U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicole M,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2021004765 Hearing No. 570-2021-00006X Agency No. HS-ICE-02227-2019 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 22, 2021 final order regarding an 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 was employed by the Agency as an Associate Legal Advisor, GS-0905-15, for the Agency’s Human Rights Violator Division in the Office of Principal Legal Advisor in Washington, D.C. On November 28, 2017, Complainant was injured in a bicycle accident which resulted in a head and neck injury. Following the accident, she required two surgical procedures and received a diagnosis of Post-Concussive Syndrome (Traumatic Brain Injury (TBI)). Complainant was out of work from November 28, 2017, until March 16, 2020. Complainant’s absence was approved as leave without pay (LWOP) and Family Medical Leave Act (FMLA)-protected leave. On December 5, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability (traumatic brain injury) and in reprisal for 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. 2021004765 2 prior protected EEO activity when, beginning in May 2018 through continuing, management officials, to include the Reasonable Accommodation (RA) manager, failed to engage in the RA interactive process and failed to provide a reasonable accommodation which would allow Complainant the opportunity to meet the essential functions of her position. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or 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 AJ explained that for Complainant to be a qualified individual with a disability she needed to be able to perform the essential functions of her position, with or without accommodation, and that the Agency was not required to eliminate the essential functions of the position when providing a reasonable accommodation. The AJ found that Complainant, by her own admissions, could not perform all the duties required by her job and that she asked for a complete gutting of the essential functions of her job in order to be accommodated. Complainant requested approximately 16 items to accommodate her condition including, working three hours a day three days a week; working in a quiet location free from distractions near windows or sources of natural light; frequent breaks; use of a tape recorder; written instructions; consultation with colleagues when completing projects that involved high degrees of flexibility and divided attention; adjustments to her workday schedule; breaking larger tasks into smaller pieces; and extra time to complete tasks. The AJ found that the documentary evidence showed the Agency engaged in the interactive process, and partially granted several of Complainant’s requested accommodations including, a quiet workplace; written instructions to the extent possible; dictation software where available; schedule and break adjustments; and use of time management strategies. Complainant requested reconsideration of the denied accommodations and Agency management denied the request noting that providing all of the accommodations requested, “would require removing essential functions of [Complainant’s] position.” Management continued to grant Complainant LWOP. Complainant subsequently returned to work in March 2020. By May 2020, Complainant said she could not keep up with her work during core work hours and she was struggling to enter her time into the Agency’s case management system. Complainant took leave on several occasions between March 2020 and June 2020 due to her TBI symptoms and other ailments. Complainant invoked full-time FMLA on July 24, 2020, stating that she needed to take leave until her TBI symptoms were reduced and that her doctor had informed her it could be weeks or months until she was at that point. Agency management continued to grant Complainant LWOP through October 14, 2020. Complainant failed to respond to management’s requests for information; therefore, her request for additional LWOP until November 1, 2020 was denied. On October 27, 2020, Complainant informed management that per her doctor, there were no accommodations the Agency could provide that would allow her to return to duty at the present time and that she was unable to provide a date with reasonable certainty of when she could return to full-time work. 2021004765 3 Management offered to conduct a reassignment search as an accommodation of last resort, which Complainant accepted. The Agency subsequently informed Complainant that after an extensive reassignment search, they did not find any vacant positions into which she could be reassigned.2 The AJ concluded that the documentary evidence showed that the Agency did not fail to engage in the interactive process. Complainant was granted temporary accommodations, which she rejected, and was repeatedly provided the option to reconsider her decision to reject the temporary accommodations or continue to stay on LWOP/FMLA. Complainant and the Agency were in frequent communication throughout the period of November 27, 2017, following her accident, through November 2020, when Complainant consented to a reassignment search for a position that better suited her needs. The AJ found that Agency went above and beyond what any employer would be expected to do for any employee, by allowing Complainant to stay on FMLA/LWOP for over two years resulting in the department being short staffed for the entire duration, and her supervisors offering her many of the numerous accommodations she requested on an interim basis prior to a final decision on the matter. The AJ noted that complainants are not entitled to the accommodation of their choice. As a result, the AJ found that Complainant failed to show that she was denied reasonable accommodation in violation of the Rehabilitation Act. Finally, the AJ concluded that Complainant failed to demonstrate, beyond mere assertions or conjecture, that the Agency was motivated by discriminatory or retaliatory animus. Accordingly, the AJ found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. 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. 2 Complainant stated on appeal that she was removed effective June 17, 2021, for medical inability to perform the essential functions of her position. 2021004765 4 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. Here, however, Complainant has failed to establish such a dispute. 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. 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. 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. 2021004765 5 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 March 16, 2022 Date
