Tammi W.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionFeb 22, 20190120171571 (E.E.O.C. Feb. 22, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tammi W.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120171571 Agency No. HQ-15-1013 DECISION On March 27, 2017, 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 March 15, 2017, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as an IT Specialist, GS-13, at the Agency’s Annex in Woodlawn, Maryland. When working at the Agency Annex, Complainant claimed to suffer from fatigue, difficulty breathing, swollen eyes and nasal passages, sore throats, and headaches. On May 19, 2015 Complainant requested to telework full-time as a reasonable accommodation. According to Complainant, the office triggered her respiratory symptoms, but otherwise she could perform the essential functions of her job. The Agency’s Medical Officer (MO) reviewed a letter from Complainant’s physician that accompanied her accommodation request, and concluded that it was “essentially reported 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. 0120171571 2 symptomatology and past medical history. There is no documentation of a clinical exam.” Further, the MO found it unclear that her symptoms substantially limited a major life activity. The Agency determined additional medical documentation was needed, but permitted Complainant to telework full-time temporarily, until June 8, 2015, to give her time to obtain additional documents. In June 2015, Complainant was diagnosed with Multiple Chemical Sensitivity (MCS) and Autonomic Dysreflexia. In correspondence to the Agency, dated June 18, 2015, the physician listed the diagnosis, described the symptoms which Complainant reported experiencing while at work, and activities that are adversely affected (energy, respiratory, ocular). According to Complainant’s doctor, Complainant “is capable of working, but she must work in a symptom-free environment. Currently that workplace would be at her home environment. . . [telework] should be extended to full-time.” The MO, however, found the letter insufficient to establish Complainant was an individual with a disability entitled to a reasonable accommodation. The MO spoke with Complainant’s doctor and learned that Complainant was still undergoing testing. While awaiting the results and additional documentation, Complainant was permitted to only work from home two days per week. The Agency suggested that Complainant keep a log of her symptoms while at the facility and that she visit the Employee Health Clinic if she experienced symptoms. Complainant, however, was resistant to coming to the facility. She requested Leave Without Pay (LWOP) for the remaining hours (20) of her work week, after performing two days (20 hours) of work from home. After receiving another doctor’s note in late August 2015, along with a Spirometry Report, the MO concluded that there was “no objective information linking workplace exposures with her subjective complaints.” The MO observed that her Spirometry Report was normal, Complainant’s visits to the Employee Health Clinic did not report any evidence of decline in respiratory function, and Complainant’s physician was unable to determine what substances were triggers without more testing. Complainant, however, did not want to incur the cost of more tests or return to the facility. While Complainant’s initial requests for LWOP were granted, by September 2015, she was marked as Absent Without Leave (AWOL) when she did not come into work. Believing the Agency’s actions were discriminatory, Complainant filed the instant formal EEO complaint on November 20, 2015. Specifically, Complainant alleged she was subjected to discrimination based on disability and in reprisal2 for prior protected EEO activity when: 1. on May 19, 2015, and on-going, her reasonable accommodation requests to telework were denied; and 2 The basis of reprisal is only applicable to claim (2). 0120171571 3 2. on several dates in October 2015,3 she was charged 10 hours/day of AWOL. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its March 15, 2017 decision, the Agency concluded that it did not discriminate against Complainant. With respect to her requests for the reasonable accommodation of full-time telework (claim (1)), the Agency reasoned that “. . . her physicians failed to draw a clear nexus between her impairments and her requested accommodation of telework, noting only that her physical issues were exacerbated by the workplace itself and avoidance of exposure was the ‘treatment of choice’ for her issues. They did not establish what the ‘trigger’ was for her conditions in the workplace.” Further, the Agency stated that Complainant’s own doctor acknowledged that her diagnosis could not be conclusively linked to the workplace without additional testing, which Complainant declined to have performed. Management observed that, despite her medical issues, Complainant was able to fully participate in meetings and complete work assignments when she was at the facility. The Agency noted that to address Complainant’s concerns, air quality tests were conducted and found to be within normal limits. The Agency also cleaned carpets and work stations. Regarding being charged with AWOL (claim (2)), the Agency explained that Complainant did not report to work and failed to provide the requested medical documentation to support a reasonable accommodation. The Agency therefore determined that the AWOL charges were consistent with the Agency’s leave policies. The Agency acknowledged the temporal proximity between Complainant’s EEO activity and the AWOL charges, but nevertheless determined that Complainant failed to show that the Agency’s proffered legitimate reason was pretext for disability discrimination or reprisal. Complainant filed the instant appeal. 