0120152310
11-14-2017
Eva M.,1 Complainant, v. Don Wright, Acting Secretary, Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eva M.,1
Complainant,
v.
Don Wright,
Acting Secretary,
Department of Health and Human Services
(Centers for Medicare and Medicaid Services),
Agency.
Appeal No. 0120152310
Agency No. HHSCMS01732014
DECISION
On June 27, 2015, 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 May 28, 2015 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Health Insurance Specialist (Project Officer) in the Division of State Demonstrations and Waivers (DSDW), Children and Adults Health Programs Group (CAHPG) at an Agency facility located in Baltimore, Maryland. On June 28, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability (spinal injury, hip injury, sleep apnea, asthma, degenerative disc disease, hypertension, hypoglycemia, and allergies) and reprisal for prior protected EEO activity regarding time and attendance, reasonable accommodation, Family and Medical Leave Act (FMLA) leave, assignments, a performance evaluation, and terms and conditions of employment.
Investigation
After amendments by Complainant, and various communications between Complainant and the Agency, the Agency accepted the following claims for investigation:
1. since November 2013, management required Complainant to falsify her time sheets to receive compensation for overtime she worked in prior pay periods,
2. on June 25, 2013, the Deputy Division Director (S1) referred Complainant to a disability retirement specialist when Complainant inquired about her FMLA balance, thereby implying that Complainant should retire due to her disability,
3. since January 2014, management has categorized Complainant's work as "not portable"2 although she worked remotely successfully for three years,
4. since January 10, 2014, management failed to provide Complainant with a reasonable accommodation,
5. since January 18, 2014, management denied Complainant's request to use FMLA and failed to provide her with accurate information regarding her FMLA rollover date,
6. since January 18, 2014, management failed to give Complainant meaningful work, resulting in Complainant being unable to receive a higher performance rating or a promotion,
7. between January 28 and 30, 2014, management issued Complainant a lower performance rating for the 2013 performance period, which included false statements, and then delayed providing Complainant a hard copy of said rating,
8. from January 30 to February 7, 2014, management failed to inform Complainant that an interim accommodation of full-time telework had been approved on January 30, 2014,
9. on April 15 and July 2, 2014, a physician, who is a contractor of Federal Occupational Health (FOH), issued Complainant medical evaluations that contained multiple errors regarding her medical condition,
10. on April 22, 2014, the Division Director (S2)3 mocked Complainant's reasonable accommodation request in front of coworkers by stating "we'll need to file our requests for six months for medical [Alternate Duty Station (ADS)] pending major surgery so we don't have to work on the renewal,"
11. on May 9, 2014, an unidentified member of the Agency's Reasonable Accommodation Program (RAP) Team accused Complainant of using an adversarial tone and failing to meet with RAP staff,
12. on May 9, 2014, management failed to inform Complainant that her interim reasonable accommodation had not been extended,
13. since May 13, 2014, management denied Complainant's requests for full time telework,
14. from May 15 through 20, 2014, management failed to respond to Complainant's request for work or assign her tasks when she was physically located in the office,
15. on May 21, 2014, management assigned Complainant a heavy workload although it was aware that Complainant would be out of the office on extended medical leave starting in July 2014,
16. from May to June 2014, the RAP Team Lead (R1) failed to request a second medical assessment for Complainant after learning that the initial assessment conducted by FOH was factually incorrect,
17. on an unspecified date, management created a policy requiring Complainant to get supervisory approval prior to going to the Agency's health unit, despite Complainant's need for medical attention,
18. on an unspecified date, management delayed four hours before responding to Complainant's request to visit the health unit, although Complainant was in "acute distress," and
19. September 3, 2014 to September 22, 2014, management delayed providing Complainant's requested temporary accommodation (full time telework).
Also, pursuant to 29 C.F.R. � 1614.107(a)(2), the Agency dismissed Complainant's claims regarding denial of FMLA leave between May 2011 and January 17, 2014; denial of previously-approved leave for December 21, 2013; denial of episodic telework for January 7 and 8, 2014; removal of assignment as Michigan Project Officer on January 15, 2014; and denial of meaningful work between an unspecified date and January 17, 2014. The Agency stated that it would consider the dismissed matters as background evidence for Complainant's claim of hostile work environment.
