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

Equal Employment Opportunity Commission

May 9, 2022

Appeal No. 2022000745 (E.E.O.C. May. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dona A.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2022000745 Hearing No. 440-2020-00061X Agency No. CHI-19-1243-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 September 10, 2021 decision of an EEOC Administrative Judge (AJ) concerning an equal employment opportunity (EEO) complaint claiming 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.2 BACKGROUND During the period at issue, Complainant worked as a Claims Specialist at the Agency’s Office in Hammond, Indiana. On November 21, 2019, Complainant filed a formal EEO complaint that raised the following issues: 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. 2 The record does not indicate that the Agency issued a timely final order. Pursuant to EEOC Regulation 29 C.F.R. § 1614.109(i), the AJ’s decision became the final Agency action. 2022000745 2 1. Whether the Agency subjected Complainant to harassment based on disability3 and in reprisal for prior protected EEO activity (seeking reasonable accommodation) from March 2019 to September 24, 2019, in terms of working conditions, denial of service dog, and time and attendance. 2. Whether the Agency failed to provide Complainant with a reasonable accommodation for her disability when, on September 17, 2019, management denied her reasonable accommodation request. After an investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On November 13, 2020, the Agency filed a Motion for Summary Judgment and Complainant filed a response on December 4, 2020. On September 10, 2020, the AJ adopted the Agency’s motion, over Complainant’s objection, and issued a decision by summary judgment. The AJ determined that, pursuant to 29 C.F.R. § 1614.109(e)(3), there were no genuine issues of material fact regarding the Agency’s denial of Complainant’s reasonable accommodation requests. The AJ determined that the Agency did not violate the Rehabilitation Act when it denied Complainant’s request for a service dog as an accommodation for her mental disability.4 The AJ reasoned that: (1) the record failed to include adequate medical documentation to support Complainant’s need for a service dog; (2) the record failed to support a determination that Complainant’s dog met the qualifications to work as a service dog; and (3) the Agency offered, in lieu of a service dog, effective alternative accommodations which Complainant declined. The AJ therefore found that the Agency had not violated its responsibilities under the Rehabilitation Act. 3 Complainant stated she has been diagnosed with post-traumatic stress disorder, generalized anxiety disorder, major depressive disorder, and attention-deficit hyperactivity disorder. 4 The record reflects that in addition to the service dog request, Complainant requested other accommodations which included the following: (1) to work in a safe work environment free of emotional and mental distress; (2) limiting stressful situations that could be perceived as a threat; (3) limiting interactions with employees who had been a source of emotional and mental distress; (4) a flexible work schedule; (5) the ability to be a non-participant in the early-late band office leave policy; (6) the ability to make phone calls to a support person during the workday; (7) the ability to listen to music or use headphones; (8) one-on-one training and mentoring assistance when training; (9) written instructions; (10) additional breaks; (11) a reduction in non-essential job functions such as the Sunshine Club and cleaning schedules; and (12) time off to attend therapy sessions or medical appointments. The AJ determined that because Complainant failed to address or rebut, in her response to the Agency’s Motion for Summary Judgment, the Agency’s arguments regarding these accommodation requests, the AJ summarily granted summary judgment for these requests in favor of the Agency. 2022000745 3 Consequently, the AJ found that the Agency had not subjected Complainant to discriminatory or retaliatory harassment when it denied her reasonable accommodation requests. The instant appeal followed. On appeal, Complainant, through counsel, argues that a decision by summary judgment was not appropriate in this case because there are genuine issues of material fact in dispute. Specific to the service dog reasonable accommodation request, Complainant argues that: (1) documentation in the record reflects that medical professionals established a medical need for Complainant’s use of a service dog; (2) documentation in the record reflects that Complainant’s dog met the qualifications of a service dog; (3) the Agency failed to demonstrate that granting Complainant’s service dog request would have caused an undue hardship on the Agency before it denied this request; and (4) the alternative accommodations, specifically a use of a canopy stationed over Complainant’s desk, was an ineffective accommodation. Therefore, Complainant requests that the Commission reverse the AJ’s September 10, 2021 summary judgment and remand this matter for fuller development of the record through a hearing on the merits of her complaint. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. Our review of the record, including the parties’ statements on appeal, support Complainant’s arguments that summary judgment was not appropriate in this case because there are several genuine issues of material fact that require resolution through a hearing. These issues include: (1) whether Complainant had a medical need for a service dog; (2) whether Complainant’s dog qualified as a service dog; and (3) whether the Agency fulfilled its obligations under the Rehabilitation Act which requires a showing that the denied requested accommodation would have caused an undue hardship, and the alternative accommodations it provided were effective. We address each of these issues separately. Under the Commission's regulations, a federal agency may not discriminate against a qualified individual based on disability, and is required to provide reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. 2022000745 4 See 29 C.F.R. § 1630.2(o), (p); EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002). To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. Medical Need for Service Dog It is undisputed that Complainant has been diagnosed with post-traumatic stress disorder (PTSD), generalized anxiety disorder (GAD), major depressive disorder (MDD), and attention- deficit hyperactivity disorder (ADHD). Additionally, both parties agree that Complainant’s mental health conditions affect her energy, concentration, sleep patterns, memory, thinking, emotional states (causes fear), and her motivation to move. Finally, there is no dispute that Complainant is otherwise qualified for her job. Therefore, the record supports that Complainant is a qualified individual with a disability. On February 27, 2019,5 Complainant filed a reasonable accommodation request, and subsequently received extensions by the Agency in April and May 2019 to submit additional medical documentation. The request identified Complainant as being diagnosed with PTSD, MDD, GAD, and ADHD, and requested fifteen accommodations including the use of a service dog.6 On the request, Complainant provided the following judication for her need for a service dog: 5 The record indicates that Complainant reiterated her accommodation requests on May 17, 2019. 6 The other fourteen accommodations included: (1) work in a safe work environment free of emotional and mental distress; (2) limit stressful situations that could be perceived as a threat; (3) limit interaction with employees that had been a source of emotional and mental distress; (4) flexible work schedule; (5) allow to be early-late band leave office non-participant; (6) telework Mondays in addition to Fridays; (7) allow phone calls to support person during the workday; (8) allow music of headphones; (9) one-on-one training and mentoring assistance when training; (10) written instructions; (11) additional breaks with reasonable amount; (12) facilitate private working space, to process workloads in isolation when minor cases arises; (13) reduce non- essential job functions such as Sunshine committee and cleaning schedules; and (14) allow reasonable time off to attend therapy session or medical appointments. 2022000745 5 assist to regain control during a mental/emotional crises and fear by recovering orientation of time and place. Promotes energy levels to rise, engage social interaction and preventing social withdrawal, and balance assistance due [to] dizziness and occasional balance challenges. However, the parties dispute whether Complainant’s need for a service dog is based on a medical professional’s determination or Complainant’s personal belief. The record contains a May 2, 2019 letter from Complainant’s psychiatrist. The letter states that Complainant has been diagnosed with Major Depression Recurrent Moderate Intensity, Generalized Anxiety Disorder, ADHS Combined Type and Chronic PTSD. The letter further states: Patient will benefit from accommodations to help with the above diagnoses which will lead to problems with intense and persistent fear, irregular sleep patterns, difficulties with concentration and difficulties with emotional regulation when under perceived/actual threats or insecurities. The letter next lists six accommodations which would help Complainant “perform optimally at work.” The sixth accommodation listed was use of a service dog. Specifically, the psychiatrist notes, in pertinent part: Patient reports a lot of relief in symptoms when she has her pet with her. Patient reports that her pet is able to identify and wake her up when she is having nightmares. Patient feels that having her pet may help with the stress level at work. Patient may have this opportunity at work if such accommodation is at all possible. The Agency argues that the language used in describing Complainant’s need for a service dog is based on Complainant’s personal belief that her dog would help alleviate her stress. In contrast, Complainant argues that the psychiatrist noted that use of a service dog was one of six possible accommodations that would help treat Complainant’s mental conditions, and therefore, the psychiatrist recommended the service dog accommodation based on a medical need. The AJ determined that this medical documentation was not sufficient because the psychiatrist did not state that use of a service dog “would solve the problem [i.e. Complainant’s fear, sleep issues, and stress].” However, we note that the psychiatrist never indicated that any of the six recommended accommodations would solve Complainant’s mental condition. Rather, the psychiatrist states that these accommodations would help Complainant “perform optimally.” We further note that the AJ did not address additional medical documentation in the record supporting that other medical professionals determined that Complainant’s mental condition necessitated use of a service dog as an accommodation. 