0120151444
11-16-2017
Rosita R.,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
Rosita R.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120151444
Agency No. NY-140169-SSA
DECISION
On March 19, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 19, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the AFFIRMS the Agency's final decision which found that Complainant was not subjected to discrimination, harassment or denied a reasonable accommodation.
ISSUE PRESENTED
The issue presented in this case is whether the Agency properly found that Complainant was not subjected to discrimination/reprisal or denied a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Assistant/Senior Case Technician (LASCT), GS-08 at the Agency's Hearing Office, South Jersey Office of Disability Adjudication and Review facility in Pennsauken, New Jersey. Complainant was diagnosed with a herniated disc in her neck and back, which caused pain to radiate down her arms and hands. Complainant's condition was permanent, recurring, and was getting worse as she aged. As a result of her condition, Complainant maintained that she was unable to sit for prolonged periods and could not lift anything heavy. She was also diagnosed with fibromyalgia but did not share this information with the Agency.
Prior to January 2013, Complainant maintained that she successfully performed her LASCT duties. Complainant's duties required a large amount of computer work, preparing and mailing out cases, making and answering telephone calls, and acting as the receptionist once each week. She was also responsible for processing cases which required her to input medical information and preparing the file for the Administrative Judge. In January 2013, the office enacted new production requirements that required LASCTs to go from processing five cases each week to 10-12 cases per week. The increased work load caused Complainant to experience pain as it required an increase in computer work, repetitive motion and increased sitting, both of which were difficult for her. Complainant requested a reduction of her workload throughout 2013, which was approved.
Complainant reported that she was experiencing pain when working, from February 2013 to August 2013. Complainant and her supervisor (S1) had ongoing discussions regarding the possibility of Complainant formally requesting a reasonable accommodation. During this time, S1 provided Complainant with ergonomic chairs, a mouse, a keyboard, and offered her dictation software. The supervisor also temporarily reduced Complainant's processing expectation to 8-10 cases per week and offered her lighter duties as a receptionist or scheduler but a pay reduction would have been involved.
On April 18, 2013, Complainant met with S1, and supervisor 2 (S2), to discuss her work performance. Complainant indicated that she was having difficulty meeting the case-processing requirement because of her upper body pain. S1 tried to accommodate Complainant at the local level by reducing her workload and adding collateral duties, but S1 maintained that Complainant was unable to balance the added tasks with even a reduced caseload of case processing. Therefore, S1 took away the additional duties, assigned Complainant a mentor and assigned cases on a daily basis.
On August 8, 2013, Complainant requested as a reasonable accommodation a permanently reduced caseload. She asked for six cases with no more than 250 pages each week, due to the constant pain she incurred in pulling 8-12 cases weekly. Complainant's request for a reduced workload was sent to the New York Regional Office Labor Employee Relation team. Thereafter, on December 13, 2013, Complainant's request for reasonable accommodation was denied. The Agency's determination decision noted that while Complainant had been allowed to process fewer cases than her expected share as a temporary adjustment while S1 explored possible accommodations, performing less work was not a required reasonable accommodation on a permanent basis. After briefly restating Complainant's medical documentation, the determination decision noted that since Complainant's computer table could be raised or lowered and Complainant was permitted to stand to perform tasks at her desk, she would be allowed to stand up when she needed to while continuing to perform tasks at her desk. The letter noted that Complainant had been provided with an ergonomic chair, and special computer mouse and a keyboard, and that if these approved accommodations were inadequate, Complainant could request new equipment that would more fully alleviate her pain problems. The Agency noted that Complainant was able to process ten (10) cases when overtime pay was offered. In this regard, the letter indicated that Complainant's request for a permanently reduced workload was denied because "[d]uring different periods (e.g. when overtime is offered), [Complainant has] demonstrated that [she is] able to perform or exceed the expectation of cases pulled." Complainant argued that the Agency's actions were discriminatory as a coworker was allowed to process fewer cases.
In February 2013, Complainant was instructed to not use all capital letters in her email correspondence. She was told that it was unprofessional and against Agency policy, as it could be interpreted as yelling by the reader. Complainant explained that she used all capitals because shifting caused pain in her hand. She was told to use lowercase letters and that the program would autocorrect and place the capitals. Complainant was told however, by an unnamed supervisor that S1 was just looking for something to write her up about so that she could lower her performance rating. Complainant maintained that her performance appraisal rating was reduced from a 4.0 to a 3.5.
