0120092907
08-14-2012
Vicky Winstead, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Vicky Winstead,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120092907
Agency Nos. ATL-07-0301-SSA
ATL-07-2099-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 28, 2009 final decision concerning the two captioned formal complaints that claimed unlawful 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 was employed as a Title VII Claims Representative, GS-962-11, at the Agency's Rocky Mountain, North Carolina District Office.
Complainant filed two formal complaints on May 18, 2007 and September 28, 2007, respectively. Therein, Complainant claimed that the Agency discriminated against her on the bases of disability (chronic bilateral flexor forearm tendonitis and multiple sclerosis) and in reprisal for prior protected activity when:
1. her request for reasonable accommodation has not been granted, i.e., a transfer to the Wilson, North Carolina Office (Agency No. ATL-07-0301-SSA, hereinafter referred to as "Complaint 1");
2. management changed her workload to 100 percent post-entitlement, which exacerbated her disabilities and created an intolerable work condition (Complaint 1);
3. she has not received a decision regarding her reasonable accommodation request to transfer to the Wilson, North Carolina Office. She further claimed that the request was submitted because her Dragon Naturally Speaking (DNS) software does not function properly in the Rocky Mount, North Carolina Field Office (Agency No. ATL-07-2099-SSA, hereinafter referred to as "Complaint 2");
4. her request for 512 hours of administrative leave from May 29, 2007 through August 25, 2007 was not approved. She further claimed that all other leave requests before June 25, 2007 were denied (Complaint 2); and
5. since her duties changed in October 2006, she is continually required to type up to six hours daily and perform additional keying, which causes her constant pain and worsened her condition (Complaint 2). 1
The record reflects that since 1989, Complainant has had multiple sclerosis. Complainant stated that she has difficulty using her hands, feet and legs; experiences numbness and pain in her hands, arms, legs and feet; and she has a loss of fine motor skills in her hands and fingers. The record further reflects that Complainant stated that multiple sclerosis has resulted in chronic and significant pain and impairments in her wrists and hands, and that she also suffers from chronic bilateral flexor forearm tendonitis. Complainant's condition imposes on her ability to engage in standing, walking, and performing manual tasks such as typing and writing.
After the investigation, Complainant was provided with a copy of the report of investigation concerning her two formal complaints, and with a notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, citing both Complaints 1 and 2. On October 20, 2008, however, the AJ cancelled the hearing request on the grounds that Complainant did not comply with her Orders relating to the instant formal complaints. The AJ remanded the formal complaints to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
On May 28, 2009, the Agency issued the instant final decision, finding no discrimination. The Agency determined that Complainant is a qualified individual with a disability, and that Agency management was aware of her disability and regarded her as an employee with a disability. The Agency further found that assuming arguendo Complainant established a prima facie case of disability and reprisal discrimination, Agency management nevertheless articulated legitimate, non-discriminatory reasons for its actions which Complainant did not show were a pretext for discrimination.2
Regarding the harassment claim, the Agency found that the evidence in the record did not establish that Complainant was subjected to harassment based on disability and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claims 1 and 3, Complainant's first-line Manager (M1) stated that on January 8, 2008, she denied Complainant's request for reassignment to the Wilson Office because the Agency had determined that Complainant had been provided an effective accommodation. M1 stated that through the use of various technologies, Agency management has enabled Complainant to perform her duties at the Rocky Mount office, and that, therefore, there was no need for her to be moved to the Wilson office as a further accommodation.
Complainant's second-line manager (M2) stated that in October 2006, Complainant made management aware of the Dragon Naturally Speaking (DNS) software problem. M2 further stated that management diligently worked with an area system coordinator from November 2006 to April 2007; and that in or about December 2006, the problem was referred to the "Employees with Disability" Help Desk. M2 further stated that in January 2007, a new computer was installed. In April 2007, an onsite visit from a contract company occurred to diagnose the problem. Also, in April 2007, telephone noise reduction filters were installed. M2 stated that after the contract visit in April 2007, a new headset was ordered and that the problem was resolved.
