0120080244
01-21-2011
Cecelia Shermanski-Wydawski, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Cecelia Shermanski-Wydawski,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120080244
Agency No. OCO-06-2051-SSA
DECISION
On October 12, 2007, Complainant timely filed an appeal from the
Agency's August 31, 2007, 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 pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether the Agency properly found that it did not violate the
Rehabilitation Act.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Customer Service Technician at the Agency's Customer Service Branch in
the Wilkes-Barre, Pennsylvania Data Operations Center. In that position,
Complainant provided a full range of assistance to beneficiaries and
callers by telephone or correspondence regarding programs administered
under the Social Security Act. Exhibit 13.
On April 7, 2006, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of disability (Irritable
Bowel Syndrome, Spinal Stenosis, and Pharyngitis) when:
1. On March 28, 2006, the Agency denied Complainant's request for a
reasonable accommodation;
2. On March 3, 2006, Management asked Complainant to leave work and
informed her in front of her co-workers that she would no longer be able
to work overtime;
3. On August 15, 2006, Management informed Complainant that her sick
leave restriction was extended for an additional four months; the Agency
charged Complainant leave without pay for August 4, 2006, and absent
without official leave for August 28, 2006, even though she provided
management with the required medical documentation in accordance with
sick leave restrictions; and the Agency also rejected Complainant's
request to amend her time;
4. In June 2006, the Agency changed Complainant's work schedule from
Sunday through Thursday to Monday through Friday, which resulted in
the denial of her request to change her Alternative Work Schedule (AWS)
day to Friday; and
5. Management breached Complainant's confidentiality and humiliated
her by discussing her leave and doctor's appointments in the presence
of co-workers.
In an investigative affidavit, Complainant stated that in February
or March 2006, her physician wrote a note for the Agency in which he
informed the Agency that she should use a bathroom whenever her Irritable
Bowel Syndrome (IBS) flares and should eat when taking medication.
Exhibit 7. Complainant further stated that she needed to be able to
take periodic walks around the building to relieve pain. Complainant
stated that her supervisor denied her request for the accommodations
cited by her physician. Complainant stated that the Agency maintained
that it denied her accommodation request because Complainant had not
provided enough medical evidence to support her request. Exhibit 12.
Complainant further stated that some of her co-workers have been
accommodated without problems, and the denial of her accommodation
request constitutes harassment.
Regarding claim 2, Complainant stated that Friday, March 3, 2006, was the
first of her two consecutive regular days off. She stated that, on that
date, she came to the office to work overtime and asked to be assigned
internet duties. She stated that she had a physician's note that stated
that she could not use her voice because she apparently had pharyngitis.
She stated that a supervisor told her she should have to leave work
because there were no available internet duties that day, and her note
precluded her from working on the telephone. Complainant stated that a
deaf co-worker was often allowed to perform internet duties as a special
accommodation, yet Complainant was not on March 3, 2006.
With respect to claim 3, Complainant stated that she was required to
have a doctor's note every time she took sick leave, and the note had
to include specific information because she was on leave restriction for
several months. Complainant stated that in August 2006, her AWS schedule
gave her every other Monday off. She stated that after being ill a
previous week in August 2006 and being off on a Monday, she submitted
a note on a Tuesday, but management would not accept it. She stated
that management gave her two days to provide acceptable documentation,
but immediately charged her Leave without Pay (LWOP). Complainant
stated that in the following pay period, a similar incident occurred,
and she was charged with Absent without Leave (AWOL). She stated that
the terms of her leave restriction said that she has two work days to
provide documentation, but that policy was not followed in this case.
Complainant further stated that her leave restriction was extended because
management thought she used too much sick leave, which forced her to
obtain detailed notes each time for her already-documented conditions.
Regarding claim 4, Complainant stated that she worked an AWS since 2000
and voluntarily changed her schedule to work Sunday through Thursday,
with Friday and Saturday off each week.1 Complainant stated that she had
every other Monday off work. She stated that in June 2006, management
suddenly changed her schedule to work Monday through Friday with the
weekends off. Complainant stated that the Agency denied her request to
have Fridays off.