Further, Complainant indicated that S1 told her that she wanted to meet with her regarding her performance but then changed it to a meeting about her reasonable accommodation request and denied her request for her union representative to attend. Finally, Complainant maintained that S1, made inappropriate comments in front of her.
Thereafter, on April 7, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of race (Caucasian), disability (physical), age (over 40), and reprisal for prior protected EEO activity when:
1a. In February 2013, she was expected to process between 10 and 12 cases each week even though she provided medical documentation that she could not because of her disabilities and pain;
b. In February 2013, her supervisor constantly "highlighted" her use of all capital letters in email correspondence, told her that it was improper conduct, and used it to lower her performance rating:
c. During April, May, and June 2013, she was told numerous times that she had to meet with her supervisor about her work progress and position. The meeting did not occur until July 2013. Moreover, she was denied the right to have a union representative present during the meeting;
d. During July 2013, her supervisor took away the tasks that she had volunteered to perform in the office so she could do her "fair share" of the work, e.g., helping with the Master Docket, electronic mail, fee petitions and training;
e. In August 2013, she was assigned a mentor to "shadow" her for a week regarding her ability to keep up with work requirements, even though her supervisor knew that she could not keep up with her work requirements because of her disabilities;
f During September 2013, she was required to report her daily work accomplishments and explain why she did not process the required number of cases even when she had to take leave due to pain and her supervisor knew why she could not process the cases;
g. On November 22, 2013, she received a 3.5 performance rating for the performance year ending September 30, 2013, which was lower than her previous rating of 4.0;
h. Since December 2013, her reasonable accommodation request for a reduced workload was denied; and
i. On January 2, 2014, her supervisor discussed aspects of her personal life with her that included inappropriate remarks about her family. She also alleges that her supervisor made other inappropriate comments such as "just shoot me" and "I need a drink" on several occasions.
2. Complainant further alleged that the Agency subjected her to discrimination on the basis of race (Caucasian), when on February 26, 2014, and March 6, 2014, her supervisor did not discuss Complainant's allegations of discrimination with the EEO counselor via telephone.2
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 Equal Employment Opportunity Commission 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, harassment or denied her a reasonable accommodation as alleged.
The Agency found that to the extent that Complainant alleged discrimination or disparate treatment, management articulated legitimate, nondiscriminatory reasons for its actions. S1 stated that Complainant's extra duties were removed because she was unable to balance these additional tasks with her reduced case processing requirements. S1 also explained that she assigned the mentor and daily assignments and monitoring to assist Complainant with her efficiency, organization, and work performance. S1 noted that she also assigned a mentor and daily assignments to a different employee, who was also struggling to complete the required number of cases per week. Furthermore, Management noted that Complainant demonstrated significant improvement in her job performance and was able to reach the required number after receiving advice from a mentor and daily monitoring.
With regard to Complainant's claim that she was harassed for using all capital letters in her emails, the Agency maintained that the use of all capital letters violated Agency guidelines. Furthermore, S1 explained to Complainant and generally reminded all LASCTs that typing in all capital letters could be perceived as shouting at the reader in a rude manner. S1 also informed Complainant that the auto-correction feature would correct most cases of missed capitalization.
Additionally, S1 explained that she changed a progress meeting to a reasonable accommodation meeting in July 2013, because the issue of Complainant's performance was connected to her complaints of pain, and S1 felt that the issue could be better handled if reasonable accommodation was discussed first. ROI, Ex. 7A, p. 15-16.
Finally, S1 stated that Complainant's request for a union representative was denied because the purpose of the meeting was to discuss Complainant's reasonable accommodation, and the regulations and collective bargaining agreement provide that such meetings do not require union representation. Complainant's representative was not allowed to attend because the meeting did not involve work performance.
Management also provided support for Complainant's 2013 performance assessment. Management specifically explained that Complainant's rating was based on a comprehensive assessment of her performance, and was reduced for reasons other than the inability to process the expected number of cases weekly, such as unprofessional and unreliable methods of communication, inability to complete work assignments in a timely or effective manner, and difficulty adapting to changes in the workplace.
The Agency maintained that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that she submitted a request for a hearing on October 2, 2014, which was received by the Agency on October 6, 2014. Further, she maintains that the production standards created by the Agency were arbitrary and capricious because processing 10-12 cases was not done by other offices. In fact, she maintains that the processing number has been dropped to 10 cases because the higher end was not attainable. Moreover, Complainant maintains that the fact that she did her job well could not be disputed so the Agency tried other things to get her to retire.
