Irvin M.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

May 5, 2020

2019005378 (E.E.O.C. May. 5, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irvin M.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019005378 Agency No. CHI-19-0333-SSA DECISION On August 20, 2019, 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 August 16, 2019 final decision concerning his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Attorney Adviser, GS-12, at the Agency’s Office of Hearing Operations (OHO) in Livonia, Michigan. He began Agency employment effective July 22, 2018, and was within a limited time appointment with a two-year trial period. Complainant was responsible for drafting Administrative Law Judge (ALJ) decisions on appeals made in accordance with the Social Security Act. On February 14, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (Narcolepsy/Obstructive Sleep Apnea) and reprisal for prior EEO activity (reasonable accommodation requests and suspected whistleblower status) when: 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. 2019005378 2 1. on December 20, 2018, management issued Complainant a termination letter effective by January 8, 2019, for performance concerns, and 2. on October 26, 2018 and November 14, 2018, the Agency denied Complainant’s request for reasonable accommodation. The Agency issued a Partial Acceptance/Partial Dismissal accepting the complaint on the basis of disability, but dismissing the basis of reprisal. The Agency stated that Complainant cited whistleblower activity, which does not justify the basis of reprisal. The Agency investigated claims (1) and (2) on the basis of disability only. During the EEO investigation, Complainant stated that he self-identified during hiring as an individual with a disability and was Schedule A eligible. For claim (1), he stated, in lieu of termination, he submitted a resignation letter on January 7, 2019. Complainant stated that the Agency moved the “efficiency goal posts” and held him to a higher standard than others during the Attorney-Advisor training period. He stated that management told him previously he was “on pace” for his position. For claim (2), Complainant stated that the Agency provided two accommodations, but “not the accommodations [Complainant] was seeking.” Complainant stated that he has “unintended involuntary daytime sleep” and was diagnosed with Narcolepsy and Obstructive Sleep Apnea. Complainant stated that he falls asleep 30 - 60 minutes at a time, multiple times per day. Complainant stated that he has some difficulty in work settings and needs “additional break time to refresh.” Complainant stated that the Agency required him to sign in and out as he took medically-required breaks throughout the day, which he found unreasonable and punitive. Specifically, Complainant requested compensated break times. Complainant stated that another accommodation request was closer proximity to restrooms and elevators to lessen the time he needed for breaks. He stated that the Agency did not implement the request. Complainant stated that his work location was the second furthest on the floor from restrooms and elevators and management only moved him a few paces closer and offered to move him from an office to a cubicle. Complainant declined management’s cubicle offer, stating that a cubicle was not appropriate for his position and that he sometimes snored as he slept. He added that management did not require other employees to move out of an office to accommodate him. Complainant stated that he also requested telework. Regarding claim (1), the OHO Group Supervisor (S1) stated that management terminated Complainant’s employment for unacceptable performance and conduct in the office. S1 stated that the Agency uses the Decision Writer Productivity Index (DWPI) to assess Attorney Advisor’s productivity. S1 stated, as a new hire returning from training, management evaluated Complainant on a learning curve - 20% of DWPI in September 2018, 35% of DWPI in October 2018, and 55% of DWPI by November 2018. S1 stated that Complainant fell below the performance standards, with 11.9% of DWPI, 15.9% of DWPI, and 27.3% of DWPI, respectively. Further, S1 stated that Complainant was “combative” with mentors and unreceptive to constructive criticism and feedback. 2019005378 3 The OHO Director (S2) added that the DWPI learning curve for December 2018 was 75% of DWPI and Complainant was at 30.1% in December through his last day of employment, January 7. S2 stated that Complainant had interpersonal difficulties with mentors, support staff, managers, and ALJs. As to claim (2), S1 stated that the Agency was not required to lower production standards as an accommodation. S1 stated that management allowed Complainant to take additional breaks, as needed, but the additional breaks were unpaid. S1 noted, each 8.5-hour workday, employees were entitled to two 15-minute breaks and a 30-minute lunch break.2 S1 stated that Complainant was allowed to “flex in or out” liberally throughout the day to use additional unpaid breaks. S1 stated that the Agency could not provide additional compensated breaks as employees had to account for a full work tour. S1 stated that the liberal additional breaks should have been an effective accommodation and compensated breaks would have only served to lower production standards for Complainant. S1 stated that the Agency denied Complainant’s request to telework three times per week as medical documentation did not support his request for telework. She stated further that management offered Complainant any vacant office or cubicle, which included an office adjacent to his office and a vacant cubicle closer to the restrooms and elevators. S1 stated that Complainant refused both options. S1 stated that the Agency did not have to relocate another employee out of an office to provide effective accommodation. Additionally, S2 stated that “flex time” would allow Complainant flexibility in attaining an eight-hour tour of duty between 6:30 a.m. and 6:00 p.m. each day. S2 stated that Complainant’s requested accommodation of additional compensated breaks would have allowed for a shortened workday but wages for a full workday. S2 stated that Complainant was a new hire still in training so he was ineligible for telework until July 22, 2019. S2 stated that new Attorney Advisers need physical access to ALJs, mentors, and managers for the first year to develop well as decision writers. S2 stated that Attorney Advisor offices are assigned based on seniority and the collective bargaining agreement in place. In pertinent part, the investigative record contains the documents that follow. - Letter dated October 5, 2018 from Complainant’s Internal Medicine Doctor (D1) stating: [Complainant] . . . is being treated for narcolepsy. Due to his difficulty with wakefulness it is medically necessary for [Complainant] to take work breaks for up to 15 minutes every hour while he is at work. 2 We note that the basic 40-hour workweek includes 8 hours per day with two 15-minute compensated breaks (one in the morning and one in the afternoon) and an uncompensated 30- minute lunch break. It can also be articulated as an 8.5-hour work day with two compensated 