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

Equal Employment Opportunity Commission

Aug 17, 2022

Appeal No. 2021002749 (E.E.O.C. Aug. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rosamaria F.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021002749 Agency No. ATL-20-0247-SSA DECISION On April 9, 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 March 10, 2021 final decision 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Law Judge (ALJ), ALJ-0935-03, in the Agency’s Office of Hearings Operations in Miami, Florida. Complainant experiences complications from a cervical spine condition, Type II diabetes, hypertension and a respiratory condition (asthma). She stated that all of her conditions are permanent but are currently controlled by medications and do not interfere with her ability to perform the essential functions of her ALJ position. 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. 2021002749 2 Complainant claimed that management was aware of her disabilities through observation and paperwork she provided in connection with her accommodation requests and request for leave under the Family and Medical Leave Act (FMLA). Complainant stated that the essential functions of her position involve reviewing Social Security disability claims, conducting hearings, preparing instructions for decision writers and issuing decisions. Complainant confirmed that she could perform those functions with or without accommodation but doing so made her job more difficult. Complainant alleged that in July 2019, Complainant spoke with the Chief ALJ and the Hearing Office Director (Director) about her need for an ergonomic chair. Complainant claimed that the Director requested a prescription from her doctor for two chairs: one for the office and one for the hearing room. Complainant stated that she submitted documentation in support of her request in October 2019, but the Director told her to resubmit her request in December 2019. Complainant subsequently received the requested chair, but she claimed that it did not meet her needs. Complainant claimed that in February 2020, the Chief ALJ asked her to provide him information about a chair that would meet her needs that she had already submitted. Complainant stated that within days of providing the information, she was given a different chair but that chair also did not meet her needs. A few days later, the Agency moved to full-time telework status for employees due to the COVID-19 pandemic and Complainant has not returned to the office since. Complainant claimed that on December 9 and 11, 2019, she was charged absence without leave (AWOL) without being given the option to request discretionary leave. Complainant claimed that the contract between the union and management gave her the right to request leave without pay (LWOP) and that the Chief ALJ told her he could not approve her request and that he was waiting on a decision from the Regional Chief ALJ. Complainant stated that she had provided the requested medical documentation in support of LWOP, but AWOL had been prepopulated for the dates that she wished to request LWOP in the Agency’s time and attendance system. Complainant believed that management was trying to remove her and that having her absences listed as AWOL rather than LWOP would strengthen their case. On March 23, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Cuban), sex (female), and disability (cervical spine condition, Type II diabetes, hypertension, and a respiratory condition (asthma)) when: (1) the Agency failed to provide a reasonable accommodation (RA) beginning on December 1, 2019, when Complainant's request for an Ergonomic Medical Chair was delayed and/or denied; (2) on December 9 and 11, 2019, Complainant was charged Absent Without Leave (AWOL) and not given the option to request discretionary leave.2 2 The Agency dismissed an additional claim pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the Agency’s dismissal decision. 2021002749 3 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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency assumed arguendo that Complainant established a prima facie case of discrimination and found that management articulated legitimate, nondiscriminatory reasons for its actions regarding claim (2). Specifically, the Director stated that it is routine for an employee who is not on duty and not on approved leave to have his or her absence placed on AWOL. The Director noted that AWOL may be amended to an approved form of leave, and an employee may request to use his or her own leave or LWOP in place of AWOL. The Director denied that the pre-population of Complainant’s time as AWOL prevented her from requesting discretionary leave. Complainant claimed that the contract between Agency management and the union gave her the right to request LWOP, instead of being charged AWOL, and that she provided medical documentation to support the leave she intended to request. The Agency noted, however, that she provided no information or response to the Agency’s explanation that AWOL charges for unscheduled leave were consistent with Agency protocol. As a result, the Agency found that Complainant was not subjected to discrimination as to claim (2). With respect to her denial of reasonable accommodation claim alleged in claim (1), the Agency determined that management made numerous attempts to obtain and provide Complainant an accommodation that met her requirements. For example, Complainant was provided a link to the website to review ergonomic chairs that could be ordered without a medical form in September 2019, but Complainant indicated that those chairs were not suitable. Management then requested documentation to order a specialized chair, which Complainant submitted on October 