Complainant's third-line manager (M3) stated that in 2000, Complainant was provided reasonable accommodation "upon the office moving to its present location. At which time she was given the voice recognition software called the Dragon Natural Speaking software. I personally noticed the equipment on her desk when I was becoming familiar with the office equipment the workstations and every employee on the staff in January 2005." M3 stated that from the time he started working for the office until October 2006, Complainant "had never reported to me or any other member of the management team that this software was not working properly. When it was reported to me and the rest of the team we did everything possible to get it up and running including bringing in a computer specialist from Raleigh to diagnose and try to solve the problem to her satisfaction. We also had the computer specialist look at the Dragon Natural Speaking Software in another office so that we could possible find out what was going on. Both systems in the Gastonia Office as well as the Rocky Mount office were working the same."
Further, M3 stated as Complainant continued to work "we could not solve the problem to her satisfaction." M3 stated that management then contacted the Employees with Disabilities (EWD) Help Desk and "they worked with us for a while on the Dragon Naturally Speaking Software but they could not solve the problem to [Complainant's] satisfaction. They recommended that a technician come down and diagnose the problem on site. That action did not solve the problem on her workstation to her satisfaction." M3 stated that management had the telephone company come in and "analyze the problem based on the information we received from the technician." M3 stated that the telephone company put filters on the system and checked the telephone system. They actually diagnosed that there was not a major problem but they continued to work with [Complainant] until it was solved. We solved the problem I believe on May 9, 2007 with the assistance of the Employees with Disabilities Help Desk technicians and the telephone technicians all agreeing that the system was working sufficiently. There was also a replacement of [Complainant's] workstation by the Employees With Disabilities Help Desk as well as additional headsets." Furthermore, M3 stated that Complainant has not reported any problems since then.
With respect to Complainant's request to be transferred to the Wilson Office, M3 stated "what I did find which is not a request for a reasonable accommodation, was a request for a hardship transfer to another office within my district."
The Deputy Regional Commissioner stated that he was aware that Complainant had requested a hardship transfer to the Wilson Office "stating that their voice recognition software works better than the one she has. However, to my knowledge we have no proof of that. The information we have is that her equipment works fine."
Regarding claims 2 and 5, M1 denied Complainant's allegation that she was the only employee whose duties were changed. Specifically, M1 stated "that is not true. Work assignments for the entire office changed." M1 further stated that in October 2006, work assignments for the entire office changed "because of a severe shortage in the Service Representative Unit and loss of the Operations Supervisor. Both I and [M3] implemented the changes."
M3 stated that Complainant never told him that the change in her duty assignment had exacerbated her disability. Specifically, M3 stated ". . . [Complainant] never reported such information. She did report to me which she had done several times in the past that her multiple sclerosis was getting worse and that was always taken into consideration as with any other employee. Usually, when her condition worsened she would go on prolonged periods of leave. She did not mention that it had anything to do with her work assignments."
The record reflects, moreover, that the Agency reduced Complainant's workload after she had expressed concerns about experiencing pain from typing and writing. In a July 28, 1999 memorandum to Complainant, MS stated that Complainant had indicated that typing and writing, as well as other hand movements, were difficult for her. MS stated further that the Agency agreed to decrease Complainant's work load volume by 25 %.
Regarding claim 4, the record reflects that Complainant requested approximately three months of administrative leave (512 hours) to address her "job-related illness" as of May 29, 2007. M3 denied Complainant's request. M3 explained that Complainant was required to apply for sick leave for that interval and that her request would be evaluated in light of medical documentation she was to provide. The record further reflects Complainant later filed a request for 512 hours of leave, and that M3 denied the request because Complainant had insufficient sick leave to cover the absence. Complainant was directed to request sick leave for the 165.25 hours she had on the books and advanced sick leave under her collective bargaining agreement for the remaining balance.