15- minute breaks and a compensated 30-minute lunch break. For instance, an employee’s schedule might include 9:00 a.m. arrival and 5:30 p.m. departure with the two compensated breaks and a compensated lunch break during that time. 2019005378 4 - An email dated October 5, 2018 from S2 to Complainant, clarifying the “flexing” policy. In the email, S2 stated, beyond his 15-minute morning and afternoon breaks and a 30-minute lunch break, Complainant had to sign out and back in to a database in real time to log his additional breaks. - Letter dated October 26, 2018 from the Agency’s National Reasonable Accommodation Committee (NRAC), denying Complainant’s request for additional paid 15-minute breaks per hour. The NRAC stated that management offered him “flexing” to take additional breaks as needed, but he would have to make up the time to reach an 8.5-hour tour of duty. - Letter dated November 14, 2018 from NRAC denying Complainant’s request for additional paid 15- minute breaks and teleworking three days per week. The NRAC reiterated that Complainant is allowed “flexing” with unpaid additional breaks, and that Complainant failed to establish a nexus between the restrictions of his disability and his request for teleworking. The letter also stated that management allowed Complainant to move his workspace to be closer to restrooms and elevators to reduce his breaktimes. Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the 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 him to discrimination as alleged. Specifically, as to (1), the decision found that the Agency terminated Complainant’s employment for unsatisfactory performance and conduct, and that Complainant failed to show that the Agency’s action was based on discriminatory motives. For (2), the decision found that the Agency provided Complainant accommodations to assist him with daytime wakefulness and completing his full daily tour-of-duty. 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”). 2019005378 5 Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on disability or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for removing Complainant from Agency employment. The Agency stated that it terminated Complainant’s employment for unacceptable performance and conduct. The Agency stated that it uses the Decision Writer Productivity Index, DWPI, to assess Attorney Advisor’s productivity. Management stated that Complainant was evaluated on a learning curve as a new hire recently out of training. It stated that the learning curve was 20% of DWPI in September 2018, 35% of DWPI in October 2018, 55% of DWPI by November 2018, and 75% of DWPI by December 2018. The Agency stated that Complainant fell below the performance standards, with 11.9% of DWPI, 15.9% of DWPI, 27.3% of DWPI, and 30.1% of DWPI respectively. The Agency stated that it was not required to lower production standards as an accommodation. Further, the Agency stated that Complainant had interpersonal difficulties with mentors, support staff, managers, and ALJs. We find that Complainant failed to show, by a preponderance of the evidence, that the articulated reasons are a pretext for discrimination. 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 2019005378 6 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 provide him reasonable accommodation. Complainant stated that he has involuntary, unintended daytime sleepiness due to Narcolepsy and Obstructive Sleep Apnea. Complainant stated that he is sleepy multiple times per day and needs breaks to refresh his wakefulness. Complainant acknowledged that management provided accommodations, but “not the accommodations [he] was seeking.” Complainant stated that the Agency did not provide him additional breaks with compensation, an office in closer proximity to the restrooms and elevators, or with telework. Complainant provided a letter dated October 5, 2018 from his Doctor, D1, which stated; “[Complainant] . . . is being treated for narcolepsy. Due to his difficulty with wakefulness it is medically necessary for [Complainant] to take work breaks for up to 15 minutes every hour while he is at work.” In addition to his two 15-minute breaks and lunch break daily, management informed Complainant that he could take breaks as necessary throughout the workday. Management required Complainant to sign in and out (flex) electronically as he took additional breaks so that he would not be compensated for the extra breaks. However, he could work as necessary to reach 8 work hours per day between 6:30 a.m. and 6:00 p.m. Complainant found flexing in and out unreasonable and punitive. Complainant requested compensated break times beyond the standard two work breaks. Further, the Agency offered Complainant a vacant office adjacent to his office or a cubicle closer to the restrooms and elevators in accordance with Complainant’s request so that he could take breaks quicker. Complainant stated that the vacant office offered only put him a few paces closer to the restroom and elevator, and a cubicle would be punitive to his Attorney Advisor position and he sometimes snored while asleep. Complainant stated that the Agency did not move another employee from a closer office. The Agency denied Complainant’s request to telework. The Agency stated that Complainant was still within the training period for his position and still needed close physical proximity to ALJs, mentors, and managers. Further, the Agency stated that there was no nexus between his request to telework and his medical requirements. 2019005378 7 Based on the circumstances herein, we find that the Agency did not discriminate against Complainant based on disability when it provided him with additional breaks as needed, but without compensation. See EEOC’s Questions and Answers for Diabetes in the Workplace and the ADA, Example 6 (May 15, 2013). Complainant was allowed to take breaks beyond the standard two 15-minute breaks and 30-minute lunch break, but he had to make up the time he used by arriving early, staying late, or using leave to equal a full work-day. Based on Complainant’s medical documentation and the appellate record, the modified work schedule was effective and appropriate. Id. Also, based on the record, an office closer to restrooms and elevators nor telework were required to accommodate Complainant and there is no indication that such would have been more effective. In fact, Complainant declined the Agency’s offer of an office a little bit closer and a cubicle in greater proximity to restrooms and elevators. We remind Complainant that he is not entitled to the accommodation of his choice. See EEOC Enforcement Guidance on Reasonable Accommodation, question 9. “If there are two possible reasonable accommodations, and one costs more or is more burdensome than the other, the employer may choose the less expensive or burdensome accommodation as long as it is effective.” Id. We find that the additional breaks, albeit without compensation but with the ability to make-up the time used, were a 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. 2019005378 8 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. 2019005378 9 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 May 5, 2020 Date