Tessa L.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 13, 2019

2019002011 (E.E.O.C. Sep. 13, 2019)

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

Tessa L.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 2019002011

Agency No. ATL-18-0341SSA

DECISION

On February 19, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s February 7, 2019 final decision concerning her equal employment opportunity
(EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as an Attorney Advisor, GS-12, at the Agency’s
Greenville, South Carolina Office of Hearing Operations (“OHO”), and had worked in the
Chattanooga, Tennessee OHO since July 2018.

On May 8, 2018, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her based on race (African-American), sex (female), color (light
medium-brown), disability, and in reprisal for prior EEO activity when:

1. on January 23, 2018, she became aware that she was not selected for the Group
Supervisor position advertised under Vacancy Announcement Number (VAN) SF-
10038980-17-CSB;

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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2. management delayed acting on her Family Medical Leave Act (FMLA) request until
April 6, 2018; and

3. beginning in October 2017, she was subjected to harassment regarding performance
appraisals and scrutiny of work and since August 9, 2018, management denied her
request for an office with a window.

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of the investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond.

In its February 7, 2019 final decision, the Agency found no discrimination based on the evidence
developed during the investigation.

The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment: Claims 1 and 2

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

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Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.

Regarding claim 1, Complainant alleged that on January 23, 2018, she became aware that she
was not selected for the Group Supervisor position advertised under VAN SF-10038980-17-
CSB.

The Regional Management Director for Region IV (“Director”) (African-American female,
medium brown) was the selecting official for the position of Group Supervisor. The Director
stated at that time, she and Complainant work in different offices and she does not know
Complainant. The Director stated that an interview panel was implemented and that the panel
“provided me with their recommendations after assessing the Knowledge, Skills and Abilities of
all candidates on the Best Qualified List. I concurred with their recommendations.”

The Director stated that the “interview panel followed the proper processes to determine the best
qualified candidates, and to select the two who were most qualified from that list, considering
their knowledge, skills, abilities and reference checks.”

The Regional Chief Administrative Law Judge (Caucasian female, light-skinned) (“Panelist 1”)
was one of the four-member interview panel. She stated that the panel received a list of 36 Best
Qualified candidates. The panelist stated, however, only 32 candidates, including Complainant,
were interested in being interviewed for the subject positions. The panelist stated, “we
conducted structured interviews and asked all candidates the same ten questions. After each
candidate was interviewed each panel member gave a numerical rating for the candidate. The
panel then made a recommendation to the selection official.” The panelist stated that the two
selectees were chosen for the subject positions because of their high scores. The panelist stated
that she does not recall how Complainant compared to the selectees “however, I recall
Complainant was toward the bottom scores when rated.”

The Hearing Office Director (African-American male, caramel brown) (“Panelist 2”) was also
part of the interview panel. Panelist 2 explained that there were two selections for the subject
positions. Panelist 2 stated that the subject position “being filled is a supervisory position. One
of the selectees was already a supervisor. The selectees interviewed better than Complainant.”
Finally, Panelist 2 stated that the second selectee was judge as best qualified for the subject
position.

Regarding claim 2, Complainant asserted that management delayed acting on her FMLA request
until April 6, 2018.

The Supervisory Attorney Advisor, Chattanooga OHO (African-American female, medium
brown) stated that during the relevant period, she was Complainant’s supervisor. She asserted
that there was no delay in acting on Complainant’s FMLA request.

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Specifically, the supervisor explained that Complainant’s March 26, 2018 request for FMLA was
submitted to the Hearing Office Director, who forwarded the request to her because Complainant
had not copied her on the request. Complainant’s initial request for FMLA was from March 29,
2018 to April 23, 2018. The supervisor stated that she consulted Labor Relations “to make sure I
processed her request correctly, as I had never dealt with FMLA. I responded to Complainant on
March 26, 2018, and emailed her a provisional approval letter.”

The supervisor stated that after she informed Complainant that her FMLA was provisionally
approved, Complainant submitted medical documentation on March 27, 2008. The supervisor
stated that Complainant’s request was eventually approved and the leave was posted to her
timesheet by the Administrative Assistant. The supervisor stated “in fact, [Complainant’s]
timesheet for pay period (03/18 through 03/31/18) including her approved FMLA was validated
and certified on April 2, 2018. There was no delay in posting the FMLA, validating, and
certifying her timesheet.”

The supervisor noted that on April 23, 2018, Complainant requested that her FMLA leave be
extended. Specifically, the supervisor stated that Complainant’s requested extension was to
cover April 30, 2018 through May 25, 2018 and “in making the request, [Complainant] asked if
we needed new medical certification and updated forms for her health insurance benefits/TSP.
she was informed that as her medical certification had expired and that it required updating. This
was updated in a timely manner and her request to extend FMLA was approved via email
response on April 26, 2018.”

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination because of
her race, sex, color, disability or prior protected activity.

Harassment/Hostile Work Environment

Harassment of an employee that would not occur but for the employee’s race, color, sex, national
origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v.
United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v.
Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

To the extent Complainant is also alleging she was subjected to discriminatory harassment as a
result of the incidents discussed above, Complainant must establish that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of her protected bases -- in this case, race, sex, color,
disability and prior protected activity. Only if Complainant establishes both of those elements,
hostility and motive, will the question of Agency liability present itself. Here, the evidence
simply does not establish that the incidents occurred as alleged by Complainant and/or occurred
because of her race, sex, color, disability and prior protected activity.

