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

Equal Employment Opportunity Commission

Dec 18, 2018

0120171006 (E.E.O.C. Dec. 18, 2018)

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

Sharolyn S.,1
Complainant,

v.

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

Appeal No. 0120171006

Hearing No. 520-2016-00408X

Agency Nos. NY150370SSA, NY-15-0129

DECISION

On January 21, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
December 29, 2016, final order 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 AFFIRMS the Agency’s final order which fully implemented the Equal Employment
Opportunity Commission’s Administrative Judge’s (AJ), decision without a hearing which found
that Complainant did not demonstrate that she was subjected to discrimination.

ISSUE PRESENTED

The issue presented is whether the AJ erred in granting the Agency’s motion for summary
judgment and finding that there were no material facts at issue in this complaint.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Claims
Representative, GS-11 at the Agency’s New Utrecht District Office in Brooklyn, New York.
Complainant maintained that she was subjected to harassment and reprisal when she was
questioned about interactions she had with clients from the New York Legal Assistance Group
(NYLAG). On November 3, 2014, the District Manager was ordered by the Regional
Commissioner to investigate three specific complaints from NYLAG. One of the complaints,
involved an incident that occurred in 2013, where a NYLAG attorney indicated that Complainant
refused to properly consider relevant evidence relating to the continuation of a claimant’s benefits.
The second incident occurred on September 27, 2013, when Complainant was conducting a
claimant interview and the claimant had a grand mal seizure. It had been reported that
Complainant did not offer assistance. In the third incident, Complainant was described as rude and
unprofessional, and screamed that she was the “queen of reconsideration” and told the claimant
that her case was “at the bottom of the pile.” Complainant denied these claims, and explained that
she did not recall the incident with the attorney, and when she realized that the claimant was having
a seizure, she summoned security and her supervisor to request help. She indicated that she even
received a “thank-you” note from the claimant’s legal representative after the event. Finally, with
regard to the third incident, Complainant explained that it was the claimant’s brother who was
yelling and upsetting the claimant, not her. Following the interview, management agreed with
Complainant. Notwithstanding, Complainant felt that she was being harassed because she was not
alerted to these complaints until much later than they allegedly occurred. She also maintained that
no evidence was provided to support these claims.

Complainant also maintained that she was denied reasonable accommodation with respect to her
medical condition and the Agency’s AIM policy for inclement weather. Complainant indicated
that she requested administrative leave on several dates as a result of the cold weather, which was
hazardous to her medical condition. Complainant indicated that management was aware that she
had conditions which were extremely sensitive to the cold weather. Complainant explained that
the Agency’s “AIMS” policy was designed to be flexible in granting leave to accommodate
employees with disabilities, including liberal application of the policy for excused absences, to
include, leave without pay, and sick leave. The Agency’s inclement weather policy provided that
during inclement weather, “as a reasonable accommodation to employees with disabilities,
officials could excuse up to two consecutive workdays per weather event when conditions made it
extremely difficult or hazardous (not just inconvenient) for employees with severe visual
impairments or severe mobility impairments to travel to work.”

Further, Complainant maintained that she requested administrative leave from November 17-19,
2014, but was denied by her supervisor (S1). Instead, Complainant was granted 24 hours of leave
without pay. Complainant requested reconsideration of her supervisor’s decision, but it was also
denied. Complainant indicated that she was absent because the weather was extremely cold and
she did not feel well. On November 19, 2014, she explained that she was absent because she had
a medical emergency with regard to her lupus.
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S1 indicated however, that he denied Complainant’s request for administrative leave because when
she called the office, she indicated that the reason she was not coming in that day was because her
husband was sick, and when she called the following day, Complainant told him that her husband
was still sick. S1 stated that at no time did Complainant state that she was unavailable to work
because of inclement weather, so the inclement weather policy did not apply, and her visit to the
dentist showed that she was able to travel. Regardless, S1 also noted that there was no precipitation
on the days in question and that the temperature did not go below 22 degrees. Further, S1 indicated
that Complainant asked for three days of consecutive leave, an amount that he did not have
authority to grant.

Complainant also requested leave in 2015, on the following dates, January 26-27, February 2-3,
5-6, 17-20, and 24, and March 4-6. Under the inclement weather policy, Complainant’s requests
were approved for January 26-27, February 2-3, 17, and 24, and March 4-6. For the other dates,
February 5-6, and 18-20, Complainant requests for administrative leave were denied. Instead,
Complainant was offered annual leave and leave under the Family Medical Leave Act (FMLA).
S1 indicated that for the days that were not approved, there was no inclement weather so the AIM
policy did not apply, yet he allowed Complainant to take leave. Complainant maintained that this
was not an effective accommodation.

