Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 28, 2015

01-2013-0366-0500 (E.E.O.C. Sep. 28, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120130366

Hearing No. 520-2011-00326X

Agency No. BOS-10-0665-SSA; BOS-11-0246

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s September 21, 2012 final order 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.
For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Attorney
in the Agency’s Office of Disability Adjudications and Review in Manchester, New
Hampshire. Complainant suffers from depression, Post Traumatic Stress Disorder (PTSD),
and eczema. The Administrative Law Judge (Judge) was initially the Hearings Office Director
and supervised Complainant in 2005. Complainant requested the accommodation of not being
supervised by the Judge. The Agency denied her request and she continued to be supervised
by the Judge.

In September 2009, the Judge returned to the Manchester Office as the Hearings Office Chief
Administrative Law Judge. Complainant and the Judge applied for the same positions in the
past and the Judge was selected instead of her. Complainant previously filed several EEO
complaints and her most recent complaint related to a non-selection involving the Judge. On
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October 23, 2009, a supervisor (S1) assigned Complainant a case of the Judge’s to write.
Complainant asked to be excused from working on cases involving the Judge “because of EEO
issues.” The Hearing Office Director (Director) denied Complainant’s request, and
Complainant responded that writing for the Judge exacerbated her depression. The Director
asked that Complainant provide medical documentation to evaluate her request. Complainant
submitted medical documentation, and on February 16, 2010, the Director submitted
Complainant’s request to the Agency’s physician for consideration. After consulting with the
Agency’s physician and the Regional Attorney, the Director denied the request reasoning that
Complainant’s requested accommodation would eliminate an essential function of her position,
i.e., advising and writing decisions for the Hearings Office Chief Administrative Law Judge.
In addition, the Director noted that the Judge was in Complainant’s chain-of-command and had
the authority to assign and review her work. As such, the Director stated that the Agency was
not required to change her supervisor as an accommodation. As alternative accommodations,
the Director suggested that he continue assignments of the Judge’s work on a limited basis,
trying to assign work from other judges if possible, and that any communication involving her
cases would be done in writing or otherwise through the supervisor rather than directly with
the Judge. Complainant rejected these alternatives.

On May 7, 2010, Complainant requested reconsideration of the Director’s denial of her
reasonable accommodation request. The Director denied the request based on Complainant’s
failure to provide any additional information.

In October 2010, Complainant’s supervisor (S1) issued her annual performance appraisal.
Complainant was rated as “3” or “Fully Successful” in each performance element (including
the element of “job knowledge”) and a Summary Appraisal of “Successful Contribution.” In
May 2011, Complainant received an Executive Recognition Award (ERA) of $175.00. Each of
the senior attorney advisors, including Complainant, received an ERA in the amount of
$175.00. In addition to the ERA, four senior attorneys received a Recognition of Contribution
(ROC) award. Complainant was not considered for and thus did not receive an ROC award
because her performance was not rated high enough.

On September 2, 2010 (Agency No. BOS-10-0665) and March 18, 2011 (Agency No. BOS-11-
0246-SSA), Complainant filed formal complaints alleging that the Agency discriminated
against her and subjected her to a hostile work environment on the bases of sex (female),
disability, age (62), and in reprisal for prior protected EEO activity as evidenced by multiple
incidents including, inter alia, her reasonable accommodation request was denied; she received
a performance appraisal that did not accurately reflect her work production; and she should
have received a higher award than those received by other Senior Attorneys in the office.1

1 The Agency dismissed two additional claims. Complainant raised no challenges to the
Agency's dismissal before the AJ or on appeal; therefore, the Commission will not address
those claims in this decision.
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On April 6, 2011, the Agency consolidated the complaints for investigation. At the conclusion
of the investigations, the Agency provided Complainant with copies of the reports of
investigation (ROI1 and ROI2) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, and the AJ held a hearing on July 19, 2012, and issued a decision on
August 8, 2012.

In the decision, the AJ initially noted that Complainant’s testimony at the hearing was in some
instances at odds with the facts and her responses to questions at the hearing were often evasive
and contradictory. By contrast, the AJ found the testimony of the Director and S1 to be
credible and consistent. Next, the AJ determined that the alleged incidents were not
sufficiently severe and pervasive to constitute a hostile work environment. Further, the AJ
determined that there was no proof of a nexus between the claimed harassing actions and her
protected classes.

As to her request for accommodation, the AJ first determined that Complainant is a qualified
individual with a disability. The AJ found, however, that the Agency denied her request for
accommodation for three reasons. First, writing for the Judge and advising him is an essential
function of her position and the Agency was not obligated to remove on essential function as a
reasonable accommodation. Second, Complainant was effectively asking that she not be
supervised by the Judge and the Agency was not required to assign Complainant a new
supervisor as a reasonable accommodation. Finally, there was no evidence that that excusal
from writing for the Judge was a reasonable accommodation that would be effective in
enabling Complainant to perform the essential functions of her position. No nexus was
established between the excusal and Complainant's disability. As a result, the AJ found that
Complainant was not unlawfully denied reasonable accommodation.

With respect to her performance appraisal, S1 testified that she rated Complainant as a “3”
rather than “5” in the category of job knowledge because S1 considered Complainant’s work to
be satisfactory. S1 added that Complainant produced a fair share of work in a punctual and
efficacious manner and she used a balanced approach to complete her assignments effectively
using appropriate technology. S1 noted, however, that the difference to her between a 3 and a
5 is whether the employee has had a significant contribution in a particular element that would
be considered outstanding. While Complainant received a 5 in job knowledge on her last
performance appraisal, S1 testified that she did not consider last year’s rating when she rated
Complainant and that she based Complainant’s rating strictly on her observations of
Complainant’s performance.