With regard to claim 5, Complainant stated that her supervisor has come
to her cubicle and yelled at her about leave issues, which everyone in
the area could hear. She stated that her supervisor's actions violate
her privacy, and her supervisor never spoke to her in private about
Complainant's medical issues. Complainant stated that she is certain
that a co-worker (C1) has heard the supervisor discuss Complainant's
medical issues.
Complainant's supervisor (S1) stated that she understood that
Complainant has IBS and back problems and has seen physician's notes
about Complainant's condition. Exhibit 8. S1 further stated that she
is not sure if Complainant is disabled and has not seen Complainant's
medical records. S1 stated that she received Complainant's accommodation
request and forwarded it to the Agency's medical consultation at
headquarters for evaluation. S1 stated that headquarters found that
Complainant's condition was not severe enough to make her disabled, but
she told Complainant to use the restroom whenever Complainant needed to
use it. S1 further stated that, because Complainant's work duties do not
permit her to be repeatedly absent from her desk, she could not approve
Complainant's request to take a walk every hour. However, S1 stated that
Complainant's headset has a three foot stretch cord so Complainant could
stand and walk around her area a little whenever necessary to stretch.
S1 stated that, because of the office's production standards, she could
not allow Complainant to take hourly walks.
S1 stated that she was not on duty on March 3, 2006, but the Agency policy
is that all employees could work overtime on their two regular days off,
but they could only do telephone work on the first day and internet
work on the second off-day. S1 stated that because March 3, 2006, was
Complainant's first day off, she was only allowed to do telephone work.
S1 stated that because Complainant had a note that stated that she should
not use her voice and wanted to do internet work, she was unable to work
that day because there was no internet available. S1 further stated that
the deaf co-worker Complainant cited as receiving more favorable treatment
is allowed to work on the internet every day when her teletypewriter
(TTY) calls are slow as a normal part of her job duties.
Regarding claim 3, S1 stated that she placed Complainant on sick leave
restriction on April 18, 2006, because she had counseled Complainant
orally and in writing about excessive leave usage, but there was no
improvement in Complainant's conduct. She stated that Complainant
had no leave balance and used all sick leave as soon as it was earned.
S1 stated that it was apparent from Complainant's leave usage pattern
that she was abusing leave by calling in sick on days adjacent to her
days off so she could have a three-day weekend. S1 stated that on
August 15, 2006, she extended the restriction for four months because
Complainant did not exhibit any improvement. She stated that her practice
is to counsel employees orally at first and then document the problem,
and if there is no improvement, the employee is placed on restriction.
S1 further stated that in August 2006, Complainant twice took leave on or
near a payroll day when time and attendance records were due, although
Complainant is required to submit records by a certain date in order to
ensure that employees are paid on time. She stated that when Complainant
failed to provide her required doctor's note on time, S1 had no choice
but to charge Complainant with unpaid leave until Complainant provided
the note. She stated that when Complainant submitted a doctor's note,
the leave charge was changed to a pay status.
Regarding claim 4, S1 stated that senior management conducted a major
re-alignment of work schedules in mid-2006 and eliminated all weekend
shifts. She stated that all employees were moved to a Monday through
Friday schedule and everyone was affected in the same way. The supervisor
stated that the only employees who were allowed to change their 5-4-9 day
off were those who had scheduled it on a Saturday or Sunday. She stated
that Complainant's 5-4-9 day off was Monday, so she could not change
it to another day. S1 stated that AWS schedules are reviewed every six
months, and employees are only allowed to make changes at that time.
S1 further stated that she has spoken to Complainant about leave issues
at Complainant's cubicle in a quiet manner so that no one would be
able to hear her talk. S1 stated that C1 sat four cubicles away from
Complainant and had the nearest office to Complainant. She stated that
employees wear headsets while working, so it was unlikely that anyone
could hear what she said to Complainant. The supervisor further stated
that she often communicated with Complainant via e-mail and denied ever
speaking openly about private matters.
The Branch Manager stated that Complainant's leave restriction requires
her to provide a valid doctor's note before leave can be approved.
She stated that Complainant took one or two days off in August 2006
that were payroll days, and because Complainant was allowed two days
to provide her notes, management entered her in non-pay status for the
days she took off and later changed it to pay status when she submitted
her physician's notes. She stated that after Complainant's supervisor
evaluated Complainant's leave usage and found no improvement, she extended
the leave restriction. She further stated that the person who followed
S1 as Complainant's supervisor extended the leave restriction in December
2006 because there was still no improvement in Complainant's leave usage.
