0120073214
12-17-2009
Lori Munroe, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Lori Munroe,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120073214
Agency No. DEN051808SSA
DECISION
On July 6, 2007, complainant filed an appeal from the agency's June 6,
2007 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. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final decision.
ISSUES PRESENTED
(1) Whether the agency satisfied its obligation to provide complainant
with a reasonable accommodation, and whether the agency appropriately
requested medical documentation;
(2) Whether management subjected complainant to discriminatory harassment;
and
(3) Whether management subjected complainant to disparate treatment
because of her disability and/or prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Claims Representative (CR), GS-11, in the Great Falls District Office of
the Denver Region, located in Great Falls, Montana. On January 18, 2006,
complainant filed an EEO complaint alleging that she was discriminated
against on the bases of disability (critical subglottic stenosis1)
when:
(1) she was subjected to harassment when, in August 2005, management
initially denied her request for reasonable accommodation2; and
(2) on February 23, 2006, management issued a decision on her request
for reasonable accommodation, as a result of which she was taken off
the Alternate Work Schedule (AWS), her desk day was taken away and she
was required to take in four claims per day and given more cases than
the other CRs.
Complainant further alleged that in reprisal for prior protected EEO
activity [under the Rehabilitation Act]:
(3) management required her to wear a watch and take her cellular
telephone with her to medical appointments. She was also required to
have the doctor's office call management if there was a delay and she
could not return to work at the expected time.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b).
Final Agency Decision
The FAD first noted that CRs conduct interviews to obtain, clarify, and
verify information about applicants' initial and continuing eligibility
for retirement, survivors, disability benifits, etc. CRs also adjudicate
and authorize payment for claims involving benefits and eligibility for
all programs administered by the SSA. CRs are generally scheduled one
"paper day" per week, during which time they do not conduct interviews,
but instead catch up on their paperwork.
The FAD further explained the following: on March 1, 2005, complainant's
doctor (D1) operated on her trachea to correct problems with her
breathing. Complainant was discharged from the hospital on March 15,
2005. D1 released complainant to return to work on April 1, 2005.
D1 stated that complainant continued to have a hoarse voice and he
recommended she only use her voice about half the time she spent at work.
In response, management assigned complainant only one interview in the
morning and one interview in the afternoon. The FAD found that on
April 12, 2005, complainant's first-level supervisor, the Assistant
District Manager (S1), stated that complainant would be handling the
office's appeal work until further notice. The FAD found that on
May 31, 2005, complainant met with her second-level supervisor (S2)
to inform her that conducting two interview appointments per day did
not give her adequate time to rest her voice. As a result, S2 decided
that complainant would conduct only one claims interview per day and
she would be assigned other non-interviewing work. The FAD found that
in addition, S2 asked complainant to provide a reasonable accommodation
request since her medical condition appeared no longer to be temporary
in nature. On June 3, 2005, complainant submitted a written request for a
reasonable accommodation.3 The same day, S2 requested that complainant
provide specific medical documentation to support her request for a
reasonable accommodation.
The FAD found that as requested, complainant provided a letter dated
June 28, 2005, in which D1 recommended that complainant continue to
limit the use of her voice. D1 also stated he did not know how long
it would take for complainant to return to a stronger voice quality.
The FAD found that on August 26, 2005, S2 denied complainant's
request for accommodation, noting that the medical documentation she
received did not specify how complainant's post-operative period had
a significant impact on her ability to speak. She further noted that
the essential duties of a CR involved conducting interviews. The FAD
noted that complainant objected to this determination and requested a
reassessment on September 12, 2005. S2 agreed to a reassessment and
requested additional medical documentation, which complainant provided
on November 3, 2005. Complainant's medical documentation included a
letter from a doctor (D2), which indicated that she continued to lack
endurance when speaking for extended periods of time. The FAD found
that in a letter dated January 10, 2006, S2 concluded that complainant's
medical documentation validated her claim of a chronic medical condition
that significantly limited her ability to perform major life functions
(i.e., speaking, walking) both on and off the job.