Finally, regarding the award, in accordance with Agency regulations, Complainant was not
eligible for an ROC award. Agency regulations provide that an employee must achieve an
elemental average rating of 4.0 or higher during the previous performance year in order to be
eligible for a ROC award. The May 2010 ROC awards were based upon the employees’ 2009
performance appraisals. In 2009, Complainant received an elemental average rating of 3.5
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from the previous Hearing Office Director. As a result Complainant was not eligible for a
ROC award in May 2010, based upon her 2009 rating of 3.5.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been discriminated or
retaliated against as alleged. The Agency subsequently issued a final order fully implementing
the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the AJ erred in finding that she was not credible during
her testimony. Complainant contends that due to “emotional decompensation,” she was not
thinking clearly. Complainant claims that the AJ erred in finding that writing decisions for all
ALJs or the Hearing Office Chief ALJ was an essential job function. Further, Complainant
denies that she requested a change in supervisors as an accommodation. Complainant asserts
that the Agency harassed her by downgrading her performance appraisal. Finally,
Complainant alleges that the AJ conducted the hearing process in a prejudicial manner and
denied her the opportunity for a fair and impartial hearing. Accordingly, Complainant requests
that the Commission reverse the final order.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion,”
Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS

Initially, with respect to Complainant's contention that the AJ erred in the handling of his case,
the Commission notes that EEOC regulations and Commission precedent provide AJ's with
broad discretion in the conduct of hearing and related proceedings. See 29 C.F.R. §
1614.109; see also EEO MD-110, at Ch. 7. The Commission has reviewed the record and
finds no abuse of discretion by the AJ. Further, the Commission is unable to find any
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evidence of bias, or other reversible error, resulting from the manner in which the AJ managed
and adjudicated this case.

Denial of Reasonable Accommodation

Under the Commission's regulations, an Agency is required to make reasonable
accommodation to 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.
See 29 C.F.R. §§ 1630.2(o) and (p). The Commission will assume without deciding (for the
purposes of this decision) that Complainant is a qualified individual with a disability.

Upon review, the Commission finds that substantial evidence in the record supports the AJ's
finding that the Agency did not deny Complainant a reasonable accommodation. Complainant
requested that she not be assigned to write decisions for the Judge as an accommodation.
Substantial record evidence supports the AJ’s finding that the Agency’s decision to deny
Complainant’s request was proper. First, excusing Complainant from receiving assignments
from the Judge would remove an essential function of Complainant’s position, and an agency is
not required to remove any of the essential functions of a position as a reasonable
accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans With Disabilities Act (Enforcement Guidance), Notice No.
915.002 (rev. Oct. 17, 2002). Additionally, the record shows that Complainant was essentially
asking for a change in supervisor, which the Agency was not obligated to do. Enforcement
Guidance, Question 33. Finally, Complainant failed to show that the accommodation
requested would be effective in enabling her to perform the essential duties of her position.
Agency management offered Complainant several alternative accommodations; however,
Complainant declined those alternatives. The Commission emphasizes that an employer may
choose among reasonable accommodations as long as the chosen accommodation is effective.
See Enforcement Guidance, Question 9. The Commission finds that substantial record
evidence supports the AJ's finding that Complainant failed to show that the offered
accommodations were ineffective. Accordingly, the Commission finds that Complainant was
not denied reasonable accommodation in violation of the Rehabilitation Act.

Disparate Treatment

To prevail in a disparate treatment claim such as this, 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 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. 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.
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Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519(1993).

In the instant case, the Commission finds that the AJ's determination that Complainant failed to
show that she was subjected to discrimination and reprisal is supported by substantial evidence.
More specifically, S1 testified that she believed that a numerical rating of 3 was appropriate in
each of the elements because Complainant met all of the aspects in a satisfactory manner. Hr’g
Tr., at 118. S1 further testified that while Complainant did not have any severe performance
problems, there were instances where Complainant did not adequately address the judge’s
instructions in her work product. Id. at 118-20. S1 noted that for Complainant to be rated a
5, Complainant would have had to demonstrate exceptional job knowledge consistently
throughout the fiscal year. Id. at 118. As a result, S1 rated Complainant as a 3. Finally, S1
testified that Complainant received a group award for outstanding decision writing, but she was
not eligible to receive the ROC award based on her 2009 performance appraisal. Id. at 122.
Specifically, Agency regulations require an employee to achieve an elemental average rating of
4 on their previous year’s performance appraisal and Complainant had an average rating of 3.5
on her 2009 appraisal. Hr’g Tr., at 139; ROI2, Ex. 16. As a result, Complainant was not
eligible to receive the ROC award.

The Commission finds that there is substantial evidence in the record to support the AJ's
finding that Complainant did not establish that the Agency's explanation was pretext for
discrimination or reprisal. The record and facts gleaned at the hearing fail to disclose any
evidence purporting to show the Agency's actions were pretext for discriminatory or retaliatory
animus. As a result, the Commission finds that Complainant was not subjected to
discrimination or reprisal as alleged.

Finally, with regard to Complainant’s harassment claim, the Commission notes that
Complainant's claim of hostile work environment must fail because of the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). See also Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a
hostile work environment is precluded by the Commission’s determination above that
Complainant failed to establish that any of these actions were motivated by discriminatory or
retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21,
2000).

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 final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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 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, 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.

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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

September 28, 2015
Date