Clinton M.v.Soc. Sec. Admin.

Equal Employment Opportunity Commission

Apr 2, 2019

EEOC Appeal No. 2019000586 (E.E.O.C. Apr. 2, 2019)

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

Clinton M.,1
Complainant,

v.

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

Appeal No. 2019000586

Agency No. DAL-18-0682-SSA

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated September 24, 2018, dismissing his complaint
of unlawful employment discrimination in violation of 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Attorney Advisor,
GS-13, at the Agency’s Office of Hearing Operations (OHO) facility in Metairie, Louisiana.

On August 28, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to harassment and discrimination on the bases of disability, age, and reprisal for prior
protected EEO activity when, on or about March 2018, the Agency improperly conducted the
hiring process for Complainant’s reader assistant and, on May 15, 2018, hired a lesser qualified
candidate. His complaint also raises the issue of whether the Agency, in so doing, denied him a
reasonable accommodation for his disability.

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
The Agency dismissed the complaint in its entirety on September 24, 2018, pursuant to 29 C.F.R.
§ 1614.107(a)(1), for stating the same claim that is pending before or has been decided by the
Agency or Commission. The Agency found that the instant claim was the same as that raised in
Agency Complaint No. DAL-17-0901-SSA. The Agency indicated that, on December 28, 2017,
Complainant filed a claim, alleging that the Agency was planning to provide him a reader
assistant who was less qualified than the candidates he preferred and was harassing him with
respect to that reader selection.

The Agency also dismissed Complainant’s allegations of retaliation, pursuant to C.F.R. §
1614.107(a)(1), for failure to state a claim. In so doing, the Agency indicated that Complainant
alleged discrimination based on retaliation because he was a whistleblower, having filed a
complaint with the Office of Special Counsel. The Agency found this was not protected EEO
activity and Complainant, therefore, failed to state a claim of reprisal.

The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant asserts that the instant claim is not the same as the claim he filed in
2017. In the 2017 claim, he alleged that the Agency was engaging in harassment and retaliation
by trying to replace his reader assistant with a lesser qualified person, an effort that began in
April 2017 and ended in October 2017. In the current claim, Complainant alleges that the
Agency engaged in a new, separate and distinct act of discrimination and retaliation, beginning
with the selection process for a new reader assistant, which began on or around March 2018 and
resulted in the selection of a new reader assistant on May 15, 2018. He alleges the Agency knew
the person selected was a poor candidate with deficient abilities to locate and read information
accurately and was the candidate ranked last among those interviewed. He asserts the Agency
used the selection to deliberately harm him and retaliate for prior complaints, including DAL-17-
0901-SSA.

In response, the Agency asserts that it properly dismissed the instant claim for raising the same
issues as Complainant’s prior EEO complaint and Complainant has failed to establish that the
current claim is different from that prior claim. The Agency acknowledges Complainant has a
vision problem, macular degeneration, that impacts his visual acuity and his accommodations
include a reader assistant, which the Agency first provided in 2014. This reader assistant’s
contract was renewed in April 2016 for a 2-year term, but he was limited to 27 hours per week.
Complainant officially requested a full-time reader in June 2017. The selection process began in
August 2017 and ended in October 2017, when Complainant’s reader assistant agreed to
complete his contract. The hiring process began again in March 2018 and ended on May 15,
2018, when a new reader assistant was selected. The alleged discriminatory acts stem from
Complainant’s request for a reasonable accommodation of a full-time reader assistant. Although
there was a lapse in the processing of the reasonable accommodation from October 2017 to
March 2018, the Agency argues it was a continuing process and the current clam is the same as
the prior 2017 complaint. The Agency asks that we affirm its final order.
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ANALYSIS AND FINDINGS

An agency shall accept a complaint from any aggrieved employee or applicant for employment
who believes that he or she has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The
Commission's federal sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). When the complainant does not allege he or she is aggrieved within the
meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) also provides, in relevant part, that an
agency shall dismiss a complaint that states the same claim that is pending before or has been
decided by the agency or Commission. To be dismissed as the “same claim,” the present and
prior complaints must have involved identical matters. It has long been established that
“identical” does not mean “similar.” The Commission has consistently held that for a complaint
to be dismissed as identical, the elements of the complaint must be identical to the elements of
the prior complaint in time, place, incident, and parties. See Jackson v. U.S. Postal Serv., EEOC
Appeal No. 01955890 (Apr. 5, 1996), rev'd on other grounds EEOC Request No. 05960524
(April 24, 1997). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant
part, that an agency shall dismiss a complaint that states the same claim that is pending before or
has been decided by the agency or Commission. To be dismissed as the “same claim,” the
present and prior complaints must have involved identical matters. It has long been established
that “identical” does not mean “similar.” The Commission has consistently held that for a
complaint to be dismissed as identical, the elements of the complaint must be identical to the
elements of the prior complaint in time, place, incident, and parties. See Jackson v. U.S. Postal
Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996), rev'd on other grounds EEOC Request No.
05960524 (April 24, 1997).

As an initial matter, we find that an allegation of failing to provide a reasonable accommodation
states a claim. Complainant has alleged facts, which, if proven true and considered together,
would be sufficiently severe or pervasive to alter the conditions of his employment. His
allegation that the Agency improperly conducted a search for a new reading assistant, hired a
lesser qualified candidate, and denied him a reasonable accommodation for his disability is an
allegation of an injury or harm to a term, condition, or privilege of employment for which there
is a remedy. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
We note that the Agency, in dismissing the complaint, found Complainant had alleged the
Agency acted in retaliation for Complainant’s whistleblowing activity, which is not protected
EEO activity. However, Complainant has alleged that the Agency acted in retaliation for his
prior EEO complaints, including the DAL-17-0901-SSA. Therefore, we find that the Agency's
dismissal of the complaint pursuant to 29 C.F.R. §1614.107(a)(1), for failure to state a claim,
was not appropriate.

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With respect to the Agency’s dismissal for stating the same claim that is pending before or has
been decided by the Agency or Commission, we find that the current complaint, filed in 2018, is
not identical to the prior complaint, DAL-17-0901-SSA, filed in 2017, particularly as the two
complaints relate to separate instances that occurred over distinct time periods. Email
correspondence between Complainant and his supervisor, dated September 29, 2017, indicates
that, on September 26, 2017, Complainant withdrew his request for a full-time reader and was to
continue with his part-time reader. This ended the search process that is the subject of the 2017
complaint.

Email correspondence, dated March 2, 2018, indicates that Complainant’s reader assistant’s term
was ending in mid-April and the reader assistant did not plan to continue in that position.
Complainant proposed a candidate for the position and Complainant’s supervisor indicated that,
once there was a firm departure date for Complainant’s reader assistant, the Agency would begin
the search process for his replacement. This is a separate and distinct search process that resulted
the hiring of a new full-time reader assistant in May 2018. Thus, although Complainant alleged
discrimination in the hiring of his reading assistant and as a matter of a reasonable
accommodation in both complainants, the complaints are not identical, as they relate to two
distinct searches, conducted during two distinct time periods.

Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.
The complaint is hereby REMANDED to the Agency for further processing in accordance with
this decision and the Order below.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. The Agency shall acknowledge to the Complainant that it has received the remanded
claims within thirty (30) calendar days of the date this decision was issued. The Agency shall
issue to Complainant a copy of the investigative file and also shall notify Complainant of the
appropriate rights within one hundred fifty (150) calendar days of the date this decision was
issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of
receipt of Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
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.
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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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. 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

April 2, 2019
Date