Complainant's Statement
During the investigation, Complainant stated that she requested accommodation since September 2012.4 She stated that her position is more mental than physical, but she cannot move around the office freely and cannot sit or stand for long periods of time. Complainant stated that she cannot drive for more than 30 minutes at a time. Complainant stated that it may be recommended that she "flex out" (recline) to take pressure off her spine during the day. She noted that mobility devices (canes, walkers, etc.) have not been recommended by her medical team.
Agency's Statement
The Agency responded as outlined below.
1. The Deputy Division Director, S1, stated that she did not have Complainant falsify her time cards at any time and that overtime is usually entered in the pay period in which it is worked. S1 stated that employees enter their own information in the payroll database (ITAS). The Division Director, S2, stated that the Agency requires preapproval for overtime pay, but Complainant claimed that she had an arrangement with a prior supervisor that she did not have to get preapproval. S2 stated the prior supervisor is no longer with the Agency and he did not leave written documentation noting a special arrangement. S2 stated that Complainant submitted a substantial amount of overtime without preapproval and the time-keeper worked with Complainant to complete adjustments where possible.
2. S1 stated that Complainant contacted her from a hospital asking about her FMLA leave balance so she inquired with home office about who Complainant should contact. She relayed the contact information to Complainant and it turned out the person was a disability retirement specialist. S1 stated she was unaware of the person's job title.
3. S1 stated that Complainant's position is not fully "portable" because it requires briefings with senior leadership to discuss negotiations with "real time feedback" and some face-to-face contact with internal and external customers. S1 stated that Complainant's position does not have enough portable work to last more than two days per week. S1 noted that Complainant works 10.5 hour days so she is off-duty one day a week.
4. The RAP Team Lead, R1, stated that the Agency has a reasonable accommodation process that includes a three-day request phase, which is included in a 30-day decision phase, and then a 30-day provision phase. R1 stated that accommodations are usually provided within 60 days or less of a request. R1 stated that Complainant requested permanent full-time telework on January 10, 2014 and RAP recommended interim full-time telework on January 13, 2014. However, due to miscommunication, the Agency did not inform Complainant of the interim approval until February 6, 2014. R1 stated that the Agency denied Complainant's request for permanent full-time telework on May 13, 2014 and offered flexible use of leave as an alternative. R1 stated that Complainant reported an inability to drive on June 4, 2014 and the Agency approved interim full-time telework between June 5 and June 20, 2014. R1 stated that the Agency provided Complainant interim full-time telework from June 30 to July 11, 2014. Then Complainant was on medical leave. R1 stated that the Agency then approved interim full-time telework when Complainant returned from medical leave (September 3, 2014) to October 3, 2014, and then October 3, 2014 to at least December 2014. R1 stated that an ergonomic workstation evaluation was planned for when Complainant returned to the office. R1 stated that permanent full-time telework remained under review and reassignment could be an option as a last resort. R1 noted that Complainant's work requires face-to-face contact with colleagues and clients and continuous in-person feedback from supervision is needed. (There are times that Complainant and her supervisors must go offline to talk during negotiations.) R1 stated that management does not deem Complainant's work 100% portable. R1 stated that RAP team provides recommendations and managers have decision-making authority on accommodations.
5. S1 stated that each employee is responsible for entering their time and attendance in ITAS and she is responsible for approving what is entered. S1 stated that she cannot deny FMLA because it is a protection for employees. She added that the Agency granted Complainant flexible use of leave as needed so Complainant does not have to use FMLA.
6. S1 stated that the Agency gives Complainant work consistent with her position description and interests. S1 noted that Complainant expressed an interest in evaluation work and management provided such tasks. S1 stated that all Project Officers are assigned the same tasks and the only differences depend on the state an officer is assigned. S1 stated all Project Officers would have to apply for promotion.
7. S1 stated that she and S2 agreed that Complainant's performance warranted a "fully successful." S1 stated that Complainant performed the tasks she was supposed to perform. S1 stated Complainant "did not demonstrate the initiative, leadership or independent work that is expected of a GS-13." S1 added that Complainant's work also required a lot of discussion. S1 stated that she gave Complainant an opportunity to change the narrative for the performance rating, but not the actual rating. S1 stated that Complainant did not change the language and she issued a hard copy to her on January 30, 2014 with the original language removed.
