0120131474
07-08-2015
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120131474
Hearing No. 550-2011-00470X
Agency No. SF-11-0034-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 11, 2013, final order concerning his 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. For the following reasons, the Agency's final order is AFFIRMED.
ISSUES PRESENTED
Whether summary judgment was properly granted; and whether Complainant established that she was subjected to discrimination and harassment when she was terminated during her probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative at the Agency's North Sacramento Field Office in Sacramento, California. Complainant, who has a learning disability, was hired on September 30, 2009, pursuant to Schedule A - an excepted service provision of the Federal Civil Service Laws - and was required to serve successfully as a probationary employee for two years before she could be converted to regular status. As an accommodation for her learning disability, management provided Complainant with training and adaptive devices. Complainant was also assigned a permanent mentor to assist her in her daily work assignments. She was also provided a computer designed especially to meet her needs and was given special software programs, including Dragon and Kurzweil, along with a personal printer.
On September 14, 2010, Complainant sent emails to her personal email address. The information in the emails contained highly sensitive information concerning specific Agency claimants, including their social security numbers. The Operations Supervisor discovered Complainant's actions and investigated this as a violation of Agency policy. The Agency strictly regulated the handling of Personally Identifiable Information (PII) by Claims Representatives and prohibited the transmission of such information, including social security numbers, to personal email accounts. Complainant admitted that she had sent the email to her unsecured, personal email address but maintained that she did not realize that the emails contained social security numbers. Notwithstanding, the District Manager made the decision to terminate Complainant based on her serious violation of the PII policy, and Complainant was terminated from her position on September 29, 2010.
On January 21, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to harassment on the basis of disability (learning disability) when she was terminated from her position, when her supervisor made derogatory comments about her in meetings, and when management did not provide her with assistance and proper training to help her perform her job. Complainant alleged the following incidents of harassment: the Operations Supervisor questioned her production numbers and suggested that she use a communal printer when her personal printer ran out of ink; when she was told that she could only obtain assistance from her mentor, the Agency's trainers, and the Operations Supervisor; when the Operations Supervisor told her that she did not like to see people cry and she shared with Complainant that her daughter had a learning disability; when the Operations Supervisor used words like "hint" and "clue" when assisting Complainant with her work and when she was once questioned by the Operations Supervisor on whether she needed additional training, and when the Operations Supervisor asked whether Complainant's mentor was adequately performing his job when Complainant failed to understand an issue.
Following an investigation by the Agency, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Prior to the hearing, the Agency submitted a motion for summary judgment to which Complainant responded. The AJ granted the Agency's motion finding that the Agency had articulated legitimate, nondiscriminatory reasons for its actions, and Complainant did not show that the reasons were pretext for discrimination or that the incidents complained of were severe or pervasive enough to establish a hostile work environment. Specifically, the Agency indicated that Complainant was terminated from her position because she violated the Agency's PII policy. The AJ found that Complainant conceded that she committed the offense and it was immaterial that her actions were unintended. The AJ also found that the evidence did not show that any derogatory comments had been made regarding Complainant.
Further with regard to training, the Agency explained that Complainant had received the training that all of the other Claims Representatives had received as well as additional training and a mentor to work with her on a daily basis. Complainant was also provided with a reasonable accommodation which included tools and assistance designed to meet all of her needs, including a personal and special computer and personal printer, special software programs, special training opportunities and instructors and a full time mentor to help her perform her job.
