0120150410
11-29-2017
Reina D.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Reina D.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120150410
Hearing No. 531-2011-00398X
Agency No. OCO-11-0013-SSA
DECISION
On November 12, 2014, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), 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.2 For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether there are genuine issues of material fact that require a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ); (2) whether the AJ in this case properly found that Complainant did not prove that the Agency discriminated against her on the basis of disability or in reprisal for prior protected EEO activity when it denied her request for reasonable accommodation; and (3) whether the AJ properly found that Complainant did not prove that the Agency discriminated against her in reprisal for prior protected EEO activity when it denied her request for a hardship reassignment on October 6, 2010, and when she did not receive an award on August 19, 2010.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-0105-11 Claims Authorizer in Module 1 of Division 1, Office of Disability Operations (ODO), Office of Central Operations (OCO), Deputy Commissioner for Operations, in Baltimore, Maryland.
On November 16, 2010, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment and discrimination in reprisal for prior protected EEO activity when:3
(1) the Agency denied her request for reasonable accommodation;
(2) the Agency denied her request for hardship reassignment on October 6, 2010; and
(3) she did not receive an award on August 19, 2010.
Complainant subsequently added disability as a basis for allegation (1). She previously filed an informal EEO complaint in May 2006 and formal EEO complaints in December 2004 and November 2008. The 2008 complaint was pending adjudication at the time of the investigation into the instant complaint.
Denial of Reasonable Accommodation
On August 10, 2010, Complainant submitted a "Supervisor Review of Reasonable Accommodation Request" through the Agency's intranet "Wizard" tool. Complainant, who wrote "na" in the "Accommodation(s) Requested" section, stated in the "Justification" section that she was requesting reasonable accommodation because of major depression and anxiety. She noted that she lived in Maryland "with no family support" and that her mother lived in Georgia. Complainant stated, "I believe it would be vital for me to be around family members who could assist me with my mental impairment and insure that I am taking my medication and provide positive support." She also stated that she had anxiety attacks when driving, that it would help to be close to family members who could ensure that she arrived at work safely, that she had been distracted and unable to focus because family members told her that they could not care for her mother, and that being unable to assist her mother had "triggered [her] depression." Complainant noted that she had unsuccessfully applied for positions in Georgia and Alabama and asked for assistance. She listed several vacancy announcements for positions in Georgia and Alabama.
Complainant submitted doctor's notes to her supervisor, who was the Module 1 Manager in Division 1 until August 2010 (S1). In a January 6, 2010, note, Complainant's physician (D1) stated that Complainant had "multiple medical problems that are exacerbated due to stress on her job" and that Complainant should avoid duties involving public contact. In a June 29, 2010, note, D1 stated that Complainant had hypertension, anxiety disorder, palpitations, and bilateral wrist carpal tunnel syndrome and that on-the-job stress exacerbated her "multiple medical problems." D1 noted that Complainant was "under counseling care" and was taking medications. D1 stated in a second June 29, 2010, note that Complainant recently learned that her mother had heart disease and wanted a reassignment so she could live with and take care of her mother. In a July 21, 2010, note, D1 stated that Complainant had hypertension, hypercholesterol, and borderline diabetes; that the worsening of her mother's condition had exacerbated Complainant's conditions; and that Complainant "needs to be working closer to where her mother is as she can be of great assistance during her medical problems." Complainant also submitted a January 21, 2009, medical note and a May 28, 2010, and doctor's certificate concerning her back pain.
S1 sent an August 10, 2010, e-mail to the Deputy Division Director stating that she did not recommend approval of Complainant's reasonable-accommodation request "because no accommodation was requested, just a justification." According to S1, the Deputy Division Director suggested that she ask Complainant to re-submit the request and identify the accommodation that she wanted. Complainant sent S1 an August 12, 2010, e-mail stating that she was requesting "reassignment to Georgia." S1 forwarded the e-mail to the Civil Rights and Equal Opportunity Manager (CREO Manager), who asked an EEO Specialist (CREO-1) to handle the request. On August 17, 2010, CREO-1 asked the Agency's "DCHR Medical Consultation" to provide a medical opinion on Complainant's request. Complainant asked the CREO Manager about the status of her request on August 30, 2010, and the CREO Manager referred Complainant to her first-level supervisor. The CREO Manager stated that the Agency hoped to complete reasonable-accommodation requests within 30 days but that doing so was not possible in many cases. By memorandum dated August 30, 2010, CREO-1 asked the Medical Director to review Complainant's medical documentation and provide an opinion on whether Complainant was a qualified individual with a disability.