Complainant asserts that the mentor assigned to "shadow" her for a week explained to management that Complainant knew her position and that she performed very well, but that Complainant was in pain. The mentor thought the pain was exacerbated by the mandatory processing of 12 cases per week and was exacerbated because of the constant harassment Complainant endured while under S1's supervision. Complainant maintains that because the mentor defended her, the mentor's performance appraisal was lowered to a 3.5.
Complainant states that despite giving management a letter and note from her doctor about her disabilities, her pain was completely ignored. All she wanted was a reduced workload. She maintains that her pain was exacerbated by being harassed every day about what she had accomplished. Complainant asserts that she became nervous and upset and could not sleep at night because of the pain. She went to see a neurologist who stated that she should go to physical therapy, after reviewing her x-rays and MRI. She also obtained medication to manage her pain, which has helped. Complainant maintains that management is supposed to work with you and help with any difficulties you may encounter. Instead, she was harassed everyday which did not help her in any way. Complainant indicates that since she is no longer under S1's supervision the harassment stopped. She also maintained that filing an EEO complaint also resulted in the harassment stopping.
Complainant also stated that S1 was very unprofessional and talked about her ex-husband and other matters of no interest to Complainant.
In response, the Agency, among other things, maintains that the final decision should be affirmed and Complainant's appeal dismissed. Management argues that it properly dismissed claim number 2 on the grounds that it concerned the alleged dissatisfaction with the administrative processing of a complaint. Furthermore, regardless of the nature of the allegations, management found that Complainant failed to establish that the Agency treated her differently on account of her race, and thereby determined that she had failed to present a prima facie case of discrimination or harassment on the basis of race.
Further, the Agency maintains that it properly dismissed Complainant's claim of reprisal discrimination for failure to state a claim. Management found that Complainant had previously filed a complaint with the Agency's OIG regarding alleged unethical behavior by S1. The Agency notes that this did not involve the EEO process. The Agency argues that filing an OIG complaint that does not involve the discrimination statutes is not protected activity, and thus Complainant did not establish a claim of reprisal discrimination. Furthermore, assuming arguendo that Complainant had established that her complaint to OIG constituted a protected activity, Complainant did not establish a causal connection between the Agency's actions and her protected activity, as S1 stated that she was not aware that Complainant had filed an OIG complaint.
Additionally, with regard to Complainant's claims of harassment, the Agency maintained that assuming management took the actions as described by Complainant, these actions, whether considered singly or in combination, were not sufficiently severe and pervasive to meet the definition of harassment, and were not taken based on any protected class. Furthermore, Complainant did not show that the alleged harassment had the purpose or effect of unreasonably interfering with her work performance.
Management maintains that while Complainant indicated that being assigned a mentor and being asked to report her progress daily upset her, the record established that these measures helped Complainant with her organization and efficiency as she was able to process more cases after these interventions. Furthermore, Complainant did not establish that management subjected her to an intimidating, hostile, or offensive work environment. As the comments allegedly made by her supervisor were not severe or pervasive enough to establish a hostile work environment.
The Agency reiterates that Complainant introduced only conclusory statements that management wanted to terminate her, for example, her assertion that if they did not want to fire her "they would have made things easier for her," and she provided no evidence that her age was considered with regard to her claims.
Finally, with regard to Complainant's allegation that she was denied a reasonable accommodation, the Agency states that processing cases is an essential function of the LASCT position, and that an LASCT generally processes cases approximately 50 to 75% of their duty time. Here, Complainant was not requesting an accommodation in order to help her perform the essential functions of her job, but rather was requesting a reduction in her workload so that she would not have to fully perform the essential functions of her position.
The Agency argues that it is not required to reduce her workload or production standards, but rather was only required to accommodate her so that she could perform the essential functions of her job, specifically, processing cases. According to the Agency, the record establishes that management accommodated Complainant by providing an ergonomic chair, keyboard, and mouse, and offering her a position as a receptionist. Thus, the Agency accommodated Complainant so that she could perform the essential functions of her job. Furthermore, although management temporarily reduced Complainant's caseload for a few months in 2013, the Agency was not obligated to provide the accommodation of Complainant's choice, namely a permanent reduction of her workload.
The Agency also maintained that Complainant's doctor did not provide a detailed explanation as to why Complainant required a reduced caseload. Thus, the Agency argues that it properly accommodated Complainant so that she could process the required number of cases and thereby perform the essential functions of her job. Complainant, according to the Agency, did not establish that the Agency denied her a reasonable accommodation for her disability.
