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

Equal Employment Opportunity Commission

Jul 14, 2022

Appeal No. 2020004538 (E.E.O.C. Jul. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lu T.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2020004538 Agency No. CHI-18-0881-SSA DECISION On August 10, 2020, 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 July 14, 2020, final decision 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, we AFFIRM the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Social Insurance Specialist (Claims Specialist), GS-0105-11, at the Agency’s Pekin Field Office in Pekin, Illinois. On October 6, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (mental and physical) and reprisal for prior protected EEO activity under the Rehabilitation Act of 1973. Following two amendments to the complaint, the Agency accepted the complaint for investigation and framed it in the following manner: 1. Whether the Agency subjected Complainant to harassment based on disability and reprisal beginning on or around June 2018 and ongoing;2 and 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. 2020004538 2 2. Whether the Agency to provide Complainant with a reasonable accommodation based on disability beginning on or around June 20, 2018, and ongoing, in terms of provisions made for Complainant’s reasonable accommodation.3 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 but subsequently withdrew her request. Consequently, the assigned AJ dismissed the matter and ordered the Agency to issue a final decision pursuant to 29 C.F.R. § 1614.110(b). In accordance with the AJ’s order, the Agency issued a final decision on July 14, 2020, addressing the merits of the complaint. The Agency ultimately concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In finding no discrimination on Complainant’s denial of reasonable accommodation claim as alleged in claim 2, the Agency found that management had partially granted Complainant’s request by providing her with a cart, printer, and allowing her to take unscheduled breaks. While the Agency acknowledged that Complainant had sought a transfer to the Peoria office as a reasonable accommodation to shorten the commuting distance between her workplace and her home and medical providers, the Agency found the requested accommodation to be ineffective, as it would have, in actuality, nearly doubled Complainant’s commuting distance. Given that Complainant only needed to meet with her medical providers once every few weeks, the Agency was unpersuaded that the denial of Complainant’s transfer request to Peoria amounted to discrimination, as the Commission has long considered reassignment as an accommodation of last resort. As for Complainant’s requested accommodation to exclude Title XVI cases from her workload, the Agency found that management was not required to remove this duty because it was an essential function of Complainant’s position. 2 Claim 1 originally comprised 24 incidents of harassment, which the Agency’s acceptance letter distilled into the claim listed above. In its final decision, the Agency acknowledged that the acceptance letter contained no mention of the underlying incidents. See Appeal File at 7. Using Complainant’s affidavit, the final decision noted that the underlying incidents involved “a series of incidents including work assignments, lack of assistance, critical comments, disregarding her accommodation, and harassment by a coworker.” Id. Though not expressly listed by the Agency, we note that claim 1 also includes an incident concerning the denial of her hardship transfer request to the Agency’s office in Elgin, Illinois, which the Agency analyzed as part of Complainant’s overall harassment claim. We note that Complainant’s hardship transfer request is separate from and in addition to her reasonable accommodation request to transfer to Peoria, Illinois. 3 Complainant sought the following reasonable accommodations: 1) transfer to the Agency’s office in Peoria, Illinois; 2) reconfiguration of her work assignments to include fewer Title XVI cases; 3) unscheduled breaks as needed; 4) a standalone personal printer; and 5) a cart so that she did not have to carry around what she perceived as heavy files. 2020004538 3 The Agency analyzed the 24 incidents comprising claim 1 under the legal standard for harassment. Having reviewed the record, the Agency found that the alleged incidents either did not occur or were insufficiently severe or pervasive to constitute harassment. The Agency also found that the alleged incidents would be insufficient to deter a reasonable person from engaging in protected EEO activity. Notably, in finding no harassment, the Agency found that management did not act discriminatorily in denying Complainant’s hardship request to transfer to the Elgin office because the request did not meet the Agency’s criteria for a hardship, as Complainant was seeking to follow her husband who had voluntarily moved to Elgin. Based on the foregoing, the Agency concluded that Complainant could not prevail on her complaint. This appeal followed. On appeal, Complainant vehemently expresses her disagreement with the Agency’s final decision. In her brief, Complainant recounts the incidents of discrimination, including her encounters with both her supervisor and the Technical Expert, whom she primarily accused of discrimination. Complainant states that the Technical expert has a long history of denigrating disabled SSA claimants, and that when she [Complainant] became disabled in 2015, the Technical Expert began treating her in the same way she treated disabled claimants. While Complainant acknowledges that the Agency provided her with a cart and printer, and allowed her to take unscheduled breaks, she claims that her supervisor and the Technical Expert made it difficult for her to utilize these accommodations by: moving the cart away