Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jun 20, 2013

0120112168 (E.E.O.C. Jun. 20, 2013)

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

,
Complainant,

v.

Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120112168

Agency No. CHI-10-0448-SSA

DECISION

On March 11, 2011, Complainant filed an appeal from the Agency’s February 10, 2011, 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. 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 Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Paralegal
Specialist, OS-0950-12, in the Office of Disability Adjudication and Review (ODAR), in
Grand Rapids, Michigan. During the relevant time, Complainant’s first level supervisor (S1)
was the Supervisory Paralegal Specialist (Group Supervisor). Complainant’s second level (S2)
supervisor was the Supervisory Paralegal Specialist (Hearing Office Director).

Complainant filed an EEO complaint dated May 24, 2010, alleging that the Agency
discriminated against her and subjected her to harassment on the bases of disability (Sjogren’s
Syndrome, fibromyalgia, arthritis, attention deficit hyperactivity disorder, asthma, anxiety, and
depression) and age (61) when:

1. On March 16, 2010, she was issued a reprimand for not calling in to request leave
prior to 9:30 a.m.; and
2. On March 26, 2010, she was placed on a Performance Assistance Plan (PAP) and
her request for a representative was denied.

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2
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). 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). The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

In its final decision, the Agency assumed Complainant established a prima facie case of
discrimination based on her age and disability. With regard to issue (1), the Agency noted that
S1 issued the reprimand in question because on four occasions in less than two months,
Complainant failed to observe proper call-in procedures, despite being previously counseled by
S1.1

The Agency noted that Complainant did not deny being late or failing to call in, she
simply asserted that her prior supervisor condoned her occasional oversleeping and that,
because her oversleeping was due to her medications, she should not have been reprimanded.
The Agency also recognized that Complainant claimed one of the four occasions was the result
of a backup in the parking garage.
The Agency determined Complainant failed to establish that S1’s asserted reasons for issuing
the reprimand were false. The Agency found that while Complainant disagreed with the
imposition of the discipline, she did not show that management’s actions were tainted by
discriminatory animus.

With regard to issue (2), the Agency noted that S1 imposed the PAP because Complainant
failed to respond to S1’s repeated concerns about Complainant’s failure to generate timely
decisions. The Agency noted that Complainant did not deny the performance issues that led S1
to impose the PAP; she simply disagreed with S1 for doing so. The Agency noted that
Complainant stated that S1 did not always assign her one case at a time; however, the dates she
listed as being given more than one case at a time occurred after the PAP was imposed.
Complainant also claimed that S1 never advised her of the exact number of cases she needed to
complete in order to be deemed satisfactory.

With regard to the denial of union representation, the Agency noted that S1 believed that
bargaining unit employees did not have a right to union representation during work
performance discussions. The Agency stated that while Complainant disagrees with S1’s
interpretation of the Union Contract or federal labor law on this point, she failed to prove that
S1 did not honestly believe there was no right to union representation under the circumstances.

Moreover, the Agency noted that not only does Complainant fail to prove that S1’s rationale
for issues (1) and (2) are false, but that Complainant produced no evidence that her protected
bases influenced management with regard to this conduct. For example, the Agency noted that
Complainant did not produce evidence that others not of her protected class were treated more

1 Although the Agency’s decision stated there were five occasions where Complainant failed to
observe proper call-in procedures, the record establishes there were only four such occasions.
0120112168

3
favorably than her. Rather, the Agency noted Complainant simply stated that S1 was aware of
her age and disabilities and that S1 engaged in the conduct at issue to force her to retire. The
Agency noted that these conclusory allegations were not enough to prove discrimination.

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. (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”).