The FAD then found that S2 still requested additional medical information
in order to determine the nature of the accommodation needed. On February
23, 2006, S2 noted that complainant's doctor recommended that complainant
continue to limit her talking to two hours at a time and if an interview
continued for more than two hours she should stop to rest her voice and
then resume. Accordingly, S2 concluded that complainant should receive
the following accommodation:
Your current alternate work schedule (AWS) of working nine hours a day
eight days per pay period, eight hours one day per pay period, and a day
off each pay period, does not fully permit you to utilize the length
of your workday to maximize the interviewing schedule. Therefore, by
incorporating the following schedule work assignment modifications, your
request for reasonable accommodation limiting your voice is approved.
Your weekly tour of duty will be a 5-day/8-hour a day flexible schedule.
You will be assigned up to the two disability interviews or up to four
RSHI interviews, or a combination thereof, each workday. CR's routinely
conduct RSHI interviews in less than an hour. Therefore, you will be
assigned two RSHI interviews within a two-hour period. Reassignment of
interviews will be consistent with your doctor's recommendations of not
routinely exceeding two hours of interviewing in the morning, a two-hour
rest, and two hours of interviewing in the afternoon.
The FAD found that on March 23, 2006, S2 met with complainant (and
her attorney) and a Union representative to discuss her situation.
At that time, complainant proposed that she retain her 5-4/9 work
schedule, continue to have one non-interviewing day and either remove
any interviewing work or have her perform no more than one interview
per day as a permanent reasonable accommodation. The FAD found that on
April 4, 2006, S2 wrote to complainant rejecting complainant's proposal
because it did not allow complainant to perform the essential functions
of her position. S2 noted that complainant's proposal would result
in her conducting interviews about 12 hours every two weeks while the
essential functions of her position required her to be available to
interview at least 40 hours a pay period. S2 stated that she was open
to other suggested modifications that would allow complainant to perform
the essential functions of her position and were within the restrictions
set by her physician. She stated if they could not come to an agreement,
she would determine whether complainant was able to perform her job and,
if not, consider alternatives, "which might include initiating proceedings
to separate" complainant from her position.4
In terms of its legal analysis, the FAD initially noted: "[w]ith respect
to the first claim, therefore, the complainant no longer can claim
management failed to properly determine she was a qualified individual
with a disabling condition. Because [S2] subsequently decided she did meet
the disability criteria, the complainant's assertion of discrimination
with respect to the first claim is, in essence, moot." The FAD then
proceeded to find that management did not dispute that she had now
shown that she was a qualified individual with a disabling condition,
and management proposed what it felt met operational concerns and was in
compliance with complainant's medical limitations. The FAD noted that
complainant had maintained that the only acceptable accommodation would
have been to allow her to conduct only one initial claims interview per
day. The agency maintained that such an accommodation was not reasonable
as it would have been disruptive and would have fundamentally altered
office operations. The FAD additionally noted that complainant did not
have the right to insist on the accommodation of her choice, provided
that management has offered to implement an effective accommodation
that is reasonable on its face. The FAD also found that complainant
offered no evidence to support a finding that the proposed accommodation
substantially violated her medical limitations.
The FAD additionally found that complainant did not establish that she
was subjected to harassment, noting that "[s]he did not identify any
instance in which [S2] made any comments about her disabling condition
that could be viewed as offensive. The complainant primarily was
upset about management's August 26, 2005, determination denying her
accommodation request. The complainant did not identify any specific
conduct on the part of management that was anything more than an inquiry
into the nature of her medical condition and her limitations. This does
not meet the standards defined for establishing even a prima facie claim
of nonsexual harassment."
The FAD then found that the agency did not subject complainant to
disparate treatment based on disability-based animus by removing her AWS
schedule, her desk day and by requiring her to take in four claims per day
and work on more cases. The FAD noted that S2 explained that her proposed
accommodation would have removed complainant from her 5-4/9 work schedule,
but that this was because if complainant worked 10 days every two weeks
she could handle two interviews per day for a total of 20 interviews every
two weeks. On the other hand, if she remained on her current schedule
working nine days every two weeks she could only complete 18 interviews.