25, 2019. Management processed the request and the Office of Realty Management ordered the chair. There was a delay in receiving the chair after it was ordered, but Complainant identified an alternative chair which management submitted to the regional office for consideration. On March 11, 2020, Complainant received the specialized chair, but reported that it did not accommodate her adequately. Management offered Complainant a neck cushion that the office already had; however, Complainant and the rest of the office were ordered to work from home due to the COVID-19 pandemic. Thus, the Agency concluded that the reasons for delays in accommodating Complainant were related to Complainant’s dissatisfaction with the ergonomic chairs the Agency provided or delays in the processes of ORM, an outside agency. Accordingly, the Agency found that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act.3 Complainant filed the instant appeal without submitting any arguments or contentions in support. 3 Although it was not accepted as part of Complainant’s formal complaint, the Agency found that to the extent Complainant requested sporadic, discretionary leave as a reasonable accommodation, such a request would have caused an undue hardship as the Agency must know with some reasonable degree of certainty when Complainant would be available to hold hearings. 2021002749 4 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Denial of Reasonable Accommodation Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (Oct. 17, 2002). After receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. Part 1630, app. § 1630.9. Thus, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. pt. 1630 app. § 1630.9, Enforcement Guidance on Reasonable Accommodation at Q. 5. The term “reasonable accommodation” means, in pertinent part, modifications or adjustments to the work environment, or to the manner or circumstances under which the position held is customarily performed that enable a qualified individual with a disability to perform the essential functions of the position in question. See 29 C.F.R. §1630.2(o)(1)(ii). Reasonable accommodations may include but are not limited to job restructuring; part-time or modified work schedules; reassignment to a vacant position; or acquisition or modifications of equipment or devices. 29 C.F.R. § 1630.2(o)(2)(ii). Assuming Complainant is a qualified individual, the record shows that management engaged in the interactive process and engaged in reasonable efforts to accommodate Complainant's request for an ergonomic chair in a timely manner. Specifically, the record shows that on July 25, 2019, Complainant requested a reasonable accommodation to include various assistive devices, including an ergonomic chair. On September 18, 2019, Complainant was provided a link to the ORM website to review models of ergonomic chairs that could be ordered without a medical form, but Complainant reported that the chairs listed were not suitable. 2021002749 5 On October 25, 2019, Complainant provided the medical forms with supporting medical documentation in support of the request for an ergonomic chair. On December 4, 2019, ORM requested supplemental documentation to process the order, which management provided the same day. ORM responded that chair fabrication took a minimum of 28 days. Management followed up on January 23, January 30, February 11, and February 28, 2020, but received no response. On March 9, 2020, Complainant identified an alternative ergonomic chair, and management submitted the information to the regional office for consideration. On March 11, 2020, Complainant received a specialized ergonomic chair from ORM but reported that the chair did not accommodate her adequately. Complainant was offered the addition of a neck cushion that was in the office already, but it is unclear whether this cushion accommodated Complainant's needs. On March 20, 2020, Complainant and the rest of the office were mandated to work at home due to the COVID-19 pandemic. We find that the Agency engaged in the interactive process and made multiple reasonable efforts to accommodate Complainant in a timely manner. The record shows that any delays were related to Complainant’s dissatisfaction with the provided ergonomic chairs or delays in ORM’s processes. Under the circumstances present, the Commission finds that Complainant has not established that the Agency denied her reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); see Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981) (applying this analytical framework to cases brought under the Rehabilitation Act). Assuming arguendo that Complainant established a prima facie case of discrimination, the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, the Chief ALJ and the Director both stated that they lacked the authority to approve or deny discretionary leave requests, but nothing precluded Complainant from requesting it. The Director stated that it was routine for an employee who was not on duty or on approved leave to have their absence initially marked as AWOL; however, this could be amended if the employee requested to use their leave or LWOP. The record reveals that Complainant took approximately 224 hours of LWOP, 68 hours of sick or advanced sick leave, 96 hours of annual or advanced leave, and 299 hours charged as AWOL in Fiscal Year 2020. 2021002749 6 Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on discriminatory animus. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. CONCLUSION Accordingly, based on a thorough review of the record, we AFFIRM the Agency’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. 2021002749 7 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. 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 August 17, 2022 Date