The Branch Manager also stated that weekend operations were eliminated in
mid-2006, and everyone was moved to a weekday schedule. She stated that
the only employees allowed to change their 5-4-9 day off were those who
had their day off on a weekend day. She stated that Complainant and all
other employees had to wait until the next six-month review in October
2006 to make any changes to their work schedules.
The Branch Manager stated that she has no direct knowledge of
Complainant's medical condition but has been told that she has some type
of back problem. Exhibit 9. She stated that Complainant's request
for an accommodation was reviewed by the Agency's medical officer
at headquarters, who determined that Complainant was not a qualified
disabled individual and did not require an accommodation to perform
her duties. She stated that she did not speak to the medical officer
about his decision. She stated that there was no problem with allowing
Complainant to take time away from her desk stretch and walk around every
hour or use the bathroom as needed. She stated that Complainant was never
denied personal breaks, and management does not dictate a specific fixed
number of such breaks each employee may take. She stated that no one is
expected to remain at his or her desk every minute of the day.
The supervisor on duty (S2) on March 3, 2006, stated that when Complainant
came in to work overtime on her day off, she gave the supervisor a
physician's note that stated that she could not use her voice or work on
the telephone. Exhibit 10. She stated that the Branch Manager informed
her that there was no work available that day, and accordingly, she told
Complainant to go home.
C1 stated that she has never heard S1 speak openly about Complainant's
medical information, although she sat about four feet away from
Complainant. Exhibit 11. C1 stated that she always found Complainant's
supervisor to be "low key" when she was at Complainant's desk. She
stated that after Complainant's supervisor left her cubicle, C1 would
ask Complainant what happened, and Complainant would tell C1, but she
never heard Complainant's supervisor say anything about Complainant's
personal issues.
The record contains a letter dated January 31, 2006, from Complainant's
physician to the Agency. In that letter, the physician stated the
following:
I am writing in concern for [Complainant]. She is my patient. She is
being treated for irritable bowel syndrome, spinal stenosis, [and]
herniated nucleus pulposus in the cervical and lumbar spine. These
conditions are permanent conditions for which she is being treated
with various medications. Her work environment needs to be aware to
accommodate her disabilities. Lack of accommodation can certainly
exacerbate her symptoms. For instance, [Complainant] requires frequent
and unscheduled breaks to use the bathroom facilities secondary to her
irritable bowel. If she is not allowed to do this, her pain will become
worse. She also requires to get up from her desk and walk around ten
minutes out of every hour to relieve her pain. If I can be of any further
assistance, please do not hesitate to contact me. Exhibit 14, p. 1.
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). In accordance
with Complainant's request, the Agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b).
In its decision, the Agency found that Complainant was not an individual
with a disability. The Agency further found that Complainant failed to
prove that the Agency's articulated reasons were a pretext for unlawful
discrimination. Additionally, the Agency found that Complainant failed
to prove that she was denied a reasonable accommodation.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that she provided documentation to support
her request for a reasonable accommodation by submitting copies of her
recent Magnetic Resonance Imaging reports (MRIs), diagnostic notes, a
signed statement from her physician supporting her request for a disabled
parking space, and a letter which reflects that she has seen a specialist
for a year. The Agency did not submit a statement on appeal.
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. (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").
ANALYSIS AND FINDINGS
Disparate Treatment and Harassment
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for
Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she 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 Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once a complainant has established a prima facie case, the burden
of production then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the
burden reverts back to Complainant to demonstrate by a preponderance of
the evidence that the Agency's reason(s) for its action was a pretext
for discrimination. At all times, Complainant retains the burden
of persuasion, and it is her obligation to show by a preponderance
of the evidence that the Agency acted on the basis of a prohibited
reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16
(1983).
According to the Commission's regulations, federal agencies may not
discriminate against individuals with disabilities and are required
to make reasonable accommodation for the known physical and mental
limitations of qualified individuals with disabilities, unless an agency
can show that reasonable accommodation would cause an undue hardship.