The FAD found that she also stated she recommended complainant have no
non-interviewing days because the rationale for this practice did not
apply to complainant because she already had time off from interviewing
each day to complete her paperwork. The FAD found that S2 further
stated that complainant was never removed from her AWS because she
opposed the recommended accommodations and this matter was still under
consideration. Furthermore, S2 stated that complainant has continued
to only conduct one initial claim interview per day. The FAD found no
evidence that the agency's reasons were pretexts for discrimination.
As to the reprisal claim, the FAD noted that, on December 21, 2005,
complainant returned to work later than expected from her doctor's visit.
Upon her return, she stated she e-mailed S2 and explained the reason
for her delay. She stated that this led to a meeting with S1 and S2
regarding what she should do if she were late again. According to
complainant, S1 made a number of "recommendations" including that she
wear a watch, take her cell phone, and notify the medical facility where
she was receiving treatment as to the time she was expected back in
the office. Complainant stated that they further suggested that if the
delays prevented her from returning as anticipated, she should have the
doctor's office call to notify them of her delay. The FAD noted that
management agreed that these suggestions were made (and that they were
only suggestions), and concluded there was no evidence that management's
actions were motivated by discriminatory animus.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency improperly found her claim
that management harassed her when it denied her a reasonable accommodation
request, was moot. She additionally contends that the agency did not
do a proper "undue hardship" inquiry concerning her need for reasonable
accommodation. She also states that the agency improperly framed, and
then improperly evaluated the issues in her complaint. Specifically,
she contends that the agency should have evaluated issue (2) as part and
parcel of the harassment claim, as well as under a disparate treatment
framework. She additionally asserts that the agency erred in determining
that she was not the victim of retaliation after her managers counseled
her for returning late from a medical appointment. She asks that the
Commission reverse the FAD, and make findings of discrimination and
retaliation.
In reply, the agency contends that complainant failed to show that the
alleged incidents were sufficiently severe to qualify as discriminatory
harassment. The agency also notes that the agency did not dismiss as
"moot" complainant's claim of alleged harassment. In addition, the
agency notes that "undue hardship" was not the basis upon which the
agency initially denied complainant's reasonable accommodation on August
26, 2005. The agency explains that at that time, the request was denied
because the agency properly determined, based on the documentation
it possessed, that she was not "disabled" and as such, not entitled
to a reasonable accommodation. The agency notes that once complainant
provided additional medical documentation, the agency made a determination
that she was a disabled person as defined by the Rehabilitation Act and
offered her a reasonable accommodation, which she rejected. The agency
contends that the FAD should be affirmed.
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 EEOC Management
Directive 110, 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").
Reasonable Accommodation
Fist, we note that although the FAD described complainant's assertion
of discrimination with respect to the first claim "in essence, moot,"
this is harmless error, as the FAD went on to analyze whether the agency
met its obligation to provide complainant with reasonable accommodation
pursuant to the Rehabilitation Act. We agree with the FAD's finding that
the agency met its obligations under the Rehabilitation Act concerning
complainant's request for a 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.5 29 C.F.R. ��
1630.2(o) and (p). The agency engaged in an interactive process with
complainant, and during the entire time period, provided complainant
with a number of accommodations which reduced the amount of time she
was required to speak. Even when her reasonable accommodation request
for more reduction in voice usage was denied, the record suggests
that complainant was still being permitted to use her voice much less
than other CRs. Finally, we note that the ultimate accommodation that
complainant was offered, she rejected, even though the record indicates
that it was effective. Complainant is entitled to an "effective"
accommodation, but not necessarily the accommodation of her choice.
In the context of job performance, an "effective" accommodation means
that the reasonable accommodation enables the individual to perform the
essential functions of the position. See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, Notice No. 915.002 (October 17, 2002). Complainant has
not offered persuasive evidence that the various accommodations offered
to her were ineffective.
