[Redacted], Mercedez A., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022005144 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mercedez A.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2022005144 Hearing No. 570-2021-01015X Agency No. HSCBP005202020 DECISION 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 28, 2022 final order 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Correspondence Analyst at the Agency’s Business Operations Center, Office of Field Operations in Washington, D.C. On March 4, 2020, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment based on her disability (mental), and in reprisal for prior protected EEO activity, when: 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. 2022005144 2 1. from November 19, 2019, through March 13, 2020, management delayed, and ultimately denied, Complainant’s request for a reasonable accommodation of moving to a different supervisor; 2. on January 5, 2020, Complainant applied for a temporary duty assignment to the Portfolio Acquisition Executive Division but received no response; and 3. on or around March 16, 2020, Complainant was issued a Letter of Reprimand. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On June 2, 2022, the AJ issued a Notice of Intent to Issue Summary Judgment (“Notice of Intent”). The AJ reviewed the record and determined that there did not appear to be any genuine issues of material fact or need for credibility determinations. For claim 1, the AJ assumed, without finding, that Complainant was an individual with a disability. The AJ noted that Complainant initiated the reasonable accommodation process on November 19, 2019, with a doctor’s note indicating that she suffered from “Excessive psychological distress” under her supervisors. Complainant’s requested accommodations included “an immediate and permanent reassignment.” The Agency denied Complainant’s requests for a reassignment and telework for five days per week, but it noted that Complainant already had a flexible start time and the ability to telework three days per week, which were effective accommodations. The AJ found that Complainant’s reassignment request amounted to a request for a change of supervisor. However, the Commission has held that an employer is not required to provide a new supervisor as a reasonable accommodation. Regarding the non-selection (claim 2), the AJ noted that Complainant admitted that she received notice of her non-selection on February 5, 2020. Complainant alleged that management withdrew her application in reprisal for her protected EEO activity, but there was no evidence beyond Complainant’s speculation, and there was no information proving that the deciding officials were aware of Complainant’s protected EEO activity or disability. The record showed that Complainant was not selected because she did not know how to use various programs, and a management official stated that the opportunity would be to teach Complainant, rather than her being a helping hand. For claim 3, the AJ found that Complainant did not dispute that she failed to request sick leave prior to attending her medical appointment and she scheduled a meeting with the Executive Director through his Assistant. In the reprimand, the Agency stated that Complainant was instructed to request sick leave in advance, and she did not do so even though this was a recurring medical appointment; and Complainant exhibited disrespectful and unprofessional conduct when contacting the Assistant without adhering to the chain of command. The AJ determined that the record contained no evidence of discriminatory animus. As such, the AJ 2022005144 3 proposed to issue summary judgment in the Agency’s favor and ordered both parties to respond to the notice. Through her attorney, Complainant filed an opposition to the granting of summary judgment prior to discovery. Complainant asserted that she raised similar allegations in a prior EEO complaint (Agency No. HS-CPB-01219-2019/EEOC Hearing No. 570-2021-00254X),2 and another AJ granted discovery. Complainant argued that a denial of discovery in this case would subject her to conflicting rulings on the same issue before the same tribunal. Accordingly, Complainant contended that she was entitled to discovery in the instant case. On June 21, 2022, the AJ issued a decision without a hearing. The AJ noted that both parties timely responded to the Notice of Intent. In response to Complainant’s claim that she was entitled to discovery, the AJ found that Complainant failed to set forth any facts justifying the need for discovery on her failure to accommodate claim, beyond her bare assertion. The AJ also highlighted the Agency’s argument that Complainant’s own evidence demonstrated that her medical condition did not prevent or significantly restrict her from performing a major life activity. The AJ concluded that the record was sufficiently developed, and that summary judgment was appropriate for the reasons articulated in the Notice of Intent. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed, and Complainant filed a brief in support of her appeal. The Agency opposed Complainant’s appeal.3 ANALYSIS AND FINDINGS 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 2 Complainant filed an appeal, and the Commission affirmed the Agency’s final order adopting the AJ’s decision finding no discrimination. Corie E. v. Dep’t of Homeland Security, EEOC Appeal No. 2022000291 (Nov. 21, 2022). 3 We note that the Agency included its arguments opposing Complainant’s appeal in a brief submitted for another appeal filed by Complainant (EEOC Appeal No. 2022004777). The Agency challenged the timeliness of this appeal. However, Complainant’s appeal was filed on August 18, 2022, which was within 30 days of the Agency’s July 28, 2022 final order, and therefore, timely. 2022005144 4 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 she 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 did not provide any arguments regarding the merits of her claims on appeal, and she failed to establish such a dispute. On appeal, Complainant argues that the AJ’s decision was in error because discovery was not permitted, and that she has a right to discovery under EEO MD-110. We note that an AJ has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and has broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 3, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). In this case, the AJ considered Complainant’s arguments regarding discovery and concluded that discovery was not needed upon review of the record. Complainant did not identify the evidence she wished to obtain through discovery on appeal, and she only offers broad arguments that she is entitled to discovery. As such, we find that Complainant did not establish an abuse of the AJ’s discretion in denying her request for discovery. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder 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 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: 2022005144 5 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). 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 2022005144 6 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 January 31, 2023 Date