfer to a new office, but her request has not been granted. Complainant claimed that the purpose of placing her on the OPS plan was to fire her and not to improve her work performance. Complainant believed that S1 does not like that she needs reasonable accommodation for her conditions and that management placed her on this plan to retaliate against her. On July 30, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on disability (auto-immune disease, panic attacks, Post-Traumatic Stress Disorder, anxiety, and depression) and reprisal (prior protected EEO activity) when: (1) beginning on May 21, 2019, the Agency failed to provide her with a reasonable accommodation in the form of a reassignment; and (2) on May 21, 2019 management placed her on an Opportunity to Perform Successfully (OPS) Plan. 2020003799 4 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. 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). In the decision, the Agency concluded that Complainant failed to prove that management subjected her to discrimination or reprisal as alleged. 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. (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”). Denial of Reasonable Accommodation Under the Commission's regulations, an agency is required to make reasonable accommodation of 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. 29 C.F.R. § 1614.203(c). To establish that Complainant was denied a reasonable accommodation, 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. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002). We assume for purposes of this decision that Complainant is a qualified individual with a disability. Complainant requested as accommodations that management reduce her face-to-face interviews with the public and transfer her to another office. The record reveals that management agreed to, among other things, limit Complainant’s workload to phone appointments with no face-to-face appointments with the exception of the walk-in specialist role, eliminated her receptionist backup duties during the monthly rotation and her requirement to call reception numbers for an appointment no-show, and required Complainant to serve as a walk-in specialist for only three hours on Wednesday mornings. Management determined that Complainant’s submitted medical documentation did not support a need for reassignment, but Complainant was moved to a new supervisor. 2020003799 5 The Commission has stated that reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that will enable complainant to perform the essential functions of her current position or all other reasonable accommodations would impose an undue hardship. King W. v. U.S. Postal Serv., EEOC Appeal No. 2019001070 (Mar. 20, 2019); Zachary K. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130795 (Nov. 19, 2015). Furthermore, the Commission has held that employees are not entitled to accommodations of their choice, but to an effective accommodation. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Complainant has presented no evidence demonstrating that the provided accommodations were ineffective. In addition, while Complainant had numerous documented work performance deficiencies, there is no evidence showing that those deficiencies were due to the Agency’s failure to grant Complainant an effective reasonable accommodation. Accordingly, the Commission finds that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, we agree that the record does not support a finding that the legitimate, non- discriminatory explanations offered by management for the alleged employment actions were a pretext or otherwise motivated by discriminatory or retaliatory animus. S2 explained that he placed Complainant on the OPS Plan because there were too many deficiencies in Complainant's work, to the point that it was affecting customers, and she was not meeting the standards for the elements of Demonstrates Job Knowledge and Achieves Business Results. S2 stressed that he provided Complainant with coaching during the PA Plan, but her performance did not improve. S2 affirmed that he held a number of half and full-day sessions with Complainant on different aspects of performing her job and, while she appeared to understand what he was teaching her, from the cases discussed in the final PA plan assessment, her work product continued to be deficient. Thus, Complainant was placed on an OPS Plan as the next progressive step after she failed to improve her work performance while on the PA plan. 2020003799 6 At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. In this complaint, Complainant provides no evidence tending to demonstrate that the Agency’s explanations are pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. CONCLUSION After a review of the record in its entirety, it is the decision of the Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence does not establish unlawful discrimination or retaliation as alleged by Complainant. 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. 2020003799 7 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). 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 January 25, 2022 Date