Herta K,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionDec 14, 2017
0120152466 (E.E.O.C. Dec. 14, 2017)

0120152466

12-14-2017

Herta K,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Herta K,1

Complainant,

v.

Nancy A. Berryhill,

Acting Commissioner,

Social Security Administration,

Agency.

Appeal No. 0120152466

Agency No. NY140141SSA

DECISION

On July 6, 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 June 1, 2015 final decision 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. 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

Introduction

At the time of events giving rise to this complaint, Complainant worked as an Operations Supervisor, GS-12, at the Ponce District Office located in Ponce, Puerto Rico. On March 24, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to hostile work environment harassment on the bases of national origin (Hispanic), disability (Anxiety Disorder, Major Depression, Rheumatoid Arthritis, Gastritis, and Hyperglycemia) and reprisal for prior protected EEO activity.

Specifically, Complainant alleged that:

(1) the Agency harassed her with a lack of managerial support; a harsh speaking tone by her supervisor; lack of accurate guidance regarding hardship transfers, reasonable accommodation, and the negotiated grievance process; stress regarding a return-to-work date; and denial of her grievances.

Complainant alleged that the Agency treated her disparately when:

(2) since July 9, 2013, it denied her request for reasonable accommodation,

(3) on December 4, 2013, it notified Complainant that she would be charged with leave without pay (LWOP) for pay period ending December 13, 2013,

(4) on December 6, 2013, it initially denied Complainant's request for the voluntary leave transfer program and requested additional information,

(5) since October 2013, the Agency Hardship Coordinator (HC1) did not consider or process Complainant's hardship request properly,

(6) effective December 1, 2013, it failed to select Complainant for a Social Insurance Specialist (Technical Expert) Temporary position under SG-968869-13MKB,

(7) on February 25, 2014, Complainant received a letter from the Department of the Interior informing her that her office processed an amendment to her payroll causing an overpayment of $11,381.36 and the Agency failed to notify Complainant, and

(8) on January 27, 2014, the Ponce District Manager (S1) completed payroll documents without Complainant's knowledge or consent.

Investigation

Complainant's Statement

During the EEO investigation, Complainant stated that, on July 9, 2013, she had a "nervous breakdown" based on increased responsibilities at work and pressure by the Assistant District Manager (S2). Complainant stated that the constant fluctuations in upper management, an insubordinate employee, and lack of support from management took its toll on her.

Complainant stated that, on August 19, 2013, she visited the office to provide medical information and verbally asked S1 to assist her in moving to another office. Complainant stated that S1 did not provide her assistance so, on November 25, 2013, she sent an email to the Puerto Rico Area Director (S3) requesting a meeting. Complainant stated that she filed a written request for accommodation on December 4, 2013. Complainant stated that she received a denial of her accommodation request from S2 on April 16, 2014. Complainant stated that reassigning her would not have given her another job, but would have just changed her work site from the Ponce District Office. Complainant asked to be moved to the state of Florida, to the city of Lakeland, Orlando, or Tampa.2 Complainant stated that management failed to participate in the interactive process or give her guidance on how to proceed with her reasonable accommodation request so she filed a grievance inappropriately. Complainant stated that her conditions cause constant fatigue, loss of energy, impaired concentration, indecisiveness, night insomnia, day hypersomnia, restlessness, significant weight loss, diarrhea or nausea, inability to tie her shoes or fasten her undergarments, difficulty lifting her arms or grasping objects, limping, stiffness, swelling, and warmth in her joints. Complainant stated that she can perform the essential functions of her position.

Complainant stated that S2 did not support her when she reprimanded an employee (E1) for being insubordinate and that S2 gave Complainant's direct reports assignments different from what Complainant gave them, without informing her. Also, Complainant stated that S2 would follow her into the bathroom and stand behind her silent. Complainant stated that S2 spoke to her in a "harsh and severe" tone when they discussed E1, and that S2 was unempathetic to her as a supervisor.

Complainant stated that S2 was aware of her medical conditions and the Agency had medical documentation stating that she should not be in a workplace with her stressors. She stated S2 failed to provide guidance about the negotiated grievance procedure for non-bargaining unit employees, such as Complainant. Complainant stated that management failed to process her requests expeditiously and delayed approval of Complainant under the Voluntary Leave Transfer Program (VLTP), causing Complainant to use LWOP and worsen her condition.

Complainant stated that HC1 discriminated against her through the selection process by not knowing where Complainant could be used in the Agency and retain her grade with her hardship transfer and reasonable accommodation requests. Complainant stated that HC1 and S2 should have been aware of available positions at the Agency.

Complainant stated that she was hospitalized three times following her July 9, 2013 nervous breakdown. She also stated that, effective July 2014, the Agency offered her a "Compassionate Detail3" for two months serving as a Claims Representative at its Orlando Office.

