Beatriz P.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

May 31, 2019

0120182508 (E.E.O.C. May. 31, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Beatriz P.,1
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120182508
Hearing No. 450-2016-00328X
Agency No. 15-06-135

DECISION

On July 16, 2018, 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
May 9, 2018, final order concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. § 2000e et seq., 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.

ISSUE PRESENTED

Whether the EEOC Administrative Judge (AJ) correctly found that Complainant failed to establish
that the Agency discriminated against her based on her race, sex, age, disability, and reprisal when
on June 3, 2015, Complainant learned that she would not be rehired to her former position as a
GS-12 Claims Examiner.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a former Claims Examiner,
GS-12. She had worked at the Agency’s Office of Workers Compensation Program, (OWCP), in

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.
0120182508

2
its Southwest Region facility in Dallas, Texas. On September 16, 2015, Complainant filed an EEO
complaint alleging that the Agency discriminated against her on the bases of race (African-
American), sex (female), color (Black), disability (physical), age (56), and reprisal for prior
protected EEO activity under Title VII, the ADEA, and the Rehabilitation Act as set forth above.

Complainant began her employment with the OWCP in Dallas, Texas in April 1987, as a Workers’
Compensation Assistant. On September 5, 2000, Complainant was formally diagnosed with
bilateral carpal tunnel syndrome. In October 2000, Complainant became a GS-12 Claims
Examiner; however, from March 6, 2001 to July 23, 2001, Complainant did not work. Due to her
bilateral carpal tunnel syndrome, Complainant left the Agency on September 6, 2001; therefore,
Complainant had approximately seven months’ experience as a GS-12, Claims Examiner before
she left the Agency.

Complainant, at no time during her employment in the Dallas OWCP office, was supervised by
the Regional Director (RD1) or the District Director (DD1). DD1 had, however, been a coworker
of Complainant’s in the Dallas OWCP office. On July 23, 2003, Complainant applied for disability
retirement. She has received workers’ compensation or disability retirement since 2001.

Since May 1, 2001, Complainant’s medical documentation has restricted her to typing no more
than four hours per day. On December 8, 2015, and September 21, 2017, Complainant’s physician
stated that she could use a voice-activated machine, but still could not type more than four hours
per day; and that performing the duties of a Claims Examiner, GS-12, would exacerbate her
permanent medical restrictions. On multiple occasions, Complainant claimed that she could not
perform the duties of a Claims Examiner, GS-12, because there was no “limited duty” or “light
duty” for that position. Complainant took disability retirement, effective October 4, 2003.

On May 5, 2015, Complainant sent a letter to the Agency’s Secretary requesting assistance in
obtaining her previous GS-12 Claims Examiner position in the Dallas OWCP office. Two days
later, Complainant sent DD1 a medical report, dated December 10, 2014, stating that she was
restricted to typing only four hours per day. RD1 responded to Complainant’s letter on May 12,
2015 explaining that OWCP needed clarification regarding her medical restrictions to “make an
informed decision regarding any consideration for re-hire.”

On June 3, 2015, Complainant’s vocational rehabilitation counselor told her that DD1 would not
be re-hiring her as a GS-12 Claims Examiner in the Dallas OWCP office. Based on this,
Complainant filed her informal complaint of discrimination on June 15, 2015. The record indicates
that she never amended her complaint to add any allegations after June 3, 2015.

On June 30, 2015, the Chief of the Technical Assistance Branch for Federal Employees’
Compensation, (the Chief) responded to Complainant’s letter explaining that she had been referred
for vocational rehabilitation services based on restrictions provided by her doctor on December
10, 2014. The Chief further explained that there were no vacancies in the Dallas OWCP office,
and therefore vocational rehabilitation efforts would continue to assist Complainant with
reemployment with a new employer.
0120182508

3
On July 18, 2015, Complainant sent the Chief a letter alleging that the Dallas OWCP office was
in violation of Executive Order 13568. Complainant further stated that because a Dallas Claims
Examiner had recently been fired, she should be re-hired. On August 5, 2015, the Chief responded
to Complainant’s letter explaining that she did not have a right to reclaim her date-of-injury
position under 5 U.S.C. § 8151, and that Executive Order 13568 did not create any right for
Complainant to be rehired by the Dallas OWCP office. The Chief further explained that vocational
rehabilitation efforts would continue, but that if Complainant wished to return to federal service,
she should apply for a position through any of the special hiring authorities for which she qualified.
Complainant, at no time, ever applied for a GS-12 Claims Examiner position, or any other Claims
Examiner position with the Dallas OWCP office.

On April 12, 2016, Complainant sent another letter to RD1 requesting that she be rehired as a GS-
12 Claims Examiner in light of a posted job announcement for a GS-7 Claims Examiner in the
Dallas OWCP office. On July 6, 2016, DD1 sent a letter responding to a June 15, 2016, letter from
a Claim Examiner in the Kansas City OWCP office regarding Complainant’s work capabilities.
DD1 explained that the Dallas OWCP office was unable to hire Complainant, due to budgetary
restraints; the office was at its hiring capacity and was unable to grant the request.

On November 17, 2017, after receiving medical documentation, RD1 sent Complainant a job offer
for a part time, GS-5 Contact Representative/Front Desk Clerk/Greeter position, but Complainant
rejected the offer. According to the Agency, the only position Complainant sought was that of
Claims Examiner, GS-12, a position she had not held since September 6, 2001, and then had held
only briefly before ceasing all employment — with the Dallas OWCP District Office or any other
employer.

