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

Equal Employment Opportunity Commission

Mar 30, 2017

0120150304 (E.E.O.C. Mar. 30, 2017)

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

Phoebe O.,1
Complainant,

v.

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

Appeal No. 0120150304

Agency No. NY-13-0437-SSA

DECISION

On October 29, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s September 29, 2014, 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. For
the following reasons, the Commission REVERSES the Agency’s final decision, in part.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Claims
Representative, GS-11, with the Agency’s Rego Park District Office located in Rego Park,
New York. On July 9, 2013, Complainant filed an EEO complaint alleging the following: (1)
the Agency illegally failed to reasonably accommodate her disability (herniated disc and
tendonitis) when on April 12, 2013, her request for reasonable accommodation was denied due
to lack of medical evidence; (2) she was subjected to harassment (non-sexual) on the bases of
disability (herniated disc and tendonitis) and reprisal (prior request for reasonable
accommodation) when in addition to the incident set forth in Claim 1: (a) since November
2011, management has constantly reminded her that she was not performing to the full scope
of her job; and (b) on March 19, 2013, Complainant's management told her that she would be
undergoing Generalist cross-training and would be subject to disciplinary action if she refused
job assignment duties, including working the front window.

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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At the conclusion of 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. 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.

FACTUAL BACKGROUND

Complainant has herniated discs and bilateral tendonitis, resulting from an on-the-job injury in
August 2011. She is unable to lift anything over five pounds, has difficulty walking, bending,
twisting, stooping, and reaching. The pain also affects her focus and concentration. She
asserts that the configuration of the workstation at the screening visitors’ area aggravated her
condition because she had to get up and down on a constant basis to access the printer. In
addition, the width of her desk was a problem because it caused her to reach/stretch
excessively and turn her neck on a constant basis. These repetitive movements were the basis
for her reasonable accommodation request on November 5, 2012.

Management officials were aware of Complainant’s medical condition because her injury
occurred at work, she submitted a workers’ compensation claim, and requested a reasonable
accommodation. Complainant’s first protected EEO activity was her request for an
accommodation in November 2012.

Claim 1 – Reasonable Accommodation Denial

In her request for an accommodation, Complainant requested: (1) a personal printer at her desk
so that she did not have to repeatedly get up and down to retrieve documents; (2) an adjustable
chair; (3) a desk configured so that she could sit facing the computer; and (4) to be exempt
from screening at the reception window because the desk was too wide and caused undue
reaching/stretching.2

On November 5, 2012, the Agency immediately implemented temporary accommodations
while Complainant’s accommodation request was pending. Specifically, the Agency moved
Complainant to screening visitors at Window 8, which is located within a private interviewing
room. Complainant was also provided a printer at her desk that was not previously in use by
the office. With these temporary accommodations, Complainant was able to perform one of
the essential duties of her position by screening visitors at the reception window.
Complainant’s assignments to screen at the window were also limited in frequency. During
this time, she also conducted non-screening interviews at a desk in the Front End Interviewing
(FEI) area. Complainant apparently found these accommodations acceptable.

2 Later in the interactive process, Complainant requested a desk no wider than 14 inches.
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On March 13, 2013, Complainant reported to management that she was suffering from a flare-
up of her medical condition. As a result, the office furniture in the private interviewing room
was rearranged to better suit her needs. Although she initially agreed to try the new
arrangement, she later changed her mind without attempting to screen visitors under this new
arrangement. Complainant stated at that time that she believed it would make her neck and
back worse if she interviewed at the window.

As part of the ongoing interactive process, the Field Office Manager (Complainant’s third-level
supervisor) (S3) met with Complainant on March 27, 2013, and summarized the temporary
accommodations already provided to her. She also asked Complainant what additional
accommodations could be made to assist her in performing the duties of her position.
Complainant then indicated that she would need to have the printer moved to a rear FEI desk
and to limit her time in reception to only one day a week (i.e., Wednesdays, the shortest
reception day). Management agreed to Complainant’s request and, on April 3, 2013, she was
assigned screening duties from her FEI desk, with the printer located behind her. She was able
to screen visitors on that day, and on April 10, 2013, without complaint.

On April 12, 2013, Complainant received a letter notifying her that her November 5, 2012,
accommodation request was denied, in part. The Agency concluded that based upon the
medical documentation provided, Complainant established that she is an individual with a
disability within the meaning of the Rehabilitation Act. However, the denial was based on the
failure to provide medical justification for various accommodations requested. For example,
the Agency explained that the medical documentation provided by Complainant failed to
explain the basis for the request to have a desk no wider than 14 inches. In addition, the
Agency found that the request for a printer at Complainant’s desk to avoid constant up and
down movement was not an effective accommodation based upon Complainant’s physician’s
restriction of no sitting for more than 20 minutes and recommendation of frequent changes in
position, rather than staying in one position for an extended period of time. The Agency found
it reasonable to provide Complainant with adjustments to her workspace so that she could
perform her duties in an ergonomically correct position. The Agency also permitted
Complainant to continue to use the printer at her desk.

