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

Equal Employment Opportunity Commission

Dec 19, 2022

Appeal No. 2021004198 (E.E.O.C. Dec. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Annalee D.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021004198 Hearing No. 480-1010-00762X Agency No. SF-19-0644-SSA DECISION On July 19, 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 July 15, 2021, 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. and 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 a Customer Service Representative at the Agency’s Teleservice Center in Los Angeles, California. On May 21, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability (mental), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On April 3, 2019, she received a lower-than-expected evaluation rating; 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. 2021004198 2 2. On October 1, 2019, management issued her a performance evaluation citing service and conduct error; 3. On November 29, 2019, management charged Complainant with Absent Without Leave (AWOL); 4. On December 18, 2019, the Agency failed to provide Complainant a reasonable accommodation when she was forced to go down the stairs during an evacuation; and 5. On November 29, 2019, through February 19, 2020, in terms of AWOL charges, failure to accommodate, excluding her from emails, service observations, and providing incorrect reports.2 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. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on July 9, 2021. In the AJ decision, the AJ determined that after making all reasonable inferences in favor of Complainant, there were no material facts in dispute regarding the complaint. In regard to claim 1, the AJ found that the Agency explained Complainant's rating and noted that her only deficiency was not always identifying the caller before conveying personal information about the claimant. The AJ determined that there was no evidence that Complainant was reprimanded regarding her rating, nor was Complainant able to establish pretext in regard to her evaluation rating. As to claim 2, the AJ noted that the Agency explained that Complainant was observed failing to follow policy resulting in a conduct issue. Moreover, Complainant's evaluation included positive and constructive feedback, referencing areas of improvement. The AJ determined that Complainant was unable to establish that the foregoing was pretext, or otherwise tainted by any EEO protected consideration. The AJ also determined that Complainant failed to establish that the rating was adverse. As to claim 3, the AJ found that the Agency had a policy which required employees taking sick leave the day before or after a holiday to provide supporting medical documentation. On the date in question, the Agency reported that Complainant did not provide medical documentation to substantiate her sick leave within a 15-day period. As such, she was marked AWOL. The AJ found that Complainant could not show that the foregoing was pretext for discrimination or otherwise tainted by any EEO protected consideration. The AJ found that the record established that Complainant was charged with AWOL due to her failure to comply with Agency policy. 2 The AJ combined three complaints from Complainant. Those complaints include EEOC Appeal Nos. 2021004587 and 2021004586, which were administratively closed on September 15, 2021, as the contained claims were included in the present complaint. 2021004198 3 As to claim 4, the AJ determined that Complainant did not request a reasonable accommodation based on vertigo, nor did she have documentation of such a condition. At the time of the evacuation, the AJ found that the record indicated that Complainant did not raise any concerns about vertigo until the last few stairs to exit, at which time the logical way to exit was to continue exiting, rather than going back up the stairs. The AJ acknowledged that Complainant previously requested a reasonable accommodation in the form of a parking spot in September 2016, however, the AJ noted that the request did not indicate that Complainant had vertigo, nor did Complainant provide any information about her vertigo at that time. In sum, the AJ determined that Complainant failed to establish her claim. Finally, as to claim 5, the AJ determined that the Agency explained the email regarding the fire drill was sent to the entire office, including Complainant. For the service observation and reports, the Agency explained that a conduct error was identified during a routine service observation when Complainant did not properly verify the identity of the caller before releasing information. Ultimately, the AJ concluded that Complainant was unable to establish that the foregoing is pretext for discrimination or otherwise tainted by any EEO-protected consideration. Moreover, the AJ determined that the alleged conduct was not sufficiently severe or pervasive to meet the objective requirements of hostility. The AJ also considered whether Complainant set forth an actionable claim of harassment. The AJ determined that as described in detail in the decision, the nature and frequency of encounters, span of time over which they occurred, as well as hostility of motives associated with the alleged events, were insufficient to establish a hostile work environment. The Agency subsequently issued a final order on July 15, 2021, adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.3 CONTENTIONS ON APPEAL On appeal, Complainant requests a new AJ and argues that the AJ is not capable of making credibility determinations as the AJ were not present for the events contained in her complaint. She further argues that her disability is due to the request to walk down five flights of steep stairs during the evacuation at issue herein. Complainant contends that the Agency was aware of her vertigo. As a result of the aforementioned, Complainant requests that she receive a hearing. In response, the Agency argues that there is nothing in Complainant’s brief which alters the AJ decision. 3 On appeal, the Agency argues that Complainant filed a premature appeal, and that its final order had not been issued as of July 19, 2021, the date of Complainant’s appeal. However, the complaint file of record contains a July 15, 2021, FAD which clearly references the July 9, 2021, AJ decision, and affirms the AJ’s findings. Report of Investigation (ROI) at 006. 2021004198 4 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). 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, Complainant has failed to establish such a dispute. We acknowledge that Complainant has submitted arguments on appeal. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. We note that simply providing bare assertions without more is not sufficient. On appeal, Complainant has requested a new AJ but has not adequately explained why such is the case. Rather, she has merely asserted that the AJ’s view of the facts is not in her favor and as such she should receive a new AJ and a hearing. Unfortunately, without more, we are not persuaded. Furthermore, while Complainant presents additional arguments regarding the evacuation procedure, her statements continue to be invalidated by the record. The record does not contain evidence that Complainant either had a previous reasonable accommodation in place, nor that there was medical documentation available which would have alerted management to her condition. Moreover, there are statements from the day in question which provide that Complainant did not raise concerns about her vertigo until she was already walking down the stairs. Overall, there is simply no evidence at hand which supports Complainant’s statements, nor has she presented additional relevant evidence on appeal. 4 Upon review of the AJ’s summary judgment decision, the parties’ arguments on appeal, and the record as a whole, we find that the AJ decision accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. In consideration of both parties’ motions, the AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. Accordingly, the AJ properly issued a decision without a hearing. 4 We acknowledge that Complainant has submitted updated medical documentation with her appeal documents. However, this medical documentation does not show that the Agency was privy to such information, nor that she was in receipt of a reasonable accommodation at the time of the evacuation incident alleged in claim 4. 2021004198 5 We also agree that the AJ’s decision correctly identified the legal standards for Complainant to prove that she was subjected to discrimination based on race, disability, and retaliation. 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. 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. 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. 2021004198 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 December 19, 2022 Date