29 C.F.R. �� 1630.2(o) and (p); see Appendix.
For purposes of analysis, we assume without so finding that Complainant is
a qualified individual with a disability and has established a prima facie
case of discrimination. Nonetheless, we find that the Agency provided
legitimate, non-discriminatory reasons for each of the alleged actions,
as detailed above.
On appeal, Complainant contends that she is providing the Commission
with documentation to support her request for a reasonable accommodation
by submitting copies of her recent MRIs, diagnostic notes, a signed
statement from her physician supporting her request for a disabled parking
space, and a letter which reflects that she has seen a specialist for
a year. However, there is no evidence that Complainant provided this
documentation to the Agency during the relevant time period that it is
at issue in this case. Complainant also reiterates her claim that S1
discussed Complainant's medical information in the presence of other
employees. However, Complainant's supervisor denied this claim, and
C1 refuted Complainant's claim that the supervisor improperly divulge
Complainant's medical information in C1's presence. We are not persuaded
that Complainant's supervisor divulged Complainant's medical information
to other employees. Accordingly, we conclude that Complainant failed to
prove that the Agency's articulated reasons were a pretext for unlawful
discrimination. Consequently, we find that the Agency properly found no
disparate treatment discrimination.
Further, to the extent that Complainant is alleging that she was subjected
to a hostile work environment, we find under the standards set forth in
Harris v. Fork-lift Systems, Inc., 510 U.S. 17 (1993), that Complainant's
claim of hostile work environment must fail. See EEOC Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). A finding that Complainant was subjected to a hostile
work environment is precluded by our determination that Complainant
failed to establish that any of the actions taken by the agency were
motivated by discriminatory animus. See Oakley v. U.S. Postal Serv.,
EEOC Appeal No. 01982923 (Sept. 21, 2000).
Reasonable Accommodation
As noted above, 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. As a threshold matter
in a case of disability discrimination under a failure to accommodate
theory, a complainant must demonstrate that he or she is an "individual
with a disability." Again, for purposes of analysis, we assume without
so finding that Complainant is an individual with a disability.
In this case, Complainant requested a reasonable accommodation when
she submitted a brief statement from her physician that informed the
Agency that she suffers from IBS, Spinal Stenosis, and a Herniated
Nucleus Pulposus, and needs to take frequent and unscheduled breaks to
use the bathroom facilities and to stand and walk around ten minutes
out of every hour. The Agency determined that Complainant's medical
documentation was insufficient for it to conclude that she suffered from
a disability. The Agency informed Complainant that she needed to provided
sufficient documentation to establish that her medical condition severely
restricted her ability to perform major life activities, such as office
notes, therapy notes, diagnostic reports, imaging studies, consultative
reports so that it could better understand the diagnosis, prognosis,
duration, and treatment of her condition. Exhibit 14.3. Nonetheless,
the Agency informed Complainant that she could use restroom facilities
as needed. Exhibit 14.3
Upon review of this matter, we determine that the Agency's request
for additional medical documentation to support her request was
appropriate. The physician's one paragraph note in support of
Complainant's accommodation request did not reveal if Complainant was
substantially limited in a major life activity, the prognosis for her
condition, or the duration of her condition. As such, the Agency needed
additional, more specific medical documentation to evaluate Complainant's
requested accommodation in light of her medical needs so that it could
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 Q. 6 (Oct. 17, 2002). Moreover, when an individual's
disability or need for reasonable accommodation is not obvious, and the
individual fails to provide reasonable documentation requested by the
employer, the employer will not be held liable for failure to provide
the requested accommodation. Id. The record reveals that Complainant
did not provide the additional medical documentation to the Agency during
the relevant time period.
Nevertheless, we find that the Agency provided Complainant with a
reasonable accommodation by allowing her use the restroom as needed and
providing her with a headset that has a three foot stretch cord so that
Complainant can stand and walk around her area. Complainant has not
shown that this accommodation is deficient with respect to the needs of
her medical condition. Therefore, we find that Complainant failed to
prove that the Agency denied her a reasonable accommodation
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, 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 as alleged.
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
January 21, 2011
Date
1 This type of AWS schedule is commonly referred to as a "5-4-9"
schedule.
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0120080244
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080244