Although Complainant’s reasonable accommodation request was partially denied, Complainant
was permitted to keep the personal printer and to continue the screening functions from her
preferred desk. Complainant had been fulfilling her screening duties since March 2013 and
submitted a second reasonable accommodation request in June 2013 with new medical
documentation. In Complainant’s new medical documentation, her physician indicated that
Complainant’s decrease in the range of motion of both shoulders was specifically measured.
Her physician further noted that Complainant’s neck and right shoulder pain had “worsened
due to her repetitious reaching overhead to get or give paperwork at the window station.” He
recommended that her desk not be “more than 20 inches wide” to reduce the shoulder and
neck strain “when she reaches over her desk.” On December 4, 2013, the Agency informed
Complainant that since her current accommodations appeared to be effective and reasonable,
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her request for a shorter desk would be evaluated once plans were made for renovating their
office sometime in 2014.

Claim 2(a) - Since November 2011, reminding Complainant that she was not performing the
full scope of her job

Complainant took leave without pay (LWOP) from August 30, 2011, through October 17,
2011, and again from March 16, 2012, through November 5, 2012. Complainant stated that in
November 2011, her former supervisor (SO) informed her that if she did not work at the
reception desk upon request, she would be reprimanded. Complainant further asserted that S3
constantly reminded her that she was not performing the full scope of her duties because she
could not work at the reception window. In addition, Complainant asserted that she performed
all of the functions of a Claims Representative, as identified in her position description, and
asserted Service Representatives were responsible for working at the reception window.
However, since Service Representatives were removed from the field office, the Claims
Representatives had been performing the window reception duties as needed.

S3 stated that Complainant's job duties as a Claims Representative included performing
screening at the reception window. She further stated that Complainant was added to the
schedule for the reception window two weeks after returning from leave. Complainant was to
work at the reception window for one day, on October 26, 2011. However, Complainant was
excused from that assignment because she told S3 that the assignment would aggravate her
medical condition. S3 denied threatening Complainant with disciplinary action, but asserted
that SO did advise Complainant that refusing to work the reception area could lead to
disciplinary action. She added Complainant was on leave from March 2012 through
November 2012, and when Complainant returned, in November 2012, she received a private
room, with a printer, in the front reception area and resumed the reception duties.

Claim 2(b) - March 19, 2013 Generalist Cross-Training

Complainant stated that on March 19, 2013, SO and her first-level supervisor, the Operations
Supervisor (S1), informed her that she was required to participate in Generalist cross-training
and that she would be subject to disciplinary action if she refused the training and refused to
work at the reception window. Complainant maintained that working at the reception window
was not a function of her position and added that Generalist training covered both Title 2 and
Title 16 functions so that Claims Representatives could perform both duties rather than just
one. Complainant acknowledged that she had yet to take the Generalist training, but noted that
she was still assigned window reception duties once a week.

S3 stated that Claims Representatives were training to process Title 2 and Title 16 claims.
However, some representatives were trained in only one of those functions. She explained that
the cross-training program was designed to train employees in the program for which they did
not originally receive training so that they could assist with more varied interviews in each title
program. She reported that Complainant had been scheduled for the cross-training program on
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two occasions, but refused to participate for reasons unrelated to her medical condition. She
further reported that SO subsequently advised Complainant that she would be considered
insubordinate if she continued to refuse mandatory training. S3 confirmed that in March 2013,
S1 and Complainant’s second-line supervisor informed Complainant that she would have to
attend customized Title 16 cross-over training so she could take full disability applications.

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”).

Accommodation Claim

In order to establish that Complainant was unlawfully denied a reasonable accommodation,
Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified
individual with a disability; and (3) the Agency failed to provide a reasonable accommodation.
See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). 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(c) and (p). “The term “qualified,” with respect to an
individual with a disability, means that the individual satisfies the requisite skill, experience,
education and other job-related requirements of the employment position such individual holds
or desires and, with or without reasonable accommodation, can perform the essential functions
of such position.” 29 C.F.R. § 1630.2(m). While an employer is not required to create a job
for a disabled employee, a reasonable accommodation may include reassignment to a vacant
position or modification of policies. 29 C.F.R. § 1630.2(o)(2)(ii); accord, Brooks v. U.S.
Postal Serv., EEOC Request No. 05990023 (Feb. 21, 2002).

The Agency does not dispute that Complainant is a qualified individual with a disability but
argues that it has met its responsibility to provide her with effective and reasonable
accommodations. We agree with the Agency’s conclusion that Complainant was provided with
effective accommodations with respect to all of her requests except for one: a narrower desk.
We agree with the Agency that Complainant failed to provide sufficient medical documentation
in support of this accommodation in her first request dated November 5, 2012. However, in
June 2013 Complainant provided updated medical information which clearly supports her
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request for a desk no wider than 20 inches. According to an August 27, 2013, letter from the
Agency’s medical officer to the Agency’s Reasonable Accommodation Coordinator:

[Complainant’s physician’s] evaluation thoroughly documents [Complainant’s]
musculoskeletal function. The decrease in the range of motion of both shoulders
was specifically measured. He notes that her neck and right shoulder pain have
"worsened due to her repetitious reaching overhead to get or give paperwork at
the window station." He recommends that her desk should not be "more than
20 inches wide" to reduce the shoulder and neck strain "when she reaches over
her desk." Based on the physician's report, I find that the request to reduce the
desk width to 20 inches may be effective if it does not create work problems for
other workers and is not an undue hardship.