In an October 18, 2010, memorandum to CREO-1, the Medical Officer stated that Complainant had a disability. He further stated,
Before considering transfer to Georgia as a reasonable accommodation, it would be important to consider other actions that would permit [Complainant] to care for her mother while remaining in her current position. Some options for caring for a family member include requesting leave under the [Family and Medical Leave Act (FMLA)] . . . or taking annual leave."
In my opinion, accommodations that may be effective for [Complainant] include providing time off for treatment.
The Medical Officer noted that, if Complainant's request was a request for a hardship transfer, then the Memorandum of Understanding (MOU) between the Agency and union applied. Since he had no documentation from the physician who was treating Complainant's mother, the Medical Officer concluded that he did not have sufficient information to consider Complainant's request pursuant to the hardship transfer MOU.
By letter dated December 1, 2010, S1 denied Complainant's request for reasonable accommodation. S1 stated that, although the Agency determined that Complainant had a disability, there was "insufficient documentation to determine that a reassignment to Georgia would be an effective accommodation." She suggested that Complainant consider requesting FMLA leave or annual leave. In addition, S1 stated, "If you wish to submit additional medical documentation, the Agency will review it to gain a better understanding of your diagnosis, prognosis, treatment plan, response to treatment, and the duration and severity of your condition." She informed Complainant, "If you have not provided additional medical documentation by December 16, 2010, we will assume that you are not interested in pursuing your reasonable accommodation request." S1 subsequently granted Complainant's request for an extension of time.
Complainant sustained an on-the-job injury on December 22, 2010, and was off work until February 3, 2011. Complainant provided the Agency with medical documentation related to her injury and request for advanced sick leave during the time that she was off work, but she did not submit documentation concerning her request for the reasonable accommodation of reassignment to a position in Georgia or Alabama.
In a May 16, 2011, e-mail to the Medical Director, Complainant noted that she had requested reasonable accommodation and had been asked to provide additional medical documentation. She stated that she was uncomfortable giving medical documentation to managers and asked whether she could send the documentation to his office. In a June 15, 2011, e-mail to someone in Human Resources, Complainant asked how long the medical office had to respond to a request for reasonable accommodation. She stated that the Medical Director had requested additional medical information and that she had "submitted current information." Complainant sent a July 21, 2011, e-mail to the CREO Manager asking about the status of her reasonable-accommodation request. The CREO Manager replied on July 22 that no one in CREO had received any additional medical information after the December 2010 request and that the office therefore "could not move forward."
In her affidavit, Complainant stated that she requested reasonable accommodation because she needed family support and help. She also stated that she could not take annual or FMLA leave in lieu of transferring to Georgia because she had a low leave balance.
S1, who supervised Complainant from December 2009 to August 2010, stated in her affidavit that she was not aware of Complainant's prior EEO activity. She did not receive any additional documentation from Complainant after the December 1, 2010, letter denying Complainant's request for reasonable accommodation.
Denial of Hardship Reassignment
During the time that Complainant was requesting a reasonable accommodation, she also was seeking a hardship reassignment to Atlanta, Georgia. She submitted forms dated June 12 and August 6, 2010, to S1. S1 reviewed the forms and told Complainant to revise them and return them to her. On August 18, 2010, Complainant submitted her hardship-reassignment form to the Deputy Division Director (S2). In a cover letter addressed to the Hardship Coordinator, Complainant stated that she was requesting the reassignment because of her "mother's advancing age" and to help herself as well as her mother. She noted that she experienced panic attacks and had depression and stated that her doctor believed that a reassignment would be useful for both her and her mother. Complainant submitted an undated doctor's note stating that Complainant's mother had been admitted to the hospital on November 28, 2008, and would remain in the hospital "indefinitely"; the January 6, June 29, and July 21, 2010, notes from D1; and the January 21, 2009, and May 28, 2010, medical note and doctor's certificates concerning her back pain.
By e-mail dated September 3, 2010, the Hardship Coordinator (HC) notified Complainant that the Center had received her request for a hardship reassignment. HC sent Complainant a September 21, 2010, e-mail noting that the medical documentation concerning her mother was from November 2008 and asking if Complainant wanted to submit additional documentation. Complainant replied that she did not have any other document because her mother had not seen a doctor and that this was a concern. Complainant sent HC an October 4, 2010, e-mail asking about the status of her request, and HC replied that she was reviewing the request.
