U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herb F,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2021003246 Hearing No. 460-2020-00146X Agency No. HS-CIS-01535-2019 DECISION On May 14, 2021, 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 April 19, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Immigration Services Officer (SISO), GS-1801-13 at the Agency’s Houston Field Office in Houston, Texas. Complainant had multiple physical and sensory disabling conditions that included diabetes, high blood pressure, severe arthritis, back issues, vision loss, and cancer in remission. Complainant’s diabetes was getting uncontrollable and had become unresponsive to medicine. 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. 2 2021003246 Complainant’s movement was limited; she could not walk long distances or carry weight; and she could not bend or stoop down, could not stand for very long or climb stairs. Complainant also had issues which were getting worse and caused anxiety. Report of Investigation (ROI) at 77. Complainant’s health care provider informed management that Complainant would be unable to perform any duties while attending and recovering from her weekly medical appointments. ROI at 173. As part of her duties, Complainant supervised and provided support to officers who conduct in- person interviews and process immigration applications. She was also responsible, on occasion, for security-related emergent issues which arise with applicants for immigration. ROI at 293. Pursuant to Houston Field Office policy, SISOs are part of a “Duty SISO” rotation. ROI at 149. Management has been engaged in an ongoing interactive process with Complainant since at least 2016. ROI at 78. Management provided Complainant the following accommodations: 5/4/9 schedule with every other Friday off, episodic telework, ergometric instruments, larger computer monitors, relocated office, accrued paid leave, and intermittent FMLA leave to attend appointments. Complainant’s health care provider affirmed Complainant was able to perform the essential functions of her SISO position with these accommodations. ROI at 183. Beginning in 2018, Complainant requested a 4/10 schedule and core telework every other Friday. ROI at 96. Management denied both requests. ROI at 159. Approximately one year later, Complainant requested the same accommodations. ROI at 164 and 299. Again, and for the same reasons, the Agency denied the requests. ROI at 91 and 301. On August 16, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability (physical-multiple), age (YOB: 1959), and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 and Section 501 of the Rehabilitation Act of 1973 when: 1. On April 18, 2019, Complainant was denied a reasonable accommodation; and 2. On October 30, 2019, Complainant’s reasonable accommodation requested on or around August 15, 2019, was denied. 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. After reviewing the entire hearing record and conducting a detailed initial conference to afford the parties the opportunity to supplement the record, the AJ assigned to the case determined that further development of the record was unlikely to lead to a finding of discrimination; and that preponderant evidence failed to show that Complainant was subjected to discrimination. The AJ based this determination on a finding that the Agency had provided legitimate non-discriminatory and non-retaliatory reasons for the challenged actions. 3 2021003246 The AJ also found that the record did not contain evidence sufficient to create a genuine issue of material fact with respect to the question of pretext. The following material facts are pertinent to the AJ’s finding. Prior to the COVID-19 pandemic, Complainant was provided with episodic telework upon her request. For four months in early 2020, however, the Agency suspended normal operations due to the pandemic and placed all supervisors on telework. Of the twenty employees listed, six were upper management (Field Office Director and five Branch Chiefs) and one bargaining unit employee on temporary supervisory duty. None of those individuals held Complainant’s position. Of the remaining thirteen employees, seven (including Complainant) had telework agreements. See ROI at 196-202, 211-16, 240-45, 252-57, 267-72, and 280-85. No Houston SISO had core telework. ROI at 312. No Houston SISO worked a 4/10 schedule. ROI at 159. When the Agency resumed normal operations, Complainant was the only supervisor who wished to remain on complete telework. See ROI at 196 for telework schedules of other supervisors. The Agency agreed to resume Complainant’s episodic telework on an as-needed basis. ROI at 159, 197-202, and 126. See also ROI at 387 for applicable Agency Telework Program classification and definition, allowing participation to the maximum extent possible so long as it did not negatively impact mission accomplishment. In addition, Complainant was the only supervisor still under a “COVID flexibility form,” which allowed scheduling adjustments and telework. Although Complainant wished to work on a “4/10” schedule and no SISO in Houston was granted that ability. ROI at 186. The SISOs were allowed to work the compressed 5/4/9 schedule to facilitate daily supervisory coverage for in-person interviews and emergent issues. ROI at 78, 131, and 147. Since no other SISO, other than Complainant, was allowed to telework, the other SISOs must consistently fill-in for Complainant in performance of her in-person and “duty SISO” assignments. ROI at 149-50. The AJ found that the Agency has consistently provided the same reasons for its actions. According to the AJ, since no other SISO has a schedule like Complainant’s, the scheduling