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

Equal Employment Opportunity Commission

May 9, 2019

0120180175 (E.E.O.C. May. 9, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Marina A.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120180175

Agency No. PHI-16-0939-SSA

DECISION

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 September 6, 2017, 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.

ISSUE PRESENTED

The issue presented is whether the Agency properly found that Complainant did not prove she was
subjected to unlawful discrimination and denied a reasonable accommodation for her disability.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Customer Service
Representative at the Agency’s Scranton, Pennsylvania Field Office. Complainant was hired into
this position on September 21, 2014, with a two-year probationary period. Customer Service
Representatives mainly provide direct service to the public, including processing of Social Security
cards and replacing missing checks.

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.
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On July 21, 2016, Complainant’s second-level supervisor (S2) issued her a leave counseling
memorandum that indicated that Complainant had made 31 requests for leave and credit hours
since February 3, 2015, which was “clearly excessive.” The memo warned Complainant that
attendance problems could result in the determination that she is unsuitable for continued
employment with the Agency. On January 12 and 15, 2016, the Agency issued Complainant
Absent without Leave (AWOL) memos regarding Complainant’s request for leave for January 6,
2016. The memos reported that Complainant requested emergency annual leave but did not
provide requested supporting documentation.

On January 20, 2016, the Agency issued Complainant a memo that notified her that it was charging
her AWOL for eight hours because she did not provide requested documentation for her absence
on January 9, 2016. On March 31, 2016, the Agency issued Complainant notice that she was
charged AWOL for March 16, 17, and 18, 2016 because she did not provide requested medical
documentation to support her absence on those dates. On August 12, 2016, Complainant was
issued notice of proposed termination for inability to maintain regular attendance. On September
13, 2016, Complainant was issued notice of her termination effective immediately.

On December 10, 2016, Complainant filed an EEO complaint in which she alleged that the Agency
discriminated against her on the bases of sex (female) and disability when in September 2016, the
Agency removed her from employment during her probationary period.

In an investigative statement, Complainant stated that she has experienced “Depression and
Anxiety Disorder” for “some time.” Complainant further stated that her anxiety interferes with
daily activities and causes her to fixate on things around her. She also stated that she experienced
many panic attacks while working with the Agency that were related to and following meetings
with management.

Complainant further stated that management officials were aware of her disability because she
spoke to them about it. She also stated that on July 16, 2015, she requested the reasonable
accommodation of having monthly meetings with her supervisor (S1) to receive feedback and to
ask questions, and to have written instructions when needed. Complainant stated that she then had
a meeting with S1 and her union representative. Complainant stated that the next day, S1 informed
her that her accommodation requests had been approved, and later said that her request to have
monthly meetings with her was being met through the Electronic Proficiency Application Database
(ePAD), which is an internet system that tracks new hires’ proficiency. Complainant stated that
ePAD meetings involve discussing work progress with her supervisor and mentor, but she did not
think her mentor had a right to know about her disabilities.

Complainant further stated that she received notice of her proposed termination on August 12,
2016 and was given 30 days to respond. She stated that she responded via email within 30 days,
but on September 13, 2016, S2 gave her a letter of termination effective that day.

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Complainant stated that she agreed that she used a lot of leave and that her attendance was “not
good,” but she was making an effort to correct the issue, but “unfortunately some things were out
of my hands.” Complainant stated that she was terminated a week before the end of her
probationary period, and she used leave for pressing issues within her personal life, such as when
her son could not go to daycare and she had to stay home with him. Additionally, Complainant
stated that she was told numerous times that her work was “great” from management. She also
stated that a young woman who was hired at the same time Complainant was hired resigned her
position because of issues similar to ones Complainant experienced.