By e-mail dated October 6, 2010, HC denied Complainant's request "because it does not meet the criteria required for hardship reassignment." HC listed the criteria and stated that the documentation that Complainant provided did "not substantiate or support a conclusion that the criteria" had been met. HC noted that Complainant could apply for jobs through the regular process.
Complainant subsequently submitted medical documentation concerning her daughter to HC. In a May 19, 2009, note, her daughter's doctor stated that living in a drier climate with more stable temperatures would allow for better control of her daughter's severe chronic asthma. A school nurse stated in a September 17, 2009, note that her daughter had visited the health room 97 times in three years because of asthma.
On November 29, 2010, in response to Complainant's e-mail asking if she had received the documentation, HC stated that the documentation did not support Complainant's hardship request. She noted that the request was based on the health of Complainant's mother, not Complainant's daughter.
Complainant submitted additional medical documentation to HC on May 23, 2011. In January 18, 2011, Progress Notes, a Licensed Clinical Social Worker (LCSW) stated that Complainant "describe[d] experiencing symptoms consistent with depression," had "repeatedly made efforts over recent years to get a transfer to Georgia so as to be closer to family support," and believed that her and her daughter's lives would "be much more manageable with family support." LCSW noted that the "daughter's medical providers have reportedly told [Complainant] that her asthma symptoms would be more stabilized if she lived in an area with less variable climates." In the "Plan" section of the document, LCSW stated that Complainant would "continue outpatient psychotherapy to work on strengthening coping skills." Complainant also submitted the September 17, 2009, school nurse's note as well as April 15 and 16, 2011, notes from her daughter's doctor stating that her daughter had asthma and could self-administer medication. The doctor asked for "concurrent home teaching" for Complainant's daughter. In addition, Complainant submitted an April 25, 2011, credit counseling report.
By e-mail dated June 17, 2011, HC again denied Complainant's hardship request "because it does not meet the criteria required for hardship reassignment." HC noted that the progress report mentioned a plan to work on coping skills but did not say that Complainant needed a permanent change of station. In addition, HC stated that financial situations do not constitute hardships and that the medical documentation for Complainant's daughter did not meet the criteria for a hardship reassignment.
Complainant submitted additional medical documentation around June 21, 2011. In a June 16, 2011, letter, a Licensed Clinical Professional Counselor (LCPC) stated that Complainant had bi-polar disorder and "has potential to improve if relocated closer to her family because with family she would have support needed to help her receive proper treatment." LCPC noted that Complainant would have a support system if she were closer to her family and that her family could help her financially and also could help her to care for her daughter. LCPC stated that, "[w]ith having family support for support and encouragement, [Complainant] feels she would be better able to manage and be proactive in managing her symptoms of bipolar." Complainant also submitted an undated letter describing her financial hardships and a document regarding a state energy-assistance program.
The "Hardship Reassignment MOU" defines "hardship" as "a set of circumstances that (1) require a permanent change of station; (2) are beyond the employee's control; and (3) are so severe that they jeopardize the employee's or his/her family's health or financial security." According to the Agency's "Guidelines for Approving Hardship Reassignment Requests," requests related to eldercare, family health, and employee health are "likely to involve documentation" and "situational but generally approved." Requests related to emotional support, family issues, and wanting to be closer to family are "generally denied."
The Report of Investigation contains e-mails providing "[c]omparative data showing all requests for hardship reassignments submitted to [HC] for the period from October 2008 through October 2010 where the initial supporting medical documentation that was submitted with the request was deemed to be insufficient or did not meet the criteria for a hardship transfer." One employee received a transfer because of a recent marriage, and another employee received a transfer after submitting updated medical documentation. The Agency denied four employees' requests, and one employee retired. An employee whose request was denied submitted a doctor's note that gave the diagnosis of the employee's relative and stated that allowing the employee to relocate "would be of significant medical benefit" to the relative. None of the employees had engaged in prior EEO activity.
In her affidavit, Complainant asserted that the Agency granted other employees' requests for hardship reassignments. She claimed that an employee whose husband lived in Georgia received a reassignment to a field office in Georgia in 2008, that another employee whose husband lived in North Carolina received a reassignment to North Carolina in October 2008 and returned to Maryland six months later, that a Module Manager received a reassignment to Texas and then returned to her former position because her mother was ill, and that a manager received a reassignment to Kansas City.