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Regarding claims 1 and 2, we have already concluded, as discussed above, that Complainant has
not established that discrimination based on her race, sex, color, disability or prior protected
activity played a role in these matters.

Regarding claim 3, Complainant asserted that beginning in October 2017, she was subjected to
harassment regarding performance appraisals and scrutiny of work.

The supervisor stated in regard to the 2017 rating period, she gave Complainant a 3.5
Satisfactory rating, which was the same as her 2016 rating. The supervisor explained that in
regard to Complainant’s first three elements “Interpersonal Skills,” “Participation,”
“Demonstrates Job Knowledge,” and “Achieves Business Results,” Complainant received a 3
rating for all four elements.

The supervisor explained that Complainant’s rating was based on feedback she received from
Administrative Law Judges (“ALJs”) “who are responsible for reviewing Complainant’s work,
and my personal observation of her work. I maintain a feedback folder for each direct report.
When completing each appraisal I use the feedback emails in the folder along with my personal
observations, and Agency [metrics] to provide a fair and accurate performance assessment.”

Further, the supervisor acknowledged that Complainant participates in several agency- sponsored
activities, but that these activities are for career and personal development. She stated that these
activities serve as good ways to network with other components and to enhance a resume
“however. All performance assessments are to be directly related to one’s job duties. These
activities are not related to her duties as a decision writer. Complainant’s job performance did
not arise to a higher level. A 3.5 overall is a satisfactory rating.”

Complainant asserted, moreover, that since October 2017, her work has been scrutinized. The
supervisor stated, however, “I do not review any of my employee’s work. Any feedback is
provided to me by the ALJs who review each decision they sign. When they communicate their
feedback, I share that feedback with the employee so that they may make corrections/learn from
the mistake and improve their work product. It is unfortunate there were many complaints
regarding [Complainant’s] work and that she failed to improve her work product based on the
feedback provided.”

In conclusion, a case of harassment is precluded based on our findings that Complainant failed to
establish that any of the actions taken by the agency were motivated by her protected bases. See
Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).

Reasonable Accommodation: Claim 3

Under the Commission’s regulations, an agency 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 accommodation would cause an undue hardship. 29
C.F.R. § 1630.9.
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Complainant identified her disabilities as Attention Deficit Hyperactive Disorder (ADHS) and
thyroid eye disease. The Commission will presume for purposes of analysis only, and without so
deciding, that Complainant is an individual with a disability.

Complainant explained that it takes longer for her to focus, read and process information which
affected her ability to perform the essential functions of her job if not accommodated.
Complainant described her requested accommodations as including reading software, two large
monitors, an office with a window, and extra time to print and review draft decisions.

Regarding claim 3, Complainant alleged that since August 9, 2018, management denied her
request for an office with a window.

On or around July 3, 2018, Complainant joined the Greenville OHO and a few days later, July
27, 2018, she requested a window office to accommodate her vision impairment. At that time,
the staff was moving to a new office. By the time Complainant joined the Greenville OHO, all
window offices in the new space were claimed. The old Greenville OHO had one vacant
window office, so Complainant had a window office from July 3, 2018, when she got to
Grenville until August 17, 2018, when the staff moved to the new office.

The Group Supervisor, Greenville OHO (African-American female, medium brown) stated that
during the relevant period, she was Complainant’s supervisor. She explained that when she
received Complainant’s reasonable accommodation request dated July 27, 2018, she contacted
Labor Relations/Employee Relations (“LR/ER”). She stated that she was informed by LR/ER
there was not sufficient medical information with Complainant’s request and that Complainant
needed to obtain additional medical documentation “to support her request. I requested
Complainant provide additional medical information and Complainant requested that I use
previous medical documentation she had submitted to her prior office.” The Group Supervisor
stated that she was not privy to the medical records Complainant had provided to the
Chattanooga OHO.

The Group Supervisor stated that Complainant provided her two doctor statements in which that
LR/ER “said was not sufficient. At that time, I did have an interactive discussion with
Complainant and we did offer her a window cubicle so she would have natural light.
Complainant has not accepted or declined the window cubicle. She was concerned about the
nose and distraction. We received approval to provide her with noise distracting earphones.”
The Group Supervisor noted Complainant has not accepted or declined the window cubicle.

In addition, the Group Supervisor stated that employees, including Complainant, work in the
office two days a week and telework three days a week. She stated that Complainant “teleworks
Monday, Tuesday, and Wednesday, and works in the office on Thursday and Friday. When we
go to office sharing she would not have to share her office because of her reasonable
accommodation.
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When a window office becomes available, Complainant will be given an office with a window.
Complainant was provided with special monitors, a special lamp and a special chair.”

The record reflects that on August 22, 2018, Complainant informed the Group Supervisor that
the Verilux lamp she was provided and overheard lighting were not sufficient to accommodate
her eye condition. In September 2018, the Hearing Office Director, also Complainant’s second-
line supervisor, implemented office sharing for the entire decision writing staff, and Complainant
received an office with a window.

In sum, the record does not support Complainant’s claim that it was not effectively
accommodating her disability.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding no discrimination.2

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.

2 On appeal, Complainant does not challenge the June 19, 2018 partial dismissal issued by the
agency regarding one other claim (that she was discriminated against on the bases of race, sex,
color, disability, and in reprisal for prior EEO activity when in October 2016 management
lowered her Performance, Assessment and Communications System (PACS) score, thereby
disqualifying her from performance awards). Therefore, we have not addressed these issues in
our decision.

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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.
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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

September 13, 2019
Date