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 3 October 1, 2, 7, 8, 14, 22, 23, 28, and 29, 2015. 0120171571 4 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 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. A reasonable accommodation is a modification or adjustment to the work environment or to the manner or circumstances under which a position held or desired is customarily performed, that enables a qualified individual with a disability to perform the essential functions of that position. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, General Principles (Oct. 17, 2002). An agency must consider each request for reasonable accommodation and determine: (1) whether the accommodation is needed; (2) if needed, whether the accommodation would be effective; and (3) if effective, whether providing the accommodation would impose an undue hardship. Id. at Question 32. 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. In the instant case, we shall assume for the purpose of analysis only, without so finding, that Complainant is a qualified individual with a disability. As noted above, following Complainant’s request for a reasonable accommodation, the Agency allowed Complainant to telework full-time for a couple of weeks, then permitted her to work a 4/10 schedule with two days of telework, tested the air quality at the facility, cleaned the carpets and work stations. The only accommodation denied was Complainant’s request for full-time telework. The Agency contends it properly denied the request because Complainant did not provide specific documentation which demonstrated that the need to telework full-time as an accommodation for her MCS and Autonomic Dysreflexia. The Agency’s request for additional information constituted part of the interactive process which Complainant was also obligated to participate in following her request for a reasonable accommodation. Although Complainant communicated with the Agency, she failed to provide the information requested. The record reflects numerous efforts by the Agency to work with Complaint, including many instant-messaging exchanges and emails. When Complainant was required to come to the facility, she was encouraged to keep a log of symptoms and report to the facility’s health center if symptoms impacted her work, to understand Complainant’s condition and how it could be accommodated. Instead, Complainant chose not to come to the facility, resulting in AWOL charges, pursuant to the Agency’s leave policies. Complainant’s own physician explained that additional testing was required to learn what substances were the “triggers” for Complainant’s symptoms. The Agency noted that without more information, it was possible that the workplace had nothing to do with Complainant’s symptoms. For example, Complainant herself noted that, her doctor wanted to test for Lyme disease. The Commission agrees with the Agency that 0120171571 5 Complainant has not shown a nexus, or causal relationship between Complainant's disability and her desired accommodation. See Storman v. Department of the Treasury, EEOC Request No. 05990112 (September 7, 2000). The Commission finds that the Agency has demonstrated it made a good faith effort to reasonable accommodate Complainant. See Complainant v. Department of Homeland Security, EEOC Appeal No. 0120142754 (Dec. 14, 2016) (Complainant with asthma-like condition requested full-time telework but failed to produce requisite documentation. Agency’s alternative actions were sufficient to establish Complainant was not denied a reasonable accommodation). Disparate Treatment - Retaliation A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. 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). This established order of analysts in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation. EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services. EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, management officials explained that since Complainant had not provided sufficient documentation to support the reasonable accommodation of full-time telework, her continued absences from the office were not excused. Therefore, she was charged for a full-day (based on her 4/10 schedule) of AWOL on eight days in October 2015. Complainant has not met her burden of showing, by a preponderance of the evidence, that this proffered reason was pretext to mask unlawful discrimination. Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding no discrimination. 0120171571 6 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. 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. 0120171571 7 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 February 22, 2019 Date Copy with citationCopy as parenthetical citation