HC stated in her affidavit that she became aware of Complainant's prior EEO activity "in September 2010 from reviewing Complainant's hardship request file." She said that she denied Complainant's request for a hardship reassignment in October 2010 because the medical documentation regarding Complainant's mother was outdated and the medical documentation regarding Complainant did not concern the conditions that Complainant mentioned in the request. According to HC, the documentation that Complainant submitted referred to carpal tunnel syndrome, lumbar strain and spasms, anxiety, and hypertension. It stated that Complainant should avoid duties involving public contact, but it did not state that Complainant's health required her to relocate. HC noted that the January 2011 Progress Notes document was not from a doctor. As of the time of her affidavit, HC had not made a decision based on the documentation that Complainant submitted on June 21, 2011.
HC further stated that she "always" asks for current documentation when a requester provides outdated documentation. In addition, she stated that she was not involved with the reassignment requests of the four employees whom Complainant mentioned.
Award
S1 assigned Complainant to work on a special project in March 2010. Complainant stated in her affidavit that she gave S1 medical documentation indicating that she was too stressed to do the work. Approximately two weeks later, in early July, S1 assigned the work to Complainant's coworker (CW1). During a Module 1 meeting on August 19, 2010, S1 gave CW1 an Exemplary Contribution Service Award (ECSA). According to the ROI, CW was the only Module 1 Claims Authorizer who received an ECSA award in 2010. Three employees received awards in 2009. Neither CW1 nor the other employees had engaged in prior EEO activity.
S1 gave Complainant a "3" rating in four elements, a "3" average rating, and an overall rating of "Successful Contribution" in Complainant's 2010 performance evaluation. She gave CW1 a "5" in two elements, a "3" in two elements, a "4" average rating, and an overall rating of "Successful Contribution" in CW1's 2010 performance evaluation.
In her affidavit, Complainant stated that S1 assigned her extra, special-project duties in March 2010. She asserted that, from March until early July 2010, she was the only employee in her module who was working on special projects. Complainant argued that she should have received the award because she performed the duties for five months but CW1 performed them for only one month.
S1 stated in her affidavit that Claims Authorizers work on special projects on a rotational basis and that the projects are not extra work. According to S1, Claims Authorizers do not perform their regular duties when they are working on special projects. She stated that all of the nine Claims Authorizers in Module 1 worked on special projects, that she ranked the employees based on performance, and that the receipt of an award "requires outstanding performance." S1 also stated that Benefits Authorizers had complained about Complainant's work on the special project and that Complainant's work did not merit an award. S1 recommended CW1 for an award because CW1 had worked on several projects "in an outstanding manner."
AJ Decision
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 AJ. Complainant timely requested a hearing. On March 12, 2012, the Agency filed a Motion for a Decision without a Hearing. According to the AJ's decision, Complainant filed an Opposition to the Agency's Motion on March 27, 2012, and an untimely Prehearing Statement on April 4, 2012. The AJ, who stated that neither Complainant's Opposition nor Complainant's Prehearing Statement disputed any of the facts set forth in the Agency's Motion, issued a Decision without a Hearing in favor of the Agency on January October 15, 2014.
In her decision, the AJ found that Complainant did not establish that the Agency discriminated against her on the basis of disability or reprisal. The AJ noted that the Agency did not dispute that Complainant is an individual with a disability.
With respect to Complainant's request for reasonable accommodation, the AJ concluded that the medical documentation that Complainant submitted with her request did not establish that Complainant needed to transfer to Atlanta, Georgia, as a reasonable accommodation. She noted that D1's June 29 and July 21, 2010, notes stated that Complainant wanted to move to Atlanta to care for her mother but did not state that Complainant needed a transfer because of her own medical condition. She also noted that neither party addressed whether the Agency should have treated LCPC's June 16, 2011, letter, as a request for reasonable accommodation. Assuming that the letter constituted such a request, the AJ found that there was no violation because "[a] reassignment is only warranted if Complainant is unable to perform her job and there was no evidence that Complainant was not satisfactorily performing her job in Baltimore or was unable to do" so. The AJ concluded that the Agency properly denied Complainant's request for a reassignment to Atlanta because "Complainant did not submit any medical documentation to show that her medical conditions required her to work in Atlanta and that she could not perform her job in Baltimore." Although the amount of time that the Agency took to respond to Complainant's request for reasonable accommodation "was somewhat excessive," the delay did not constitute a violation of the Rehabilitation Act because the Agency properly denied Complainant's request.