The record reflects that Complainant did not initially submit the paperwork as requested. Complainant did so only after receiving a letter dated June 22, 2007, from Agency management indicating that she would be placed on AWOL for that interval because she had not provided the proper leave requests. The record reflects that after Complainant submitted the proper requests, her requests were approved.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred finding no discrimination. For instance, Complainant argues that in October 2006, her situation got worse when M3 "changed her duties to those requiring more typing. The Complainant informed him that this would cause problems related to her disabilities, and further informed him that the DNS software did not work properly. [M3] did not alter this assignment of duties, nor solve the problem of the improper functioning of the software." Complainant further argues that management assumed that "the new headset would solve the problem. However, after the new headset was received and used by the Complainant, the software still did not work properly, a fact which the Complainant reported both to [M3] as well as the EWD help desk." Finally, Complainant argues that the Agency "offers no evidence that transferring the Complainant to the Wilson office would have created an undue hardship."
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as addressed above. Neither during the investigation nor on appeal has Complainant produced evidence that these proffered reasons were a pretext for unlawful discrimination and retaliation.
Harassment
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). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of 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. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6.
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment.
Reasonable Accommodation
Under the Commission's regulations, an Agency is required to make reasonable accommodation 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. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish disability discrimination, 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 a reasonable accommodation.
A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). "[T]he word 'accommodation' ... conveys the need for effectiveness." Id. "An ineffective 'modification' or 'adjustment' will not accommodate a disabled individual's limitations." Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. See Guidance.
Based on our review of the entire record in this case, the Commission finds that Complainant has not established that the Agency failed to reasonably accommodate her. The Commission determines that the evidence of record supports the Agency's findings on this issue: the Agency has taken repeated actions to resolve any technical difficulties with the DNS software and the Agency made every effort possible to resolve the issue, including installation of a new computer, an onsite diagnostic visit from a contract company, the implementation of telephone reduction filter, and installation of a new headset. To the extent that additional technical difficulties arise, the Agency is advised to continue its efforts for further resolutions.
The record also reflects that the Agency denied Complainant's request to be transferred to the Wilson Office, citing malfunctions with the DNS software because the DNS was working properly at the Rocky Mount Office.
A protected individual is entitled to a reasonable accommodation, she is not necessarily entitled to the accommodation of choice. See Castaneda v. United States Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). The employer may choose among reasonable accommodations so long as the chosen accommodation is effective. U.S. Airways v. Barnett, 533 U.S. 391, 400 (2002). In this case, the Agency was already providing Complainant with an effective reasonable accommodation by obtaining the DNS software.
We find insufficient evidence showing that transferring Complainant to the Wilson office would address any limitation imposed by her alleged disabilities. Complainant has not shown a nexus, or causal relationship between Complainant's disability and her desired accommodation. See Storman v. Department of the Treasury, EEOC Request No. 05990112 (September 7, 2000). M1 stated that on May 9 and 16, 2007, tests were performed on Complainant's DMS and each time test results showed that it was working properly; and that were was no valid justification to approve her request. As such, the Agency was not obligated to grant Complainant a transfer of choice.
Therefore, we find that, even viewing the facts in the light most favorable to Complainant she failed to provide any evidence which it could be reasonably concluded that she was denied a reasonable accommodation.
It is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 14, 2012
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Vicky Winstead
6061 Homestead Rd
Elm City, NC 27822
John B. Meuser, Esq
112-B Straits Rd
Beaufort, NC 28516
A. Jacy Thurmond, Associate Commissioner
Office of Civil Rights and Equal Opportunity
Social Security Administration
P.O. Box 17712
Baltimore, MD 21235-7712
__________________
Date
______________________________
Equal Opportunity Assistant
1 For ease of reference, the Commission has numbered Complainant's claims as claims 1 - 5.
2 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.
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Office of Federal Operations
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Washington, DC 20013
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