Akiko L.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice, Agency.Download PDFEqual Employment Opportunity CommissionAug 22, 20180120181608 (E.E.O.C. Aug. 22, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Akiko L.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice, Agency. Appeal No. 0120181608 Hearing No. 570-2014-00548X Agency No. OBD-2013-00865 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the EEOC Administrative Judge (AJ)’s decision dated February 15, 2018, which effectively became the Agency’s final decision, finding no discrimination with regard to her 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Senior Investigator, GS-14, Civil Rights Division, Disability Rights Section (DRA), in Washington, D.C. On July 31, 2013, Complainant alleged discrimination based on sex (female), disability, and in reprisal for prior 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. 0120181608 2 On May 8, 2013, the Agency denied her request to telework three days a week and on June 24, 2013, the Agency issued a final decision upholding the May 8, 2013 denial of her requested medical reasonable accommodation.2 Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On August 11, 2015, the Agency filed a Motion for Summary Judgment. On August 25, 2015, Complainant filed her Opposition to the Agency’s Motion. On February 15, 2018, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency did not issue its final order within the requisite time frame and the AJ’s decision thus effectively became the Agency’s final decision. 29 C.F.R. § 1614.109(i). Complainant appeals the Agency’s final decision. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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 this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. In the instant case, the AJ determined that the Agency’s Motion for Summary Judgement sets forth the material facts not in dispute which warranted Summary Judgement. Complainant indicated that she had an obvious mobility disability from a congenital birth defect; she had a left hip replacement in her early twenties; and she walked with a pronounced limp and had an awkward gait. She stated that originally, she was hired by the Agency under a Schedule A appointment for persons with a disability; and she had been granted three days a week telework as an accommodation since 1999. She worked in DRS as a Senior Investigator, GS-14.3 2 The record indicates that on October 31, 2017, during the pendency of her hearing, Complainant withdrew her claim that on May 14, 2013, the Agency downgraded her performance rating in the element of team work. Complainant on appeal reconfirms the withdrawal of the subject claim. Thus, we need not address the subject claim in this decision. 3 Complainant indicates that she subsequently left the Agency on August 24, 2013, and now works as a GS-15 Supervisory Equal Employment Specialist at the Department of Transportation 0120181608 3 The AJ stated and the record reflects that the parties Stipulated Facts for Hearing on October 13, 2017. Specifically, the AJ stated that Complainant stipulated to the fact central to her claim of discrimination, i.e., that she did not require an accommodation to perform the essential functions of her job. Complainant indicated that she was able to perform the essential functions of her job without three days per week telework accommodation. Based on the foregoing, the AJ found and we agree that Complainant failed to establish that the Agency denied her reasonable accommodation request. After a review of the record, we find that the record is adequately developed and there are no material facts in dispute. We also find that the AJ properly found that the complaint was properly decided without a hearing and that the AJ properly adopted the Agency’s statement of undisputed facts. Based on the foregoing, we find that Complainant failed to show that others not in her protected class were treated differently or that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. (DOT). This is not at issue. Complainant also indicates that she has no formal accommodation of telework or any accommodation in place at her DOT position. 0120181608 4 Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 0120181608 5 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 22, 2018 Date Copy with citationCopy as parenthetical citation