Agency's Statement

S2 stated that she supported Complainant as a supervisor and, specifically, regarding her interactions with E1. S2 stated that E1 filed grievances against Complainant in the past, and that she provided Complainant advice and supported her decisions. S2 stated that the day Complainant says she had a nervous breakdown, E1 was upset with Complainant because she sent her an email asking for time to work on a vacancy application but Complainant did not see the email until too late. S2 stated that she was copied on the email so she authorized E1 to work on her application and suggested Complainant follow up with E1 to make certain she submitted her application. S2 stated that she was not harsh when she and Complainant spoke, and Complainant did not seem upset while they were speaking. S2 stated that she did not observe Complainant in "emotional distress" on July 9, 2013.

The Agency stated that Complainant submitted an accommodation request on December 4, 2013 to S1, S1 informed S2, and they sought guidance from Human Resources. In a letter dated April 16, 2014, the Agency informed Complainant that the medical information she submitted did not show a connection between her medical condition and her reasonable accommodation request. The Reasonable Accommodation Coordinator stated that Complainant asked to go to one of three cities in Florida to have family support. However, the medical documentation did not show that placement in Florida would remove workplace barriers as she could go to another office and still be stressed. A Staff Specialist (HR1) stated that Complainant had family (her mother and sister) in Puerto Rico but she did not want to be placed at another office in Puerto Rico. Local management, the Center for Disability Services, and the Center Director discussed Complainant's request. In May 2014, Complainant requested reassessment of her request. On July 6, 2014, the regional office placed Complainant in a Compassionate Detail in Orlando, Florida for 60 days.

S2 stated that she is Complainant's first level supervisor so it was appropriate for her to contact Complainant about time and attendance. She stated that Complainant always submitted medical documentation stating that she would be absent for an extended period-of-time and she would email Complainant about leave slips, balances, or requirements. S2 stated that, on December 12, 2013, she sent Complainant a reminder email that her leave balance would be exhausted the next day, December 13.

HR1 stated that Complainant requested a hardship transfer to move to Florida so that her 19-year old son could provide family support to her and her two younger teenage sons (14 and 13). HR1 stated that although Complainant's mother and sister resided in Puerto Rico, she stated that they could not provide her assistance and she did not want to burden them. HR1 stated that Complainant did not want to consider a transfer to a different Agency office in Puerto Rico stating she did not have support in Puerto Rico. HR1 stated the Agency denied Complainant's request because it did not meet the definition of a hardship4. HR1 stated that Complainant did not request review of the hardship transfer denial.

The record shows that Complainant applied to participate in the VLTP on December 4, 2013, the Agency approved Complainant's application and, on December 16, 2013, the Area Director sent an email to Area employees informing them of Complainant's VLTP participation. The Area Director stated that she initially requested additional information but then realized that she could approve the application without it.

The selecting official (SO1) for the Social Insurance Specialist position stated that he and his management team considered 20 applications for the position and narrowed it down to two top candidates. SO1 stated that they considered formal education, self-development, extra projects and assignments, and awards received in the last five years. He stated that the selectee had the most achievements, awards, and special projects. SO1 stated that Complainant had little self-development indicated on her application. He stated that Complainant's application was given extra consideration because she requested a hardship transfer.

S2 stated that Complainant was receiving Continuation of Pay (COP) while her Office of Workers' Compensation Programs (OWCP) claim was pending and, once it was denied, her leave was changed to LWOP. The LWOP caused Complainant to be in overpayment status. The record shows that, on February 3, 2014, the Agency informed Complainant of her indebtedness for $10,048.20.

S2 stated that, in January 2014, the Agency mailed six leave forms covering pay periods from December 2, 2013 to February 2014 to Complainant for her signature. S2 stated that she prefilled the dates for the pay periods as well as voluntary leave donation information, but Complainant was unhappy with the prefilled information so they sent her blank forms subsequently.

The record contains a psychological report dated October 25, 2013, that in pertinent part stated the below information.5

[Complainant] requires continued medical assistance coupled with psychotherapy and direct visualization. The medical condition of [Complainant] requires relocation to a geographical area deemed medically necessary to improve her health, and immediate action is necessary to improve her health, and . . . to protect her welfare and receive support from family members.

The record also contains a hardship reassignment request, dated October 29, 2013, wherein Complainant requested a position as an F2 Operations Supervisor, F10 Management Support Specialist, or F11 Claims Representative (Technical Expert), on the dayshift, in Florida (Lakeland, Tampa, or Orlando), at a grade no lower than 12.

