0120102142
07-11-2012
George Daniels, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
George Daniels,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102142
Hearing No. 531-2009-00126X
Agency No. OCO-08-0497-SSA
DECISION
On April 28, 2010, Complainant filed an appeal from the Agency's April 23, 2010, final decision concerning his 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. and 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
Complainant began working for the Agency in 1990 as a Facility Systems Repairer Operator, WG-11, in the Department of Facilities at the Agency's headquarters located in Baltimore, Maryland. In November 2002, Complainant was selected for a position as a Claims Authorizer. Complainant worked in the training module from August 2003 until February 2004. In March 2004, Complainant became a Claims Authorizer, GS-11, in Module 33, in Division 3 in the Office of Disability Operations (ODO), within the Office of Central Operations (OCO), in Baltimore, Maryland. Complainant's first level supervisor while he was in Module 33 was Person A, Module Manager of Module 33. Person B was the Deputy Director for Division 3 during the relevant time. Subsequently, Person A was reassigned from Module 33 in March 2008. In April 2008, Complainant was reassigned to Module 43 in Division 4 of ODO. Person X, Module Manager of Module 43, was Complainant's first level supervisor while he was in Module 43. Person Y, Deputy Division Director for Division 4, was Complainant's second level supervisor while he was in Module 43.
Complainant filed an EEO complaint dated July 31, 2008, alleging that the Agency discriminated against him on the bases of disability (anxiety disorder and depression) when:
1. Management did not respond to Complainant's April 30, 2008 rebuttal regarding the assessment of his performance during his first quarter Performance Assessment and Communication Systems (PACS) review. During the review Complainant was informed that on March 1, 2008, his work had been pulled by the Technical Expert (TE) to review for accuracy. Complainant was the only employee subjected to the TE review.1
2. Complainant's request for reasonable accommodation to be reassigned was not granted.
3. Complainant was subjected to harassment and hostile work conditions because of a December 7, 2007 letter he submitted to upper management in which he complained about Person A's mistreatment of his staff. As a result, Person A was extremely rude and projected an arrogant attitude towards the staff. Person A showed blatant favoritism amongst the staff, was verbally insulting to the staff, and patrolled the module like a prison guard.
4. Complainant was subjected to hostile work conditions since the arrival of Person A on December 7, 2007, resulting in Complainant not receiving awards or any type of recognition for his work. Complainant's work load has increased two fold and he has been continuously overlooked for reassignments and promotions.2
The Agency accepted Complainant's complaint for investigation. During the investigation, Complainant claimed that he was subjected to reprisal with respect to his April 2008 mid-term review. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but the AJ denied the hearing request on the grounds that Complainant failed to submit his prehearing statement. The AJ remanded the complaint to the Agency, and 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 him to discrimination as alleged.
ANALYSIS AND FINDINGS
At the outset we find the AJ properly dismissed Complainant's request for a hearing. Specifically, we note that Complainant did not dispute the AJ's finding that he failed to submit a timely prehearing statement.
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").
With regard to issue (1), Complainant alleges that he was subjected to discrimination when management did not respond to his April 30, 2008 rebuttal regarding the assessment of his performance in his first quarter PACS review. Complainant claimed the PACS review which contained remarks critical of his performance was issued in retaliation for his protected EEO activity. Complainant also noted that during this review, he discovered that his work on March 1, 2008, had been pulled by the TE to review for accuracy while other employees' work was not subject to such review.
In response, the Agency noted that although Person A had been reassigned in March 2008, he was asked to conduct mid-term reviews for approximately 24 employees he supervised during the first portion of the rating period. Person A explained in February 2008, that his staff was working on completing old cases. Person A noted that Complainant had 17 of these cases on the first Saturday in March 2008, and he stated he had asked Complainant to complete the cases by working overtime on the weekend. Person A explained that after the cases were processed he suspected that Complainant had incorrectly processed more than half of the cases. The mid-term review contained references to Complainant's "inappropriate case movement" with regard to this assignment.