With respect to Complainant's requests for a hardship reassignment, the AJ found Complainant established a prima facie case of reprisal. She further found that the Agency articulated legitimate, nondiscriminatory reasons for denying the requests and that Complainant did not rebut the Agency's reasons. The AJ determined that HC denied the requests because they did not meet the criteria listed in the MOU. She stated that the MOU did not cover requests related to financial problems or being closer to family. In addition, the AJ noted that Complainant did not provide sufficient documentation to support the requests. HC denied the request concerning Complainant's mother because the medical documentation was two years old and denied the request concerning Complainant's daughter because the medical documentation "did not specifically recommend that she relocate to Georgia." Complainant's own medical documentation similarly did not say that her conditions required her to relocate. Although Complainant asserted that the Agency transferred other employees from Baltimore to Atlanta, she did not establish that they were similarly situated to Complainant. The AJ noted that Complainant, who was represented by counsel at the pre-hearing stage and had an opportunity to engage in discovery, did not identify the other employees in her pleadings.
Finally, the AJ found that Complainant did not establish a prima facie case of reprisal with respect to the denial of an award because S1 did not know of Complainant's prior EEO activity and there was no nexus between the activity and the adverse action. In addition, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its action and that Complainant did not show that the reason was pretextual. Complainant did not rebut S1's explanation that Complainant did not receive an award because her performance did not merit an award.
The Agency issued a final order fully implementing the AJ's finding that Complainant did not prove that the Agency subjected her to discrimination as alleged. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that her doctors stated that a transfer to Atlanta, where she would be close to family, would help Complainant and that the Agency did not show that granting her request for a reassignment would have resulted in an undue hardship. She maintains that the Agency should have granted her request for a hardship transfer because "family's health" is a basis for transfer and her daughter's medical documentation was sufficient to support her request. She similarly maintains that LCPC's statement that being closer to her family would help her to receive proper treatment supported her request. Complainant asserts that she provided a contact number that HC could call to confirm her mother's medical status but HC never called the number. She reiterates her assertion that the Agency granted other employees' requests for transfers. Finally, Complainant argues that no Benefits Authorizer submitted a report complaining that her work was incorrect and that the Agency produced no documentary evidence to support S1's statement that Claims Authorizers work on special projects on a rotational basis.4
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that both an AJ's decision to issue a decision without a hearing and the decision itself will be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (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
Decision without a Hearing
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact-finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250 n.5. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
The record before us does not contain copies of the AJ's prehearing orders, the exhibits to the Agency's Motion, Complainant's Opposition, and Complainant's Prehearing Statement. It is the Agency's responsibility to submit a complete complaint file, which "must include copies of all documents issued by or served on the Administrative Judge, including, but not limited to, all correspondence to and from the Administrative Judge, orders from the Administrative Judge, and motions and briefs of the parties." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � IV.G. (Aug. 5, 2015).
On appeal, Complainant disagrees with some of the AJ's factual findings, but she does not challenge the AJ's statement that her submissions to the AJ did not dispute any of the facts set forth in the Agency's Motion for a Decision without a Hearing. Because we do not have Complainant's submissions, we have considered Complainant's factual assertions on appeal. Further, because we have been unable to review the exhibits to the Agency's Motion, we give no credit to the facts purportedly demonstrated in the exhibits.5
Nonetheless, having carefully reviewed the evidence of record in this case, we find that the AJ appropriately issued a decision without a hearing. Complainant had notice of the Agency's Motion for Summary Judgment, and she responded to the Motion. For the reasons discussed below, we find that, even assuming all material facts in the light most favorable to Complainant, a reasonable fact-finder could not find in her favor. There being no genuine issue of material fact, a decision without a hearing was appropriate.
Denial of Reasonable Accommodation
Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. � 1630.2(o), (p). To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance on Reasonable Accommodation"). An individual with a disability is "qualified" if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the 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).
A modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of cases," U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002); this means it is "reasonable" if it appears to be "feasible" or "plausible." Id. An accommodation also must be effective in meeting the needs of the individual. Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Similarly, a reasonable accommodation enables an applicant with a disability to have an equal opportunity to participate in the application process and to be considered for a job. Finally, a reasonable accommodation allows an employee with a disability an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy. 29 C.F.R. � 1630.2(o)(1); see also Enforcement Guidance on Reasonable Accommodation, "General Principles."
A request for an adjustment or change at work for a reason related to a medical condition is a request for reasonable accommodation. To request a reasonable accommodation, an individual or his or her representative must let the Agency know that s/he needs an adjustment or change at work because of a medical condition. The individual may use "plain English" and need not use the phrase "reasonable accommodation." Enforcement Guidance on Reasonable Accommodation at Question 1.
When the need for accommodation is not obvious, an agency may require that the individual with a disability provide documentation of the need for accommodation. 29 C.F.R. pt. 1630 app. � 1630.9. The agency may require only the documentation that is needed to establish that the individual has a disability and that the disability necessitates reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 6.
Reassignment to a vacant position is a form of reasonable accommodation. 29 C.F.R. 1630.2(o)(2)(ii). In general, reassignment is the reasonable accommodation of last resort and should be considered only when (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her current position or (2) accommodating the employee in the current position would cause an undue hardship. 29 C.F.R. pt. 1630 app. � 1630.2(n); see also Enforcement Guidance on Reasonable Accommodation, "Reassignment." If both the agency and the employee voluntarily agree that reassignment is preferable to remaining in the current position with some form of accommodation, however, then the agency may transfer the employee. Enforcement Guidance on Reasonable Accommodation, "Reassignment." Further, "transferring an employee for the purposes of treatment or therapy may be a reasonable accommodation under the Rehabilitation Act." Sanchez v. Vilsack, 695 F.3d 1174, 1182 (10th Cir. 2012); see also Jacques v. Clean-Up Grp., Inc., 96 F.3d 506, 515 n.9 (1st Cir. 1996) ("even when qualified employees are able to perform a job's essential functions, employers may not be relieved of their duty to accommodate where accommodations are required to allow equal enjoyment of employment privileges and benefits or to pursue therapy or treatment"); Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993) (it is not per se unreasonable to transfer an employee to a location where he can receive better medical treatment for his disability).
In this case, it is undisputed that Complainant is an individual with a disability, that she met the requisite requirements of her Claims Authorizer position, and that she could perform the position's essential functions with or without reasonable accommodation. Complainant asked the Agency to provide her with a reasonable accommodation on August 10, 2010, when she requested reassignment to a position in Georgia or Alabama.
Because Complainant's need for the reasonable accommodation of reassignment was not obvious, the Agency was entitled to documentation establishing that Complainant had a disability that necessitated reasonable accommodation. The medical documentation that Complainant submitted to S1 in August 2010 did not establish that Complainant needed a reassignment because of her disability. Although unclear, D1's July 21, 2010, statement that Complainant "needs to be working closer to where her mother is as she can be of great assistance during her medical problems" appears to refer to assistance for Complainant's mother rather than for Complainant.
Complainant gave the Agency additional medical documentation in connection with her request for a hardship transfer. That documentation, however, also was inadequate to establish that Complainant's disability warranted reassignment. LCSW's and LCPC's notes state that Complainant believed that her condition would be more manageable if she had family support, but they do not state that Complainant in fact needed a transfer because of her disability. In the absence of medical documentation showing that Complainant's disability necessitated the reasonable accommodation of a reassignment to Georgia or Alabama, we find that the Agency did not violate the Rehabilitation Act when it denied Complainant's request for reassignment.
Disparate Treatment
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. 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). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005).
1. Hardship Transfer
Complainant has established a prima facie case of reprisal. She engaged in protected activity when she filed EEO complaints in 2004, 2006, and 2008; HC was aware of Complainant's prior complaints; the Agency subjected Complainant to adverse treatment when it denied her requests for a hardship transfer; and the adverse treatment occurred when one of the complaints was pending adjudication.
The Agency has articulated legitimate, nondiscriminatory reasons for its actions. The Agency denied Complainant's requests because they did not meet the criteria for a hardship transfer and did not contain adequate documentation. HC denied Complainant's August 18, 2010, request because the medical documentation about her mother was outdated and the documentation about Complainant's medical conditions did not state that her health required her to move to another location. The documentation that Complainant subsequently submitted about her daughter did not support the request, which was based on the health of Complainant's mother. After Complainant submitted additional documentation in May 2011, HC denied the request because it did not say that Complainant required a permanent change of duty station. In addition, the documentation concerning Complainant's daughter did not meet the hardship criteria.