Moreover, the Agency noted that Complainant never complained at any point that she believed that she was not adequately trained. The AJ found that Complainant failed to show that her disability resulted in her not receiving the training that she needed. The AJ also found that Complainant had been provided a reasonable accommodation. It was noted that Complainant had requested that an outside contractor be allowed to come into the Agency and train her on one of the programs but the Agency was able to provide an in-house trainer regarding the program. As such, the AJ found that while she did not get the accommodation that she requested with regard to this one program she was effectively accommodated. With respect to Complainant's claims of harassment, the AJ found that there was no evidence which indicated that any of the incidents occurred because of Complainant's disability, nor was there evidence presented that the incidents were severe or pervasive enough to establish a hostile work environment. Therefore, the AJ found that Complainant was not terminated based on her work but was terminated because she violated the Agency's PII policy.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in granting summary judgment as there are material facts at issue and issues of credibility in dispute. Complainant argues that she was denied a reasonable accommodation when the Agency failed to provide her with ink cartridges for her adaptive equipment. Complainant explained that she did not understand why there were plenty of ink cartridges for a different individual with a different disability, who also used adaptive equipment. Complainant noted that the communal printer was not an option because it did not print correctly from the adaptive equipment that she needed to use in order to do her job. Complainant also contends that the AJ erred when he fully adopted the Agency's positions, while disregarding her statements. For example, Complainant disagrees that she received proper training and mentoring. Further, she maintains that the AJ created his own inferences as to the intent and meaning of statements. For example, Complainant contends that the AJ incorrectly interpreted the Operations Supervisor's meaning when she said that she did not like to see people cry and that her daughter had a learning disorder. Complainant contends that what the Operations Supervisor said was that her daughter had a learning disability and "she tells her to work harder." Further, Complainant contends that the AJ inferred that Complainant did not want to go to the Operations Supervisor for help because she did not like her, when, in fact she did not want to go to her for help because the Operations Supervisor had established a pattern of harassment against Complainant. Complainant also contends that her mentor was often not available to her, and that her adaptive equipment did not function properly.
Complainant maintains that she had already had her leave approved so she should not have had to talk to the trainer. Complainant also asserts that the AJ glossed over the fact that she was given difficult cases while others were not. Complainant further maintains that contrary to the Agency's argument that she "received extensive training with respect to the Agency's PII Policy," she maintained that the truth was that she received cursory training which lasted only a few minutes. Additionally, Complainant argues that by adopting the Agency's summary judgment facts, the AJ failed to realize that the affidavits were riddled with inconsistencies. Further, Complainant argues that the report of investigation was incomplete.
In response, the Agency contends that the AJ correctly found that Complainant did not prove that she was subjected to discrimination or harassment. The Agency maintains that management articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was terminated during her probationary period because she mishandled PII materials. Further, Complainant did not show that she was subjected to harassment as the incidents complained of were work related matters and were not severe or pervasive enough to establish a hostile work environment.
The Agency asserts that all employees are trained on the protection of PII information as it is one of the Agency's biggest responsibilities to safeguard social security numbers. Each employee at the time they are initially hired are trained regarding PII information and then at least every year training is given where employees are required to sign and acknowledge the training. Additionally, the Agency has a monthly "Think Twice" campaign where they are mandated to talk about protecting personal identifiable information such as social security numbers and other security and integrity issues. Management explained that in this case, Complainant sent PII to her private email address, compromising customer PII, and possibly the Agency's reputation. As this was considered serious misconduct, the Agency maintains that Complainant was properly terminated during her probationary period.
Finally, the Agency contends that Complainant was given a reasonable accommodation from the very beginning of her employment with the Agency and that the only thing ever denied to her was an outside contractor to work with her on one of her programs. Instead, the Agency offered a trainer that was already with the Agency that knew the program. The Agency noted that while this was not the accommodation of her choice she was accommodated.
ANALYSIS AND FINDINGS
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 order. We find even if we assume arguendo that Complainant established a prima facie case of disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions as discussed above. We find that Complainant failed to show that the Agency's reasons were pretext for discrimination. On appeal, Complainant offers conclusory statements as to why she believes she was subjected to discrimination but she does not provide any evidence which raises a genuine issue of material fact that the actions taken were because of her disability. The record shows that Complainant was hired with management knowing that she had a disability and that she needed an accommodation. The record also shows that Complainant was given additional training as well as a mentor. Moreover, Complainant was given adaptive equipment to help her complete her work. Therefore, we find that Complainant did receive a reasonable accommodation. We also find that Complainant did not show that derogatory things were said about her in meetings. Based on the evidence, we find Complainant was not subjected to discrimination. We note, that Complainant fails to identify any persons not of her protected bases who were allowed to continue their employment after violating the Agency's policy during their probationary period.
Further, with respect to Complainant's harassment claims, while Complainant has indicated that she was offended at some of the questions asked of the Operations Supervisor, the incidents complained of even if true were not severe or pervasive enough to establish a hostile work environment. Accordingly, we find that the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
The Agency's final order is hereby AFFIRMED.
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
__7/8/15________________
Date
2
0120131474
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131474