In his affidavit, Person A stated on March 1, 2008, he noticed that half of Complainant's 17 cases were processed in less than an hour and a half, which was not a normal amount of time. Person A stated as a result, he looked closely at the disposition of the cases and saw that almost all went to "final location" (FIN), which Person A said was highly unlikely. Person A noted that he then spoke to Person B, the Deputy Division Director for Division 3, to get guidance on how to proceed. Person A explained that Person B advised that since neither Person A nor the Deputy Module Manager had the expertise to review the cases, the Technical Expert, GS-12, (TE) should be asked to review the cases. Thus, Person A stated that he asked the TE to review the cases. In his affidavit, Person B confirmed that Person A spoke to him regarding the 17 cases that may have been improperly processed and sought his guidance. Person B noted that he told Person A to have the cases reviewed.
In her affidavit, the TE stated that Person A asked her to review the work Complainant completed on the first Saturday, March 1, 2008, since there were an unusually high number of cases referred to FIN. The TE stated that after her review, she discovered that many of the cases were not correct and she stated she wrote notes for the cases that needed to be corrected. The TE states she gave the cases back to Person A.
The record contains Complainant's rebuttal to his first quarter PACS review for 2008. In his rebuttal Complainant stated that the review contained fabrications. Complainant stated he did not remember to which manager he gave the rebuttal.
In his affidavit, Person A stated he did not receive Complainant's rebuttal to his PACS review. Person A noted that Complainant's review reflected Complainant's improper processing of over half of the 17 cases he handled on March 1, 2008. Person A also stated that the review noted some problems with Complainant's customer service skills. The record reveals the Agency did not change the original PACS review issued to Complainant.
Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for its actions with regard to the review of Complainant's work and the handling of his PACS review. Complainant failed to show that the Agency's actions were based on discriminatory animus or in reprisal for his protected EEO activity.3
With regard to issue (2), Complainant alleged that his request for reasonable accommodation in the form of reassignment was not granted. Complainant claimed that while he was in Module 33, he submitted a letter to the Agency in late September 2005, requesting reassignment to a less stressful position due to his health problems. We note the record contains a copy of Complainant's undated request. In his request, Complainant stated that he had problems with anxiety, stress, and depression since 2003. The record contains a document entitled Verification of Treatment dated November 16, 2005, in which his psychotherapist stated that Complainant was being treated for "anxiety and depression which appear to have begun with assuming his current job training and responsibilities. It is my professional opinion that the job related stress has created severe symptoms that are likely to diminish if he is reassigned to a less stressful position." The record also contains a November 7, 2005 provider note from his doctor of internal medicine noting that Complainant "feels very anxious and stressed out [and] states [it's] all related to his job." The doctor noted that Complainant stated he was trying to change jobs to a less stressful position. The note also had a notation of "anxiety/mild depression."
In a February 8, 2006 letter, Person A noted that he was treating Complainant's request as a request for a reasonable accommodation. Person A stated that the information submitted by Complainant is insufficient for the Agency to make a determination regarding his request for a reassignment. The letter noted that regarding his claim of anxiety, stress, and depression, Complainant needed to provide medical information and documents regarding his impairment, including things such as: a description of his diagnosis and symptoms; the severity of his impairment; whether or not the impairment is permanent; how the impairment affects Complainant's life activities; and any treatment administered or recommended for the impairment. The letter requested Complainant submit the requested information within two weeks.
In a February 8, 2006 electronic mail message, Complainant withdrew his request for accommodation.
Upon review, we find the record does not show when the Agency received Complainant's actual request for reasonable accommodation. We find the Agency properly treated Complainant's undated request for reassignment due to health reasons as a request for reasonable accommodation. The record reveals that the Agency was engaged in the interactive process with Complainant when it requested clarification and further documentation of Complainant's impairment, including diagnosis of the impairment and information on the severity of the impairment and its effects on his daily life activities. As Complainant subsequently withdrew his request for reasonable accommodation, we do not find the Agency liable for a denial of accommodation.
Subsequently, after his reassignment to Module 43 in April 2008, Complainant submitted another request for reasonable accommodation. In his May 30, 3008 request to Person X, Complainant asked to be reassigned to a less stressful position while retaining his current grade. In an attachment to his request, Complainant stated that he suffers from anxiety and depression and explained that he has been receiving treatment for his condition.