was constantly modified to provide coverage for Complainant’s in-office duties. Moreover, the AJ observed, Complainant was often unavailable for consultations while she was on telework because she uses those days for doctor’s appointments and travels 45 minutes each way. ROI at 163-64 and 173. The AJ found that based on Complainant’s conditions and inability to perform the in-person essential functions of her position, she was not qualified for her position. Thus, the AJ asserted, any accommodations provided by the Agency were gratuitous and not required by the Americans with Disabilities Act (ADA) or the Americans With Disabilities Act Amendments Act (ADAAA). The AJ further found that Complainant had not identified, and that the record did not contain, any evidence that called into question the truthfulness of the Agency’s explanations for its actions. 4 2021003246 The AJ observed that there was no evidence, for example, that the Agency deviated from any established policy or procedure, or that it treated Complainant more harshly than any similarly situated comparators. Most importantly, the AJ asserted, Complainant could not establish a nexus between her disabilities, age or prior EEO activity and the Agency’s actions. Based on these findings, the AJ issued a decision without a hearing on March 10, 2021 in favor of the Agency pursuant to 29 C.F.R. § 1614.109(i). The Agency subsequently issued a final order pursuant to 29 C.F.R. 1614.109(g), adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, among other things, Complainant argues that the AJ’s decision must be overturned based on procedural error. She alleges that the AJ committed harmful error by issuing a decision without providing ample notice of intent to issue a decision without a hearing. According to Complainant, she was harmed when she never received notice of the AJ’s intention to issue a summary judgment decision (which the AJ did not issue). Complainant asserts that she was never provided an opportunity to respond to a potential summary judgment finding, noting that the AJ’s decision makes no mention of the summary judgment standard. Without supporting evidence, Complainant alleges that “the Court” overlooked multiple questions of fact that would have precluded the issuance of the underlying decision. Accordingly, Complainant asserts, the failure of “the Court” to adhere to the process and requirements of issuing a sua sponte summary judgment decision clearly harmed Complainant. Complainant also alleges that the AJ erred in holding that further development of the record was unlikely to lead to a finding of discrimination and there was no genuine issue of material fact with respect to the question of pretext. On appeal, among other things, the Agency reiterates its stated reasons for the challenged actions. The Agency asserts that any error with the AJ’s issuance of the decision was harmless, and no genuine issues of material fact are in dispute. According to the Agency, the evidence in the record and the parties’ appeal arguments show that Complainant was not subjected to disparate treatment on her protected bases nor did the Agency fail to accommodate Complainant. 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. 5 2021003246 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). 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 animus. Here, however, while Complainant argued that the AJ’s decision was erroneous, Complainant has failed to establish summary judgment was inappropriate. Complainant presents no evidence to show how the AJ’s issuance of a sua sponte summary judgment decision was harmful to Complainant.2 Nor does Complainant show how the alleged procedural error had an impact on the outcome of her complaint. We note that failure to provide written notice of an intent to issue a decision without a hearing is not fatal to the ultimate decision in a complaint. Given that Complainant had access to the ROI and the opportunity to develop the record, and given that Complainant was provided the opportunity to supplement the record and to respond to questioning during the Initial Conference before the AJ, we find that summary judgment was appropriate in this case. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in her 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 against by the Agency as alleged. 2 See Adah T. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019005204 (Mar. 13, 2020) (“As an initial matter, we note that the record does not indicate that the AJ provided the parties with written notice of her sua sponte intent to issue a decision without a hearing, including an opportunity to respond in writing as required by 29 C.F.R. § 1614.109(g)(3). However, we conclude, under the particular facts of this case, that the AJ’s error was harmless.”); Blanco v. Environ. Protection Agency, EEOC Appeal No. 01A52674 (Aug. 30 2005) (finding the AJ’s failure to issue proper notice was not harmful error because no material facts were in dispute); see also Dow v. Dep’t of Homeland Sec., EEOC Appeal No. 0120112629 (Oct. 11, 2011) (upholding the AJ’s ruling on summary judgment issued prior to the complainant providing his response, because the evidence on appeal showed no dispute of material fact.). See Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 2019003832) (Jun. 16, 2020) (affirming an AJ decision issued after the Initial Conference pursuant to 29 C.F.R. § 1614.109(i) after applying summary judgment standards articulated in 29 C.F.R. § 1614.109(g)). 6 2021003246 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. 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). 7 2021003246 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 July 11, 2022 Date