The record shows that Complainant requested accommodation in a letter, dated December 4, 2013, citing hostile work environment stating that she has an insubordinate employee who does not speak to her and acts inappropriately and her supervisory chain has failed to act.

The record contains a letter, dated April 16, 2014, wherein the Agency denied Complainant's accommodation request, stating "You have not demonstrated the nexus between your medical condition and the requested accommodation." Also, the record contains a Supervisory Social Insurance Specialist (Operations Supervisor) position description wherein a basic function is "To provide firstline supervision and technical guidance to claims representatives, service representatives, data review technicians, and other supporting staff."

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 or an immediate final agency decision. The Agency stated that it did not receive a response from Complainant so, in accordance with 29 C.F.R. � 1614.110(b), it issued a final decision. The Agency stated that the incidents Complainant alleged under the negotiated grievance process fail to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1) as they are a collateral attack on that process. Further, the decision concluded that Complainant failed to prove that the Agency subjected her to disparate treatment or harassment based on her protected classes. Also, the decision found that once it was clear that Complainant was requesting accommodation (December 2013), her request was moved through normal channels. Although the Agency found that Complainant's request did not show a nexus between her requested accommodation and her medical conditions, eventually, in July 2014, the Agency placed Complainant in a compassionate detail in Orlando, Florida.

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 national origin, disability or reprisal. Generally, the Agency stated that it supported Complainant in her position, did not speak with her harshly, did not realize that she was in distress during her July 9 interaction with S2, engaged Complainant to process her accommodation request and address her needs consistent with the needs of the office, and contacted Complainant to inquire about and keep her abreast of her leave requirements and balances. 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, we agree with the Agency that Complainant's claims regarding denial of her grievances are within the purview of the negotiated grievance process and do not state a claim within the EEO process.

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).

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 a permanent reassignment from Puerto Rico to Florida (Lakeland, Orlando, or Tampa). Complainant is entitled to an effective accommodation but not necessarily the accommodation she requested.

At the time giving rise to this complaint, Complainant was an Operations Supervisor in the Ponce, Puerto Rico District Office of the Agency. Complainant has Depression, Anxiety, Rheumatoid Arthritis, Gastritis and Hyperglycemia. On July 9, 2013, Complainant stated that she had a nervous breakdown following an incident where an employee, E1, was insubordinate and she felt her supervisor, S2, supported the employee rather than her. Complainant stated that there were constant changes in management, management failed to support her, and E1 was consistently insubordinate and filed grievances against her. She stated those circumstances took a toll on her. Complainant did not return to work for an extended period after the July 9, 2013 incident and asked to be transferred to an office in one of three Florida cities so that her 19-year old son, who lived in Tampa, Florida, could assist her as necessary.

Complainant stated that, on August 19, 2013, she visited the office to provide medical information and verbally asked S1 to assist her in moving to another office. Complainant stated that S1 did not provide her assistance so, on November 25, 2013, she sent an email to S3 requesting a meeting. Complainant stated that she filed a written request for accommodation on December 4, 2013. The Agency denied Complainant's accommodation request on April 16, 2014 stating that she did not show a nexus between her medical condition and her requested accommodation.

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 her permanent reassignment to a Florida office from Puerto Rico. We note, although a reasonable accommodation request may be oral or written6, it does not appear that it was clear to the Agency until December 2013 that Complainant was requesting accommodation. Complainant did not show how a move to the Agency's Lakeland, Orlando, or Tampa office would remove the stress she incurred as a supervisor or dealing with people in the workplace. The Agency asked Complainant if she would consider a transfer to another office in Puerto Rico and she declined. The Agency allowed Complainant to remain on paid and unpaid leave for an extended period, working with her to submit required documentation and requests. In July 2014, the Agency placed Complainant in a "Compassionate detail" in Orlando for sixty days. The record does not seem to show that Complainant was unable to work during the extended period, but that she wanted to move to Florida for support from her adult son with medication reminders, household chores, transportation as needed, and assistance with care and transportation for her younger teenage sons.

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

December 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 Complainant's eldest son resided in Tampa and Complainant stated that he could provide her family support. Complainant stated that she needed her oldest son's assistance with medication reminders, driving her when she is in pain, performing household chores and errands, caring for and transporting her two younger sons when she is in pain.

3 A compassionate detail is a temporary transfer to another office for a period of up to 60 days, due to an employee's personal situation.

4 A hardship is defined as a set of circumstances that (1) requires a permanent change of station, (2) is beyond the employee's control, and (3) is so severe that it jeopardizes the employee's or his/her family's health or financial security.

5 Complainant had an initial psychological evaluation on September 25, 2011 with several follow-up visits in 2011, and returned for treatment September 5, 2013 when she could get an appointment.

6 See Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC No. 915.002 (ques. 3) (October 17, 2002)

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