In a July 2, 2008 letter, Person X recommended that Complainant's request be denied. Person X noted that neither she nor the Deputy Module Manger were placing Complainant under any undue stress. Person X also noted that the statement from Complainant's medical provider requesting that he be assigned to a less stressful position was dated November 18, 2005. Person X noted that the more recent documentation dated May 21, 2008, May 27, 2008, and June 2, 2008, did not mention any need for Complainant to leave his current position for a less stressful one. Moreover, Person X noted that Complainant works overtime at the end of day and on weekends, which she stated was contradictory to his claim that the work was stressful.
In a July 22, 2008 letter, the Agency noted that the medical documentation Complainant submitted was insufficient to establish that Complainant was an individual with a disability under the Rehabilitation Act. The Agency advised Complainant that if he wished to submit additional medical documentation, it would review that documentation to determine whether Complainant met the definition of an individual with a disability and was therefore, entitled to reasonable accommodation. The Agency noted Complainant should provide objective medical documentation such as office records, diagnostic tests, imaging studies, status examinations, etc. as well as a description of how his condition limits his ability to perform one or more major life activity. The Agency gave Complainant 15 days to provide the additional documentation.
Thereafter, Complainant wrote a letter in response stating that he had gone to his primary care provider and is currently receiving treatment from a psychotherapist. He also stated that he was seeing a psychiatrist and has been on Prozac, Wellbutrin, Busbar, Xanax, and Cymbalta. Complainant stated he still has anxiety issues and depression and finds it hard to concentrate on the job. Moreover, Complainant stated that he has problems sleeping and eating in anticipation of another day. Complainant requested to be placed in a less stressful position.
In August 2008, Complainant provided additional documentation in support of his request for reasonable accommodation. Among the documentation provided, Complainant resubmitted the November 16, 2005 Verification of Treatment in which his psychotherapist stated that he was being treated for anxiety and depression. As described above in our analysis of the September 2005 request for reasonable accommodation, the psychotherapist stated "It is my professional opinion that the job related stress has created severe symptoms that are likely to diminish if he is reassigned to a less stressful position."
Additionally, in connection with his 2008 reasonable accommodation request Complainant provided evidence verifying his appointments with various medical providers for treatment of anxiety and depression from May 2008 through August 2008. Most of the documentation provided confirmed Complainant's appointments with either his licensed clinical social worker, primary care physician or psychiatrist and do not provide detailed information surrounding Complainant's condition.
However, the record does contain a summary of Complainant's May 21, 2008 visit with his licensed clinical social worker recommending Complainant set up an appointment with his psychiatrist to better help him manage his anxiety and depression. The licensed clinical social worker recommended that Complainant obtain the Anxiety and Phobia workbook and try the progressive muscle relaxation exercises twice a week for two weeks. She also recommended Complainant try "debriefing" at night to help turn off his worries.
Additionally, the record also contains a summary of Complainant's July 28, 2008 visit with his licensed clinical social worker. She again recommends that Complainant try the progressive muscle relaxation exercise in the workbook twice a day for two weeks. She noted that Complainant "seems to be making a lot of progress."
Complainant also supplied documentation showing the medication he has been taking over a period of several years. This information shows Complainant has been taking medication to treat his anxiety and depression from 2004 through September 2008.
Upon review, assuming Complainant was a qualified individual with a disability, we find Complainant failed to show that he was denied a reasonable accommodation in 2008. Despite his contentions to the contrary, Complainant failed to show that he needed to be reassigned from his position in Module 43 as a reasonable accommodation for his medical condition. Specifically, we note that at the time he submitted his May 2008 request, the November 16, 2005 Verification of Treatment from his psychotherapist, recommending Complainant's reassignment to a less stressful position, was over two and a half years old. Moreover, Complainant supplied more recent documentation from his licensed clinical social worker which did not mention the need for reassignment to a new position and which noted that Complainant was making progress. Thus, we find that at the time Complainant made the 2008 request for reasonable accommodation, he failed to show a nexus between the requested reassignment and his claimed medical condition.