In the present case, we assume arguendo that Complainant is a qualified individual with a
disability. The record reveals that for flex-band schedule employees, requests for
unanticipated leave were to be called in by the end of morning flex-band (9:30 a.m.) to the
employee’s immediate supervisor or other designated official. The record reveals that on four
separate occasions between January 10, 2010, and February 24, 2010, Complainant failed to
timely notify S1 that she would not be arriving at work by 9:30 a.m. as required by the
Agency's leave requesting procedures. Following each of these incidents, S1 spoke to
Complainant about the need to call in to the office to request leave prior to 9:30 a.m. in order
to comply with the Agency's leave requesting procedures. The Agency stated that as a result
of Complainant’s consistent disregard of the Agency's leave requesting procedures, S1 issued
Complainant a Letter of Reprimand on March 5, 2010, for failure to comply with leave
requesting procedures.

We note that in her affidavit, Complainant stated that because of significant problems with
sleep and the effects of her medications, she had difficulty waking up, and thus, was unable to
call in timely. She stated her inability to call in timely was a direct result of her disability, of
which S1 was aware. In her rebuttal affidavit, Complainant claimed that S1 had letters from
her doctors outlining her disabilities and some of her medications when she took over as
Complainant’s supervisor. Complainant also stated that during their discussions about
Complainant calling in timely, the subject of her impairments, the required medication, and
their effect on her ability to call in timely were also discussed. For purposes of this decision
we assume that Complainant’s statements to her supervisor that she had trouble sleeping due to
her medical conditions and medications which resulted in her being late to call in to the office
constituted a request for a reasonable accommodation. We find, however, that Complainant
has not shown that her medical conditions caused her to violate the Agency’s leave call in
policy. Specifically, we note the medical documentation provided in the record does not
indicate that Complainant’s stated disabilities caused her to be late to work or prevented her
from calling into work as required by the Agency’s policy.
0120112168

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With regard to issue (2), the record reveals that from January 2010 through March 2010, S1
spoke to Complainant on multiple occasions about her failure to complete decision drafts in a
timely manner. S1 stated that although she was assigning Complainant one case at a time, and
she received informal assistance and remedial training, her performance had not improved and
continued to be at the unacceptable level.

In her affidavit, S1 stated that she met with Complainant on March 26, 2010, and again on
March 29, 2010, for the required Performance Assessment and Communication System
(PACS) mid-year discussion. S1 stated at this time she told Complainant that information
gathered from results data, feedback obtained from Complainant and Complainant’s mentors,
and S1’s own day-to-day observations, suggested that Complainant’s performance in the
critical element of Achieves Business Results was not satisfactory and needed improvement.
S1 stated as a result she developed the PAP for Complainant. S1 also noted that
Complainant's performance was the lowest not only in the office, but within the entire region.
S1 explained she asked Complainant if she had recommendations for any additional assistance
to help her improve performance, and Complainant indicated that enrollment in a time
management skills course could be beneficial. S1 stated she located three online Agency “Go
Learn” courses that focus specifically on time management, which were included in her plan as
part of the assistance that the Agency was offering her. S1 noted Complainant also mentioned
that doing relaxation exercises might help, and S1 encouraged Complainant to try these
exercises so long as it did not take her away from her work for any unreasonably inordinate
period of time.

In her rebuttal affidavit, Complainant stated that S1 did not always assign her one case at a
time. Complainant cites five electronic mail messages from June 4, 2010, through August 5,
2010, as evidence that Complainant was assigned two cases at the same time. However, we
note that these electronic mail messages were all dated after the alleged incidents at issue in
this complaint.

With regard to Complainant’s claim that she was denied a union representative when she was
issued the PAP, S1 stated that she explained to Complainant on numerous occasions that under
the 2005 Agency/Union contract, union representatives are not involved in work performance
discussions.

Upon review, we find the Agency articulated legitimate non-discriminatory reasons for the
stated actions. Complainant failed to prove by a preponderance of evidence that the Agency’s
actions were a pretext for discrimination or harassment based on Complainant’s disability or
age. Moreover, Complainant failed to show she was denied a reasonable accommodation with
regard to the Agency’s call-in procedure.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.
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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.

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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

June 20, 2013
Date