As to complainant's claim that she was taken off the AWS, her desk day
was taken away and she was required to take in four claims per day and
given more cases than the other CRs, there is no evidence that this was
done based on discriminatory animus. Management articulates that these
adjustments were made in order to ensure that complainant would be able
to perform the essential functions of her job, and complainant has not
shown evidence of pretext.
Harassment
We note that as complainant claims that the agency fragmented her
harassment claim, we consider all of the claims raised by complainant in
her complaint, jointly. 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 (March
8, 1994).
With respect to element (5), an employer is subject to vicarious
liability for harassment when it is created by a supervisor with immediate
(or successively higher) authority over the employee. See Burlington
Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93
(1998). However, where the harassment does not result in a tangible
employment action the agency can raise an affirmative defense, which is
subject to proof by a preponderance of the evidence, by demonstrating:
(1) that it exercised reasonable care to prevent and correct promptly
any harassing behavior; and (2) that complainant unreasonably failed to
take advantage of any preventive or corrective opportunities provided
by the agency or to avoid harm otherwise. See Burlington Industries,
supra; Faragher, supra; Enforcement Guidance: Vicarious Liability
for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002
(June 18, 1999). This defense is not available when the harassment
results in a tangible employment action (e.g., a discharge, demotion,
or undesirable reassignment) being taken against the employee. In the
case of co-worker harassment, an agency is responsible for acts of
harassment in the workplace where the agency (or its agents) knew
or should have known of the conduct, unless it can show that it took
immediate and appropriate corrective action. Id. Upon review of the
record, we find no persuasive evidence that the alleged harassment in
this case was based on management's disability-based animus.
Medical Inquiry/Request for Medical Documentation
In her appellate brief, complainant suggests that on June 3, 2005,
the agency requested medical information that was overly broad.
See Complainant's Brief at 7-8. In particular, she notes that she
inquired of S2 why she would need to provide the results of labs and
X-rays, in order for the agency to assess her reasonable accommodation
request. We note that where the employee's disability or the need for
the accommodation was not known or obvious at the time of her request, it
is consistent with business necessity for an employer to ask an employee
for reasonable documentation about her disability and its functional
limitations that require a reasonable accommodation. See Enforcement
Guidance: Disability-Related Inquiries and Medical Examinations of
Employees Under the Americans with Disabilities Act (ADA), (July 27,
2000) at 20.
Here, we find that S2's memorandum to complainant dated June 3, 2005,
although lengthy and specific, was not overly broad. Initially, we note
that new medical documentation was requested on the basis that it now
appeared that complainant's impairment might be permanent, and the agency
reasonably sought updated information on the condition, as well as what
she would and would not be able to do in her role as CR. S2 indicated in
the letter that complainant should provide lab and X-ray results, etc.,
but only from her "most recent medical evaluation." We find that all of
the information requested would be pertinent to determining which job
duties complainant would be limited in performing and to what extent,
as well as how a reasonable accommodation would enable her to perform
all of the essential functions of her position.
Reprisal
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Rehabilitation
Act case alleging discrimination is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt
v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases). First, complainant must 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256. Management indicated that
they suggested that complainant do such things as carry a cell phone and
watch to her medical appointments, in order to ensure that complainant
would not be late returning to work in the future. Although complainant
was apparently offended by such suggestions, there is no evidence that
management made such statements because complainant engaged in prior
EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
_______12/17/09___________
Date
1 This is a condition which affects the throat and voice.
2 Complainant stated the accommodation she needed was to spend no more
than four hours per day - two hours in the morning and two hours in
the afternoon - conducting duties that required voice usage, such as
interviews. Otherwise, she states she could perform unlimited computer
work and processing paperwork.
3 Complainant merely requested "reduction in use of voice." Report of
Investigation (ROI), Ex. 13.
4 The FAD noted that on April 12, 2006, complainant, who was 29
weeks pregnant, went on medical leave. In addition, as of July 2006,
management had taken no formal action regarding complainant's objections
to the proposed reasonable accommodation.
5 For purposes of this decision, we will assume, arquendo, that
complainant is in fact an individual with a disability.
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0120073214
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073214