8. S1 stated, on January 14, 2014, the RAP team sent an email recommending approval for Complainant's full-time interim telework, but S1 was not fully aware of the reasonable accommodation process. She did not realize that she could allow Complainant to telework fulltime without Complainant's signature on the original accommodation document. S1 informed Complainant after January 30, 2014 after S1 conferred with the RAP team about the process.
9. S1 stated that the RAP team recommended denial of extension of Complainant's full- time telework stating her medical documentation did not justify it. The RAP team suggested episodic telework as needed. Complainant was off on Mondays, was in office Tuesdays and Wednesdays, and worked from home on Thursdays and Fridays. S1 stated that Complainant may have worked five to six days in office before the Agency approved another interim accommodation of full-time telework. She added that management allowed Complainant to telework through her surgery (July 2014) because she could not drive. S1 stated, in addition, there was not enough portable work beyond one to two days working at home. S1 noted that another part of Complainant's accommodation was flexible use of leave.
10. S2 stated that she made a joke about scheduling her own surgery such that she would be out of the office and would not have to work on renewal for a large project the Division had the previous year. S2 stated that she later learned Complainant was offended by the joke. S2 stated she was not referring to Complainant or an alternate duty station.
11. R1 stated that he let Complainant know the RAP team is a neutral facilitator of the accommodation process. R1 stated that Complainant sent him an email reiterating her allegations of inaccuracies in the FOH medical assessment and demanding the need for immediate action so he sought to calm her and ask her to allow time for the RAP process to work. R1 stated that he had already requested a meeting with Complainant to discuss her concerns so he did not understand the tone of her email.
12. R1 stated that, after receiving FOH's initial medical recommendations, RAP team suggested management deny Complainant's request for permanent full-time telework as the medical documentation did not support it. RAP team recommended flexible leave usage as an alternative. R1 stated that Complainant appealed the denial and requested a different FOH doctor review her case. R1 stated the matter returned to FOH on May 20, 2014, and management offered Complainant flexible leave usage. The FOH physician (P1) who reviewed Complainant's initial 2014 request stated that she made recommendations based on information given by Complainant's medical providers. P1 stated that, on April 15, 2014, she recommended "[Complainant] be permitted to telework when administratively possible so that she could avoid prolonged sitting during her commute." The FOH physician who conducted the re-evaluation stated that he conducted an independent evaluation and recommended "telework 2-3 days a week due to [Complainant's] difficulty in walking."
13. The response for (12) applies to (13) as well.
14. S1 stated that Complainant was not in the office May 15 through 19, 2014, but she was in the office May 20, 2014. S1 stated that they met to discuss what was going on in the office, projects Complainant could work on, and to assign Complainant projects.
15. S1 stated that the division's assignments are long-term so the idea was for Complainant to get any assignment as far along as she could before she was out of the office on medical leave. S1 added that Complainant was not penalized for not finishing the assignment and the work was transferred to a coworker when Complainant went on leave.
16. R1 stated that, on May 2, 2014, Complainant alleged inaccuracies in the initial FOH report. R1 stated that, on May 16, 2014, RAP team met with Complainant to discuss her concerns and, on May 20, 2014, RAP team submitted a request for re-review by a different FOH physician. R1 stated that there was no delay, but that a process that takes time had to be followed. R1 stated that FOH provided a re-evaluation on June 26, 2014.
17. S1 stated that she told Complainant she does not need supervisory approval to go to the health unit. S1 stated that the Labor and Employee Relations (LER) team noticed that Complainant was "flexing in and out" beyond her tour of duty hours so LER suggested S1 send Complainant language from the Master Labor Agreement, stating she may need supervisory approval before leaving in the middle of a shift. S1 stated that she sent a general notice and it was not for medical emergencies.
18. S1 stated that, on March 27, 2013, she and Complainant's third level supervisor (S3) received an email from Complainant, stating "going to health unit," which they saw as a statement rather than a request. S1 reiterated that an employee does not have to have supervisory approval to go to the Agency health unit, but management just asked to be notified by either the employee or the health unit.
19. S1 stated that Complainant returned from medical leave on September 9, 2014, reported to the office between September 9 and September 16, and the RAP team recommended approval of her interim full-time telework request on September 17, 2014. S1 stated that she received the final draft of the accommodation on September 22, 2014 and informed Complainant that same day via email and voicemail. S1 stated there was no delay in informing Complainant.
The record reveals that the Agency approved a scooter for Complainant on June 4, 2014. The Agency informed Complainant on June 9, 2014.