On December 4, 2013, the Agency informed Complainant that since her current
accommodations appeared to be effective and reasonable, her request for a narrower desk
would be evaluated once plans were made for renovating their office sometime in 2014. We
find this response to be insufficient. The record shows that according to Complainant and her
physician, Complainant’s then-current accommodations were not effective. In addition, the
Agency provides no explanation as to why it could not immediately provide Complainant with
a desk less than 20 inches wide. Consequently, we find that the requested accommodation did
not constitute an undue burden on the Agency’s operations. Accordingly, we find that the
Agency failed to meet its obligation under the Rehabilitation Act to provide Complainant with
a reasonable accommodation.
Harassment Claim
In order to establish a claim of hostile environment harassment, Complainant must show that:
(1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form
of unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on her 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 environment, 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).
We find insufficient evidence in the record to establish that the Agency’s actions noted in
Claim 2 were motivated by Complainant’s protected status. We also conclude that such
Agency actions failed to affect a term or condition of Complainant’s employment or had the
purpose or effect of unreasonably interfering with her work environment. Accordingly, we
affirm the Agency’s decision which concludes that Complainant failed to prove her harassment
claim as alleged.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we REVERSE the Agency’s decision with regard to Claim 1 and
REMAND Claim 1 for further action, and AFFIRM the Agency’s decision with respect to
Claim 2.

ORDER

The Agency is ORDERED to take the following remedial action within 90 calendar days of the
date this decision is issued, unless otherwise stated3:

1. The Agency shall provide Complainant a desk no wider than 20 inches.

2. The Agency shall restore any leave used by Complainant due to the
Agency's failure to provide her with a reasonable accommodation as of
August 27, 2013.

3. Within fifteen (15) calendar days of the date this decision is issued, the
Agency shall give Complainant a notice of her right to submit objective
evidence (pursuant to the guidance given in Carle v. Dep't of the Navy,
EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of her claim for
compensatory damages within forty-five (45) calendar days of the date
Complainant receives the Agency's notice. The Agency shall complete
the investigation on the claim for compensatory damages within forty-
five (45) calendar days of the date the Agency receives Complainant's
claim for compensatory damages. Thereafter, the Agency shall process
the claim in accordance with 29 C.F.R § 1614.110.

4. The Agency shall provide training to the responsible management
officials identified regarding their responsibilities with respect to

3 We note that an agency that has failed to provide reasonable accommodation may avoid
liability for compensatory damages if it can demonstrate that it acted in good faith. As
explained in Guilbeaux v. U.S. Postal Serv., EEOC Appeal No. 0720050094 (Aug. 6, 2008),
“a good faith effort can be demonstrated by proof that the agency, in consultation with the
disabled individual, attempted to identify and make a reasonable accommodation [citation
omitted].” However, the evidence shows that after numerous months of reviewing
Complainant’s supplemented accommodation request, the Agency’s response was vague and
non-committal. The Agency has not presented evidence herein that it attempted to identify and
provide Complainant with a reasonable accommodation. The Agency clearly understood what
accommodation was necessary (i.e., a desk under 20 inches wide) and inexplicably failed to
provide it. Accordingly, compensatory damages are appropriately awarded.

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eliminating discrimination in the federal workplace. The training must
emphasize the Agency's obligations under Section 501 of the
Rehabilitation Act and in particular, its duties regarding reasonable
accommodation.

5. The Agency shall consider taking appropriate disciplinary action against
the responsible management officials. The Commission does not consider
training to be disciplinary action. The Agency shall report its decision to
the Compliance Officer. If the Agency decides to take disciplinary
action, it shall identify the action taken. If the Agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision not to
impose discipline. If any of the responsible management officials have
left the Agency's employ, the Agency shall furnish documentation of
their departure date(s).

POSTING ORDER (G1016)

The Agency is ordered to post at its Rego Park, New York District Office copies of the
attached notice. Copies of the notice, after being signed by the Agency's duly authorized
representative, shall be posted both in hard copy and electronic format by the Agency within
30 calendar days of the date this decision was issued, and shall remain posted for 60
consecutive days, in conspicuous places, including all places where notices to employees are
customarily posted. The Agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph entitled
“Implementation of the Commission's Decision,” within 10 calendar days of the expiration of
the posting period.

ATTORNEY'S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be
paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not
to the Equal Employment Opportunity Commission, Office of Federal Operations -- within
thirty (30) calendar days of the date this decision was issued. The Agency shall then process
the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
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20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:
1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 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. The requests 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 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
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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 (T0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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

March 30, 2017
Date