from her; delaying her unscheduled breaks by forcing her to get someone to relieve her prior to going on break; and fixing the shared printers first instead of her personal printer. Complainant asserts that the harassment became so pervasive that she was forced to request reassignment to the Peoria office in summer 2018 in order to avoid the office and to allow her to attend medical appointments. She claims that the Agency discriminatorily denied her request for reassignment as a reasonable accommodation. Furthermore, Complainant states that when her husband transferred to the Chicago area in fall 2018, she requested a hardship transfer to the Elgin office as she relied on her husband for caregiving assistance. She contends that the Agency’s denial of her requested hardship transfer request based on failure to meet the criteria for a hardship transfer was discriminatory because the Agency had previously allowed several employees in field offices within her district to transfer for spousal/personal related reasons. The Agency opposes the appeal and requests that the Commission affirm its final decision. In so requesting, the Agency vehemently denies interfering with the accommodations that it provided to Complainant and notes that Complainant’s supervisor investigated Complainant’s allegations of interference and found no wrongdoing. With regard to Complainant’s reasonable accommodation request to transfer to Peoria and request to remove Title XVI workloads, the Agency reiterates that it was not obligated to grant these requests for the reasons noted above. Lastly, the Agency argues that Complainant failed to establish a hostile work environment based on disability or reprisal. 2020004538 4 Upon careful review of the Agency’s final decision and the evidence of record, we find that the Agency correctly determined that Complainant failed to establish that the Agency subjected him to discrimination as alleged. We begin with claim 2, concerning Complainant’s denial of reasonable accommodation claim. Our review of the record here shows that the Agency provided most of Complainant’s requested accommodations with the exception of her request to transfer to the Peoria office and exclude Title XVI cases.4 Having reviewed the record, we agree with the Agency that the provided medical evidence fails to establish a medical basis for granting Complainant’s requested transfer to Peoria under the Rehabilitation Act. Like the Agency, we also note that Complainant’s requested accommodation would have nearly doubled her commute time. Given that the Commission has long held that reassignment is an accommodation of last resort, we agree with the Agency’s finding of no discrimination with regard to Complainant’s transfer request. As for Complainant’s request to exclude Title XVI cases, we agree with the Agency that management was not obligated to remove this duty given that it was an essential function of Complainant’s position.5 See EEOC Enforcement Guidelines on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, General Principles (Oct. 17, 2002). Turning now to claim 1, concerning Complainant’s claims of harassment, we initially find that the Agency misapplied the law on the denial of Complainant’s hardship request. While the Agency analyzed that incident under the legal standard for harassment, we note that the Commission has long held that clearly defined events, such as the denial of a transfer request, are discrete in nature and should be considered under the legal standard for disparate treatment. See Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120142242 (July 26, 2016) (noting that the denial of a transfer request is a discrete act); see also Carey v. Dep’t of Def., EEOC Appeal No. 01A53389 (Sept. 1, 2006), citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Nevertheless, we conclude that the Agency’s error was harmless, as the preponderance of the evidence fails to persuasively show that the denial of her hardship request was based on discriminatory grounds. In reaching this conclusion, we considered Complainant’s contention that management allowed several employees within her district to follow transfer for spousal/personal related reasons. While we are mindful of her contention, we note that Complainant did not provide any comparators during the EEO investigation. Given the lack of information about similarly situated comparators, we are unable to discern that Complainant was treated in a disparate manner. 4 We find no objective evidence to corroborate Complainant’s contention that the Agency interfered with her full use of the provided accommodations. 5 We note that Complainant’s position description clearly indicates that “[t]he incumbent reviews and authorizes claims and other complex determinations for benefits under Titles II, XVI, and/or XVIII of the Social Security Act.” See Appeal File at 678. 2020004538 5 Based on the available evidence, we ultimately agree with the Agency that management did not discriminatorily deny Complainant’s hardship transfer request. To the extent that Complainant’s hardship request could be construed as a request for reasonable accommodation, we still find no discrimination, as Complainant has not persuasively shown how her requested transfer would have enabled her to perform the essential functions of her position. As for the remaining incidents of harassment comprising claim 1, we concur with the Agency’s finding of nondiscrimination, as the record persuasively shows that the alleged actions either did not occur or the Agency had legitimate, nondiscriminatory reasons for taking the alleged actions. Accordingly, we AFFIRM the Agency’s final 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. 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. 2020004538 6 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. 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 14, 2022 Date