The Agency, among other things, observed that Complainant’s request to return to her former
position reflected no consideration of the brief amount of time she actually held the job or the
changes in processes and systems that now are required to perform the duties of the position since
she last performed those duties more than a decade and half ago.

Complainant acknowledged that she had no experience with the Integrated Federal Employee
Compensation System software that now was being used, with or without a voice-activated system.
Although Complainant believed, as her physician stated, that she could perform the Claims
Examiner, GS-12, job duties with the use of a voice-activated system so that she would be
keyboarding only four hours a day, she had never tested the voice-activated system with the
Agency’s software.

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. Complainant timely requested a hearing. Over
Complainant’s objections, the AJ assigned to the case granted the Agency’s March 12, 2018,
motion for summary judgment and issued a decision without a hearing on May 9, 2018.
0120182508

4
When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the
AJ’s decision, finding that Complainant failed to establish that the Agency subjected her to
discrimination as alleged, became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).

CONTENTIONS ON APPEAL

Complainant, in pertinent part, contends that the AJ erroneously disregarded crucial evidence
when she found that Complainant’s attempt to return to work before May 2015, were not at issue.
Complainant, however, contends that her multiple attempts to return to work were submitted in
writing and all occurred after May 2015, not before. She asserts that the letters also requested
“reasonable accommodations” via a voice activated system to adhere to her permanent 4-hour per
day typing restriction. Complainant also contends that the AJ erred in finding that there were no
genuine issues of material fact in dispute. She also reiterates the arguments raised in her rebuttal
and asks that the AJ’s decision be overturned.

The Agency, in requesting that we affirm its final action, argues, among other things, that the AJ
simply clarified that any of Complainant’s attempts to return to work before May 5, 2015 – could
not be used in this case as evidence of discrimination. Further, the Agency maintains that
Complainant did not establish that there were similarly situated individuals outside of her protected
classes who were treated more favorably than she was, because her complaint does not allege any
discriminatory refusals to reinstate her after June 3, 2015.

STANDARD OF REVIEW

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). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment of the record and its
interpretation of the law”).

0120182508

5

ANALYSIS AND FINDINGS

AJ’s Issuance of a Decision Without a Hearing

We must first determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission’s regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding
a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without holding a hearing only upon a determination that the record
has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal
No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of
the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly
undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to
engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56
itself precludes summary judgment “where the [party opposing summary judgment] has not had
the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge must enable the parties to
engage in the amount of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could
order discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).

Upon review of the record, we find that there is no genuine issue of material fact presented here.
The record has been adequately developed, Complainant was given ample notice of the Agency’s
motion for a decision without a hearing, she was given a comprehensive statement of the allegedly
undisputed material facts, she was given the opportunity to respond to such a statement, and she
was given the chance to engage in discovery before responding, if necessary. We find that, even
assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as
0120182508

6
explained below. Therefore, we find that the AJ’s issuance of a decision without a hearing was
appropriate.

Disparate Treatment

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a
prima facie case by demonstrating that she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
her race, sex, age, disability, and reprisal, we find that the Agency articulated legitimate,
nondiscriminatory reasons for not rehiring Complainant for the Claims Examiner, GS-12, position
that she held prior to leaving the Agency more than a decade earlier. Specifically, the only position
Complainant sought was that of Claims Examiner, GS-12, a position she had not held since
September 6, 2001, and then had held for only seven months before ceasing all employment. There
is no evidence that on or around the time of her complaint, May to June 2015, that there was a
vacant GS-12, Claims Examiner position to which Complainant was qualified to perform the
essential functions. In May 2015, Complainant’s medical information stated that she was restricted
to typing only four hours per day. RD1 responded to Complainant’s letter indicating that
management needed clarification regarding her medical restrictions to “make an informed decision
regarding any consideration for re-hire.” In June 2015, she was informed that she had been referred
for vocational rehabilitation services based on restrictions provided by her doctor on December
10, 2014, and that there were no vacancies in the Dallas OWCP office, and therefore vocational
rehabilitation efforts would continue to assist Complainant with reemployment with a new
employer.

We find no persuasive evidence of pretext here. Complainant alleged that RD1 and DD1 were the
Agency employees responsible for the alleged discrimination. However, she admitted she had
never met RD1 prior to filing her EEO complaint; and that he would not have been aware of her
race, age, disability or prior EEO activity, the bases of her allegations. Therefore, Complainant
has failed to establish a causal connection between RD1’s actions and her prior EEO activity or
any of her other protected classes. She has also failed to demonstrate that DD1, her former
coworker, made any of the alleged employment decisions based on her membership in any class.
0120182508

7

To the extent that Complainant claimed that she was denied a reasonable accommodation, we find
that even if she was an individual with a disability, she did establish that, at the time at issue, she
was qualified.
At the outset, we note that she offered no evidence that a vacant, funded position existed at that
time. Also, the evidence shows that Complainant’s condition was permanent; and that her medical
restrictions remained. Therefore, her long absence had not resulted in any change to her condition
that would have enhanced her ability to perform the required tasks of the Claims Examiner
position, which her physician had, at the time, stated would exacerbate her permanent condition.
The evidence shows that returning Complainant to the Claims Examiner position would have
require significant changes that would alter the duties of that position. For example, as
Complainant herself admitted, the position did not allow for light or limited duties; her medical
restrictions required that she type only four hours per day; and she had not tested the Agency’s
software with its voice-activated system, and could therefore not demonstrate that she could fully
perform the essential functions with or without a reasonable accommodation in the position from
which she had taken disability retirement over a decade earlier.

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, which by operation of our
regulations adopted the AJ’s decision finding no discrimination as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
0120182508

8
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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

May 31, 2019
Date