[Redacted], Jeannie T., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Nov 30, 2022

Appeal No. 2022003184 (E.E.O.C. Nov. 30, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeannie T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2022003184 Hearing No. 480-2020-00645X Agency No. HS-CBP-01368-2019 DECISION On May 19, 2022, 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 14, 2022, final order concerning her 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. 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 an Environmental Protection Specialist, GS 13 at the Agency’s Office of Facilities and Asset Management in Laguna Niguel, California. On August 21, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (physical) when: 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. 2022003184 2 1. From July 5, 2018, Complainant experienced a delay in receiving a decision for her reasonable accommodation request for a private office, and on July 3, 2019, her request for a reasonable accommodation was denied; 2. From May 1, 2019, Complainant experienced a delay in receiv[ing] a decision on her reasonable accommodation request to attend the Hearing Loss Association of America Convention, and on July 3, 2019, Complainant’s request for reasonable accommodation was denied. Complainant suffers from permanent bilateral hearing loss.2 See Report of Investigation (ROI) at 55. She requested a geographic transfer from Indianapolis, IN to Laguna Niguel, CA which was approved in the summer of 2018. See ROI at 58-59. Along with her transfer request, Complainant also requested a transfer of the reasonable accommodation which she had been granted in Indianapolis, of a private office with a visually-alerting fire alarm. See ROI at 451. On November 9, 2018, the Agency informed Complainant that it could not install a visually- alerting fire alarm at her assigned office space because it would require extensive facility modifications and offered Complainant two alternative accommodations: the assignment of a cubicle with a direct line of sight to an existing fire alarm with a visual alert system, and authorization to telework full-time. See ROI at 451-52. Complainant selected the alternative accommodation of working from the cubicle a couple days a week. See Complainant’s Deposition at 124-26. 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. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s October 4, 2021, motion for a decision without a hearing and issued a decision without a hearing on March 11, 2022. The AJ found that there were no genuine issues of material fact in dispute and that Complainant did not establish that she was denied a reasonable accommodation. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS 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). 2 We note that the Agency does not dispute that Complainant is a qualified individual with a disability. 2022003184 3 We find that the AJ’s decision accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. The AJ correctly determined that the record was sufficiently developed and that Complainant failed to establish a genuine dispute of material fact. Complainant’s argument on appeal that the evidence provided by the Agency is questionable is unavailing as Complainant did not provide any evidence to support her challenges to the Agency’s evidence. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). We therefore find that the AJ’s issuance of a decision without a hearing was proper. To the extent Complainant challenges the Agency’s delay in providing her with a reasonable accommodation, we do not find that the Agency’s delay in responding to Complainant’s reasonable accommodation request violated the Rehabilitation Act. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors include: (1) the reason(s) for delay; (2) the length of the delay; (3) how much the individual with a disability and the employer each contributed to the delay; (4) what the employer was doing during the delay; and (5) whether the required accommodation was simple or complex to provide. See Robyn D. v. Dep’t of the Air Force, EEOC Appeal No. 2021000644 (May 19, 2021). Complainant’s supervisor, the Director of the Technical Resources Branch (Director) explained that in August 2018, as the Agency was preparing for Complainant’s relocation, it was discovered that there was asbestos in the Laguna-Niguel Building, which would significantly complicate the addition of a visually-alerting fire alarm in the office initially designated for Complainant. See ROI at 363. She stated that she informed Complainant of the situation and they mutually agreed that an alternative solution would be preferred. See id. Thereafter, she explained that the Agency needed to coordinate with the General Services Administration, which owned the Laguna-Niguel Building, and consult with the local fire marshall, and the Job Accommodation Network to review potential alternate alerting device solutions and test potential alerting equipment. See id. She explained that they also coordinated with Complainant to evaluate the working conditions in the Laguna-Niguel office and the impact on Complainant’s ability to perform her work. See id. The evidence in the record includes emails exchanged with Complainant in December 2018, explaining the asbestos situation and discussing alternative fire alarm alerting systems. See Agency Production of Documents at 1. Under the circumstances, we do not find that the evidence in the record indicates any unnecessary delay in providing Complainant with a reasonable accommodation. We find that the AJ’s decision correctly identified the legal standards for Complainant to establish that the Agency violated the Rehabilitation Act by denying her a reasonable accommodation under the Rehabilitation Act. The AJ correctly determined that the evidence in the record does not support Complainant’s assertion that she was denied a reasonable accommodation. The evidence in the record indicates that the Agency conducted a sound level test in the cubicle it offered to Complainant as an alternative to the private office and found that the sound level was approximately similar to that in the private office. See Agency Production of Documents at 13. 2022003184 4 While Complainant argues on appeal that the sound-level test conducted by the Agency is not accurate, she does not provide any evidence aside from her assertions to support her argument. The fact that Complainant would have preferred an accommodation of a private office does not in itself establish a violation of the Rehabilitation Act. While Complainant is entitled to an effective accommodation, she is not entitled to the accommodation of her choice. See e.g., Casteneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (1994) (stating complainants are not necessarily entitled to the accommodation of their choice, but to a reasonable accommodation). Moreover, while Complainant also contends that the cubicle was not, in fact, an effective accommodation, she acknowledges that she did not inform her supervisor of her issues with working in the cubicle. See Complainant’s Deposition at 132-133; 152-55. While we are sympathetic to Complainant’s situation, the evidence in the record does not support her assertions that the Agency has, in fact, denied her an effective accommodation nor can the Agency be held responsible for Complainant’s failure to inform her supervisor if her accommodations were ineffective. Finally, we find that the AJ’s decision correctly identified the legal standards for Complainant to prove that she was subjected to disparate treatment on the basis of disability. We find that the AJ correctly found that the Agency articulated legitimate, nondiscriminatory reasons for denying her request to attend the Hearing Loss Convention. The Director stated that she denied Complainant’s request for funding and official time to attend the Hearing Loss Convention because it did not support Complainant’s daily work tasks and duties. See ROI at 366. Complainant was granted annual leave to attend the Convention. See ROI at 366. Complainant stated only that attendance at the Convention would provide useful information but she did not state how attendance at the Convention could, in fact, be considered an accommodation to permit her to work nor did she argue that attendance at the Convention was otherwise required for her job. The mere fact that Complainant disagrees with the Director’s determination that attendance at the Convention was unrelated to her job duties is not sufficient to establish that the denial was due to discriminatory animus. See Manuel K. v. U.S. Postal Serv., EEOC Appeal No. 2021002617 (July 21, 2022) (mere disagreement with an Agency’s actions is not sufficient to establish pretext). Absent any supporting evidence in the record, we cannot find that the Director’s decision to deny Complainant’s request for funding and official time to attend the Hearing Loss Convention was either a violation of the Rehabilitation Act or due to discriminatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order finding that Complainant did not establish that she was subjected to discrimination as alleged. 2022003184 5 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. 2022003184 6 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. 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 November 30, 2022 Date