Complainant has not established that the Agency's articulated reasons are a pretext for reprisal. She asserts that she provided a contact number that HC could call for information about her mother's medical status, but she points to no evidence of record to support this assertion. Moreover, Complainant has not shown that she ever submitted current medical information about her mother. Further, Complainant has not shown that the documentation that she submitted about her daughter was sufficient to meet the hardship criteria.
Similarly, Complainant has not shown that she submitted adequate medical documentation to establish that she needed a permanent transfer because of her own health. As noted above, the medical documentation that referred to Complainant's wish to be closer to her family did not specifically state that Complainant's medical condition required a permanent transfer.
Further, the evidence does not establish that the Agency treated similarly situated employees more favorably than it treated Complainant. Complainant argues that the Agency granted hardship transfers to other employees. She has not shown, however, that the Agency transferred employees who, like Complainant, submitted inadequate medical documentation. Instead, the evidence of record indicates that HC asked other employees to submit updated medical documentation to support their requests. We find, therefore, that Complainant has not shown that the Agency denied her request for a hardship transfer in reprisal for her prior EEO activity.
2. Award
We assume for purposes of analysis only, without so finding, that Complainant has established a prima facie case of reprisal. We find that the Agency articulated a legitimate, nondiscriminatory reason for not giving Complainant an award on August 19, 2010. S1 stated that the receipt of an award "requires outstanding performance" and that Complainant's work did not merit an award.
Complainant has not shown that the articulated reason was a pretext for reprisal. Although she asserts that no Benefits Authorizer submitted a report complaining about her work, she has not established that her performance was outstanding or otherwise deserving of an award. In that regard, we note that CW1, who received an award, had a higher average rating on her 2010 performance evaluation than Complainant had. The evidence of record does not establish that the Agency's articulated reason for not giving an award to Complainant was unworthy of credence or that a retaliatory reason more likely motivated that Agency's action. Accordingly, we find that Complainant has not shown that the Agency did not give her an award because of her prior EEO activity.
Viewing the evidence in the light most favorable to Complainant, we find, as did the AJ, that Complainant did not present sufficient evidence to create a genuine issue of fact that the Agency subjected Complainant to reprisal for her prior EEO activity.
Harassment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. 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 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions such as reprimands, threats, negative evaluations, and harassment are actionable. EEOC Compliance Manual Section 8, "Retaliation," EEOC Notice 915.003 � 8.II.D at 8-11-16 (May 20, 1998).
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. As noted above, the evidence does not establish that the incidents alleged by Complainant occurred because of her prior EEO activity. A finding of discriminatory harassment is precluded based on our determination that Complainant did not show that the Agency's actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant has not demonstrated that the Agency subjected her to a hostile work environment based on reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that this complaint presented no genuine issues of material fact, such that summary judgment was appropriate, and that Complainant has not established that the Agency discriminated against her as alleged. Accordingly, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__11/29/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 On November 12, 2014, before the Agency issued its final order, Complainant prematurely filed an appeal contesting the October 16, 2014, decision of the Equal Employment Opportunity Commission Administrative Judge. The Agency subsequently issued its final order on November 25, 2014. Accordingly, the appeal is now ripe for consideration.
3 Complainant also alleged that the Agency harassed and discriminated against her when it issued her a low Performance Assessment and Communication Systems evaluation and treated her differently after she asked to be removed from certain duties because of stress. The Agency dismissed the allegations on the ground that Complainant did bring the matters to the attention of an EEO Counselor in a timely manner. Complainant has not appealed the dismissal of these allegations.
4 In two e-mails to the Commission's Office of Federal Operations, Complainant discussed a settlement offer that the Agency made to her, requested a hearing on a complaint, and alleged that the Agency offered her a position that she could not perform. Although Complainant referenced the appeal and hearing case numbers of the instant case in one of the e-mails, it appears that e-mails pertain to a different matter. We express no opinion on this matter, which is not currently before us.
5 We strongly urge the Agency to ensure that it meets its obligation to submit complete complaint files. Failure to do so may result in sanctions, including an adverse inference that the missing information would have reflected unfavorably on the Agency and a decision in favor of the opposing party. See id. � V.C.
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