[Redacted], Michal G., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.

Equal Employment Opportunity Commission

Sep 26, 2022

Appeal No. 2022004272 (E.E.O.C. Sep. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michal G.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency. Appeal No. 2022004272 Hearing No. 461-2021-00011X Agency No. ocfo-cf-2020-00404 DECISION On August 6, 2022, 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 14, 2022, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND and ANALYSIS At the time of events giving rise to this complaint, Complainant worked as a Supervisory Human Resources Officer at the Agency’s National Finance Center in New Orleans, Louisiana. On April 27, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (Neurocognitive disorder/Hypertension) when: 1. From February 6, 2019 through December 13, 2019, management failed to address his Reasonable Accommodation request. 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. 2022004272 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on July 13, 2022. The AJ found that Complainant did not establish a violation of the Rehabilitation Act because Complainant did not properly cooperate in the reasonable accommodation process. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 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). Upon review of the record as a whole, we find that the AJ’s decision accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. The AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. We reject Complainant’s argument on appeal that the AJ’s decision ignored disputes of fact as Complainant did not provide any evidence to support his challenge to the AJ’s recounting of the material facts. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). Accordingly, we find that the AJ properly issued a decision without a hearing. As an initial matter, we note that Complainant argues for the first time on appeal that the AJ was biased against him because Complainant and the AJ were previously acquainted as they were coworkers almost 20 years ago. We reject Complainant’s argument as Complainant should have raised any concerns regarding the propriety of the AJ’s presiding over this case when the AJ was assigned to the case. Complainant did not do so but rather waited only until after receiving an adverse decision to assert bias on the part of the AJ. Moreover, we find that aside from Complainant’s bare assertion, there is no evidence to support Complainant’s allegation of bias on the part of the AJ. See Catheryn P. v. U.S. Postal Serv., EEOC Appeal No. 2021002386 (Feb. 28, 2022) (noting that an allegation of bias without more is not sufficient reason to reverse an AJ’s decision by summary judgment but rather that a complainant “must show that the AJ’s bias against her so permeated the process, that it would have been impossible to receive a fair hearing, or that the process was so tainted by substantial personal bias that she did not receive a fair and impartial hearing.”). 2022004272 3 We find that the AJ’s decision correctly identified the legal standards for Complainant to establish that the Agency violated the Rehabilitation Act by denying him a reasonable accommodation. Contrary to Complainant’s argument on appeal, the evidence in the record supports the AJ’s finding that Complainant did not properly pursue the reasonable accommodation process. The record indicates that Complainant was clearly informed that the processes for requesting extended sick leave versus a reasonable accommodation were separate and distinct. See Report of Investigation (ROI) at 209-211. Complainant’s supervisor, the Human Resources Officer (HRO) also provided Complainant with the contact information for the Reasonable Accommodation Coordinator (RAC) to whom a reasonable accommodation request needed to be submitted. See id. Complainant submitted a note from his doctor to his supervisor, the Human Resources Officer (HRO), in order to support his extended sick leave. See ROI at 86-88. In doing so, he requested that the HRO forward the attached medical note to the RAC. See ROI at 221. Thereafter, the record indicates that Complainant did not take any further action himself to pursue his reasonable accommodation request and did not respond to the RAC’s repeated emails requesting additional medical documentation. See Agency’s Motion for Summary Judgment, Attachment 1. Complainant appears to argue that it was the HRO’s responsibility to comply with his request to forward his doctor’s note to the RAC and the onus was on the Agency for failing to take any further action in order to obtain the necessary medical documentation. In the alternative, on appeal, Complainant contends that because he was on extended sick leave, he did not have regular access to his work email and should not be held responsible for his failure to respond to the RAC’s emails. We reject Complainant’s arguments. The interactive process required by the Rehabilitation Act is not a one-way street and Complainant cannot simply place the entire burden on the Agency to be proactive in requesting and obtaining the required medical documentation for his own accommodation. See, e.g., Alana W. v. Dep’t of Commerce, EEOC Appeal No. 0120161662 (Sept. 13, 2018) (finding no violation of the Rehabilitation Act where the complainant abandoned the interactive process by not responding to the Agency’s request for additional medical documentation); Hunter v. Social Sec’y Admin., EEOC Appeal No. 0720070053 (Feb. 16, 2012) (holding that if a person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to reasonable accommodation). In this case, the evidence in the record indicates that the RAC sent repeated requests for additional medical documentation and explained the reasons for the requested documentation, but Complainant did not comply. Moreover, to the extent Complainant appears to argue that the RAC’s request for additional medical documentation was unnecessary, we reject Complainant’s argument as it is not supported by the evidence in the record and in any event, Complainant cannot unilaterally decide not to cooperate with the Agency’s established reasonable accommodation process. See Agency’s Motion for Summary Judgment, Attachment 1. Under the circumstances, we find that the AJ correctly concluded that Complainant did not establish a violation of the Rehabilitation Act. 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 decision finding that Complainant did not establish that he was discriminated against as alleged. 2022004272 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). 2022004272 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 26, 2022 Date