Michal J.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Apr 18, 2018

0520180160 (E.E.O.C. Apr. 18, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Michal J.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Request No. 0520180160

Appeal No. 0120172130

Agency Nos. NY-16-0577-SSA,
NY-16-0474-SSA

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120172130 (November 14, 2017).
EEOC Regulations provide that the Commission may, in its discretion, grant a request to
reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where
the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).

Complainant filed two formal complaints on July 8, 2016 and July 25, 2016, respectively. In
these complaints, which the Agency consolidated, Complainant claimed that the Agency
discriminated against him based on disability when:

1. the Agency did not provide him with a reasonable accommodation;

2. he was subjected to harassment and a hostile work environment with respect to
segregated training, computer issues, and promotion opportunities; and

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.
0520180160

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3. the Agency did not provide him with a reasonable accommodation regarding
adaptive equipment to perform union duties.

In its final decision, the Agency dismissed Claim #3, pursuant to 29 C.F.R. § 1614.107(a)(1), for
failure to state a claim. The Agency addressed the remaining claims on the merits, finding no
discrimination.

On appeal, the Commission affirmed the Agency’s dismissal of Claim #3, on the ground that the
reasonable accommodation requested would not have assisted Complainant in the performance
of the essential functions of his position but rather his duties as a union steward. On the merits
of Claim #1, the Commission found that the Agency had provided every reasonable
accommodation required for the performance of Complainant’s work duties. The only
accommodation denied by the Agency related to the performance of Complainant’s duties as a
union steward for which the Agency was not required to provide a reasonable accommodation.
With respect to Claim #2, the Commission found that Complainant failed to prove that the
allegedly harassing acts to which he was subjected were motivated by animus toward
Complainant’s disability.

In his request for reconsideration, Complainant disputes the facts that were discussed in the
analysis of his complaints in the previous appeal. He states that he wishes to withdraw any
claims relating to his “request for adaptive equipment as a union rep.” Moreover, in his request
for reconsideration Complainant denies ever having been subjected to harassment or claiming
that he was denied a reasonable accommodation. He argues that his complaint was about being
subjected to disparate treatment and segregated from his co-workers. We find that
Complainant’s arguments do not demonstrate that the appellate decision involved a clearly
erroneous interpretation of material fact or law or will have a substantial impact on the policies,
practices, or operations of the agency. We note that the previous decision did address his
disparate treatment claims and claims of segregation. Complainant has not shown the
conclusions of the previous decision to be clearly erroneous. Accordingly, we find that
Complainant failed to demonstrate that the Commission should reconsider its appellate decision.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120172130 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

0520180160

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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

April 18, 2018
Date