After 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 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 her to
discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant does not present any arguments on appeal, and the Agency requests we affirm its
final decision.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

Disparate Treatment

Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For a complainant to prevail, she 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
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Once a complainant has established a prima facie case, the burden of production then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden
reverts to the complainant to demonstrate by a preponderance of the evidence that the agency’s
reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the
burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. 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); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

In this case, for purposes of analysis, we assume arguendo that Complainant is a qualified
individual with a disability and established a prima facie case of discrimination. Nevertheless, we
find that the Agency provided legitimate, nondiscriminatory reasons for its actions. Specifically,
S2 stated that Complainant was terminated because she failed to maintain regular attendance,
although S1 had many discussions with her that provided her with opportunities to improve
attendance. S2 also stated that he met with Complainant about the matter on May 4, 2016.
However, S2 stated that after he issued Complainant the proposed termination notice, Complainant
took an additional three hours of sick leave and 19.25 hours leave without pay (LWOP).

In an attempt to prove pretext, Complainant maintains that she used leave for pressing issues within
her personal life, such as when her son could not go to daycare and she had to stay home with him.
However, at the time Complainant’s termination was proposed, she had amassed over 100
instances of unscheduled leave from October 14, 2014 through August 4, 2016. We find it
reasonable for the Agency to conclude that this amount of unscheduled leave was excessive,
particularly for a probationary employee. Further, it is undisputed that there were instances
wherein Complainant failed to provide documentation to substantiate her requests for sick leave.
Moreover, Complainant acknowledged that her attendance was “not good.”

Complainant maintains that management told her that her work performance was good, and there
were no problems with her work. However, Complainant’s work performance is not at issue in
this case; her attendance is the issue.

We find that Complainant has not shown that the Agency’s nondiscriminatory explanation for its
actions is pretext for unlawful discrimination. In so finding, we note that we have long held that
where the complainant is a probationary employee, she is subject to termination at the discretion
of an agency so long as these decisions are not based on a discriminatory consideration. Cleveland
v. U.S. Dep’t. of Agriculture, EEOC Appeal No. 0120073335 (Oct.12, 2007); Tortorelli v. Dep’t
of the Air Force, EEOC Request No. 05920285 (May 7, 1992). Therefore, we find that the Agency
properly found that Complainant was not subjected to disparate treatment because of her sex or
disability.

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Reasonable Accommodation

To the extent Complainant contends she was denied a reasonable accommodation for her
disability, we note that under the Commission’s regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of an otherwise qualified
individual with a disability unless the agency can show that accommodation would cause an undue
hardship. 29 C.F.R. §1630.9.

In this case, Complainant requested that the Agency provide her with reasonable accommodation
by allowing her to meet with S1 monthly, and by issuing her written instructions when needed.
The record reveals that management immediately met with Complainant after she made her
request. The record further reveals that the Agency approved Complainant’s request the day after
she informed management of her need for a reasonable accommodation.

Complainant contends that the Agency’s attempt to accommodate her by having monthly meetings
with her supervisor via ePAD was insufficient because such a meeting would involve her mentor,
with whom she did not want to discuss her disability. However, these meetings would not have
necessarily required Complainant to discuss her disability with the mentor, and if her disability
became an issue relevant to her work, she could have directly discussed her disability with the
supervisor without involving the mentor in the discussion. In fact, Complainant reported that her
disability or reasonable accommodations were never discussed during ePAD meetings.

Further, S1 stated that Complainant approved the Agency’s offer to accommodate her by having
monthly meetings through ePAD. Complainant maintains that she never approved the ePAD
meetings, but in an email from S1 to S2, S1 reported that Complainant agreed that monthly
meetings and written instructions through ePAD would satisfy her reasonable accommodation
request. At any rate, we find that monthly ePAD meetings satisfied Complainant’s
accommodation request.

Finally, Complainant has not specified an instance wherein she needed written instructions because
of her disability, but the Agency failed to provide them to her. Thus, we find that the Agency
properly found that Complainant did not prove she was denied a reasonable accommodation for
her disability.

CONCLUSION

Accordingly, based on a thorough review of the record, we AFFIRM the Agency’s finding that
Complainant did not prove she was subjected to unlawful discrimination or denied a reasonable
accommodation for her disability.

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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.

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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

May 9, 2019
Date