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

Equal Employment Opportunity Commission

Apr 6, 2022

Appeal No. 2022000102 (E.E.O.C. Apr. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Damion I.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2022000102 Hearing No. 410-2018-00387X Agency No. ATL-18-0031-SSA DECISION 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 19, 2021 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Customer Service Representative (CSR), GS-0962-09, at the Agency’s Field Office in Columbus, Georgia. On November 9, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (Mental) when: (1) beginning on September 25, 2017, the Agency failed to provide him with a reasonable accommodation, when his verbal request to work on the phones was denied; and (2) beginning on July 19, 2017, the Agency 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. 2022000102 2 jected him to non-sexual harassment in terms of a demotion, assignment of duties and critical comments from management, with a recent incident occurring on September 25, 2017.2 Complainant experiences complications from several conditions including Post-Traumatic Stress Disorder, anxiety, depression, sleep apnea and insomnia. Complainant claimed that he verbally requested an accommodation on two separate occasions before submitting his written request for an accommodation on October 17, 2017. Complainant acknowledged, however, that he was uncertain whether he specified the request was for his disability. The pertinent record shows that, between July 3, 2011, and August 6, 2017, Complainant served as a Claims Specialist, which was a GS-11 position. Complainant claimed that his subsequent demotion began around March 2017. The record shows that Complainant had been counseled about his performance issues by management officials and informed that he could potentially be placed on a performance improvement plan, which Complainant resisted. On July 17, 2017, Complainant alleged that the District Manager proposed that Complainant take a voluntary demotion to GS-9. The following day, Complainant presented medical documentation to go on medical leave and requested to move to a smaller office. Complainant stated that the District Manager approved his request for leave but denied his request to move to a smaller office and asked him to sign the demotion letter prior to going on leave. Complainant claimed that he was bullied into signing the form stating that he wanted to step down. The Manager stated he did not place Complainant under duress, forcing him to request the lower-graded CSR position. He acknowledged that he did advise Complainant he needed to make a decision before he went on medical leave because he had to ensure the change to the Lead CSR position was processed. It is undisputed that, on July 19, 2017, Complainant completed the Change to a Lower Grade document. On August 7, 2017, Complainant became a Lead Customer Service Representative, which was a GS-9 position. The position required face-to-face interviews. On his first or second day back from medical leave, Complainant claimed that he asked his new supervisor (S1) to be permitted to work on the phones. His request was granted, but the arrangement was rescinded a month later. S1 stated that Complainant did not state that he was making the request because of his medical condition and she was unaware of his condition. She noted she was under the impression he made the request because he was embarrassed to be seen at the front desk, due to being previously demoted from the Claims Representative position to a Lead CSR position. The District Manager also thought that Complainant’s request to work the phones was out of embarrassment. The District Manager also averred he was unaware of Complainant’s medical conditions until Complainant formally requested a reasonable accommodation in October 2017. The Manager and S1 denied that he was forced to work duties outside of his job description. 2 The Agency dismissed an additional claim for untimely EEO Counselor contact. Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the Agency’s dismissal. 2022000102 3 The record shows that after Complainant filed a formal request for reasonable accommodation in October 2017, the Agency granted Complainant approval to move to a smaller regional office on or around January 22, 2018. 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 a United States Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. In the decision, the AJ first determined that it was undisputed that Complainant is a qualified individual with a disability. The AJ found, however, that the Agency did not deny Complainant reasonable accommodation. Complainant claimed that he verbally requested an accommodation on two separate occasions before submitting his written request for an accommodation on October 17, 2017. First, Complainant claimed that he made a verbal request to be on phones to S1 on August 7, 2017. Complainant alleged that he was granted this request only for it to be rescinded a month later. However, the AJ determined that the record evidence indicated that Complainant was not sufficiently specific in his request. S1 explained that when Complainant requested to be on the phones, he did not specify it was because of a disability. Rather, S1 noted that she was under the impression Complainant made the request because he had told her he was embarrassed to be seen at the front desk due to previously being demoted from Claims Representative to Lead CSR. In addition, the District Manager indicated that he was also under the impression that Complainant asked to be on phones out of embarrassment not because of a medical condition. In his own affidavit Complainant himself admitted that he was uncertain whether he specified the request was for his disability or not. Moreover, even if Complainant’s request to be on phones was sufficiently specific, the Agency was not required to provide Complainant his requested accommodation as doing so would require the Agency to eliminate one of the essential functions of Complainant’s position as a Lead CSR. Nevertheless, when Complainant made his request in August, S1 did allow Complainant to be on phones for three days of the week and to be at the front desk the remaining two days. After Complainant informed management that he needed refresher training, they required him to remain up front until he received the proper training in several significant areas required to answer phones. Complainant returned to answering phones three days a week once he completed the training in November 2017. The AJ determined that Complainant’s alleged verbal request for an accommodation on September 25, 2017, was also not sufficiently specific to require the Agency to provide Complainant with an accommodation. Complainant alleged that he made another verbal request for an accommodation on September 25, 2017, when he asked the District Manager during a meeting if he could transfer to either the La Grange or Opelika Field Office. The District Manager again explained that he was under the impression Complainant’s request was for a hardship transfer not a request for a reasonable accommodation based on several statements that Complainant felt embarrassed being in the office following his demotion. 2022000102 4 Nevertheless, the District Manager called the Area Director’s office to inquire about the availability of Lead CSR positions in either the La Grange or Opelika Field Office. The Area Director informed that there were no vacant positions to reassign Complainant in those offices at that time. Complainant submitted an official written request for reasonable accommodation on October 17, 2017, requesting to telework or transfer to either the La Grange or Opelika Field Office. Initially, the District Manager offered Complainant telework and additional breaks away from the office. Complainant rejected the alternative accommodations and asked to be transferred to a smaller office, Opelika specifically. The District Manager met with Complainant several additional times and informed Complainant that they could possibly transfer him to La Grange, but Complainant refused to transfer to La Grange. In January 2018, Complainant informed the District Manager that he would be willing to go to La Grange and the District Manager approved the request approximately two weeks later. As a result, the AJ found that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. Finally, regarding Complainant’s hostile work environment claim, the AJ determined that the alleged conduct was insufficiently severe or pervasive to establish a hostile work environment claim. The record revealed that the District Manager made two isolated comments over several months regarding Complainant not attending mandatory employee meetings and in response to Complainant indicating that he was thinking of quitting without another job offer. Furthermore, the AJ determined that there was no evidence that any of the incidents in questions were based on discriminatory animus. As a result, the AJ found that Complainant was not subjected to discrimination or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. This appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 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. (as revised, August 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. 2022000102 5 Such a dispute would indicate that a hearing is necessary. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’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. 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. 2022000102 6 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 April 6, 2022 Date