[Redacted], Eric S, 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 11, 2022

Appeal No. 2021002033 (E.E.O.C. Aug. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eric S,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021002033 Hearing No. 443-2019-00162X Agency No. CHI-19-0071 DECISION On February 10, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 25, 2021 final order concerning his 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. At the time of events giving rise to this complaint, Complainant worked as a Claims Specialist, GS-0105-11, at the Agency’s Field Office in Austin, Minnesota. On December 14, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of disability (Fibromyalgia, Chronic Fatigue Syndrome, Depression, Post-Traumatic Stress Disorder and various other physical and mental conditions) and reprisal (prior EEO complaint) when: 1. On September 27, 2018, the District Manager, his immediate supervisor (S1) subjected Complainant to disparate treatment by changing his time and attendance; 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. 2021002033 2 2. Since October 4, 2018, S1 subjected Complainant to a hostile work environment in terms of his performance evaluation, assignment of duties, time and attendance, and work conditions; and 3. Since October 18, 2018, the Agency failed to provide Complainant with a reasonable accommodation. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency then issued its final order implementing the AJ’s decision. This appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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. (as revised, August 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory or retaliatory animus. Disparate Treatment To warrant a hearing on his disparate treatment claim, Complainant must raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, however, since S1 articulated legitimate and nondiscriminatory reasons for her actions. See U.S. 2021002033 3 Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). According to S1, Complainant’s time and attendance was not changed on September 27, 2018. Rather, S1 averred that she approved a leave request Complainant had submitted and posted her approval to Complainant’s time sheet. IR 311. To move forward with a hearing, Complainant must also raise a genuine issue of material fact as to whether the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Questions of pretext can be raised by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). When asked why he believed that S1’s approval of his leave request constituted discrimination based on his disabilities and prior EEO activity, Complainant averred that he had to take many days off without pay due to not having leave, but did not address the investigator’s question. IR 229, 243. Complainant has presented neither testimonial evidence from witnesses other than himself nor documents which contradict or undercut S1’s explanation or which would cause us to question S1’s truthfulness as a witness. Hostile Work Environment To establish a claim of discriminatory or retaliatory harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). We note that the antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to prove his harassment claim, Complainant must establish that he 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 his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 2021002033 4 In this case, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, as to Complainant’s performance appraisal, S1 averred that Complainant had received across-the-board ratings of “fully successful” in his most recent appraisal, and that he had not shown consistent outstanding performance in such areas as interpersonal skills and training. IR 316, 368. As to assignment of duties and work conditions, the Agency conducted a detailed fact- finding investigation of alleged harassment that Complainant had reported and found that Complainant’s allegations were not substantiated. IR 372, 375. As to Complainant’s time and attendance, S1 denied that she told Complainant that if he took time off to be with his wife, who was very ill, it would be held against him. Rather, S1 stated that in October 2018, she sent Complainant a return-to-work letter notifying him that he had exhausted all his leave, including leave used pursuant to the Family and Medical Leave Act, and would have to return to work. Per standard operating procedure, the notice also indicated that continued absences could result in removal. IR 314. When asked by the EEO Investigator why he believed he had been subjected to discriminatory and retaliatory harassment, Complainant responded that management refused to acknowledge that he had disabilities, that they had sabotaged his attempts to obtain accommodations, and that management and coworkers had ostracized him. IR 230-33. Complainant presented no evidence other than his own assertions that S1 or any other management official relied on unlawful considerations of his disabilities or EEO activity with respect to any of the incidents at issue in his hostile environment claim. Denial of Reasonable Accommodation 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; Barney G. v. Dep’t. pf Agric., EEOC Appeal No. 0120120400 (December 3, 2015). In order to warrant a hearing on his reasonable accommodation claim, Complainant must raise a genuine issue of material fact as to whether: (1) he is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) he 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. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). For purposes of analysis, we will assume that Complainant is a qualified individual with a disability. S1 averred that Complainant had been offered multiple accommodations, including: a personal printer at his desk; removal of the fluorescent tubes from the light fixtures over his head; monitor risers; a large fabric leaf to block light; Dragon software with headphones and training; 2021002033 5 and a document reader stand. He was also assigned to a desk that was closer to the restroom, breakroom, and mailroom. In addition to all of these accommodations, Complainant was allowed to work at home on a trial basis. He was also offered a reassignment but turned it down. IR 308- 09, 315-16, 366-67; Deposition Transcript, pp. 25-32; MSJ - Exhibits (1), (2), and (3). According to S1, telework was discontinued at the end of the six-month trial period because one of Complainant’s health care providers stated that even with telework, Complainant could only perform 75 to 80 percent of a full workload in a typical eight-hour day. IR 308, 316. MSJ, Exhibit (10). While Complainant averred that the provider’s statement meant that he could work at 70 percent of the speed at which he used to function, this is not a reasonable interpretation of that statement. IR 321. The Commission notes that in providing an accommodation, an agency is not required to lower production standards, whether quantitative or qualitative, which are applied uniformly to employees without disabilities to accommodate an individual with a disability. As a result, the Commission finds that Complainant has not demonstrated that the Agency denied him reasonable accommodation in violation of the Rehabilitation Act. Ultimately, we agree with the AJ that Complainant failed to establish the existence of a dispute in the evidentiary record that would give rise to a genuine issue of material fact. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2021002033 6 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021002033 7 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 August 11, 2022 Date