The Agency also denied Complainant's allegation regarding disparate treatment in that management allegedly allowed a coworker to process fewer cases per week because of her medical condition, but denied Complainant's request for a reduced workload. Management explained that Complainant and the coworker were not comparable or similarly situated, as the coworker had a visible and obvious medical condition. Therefore, evidence of the coworker's accommodation did not establish that management gave preferential treatment to another employee over Complainant.
ANALYSIS AND FINDINGS
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").
At the outset, we find that the Agency's dismissal of claim 2 was appropriate.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr v. Hicks, 509 U.S. 502 (1993).
Assuming arguendo that Complainant established a prima facie case of race, age, reprisal and disability discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions with respect to claims 1b, c, d, e, g, and i. Respectively, the Agency explained that it told Complainant not to use all capitals because it was considered rude, her union representative was not allowed to attend the meeting because the meeting was changed from a performance meeting to a reasonable accommodation meeting, outside duties were taken away from Complainant so that she could focus on processing cases, she was assigned a mentor to help her try to process more cases, she received a 3.5 rating instead of a 4.0 based on her work performance, and finally, with regard to inappropriate comments made by S1, S1 indicated that she did not recall discussing this information with Complainant but that even if she did, the discussion did not involve discriminatory animus with regard to Complainant's protected bases. We find that Complainant did not show that the Agency's reasons were pretext for discrimination.
Complainant also alleged that she was treated differently than her co-worker, C1, who was allowed to process fewer cases. We note, however, that like Complainant, C1 was a White and over 40. C1 has rheumatoid arthritis, which was clearly visible. Therefore, when she sought an accommodation of a reduced workload because of the pain and physical issues she was experiencing due to the limited use of her hands, the Agency maintained that her need for accommodation was obvious. The Agency stated that S1 made the accommodation to C1 informally based on her obvious physical disability and her medical documentation. On the other hand, S2 concluded that Complainant's medical documentation of her non-obvious disability had to be more specific and S1 requested Complainant to have her doctor indicate, more specifically, why he recommended that she only process 5 - 6 cases weekly. According to the Agency, while C1 only processes 6 - 8 cases each week, she also assists with the voluminous electronic mail assigning the mail to the responsible LASCT.
Reasonable Accommodation
The Commission's regulations require an agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who 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).
Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. � 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at � 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at � 1630.2(n)(3). An agency is not required to eliminate an essential function of a position as a reasonable accommodation.
The Agency does not dispute that Complainant is an individual with a disability. There is also no question that S1 provided Complainant with reasonable accommodations that included an initial reduction in processing cases, an ergonomic chair, and a special keyboard and mouse. The Agency has established that processing cases is an essential function of Complainant's position. According to the record, 50% - 75% of an LASCT's time is spent performing this duty. Complainant was seeking a permanent reduction in her case processing duties. Complainant was not requesting an accommodation in order to help her perform the essential functions of her position, but rather was requesting a reduction in her workload so that she would not have to fully perform the essential functions of her position. Under the facts of this case, we do not find that the Agency was required to permanently reduce Complainant's case processing duties as a reasonable accommodation.
Not being able to accommodate Complainant in the position, we note that she was offered a receptionist position at a lower grade level, but she declined. The Commission has long held that reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that will enable a complainant to perform the essential functions of her current position or all other reasonable accommodations would impose an undue hardship. Zachary K. v. Department of Veterans Affairs, EEOC Appeal No. 0120130795 (November 19, 2015) citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (October 17, 2002). While Complainant is entitled to an effective reasonable accommodation, she is not entitled to the accommodation of her choice. Lynette B. v. Department of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015).
Harassment
Furthermore, with respect to Complainant's claim of hostile work environment, we find that the claims, even if accurately described by Complainant, were not severe or pervasive enough to establish a hostile work environment. See Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Moreover, we find that the interactions between Complainant and her supervisors were for the most part work-related interactions and we find no evidence that they were based on her protected bases. Consequently, we do not find Complainant demonstrated that discriminatory animus was involved.
CONCLUSION
Accordingly, the Agency's FAD is AFFIRMED.
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
_11/16/17_________________
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 The Agency dismissed claim number 2, because it was a claim that alleged dissatisfaction with the administrative process. Additionally, the Agency determined that Complainant's basis of reprisal failed as she did not have prior EEO activity. She had previously filed a complaint with the Office of Inspector General (OIG) but it did not involve an EEO matter.
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