Post-Investigation
Following 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 Equal Employment Opportunity Commission Administrative Judge (AJ) or an immediate final decision by the Agency. On March 12, 2015, Complainant requested a final agency decision. On May 28, 2015, 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. The instant appeal from Complainant followed.
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. (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 parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Hostile Work Environment & Disparate Treatment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Here, we find that Complainant failed to establish a claim of actionable harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on disability or reprisal. Generally, the Agency stated that it treated Complainant consistent with its workplace practices and policies, engaged in an interactive process with Complainant to process her accommodation requests and address her needs consistent with the needs of the office, provided accommodations and interim full-time telework, rated Complainant consistent with her performance, and offered alternative suggestions for accommodation. We conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
Further, to the extent that Complainant alleged disparate treatment, even if we assume that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes.
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. 29 C.F.R. �� 1630.2(o) and (p).
After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (October 17, 2002); see also, Abeijon v. Dep't of Homeland Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). An agency does not have to create a new position for a disabled employee if there is no vacant position. Saul v. U.S. Postal Service, EEOC Appeal No. 01970693 (May 10, 2001).
Assuming, without finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, we find that Complainant has not shown that the Agency failed to reasonably accommodate her when it did not approve her for permanent, full-time telework.
During the relevant time, Complainant was a Health Insurance Specialist (Project Officer) in the Division of State Demonstrations and Waivers, Children and Adults Health Programs Group with the Agency. Complainant has a spinal injury, hip injury, sleep apnea, asthma, degenerative disc disease, hypertension, hypoglycemia, and allergies. On January 10, 2014, Complainant requested permanent, full-time telework. Complainant stated that she cannot move around the office freely, sit or stand for long periods of time, or drive for more than 30 minutes at a time. The spinal and hip injuries are the conditions from which her accommodation requests originate.
The record shows that the Agency provided Complainant interim full-time telework (February 6 to May 13, 2014, June 5 to June 20, 2014, June 30 to July 11, 2014, September 3 to October 3, 2014, and October 3, 2014 to at least December 2014). The Agency denied Complainant's request for permanent, full-time telework on May 13, 2014 for undue hardship, stating that Complainant's position is not 100% telework appropriate/portable. During the occasions when interim full-time telework was not available, Complainant was expected in the office twice a week and the Agency offered Complainant flexible use of leave. In addition, the record shows that the Agency and Complainant were consistently engaged in the interactive process for her requests and that Complainant was on medical leave due to surgery from July 15, 2014 to September 3, 2014. Complainant's supervisors found that Complainant's essential functions were not 100% portable as her position required briefings with senior leadership to discuss negotiations with "real time feedback" and some face-to-face contact with internal and external customers.
Further, the record shows that, since late 2012, the Agency provided Complainant medical parking, a flexible work schedule that would allow her to "flex out" and work beyond her core duty hours, and a second laptop for her alternate duty station. In 2014, the Agency provided Complainant a scooter for work use. Despite her assertions to the contrary, Complainant has not established that she could successfully perform the essential functions of her position working full-time at home permanently.
Based on the above, we find that Complainant has not shown that the agency failed to reasonably accommodate her alleged disabilities when it did not approve permanent, full-time telework. Regarding her request for reassignment, we note that Complainant did not identify a vacant, funded position existed or was likely to open during the relevant time frame5 and the Agency was waiting to consider reassignment as a last resort. If by the issuance of this decision, Complainant's position duties and circumstances surrounding her need for permanent, full-time telework remain the same, the Agency may need to consider the accommodation of last resort - reassignment. See Enforcement Guidance on Reasonable Accommodation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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.
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
November 14, 2017
__________________
Date
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.
2 Based on the record, an assignment is "portable" if it does not require face-to-face interaction and/or high level negotiations.
3 S2 is no longer with the Agency, she transitioned from Complainant's supervisory chain about May 2014.
4 The record reveals, on September 18, 2012, Complainant made initial contact with RAP. In late 2012, the Agency provided Complainant medical parking, a flexible work schedule as to breaks and core duty hours, a second laptop for use at her alternate duty station, and interim full-time telework. Complainant revisited the accommodation of permanent, full-time telework in January 2014, and, alternatively, requested reassignment to a position in which she can telework full-time permanently.
5 See Hampton v. United States Postal Service, EEOC Appeal No. 01986308 (July 31, 2002).
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