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

Equal Employment Opportunity Commission

Sep 15, 2022

Appeal No. 2021002044 (E.E.O.C. Sep. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nina P,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021002044 Hearing No. 440-2020-00164X Agency No. CHI-19-1156-SSA DECISION On February 11, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 26, 2021 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq, and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Complainant worked as a Claims Specialist, GS-0105-11, at the Agency’s Field Office in Joliet, Illinois. On October 21, 2019, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of age (57), disability (mental), and reprisal (prior protected EEO activity) as evidenced by multiple incidents including, her requests for advanced sick leave and for Title II training were denied and her first and second- level supervisors (S1 and S2) improperly accessed and/or disclosed her private medical information. At the conclusion of the ensuing investigation, the Agency provided Complainant and her representative a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). 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. 2021002044 2 Complainant requested a hearing, but subsequently withdrew her request. The Agency subsequently issued a final decision finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that he/she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since S1 and S2 articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As for their alleged denial of Title II training, S1 and S2 both averred that the service was short-staffed in the Title 16 unit, to which Complainant was assigned, and consequently, Complainant could not be spared at the time. IR 218-19, 231-32, 285-86. Regarding the alleged denial of Complainant’s sick leave request, S1 and S2 stated that although they were ready to approve Complainant’s request for advanced sick leave, Complainant never provided the medical documentation needed to support her request. IR 219- 20, 230, 233, 259-62, 278-81, 296 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). Apart from her own affidavit testimony, Complainant has presented neither affidavits, declarations or unsworn statements, nor documents, which contradict or undercut the explanations provided by S1 or S2. Complainant likewise has not provided any documentary or testimonial evidence that would cause us to question the truthfulness of S1 or S2 as witnesses. As Complainant chose to withdraw her request for a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. And the weight of that evidence is insufficient to establish the existence of a discriminatory or retaliatory motive on the part of S1 or S2 in connection with Complainant’s claims pertaining to advanced sick leave and T2 training. 2021002044 3 Disclosure of Confidential Medical Information We now turn to Complainant’s claim that the Agency improperly disclosed, accessed, or obtained her confidential medical information. Disclosure of such medical information is prohibited, except that supervisors and managers may be informed regarding an employee’s work restrictions or accommodations. Velva B. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006-07 (Sept. 25, 2017), req. for recon. den. EEOC Request Nos. 0520180094-5 (Mar. 9, 2018). According to S1 and S2, Complainant requested a reasonable accommodation in the form of a reassignment to another work location. The Acting District Manager (ADM) issued a letter to Complainant requesting specific medical information in support of her request. Complainant informed the ADM that the request for medical documentation was a violation of the Health Insurance Portability and Accountability Act (HIPAA). There are no indications anywhere in the record that S1, S2, or any other management official disclosed Complainant’s medical documentation. We therefore find the Complainant has not demonstrated that the Agency improperly disclosed or accessed her confidential medical information in violation of the Rehabilitation Act. Finally, to the extent that Complainant is alleging that she was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2021002044 4 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 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. 2021002044 5 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 15, 2022 Date