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

Equal Employment Opportunity Commission

Sep 22, 2022

Appeal No. 2021003433 (E.E.O.C. Sep. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Filiberto H.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021003433 Hearing No. 520-2021-00043X Agency No. NY-20-0349-SSA DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s April 30, 2021, final order concerning his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0105-11 Claims Specialist at the Agency’s Jamaica, Queens Field Office in Jamaica, New York. Complainant has juvenile macular degeneration and is legally blind. On May 12, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when, on January 27, 2020, management denied Complainant’s question request for a reasonable accommodation consisting of 2,080 hours of union time. 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. 2021003433 2 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. Over Complainant’s objection, the AJ granted the Agency’s motion to dismiss the EEO complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The AJ found that the requested accommodation was inextricably tied to Complainant’s status as a union official, as Complainant asserted that he needed 2,080 hours of union time to more effectively perform his union duties because of his disability. An increase to 2,080 hours of union time would mean Complainant worked on union duties full time. The AJ determined that Complainant failed to show that the accommodation would enable him to more effectively perform the essential functions of his Claims Specialist position, noting that the requested accommodation would actually remove him from his position entirely. Accordingly, the AJ characterized the requested accommodation as unreasonable. The AJ also found that reasonable accommodation claims pertaining to the Agency’s obligation to a union representation failed to state a claim and should be raised through the grievance process, not the EEO process. The Agency issued its final order adopting the AJ’s decision dismissing the complaint. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in dismissing his complaint for failure to state a claim because he requested reasonable accommodation to enjoy equal access to the benefits and privileges of employment enjoyed by similarly situated employees without disabilities. Complainant asserts that it is unrebutted that, because of his disability, he takes inordinately longer to read and respond to documents and experiences physical fatigue. According to Complainant, this raises a claim of employment discrimination, not a labor dispute or a violation of the collective bargaining agreement, and he requests that the matter be remanded for a hearing on the merits. The Agency requests that its final order be affirmed. ANALYSIS AND FINDINGS The AJ dismissed Complainant’s EEO complaint for failure to state a claim. The AJ determined that the EEO complaint failed to state a claim in part because Complainant’s requested accommodation was not reasonable. However, Complainant’s claim that he was denied a reasonable accommodation, and a determination of whether the requested accommodation was reasonable goes to the merits of the claim and is not relevant to the procedural issue of whether Complainant has stated a justiciable claim under the regulations. See Horace A. v. Dep’t of Vet. Aff., EEOC Appeal No. 2021004711 (Nov. 29, 2021); Complainant v. Dep’t of Def., EEOC 2021003433 3 Appeal No. 0120142079 (Sept. 12, 2014); Brensinger v. Dep’t of the Navy, EEOC Appeal No. 0120103675 (Jan. 14, 2011). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, 1614.106(a). The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Complainant’s complaint alleged that he was subjected to discrimination based on disability when the Agency failed to provide a reasonable accommodation. The record reflects that Complainant requested the accommodation in his capacity as a union official. EEOC Regulation 29 C.F.R. § 1614.203(c) provides that an agency shall make reasonable accommodation to the known physical or mental limitations of an applicant or employee. Complainant requested reasonable accommodation as a union steward, not as an employee, so his complaint fails to state a claim. See Michal J. v. Soc. Sec. Admin., EEOC Appeal No. 0120172130 (Nov. 14, 2017) (request for reasonable accommodation in capacity as union official failed to state an EEO claim), req. for recon. denied, EEOC Request No. 0520180160 (April 18, 2018); Lambert v. Soc. Sec. Admin., EEOC Appeal No. 01992071 (July 11, 2002) (requests for reasonable accommodation related to performance of union duties failed to state a claim and should be raised through the grievance process), req. for recon. denied, EEOC Request No. 05A21071 (Aug. 21, 2003).2 Accordingly, the AJ properly dismissed the complaint for failure to state a claim. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the dismissal of Complainant’s EEO complaint for failure to state a claim. 2 On appeal, Complainant attempts to distinguish his complaint because the AJ in Lambert determined that there was insufficient evidence to establish that the complainant was an individual with a disability. However, whether a complainant is an individual with a disability goes to the merits of the complaint, and the Commission did not reach this question on appeal in finding that the requests for reasonable accommodation related to union duties failed to state a claim in Lambert. Moreover, Lambert predated the Americans with Disabilities Act Amendments Act of 2008, which expanded the definition of disability under the Americans with Disabilities Act and the Rehabilitation Act. See 29 C.F.R. § 1630.1. 2021003433 4 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. 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). 2021003433 5 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 September 22, 2022 Date