On May 26, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her and subjected her to harassment on the bases of disability (Lupus, Raynaud’s
Syndrome, a history of seizures, and a visual impairment) and reprisal for prior protected EEO
activity under Section 501 of the Rehabilitation Act of 1973 when:

1. On November 5, 2014, she was questioned about three complaints made against
her by NYLAG that were over a year old;
2. Her request for a reasonable accommodation, in the form of administrative leave
for her absence from November 17-19, 2014, was denied.

Complainant’s also alleged that the Agency discriminated against her on the bases of disability
and retaliation, when she was denied a reasonable accommodation, in the form of administrative
leave, for the dates of February 5, 6, 18, 19, and 20, 2015.

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 (AJ). Complainant timely requested a hearing.
Over Complainant’s objections, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing and issued a decision without a hearing on November 18, 2016.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged. The Agency found that
assuming Complainant established a prima facie case of discrimination as to all bases, the Agency
articulated legitimate, nondiscriminatory reasons for its actions, namely, that an investigation was
initiated after three complaints were received regarding Complainant’s interactions with the
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Agency’s clients. After, the investigation, the Agency found that taking action against
Complainant was not necessary as the evidence did not support the complaints. Also, regarding
Complainant’s request for reasonable accommodation, the Agency maintained that it provided
Complainant with an effective accommodation, even when the inclement weather policy was not
available, Complainant was allowed leave so that she was able to remain home. The Agency found
that Complainant did not show that the Agency’s reasons were pretext for discrimination.

CONTENTIONS ON APPEAL

On appeal, Complainant, contends among other things, that the AJ erred in granting the Agency’s
motion for a decision without a hearing because there were material facts at issue. Specifically,
Complainant denies that she was rude to individuals. She maintains that the investigation was due
to harassment because she was not told about the allegations until approximately ten months after
the incidents occurred. She contends that she was never formally charged with misconduct and no
action was taken against her, so clearly this was done to harass and retaliate against her.

Further, Complainant denies that she told her supervisor that she was going to be absent because
her husband was ill. Also, with regard to the February dates, Complainant contends that the
weather was the reason for her absence, and the Agency knows that extreme weather conditions
are detrimental to her health. She maintains that management failed to follow the guidelines of
the inclement weather policy.

In response, the Agency requests that its final order be affirmed because other than Complainant
disagreeing with the outcome, she did not provide any evidence that the Agency’s reasons were
pretext for discrimination or that discriminatory animus was involved with the Agency’s actions.

ANALYSIS AND FINDINGS

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 an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both 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 Chapter 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,
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and . . . issue its decision based on the Commission’s own assessment of the record and its
interpretation of the law”).We must determine whether it was appropriate for the AJ to have issued
a decision without a hearing on this record. 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. 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).

Upon review, we find that all procedural requirements were followed and the record does not show
that there are material facts at issue. As such, we find that the AJ correctly granted the Agency’s
motion for a decision without a hearing.

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that even if we assume, arguendo, that Complainant
established a prima facie case of discrimination based on reprisal and disability, the Agency
articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was
interviewed regarding her interactions with clients because there had been a complaint made.
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When the evidence, however, did not establish that the complaints were credible, no action was
taken against Complainant.

Also, we, like the AJ, find that Complainant was not denied a reasonable accommodation. The
record indicates that Complainant was allowed to stay home on all of the days that she requested,
even when the request was not approved under the Agency’s AIM policy. The record indicates
that while it was not the accommodation of her choice, it was an effective accommodation. The
Commission has long held that as long as an accommodation is effective, it does not have to be
the specific accommodation that an employee desired. In this instance, Complainant was allowed
to take leave without pay, FMLA leave, and annual leave to cover her absences.

Additionally, we find that Complainant has not demonstrated that she was subjected to a hostile
work environment under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993). See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by the Agency were motivated by
discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(Sept. 21, 2000). We find that other than Complainant’s conclusory statements, she has not
provided any evidence which demonstrates that the Agency’s reasons were pretext for
discrimination or that discriminatory animus was considered with respect to these incidents.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final order which found that Complainant did not
establish that she was subjected to discrimination and harassment.

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).
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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

December 18, 2018
Date