With regard to issues (3) and (4), Complainant alleged that he was subjected to a hostile work environment by Person A. Complainant claimed that Person A was extremely rude and projected an arrogant attitude towards staff. Complainant also stated that Person A showed favoritism among the staff, was verbally insulting to the staff, and patrolled the module like a prison guard. Moreover, Complainant stated that since the arrival of Person A, he did not receive any awards for his work. He also alleged that his work load has increased two fold and that he has been continuously overlooked for promotions.
The record contains an affidavit from the Administrative Assistant/Secretary for Module 33 who stated that Person A had a group of favorites of six or seven people (including an individual with a disability) and a group of six or seven employees he did not like (which included Complainant and another individual with a disability). The Administrative Assistant stated that near the end of 2007, employees in the module were complaining how Person A was arrogant and mean to them. The Administrative Assistant noted that she complained to Complainant about an incident where Person A threatened to write her up and she began crying. The Administrative Assistant stated that a complaint was made against Person A and, as a result, management called the entire module to a town hall meeting. She stated that thereafter employees were questioned individually about Person A. The Administrative Assistant noted that after the 2007 complaint, Person A was upset and no longer treated her fairly and made everyone uncomfortable. The Administrative Assistant stated the word was out around the module that Complainant was involved in bringing the complaint to management.
In his affidavit, Person A denied subjecting Complainant to a hostile work environment or treating him differently because of his disability or in reprisal for the December 7, 2007 letter. Person A noted that when Person B told him about the December 7, 2007 letter, he did not say which employee complained. Person A stated he did not know that Complainant wrote the 2007 letter until Complainant told him in person during Complainant's PACS review in April 2008. With regard to Complainant's contention that Person A patrolled the module like a prison guard, Person A stated that he tried to be a visible manager, walking around the workplace and not hiding in his cubicle so he could have better insight into an employee's performance. Person A stated Complainant did not like to see him walking around because he observed Complainant searching the internet for non-business purposes.
Complainant submitted a rebuttal affidavit. In response to Person A's statement that he was searching the internet for non-business reasons, Complainant explained that he was reading an electronic mail message that someone sent him and not searching the internet.
In addition, Complainant claimed that he has not received any awards since Person A's arrival. In his affidavit, Person A noted that Complainant received an award in 2006, based on a 2005 performance appraisal prepared by a previous supervisor. Person A stated that even though Complainant's previous supervisor nominated Complainant for the award, the award was reviewed by the awards committee in 2006. Person A stated he was a member of the awards committee that approved Complainant's award.
In his rebuttal affidavit, Complainant stated that as a member of the awards committee, Person A protested Complainant's nomination. Complainant also stated that Person A made a snide comment when presenting him the award. Person A denied making any snide remark while presenting Complainant with his award.
Complainant also alleged that his work increased by two-fold after Person A's arrival. Person A stated that Complainant had the same workload as other Claims Authorizers in the module.
Finally, Complainant stated that he applied for over 65 positions since 2006, but was not selected for any of these positions. He stated that Person A would have been asked for recommendations from the selecting officials and he would not have given a good recommendation. Person A stated that he was not contacted by any selecting official and was not asked to provide feedback or evaluate Complainant's performance and qualifications for any positions.
Upon review, we find that Complainant failed to show that he was subjected to a hostile work environment based on his disability or in reprisal for protected EEO activity. We find Complainant failed to show that he was subjected to mistreatment, verbal insults, an increased workload, closer scrutiny by management because of his protected bases, or denied promotions. Moreover, Complainant failed to show the Agency's actions concerning the handling of his 2006 award or the failure to receive subsequent awards were based on discriminatory animus. With regard to his claim that he was not selected for various unidentified positions, we note that none of the alleged non-selections are at issue in the present complaint. Moreover, we find no indication that Person A was involved in any of these non-selections.
CONCLUSION
Accordingly, the Agency's final decision is 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
July 11, 2012
__________________
Date
1 Although the issue was defined as Complainant being informed on February 29, 2008, that his work had been pulled by the TE for review, the record reveals that this occurred on March 1, 2008.
2 The record reveals that Person A was Complainant's first level supervisor from October 2005 through March 2008. We note that Complainant submitted an anonymous letter to management on December 7, 2007, critical of Person A. Although initially an anonymous letter, Complainant later stated he wrote the letter.
3 For purposes of this decision, we assume that Complainant is a qualified individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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