2022000745 6 A May 1, 2019 letter from another physician, who was also treating Complainant’s mental conditions, recommended and explained that use of a service dog “would provide [Complainant] with a sense of protection and support by preventing triggers, as well as providing comfort in the event of triggers.” Additionally, a June 11, 2019 letter from Complainant’s mental health counselor stated, in pertinent part: The service dog will be able to keep her focus on work, minimize episodes and alleviate [Complainant’s] GAD and MDD. Studies have demonstrated that service dogs can help to eliminate environmental triggers associated with PTSD. In [Complainant’s] case, the service dog would provide a sense of psychological support by preventing triggers as well as comfort in the event of triggers. The service dog would provide social stimulation and social interaction as well as assisting [Complainant] to come back from crisis and mental traumatic memories appearance [sic] during work hours. This would positively influence her mental and emotional strength during daily activities. Consequently, all three medical professionals consistently identified the benefits of a service dog to accommodate Complainant’s mental disabilities. Therefore, contrary to the AJ’s finding, our review of the record reflects that there is a genuine dispute about whether or not Complainant provided sufficient medical documentation to allow the Agency to reasonably conclude that a service dog was an effective accommodation allow Complainant to perform the essential functions of her position. Service Dog Qualifications The AJ determined that documentation in the record failed to reflect that Complainant’s dog was properly trained or qualified to work as a service animal. Here, the Agency defined a service animal as specifically trained to complete particular functions to calm individuals with emotional, social, or cogitative disabilities. By contrast, the Agency characterized Complainant’s dog as a pet or an untrained “emotional support” animal not covered by the Rehabilitation Act. In agreeing with the Agency, the AJ noted that documentation in the record only indicated that Complainant’s dog had “initiated,” but had not completed, the necessary training to qualify as a service animal. However, our review of the record supports otherwise. A copy of a July 12, 2019 letter from the Landheim Training and Boarding Center reflects that Complainant’s two dogs “have initiated service dog training to do work or perform tasks for the benefit of an individual with psychiatric and neurological disabilities as established under the ADA [Americans with Disabilities Act] definition of a service animal.” Additionally, the letter indicates that Complainant had received instruction in training her dogs in the following relevant skills related to Complainant’s mental condition: “laying across handler [Complainant] to provide Deep Pressure Therapy; bracing during balance loss; interrupt Dissociative episodes; interrupt freezing episodes; and interrupt fear.” 2022000745 7 Therefore, our review supports that there is sufficient documentation of record to create a genuine issue of fact as to whether Complainant’s dog met the Agency’s qualifications to work as a service animal. Undue Burden/Effective Alternative Accommodations The record reflects that on February 28, 2020, the Agency’s National Reasonable Accommodation Coordinator issued a final determination on Complainant’s reasonable accommodation requests.7 Specifically, the Agency granted Complainant’s requests to use leave without pay as needed, as well as her request not to switch her schedule with another employee if she arrived to work late. However, the Agency declined Complainant’s remaining accommodation requests. Regarding Complainant’s request for a service dog, the Agency explained that the medical documentation submitted was “insufficient to establish that bringing [her] emotional support of service animal to work is necessary to enable [her] to perform the essential functions of [her] job.” In addition, the Agency indicated its belief that Complainant’s dog was not a service animal, but an emotional support dog. As a general rule, an Agency can either accept an employee’s reasonable accommodation request or demonstrate that the request would cause an undue hardship. Here, the Agency denied the request. However, the AJ’s decision has failed to address what difficulties or hardships the Agency could have faced if it had granted Complainant’s accommodations, including the use of her dog. The Area Director testified that Complainant’s request for an “emotional support dog” was problematic because her position required that she interview the public face-to-face, and even if the dog was muzzled, there was no barrier between the dog and the public. In response, Complainant noted in her December 4, 2020 affidavit that during her face-to-face interactions with claimants, she was required to serve claimants who entered the office with service dogs and emotional support birds without any physical barrier provided by the Agency separating her from the claimants’ service animals. Moreover, the record contains testimony from Complainant’s second level supervisor, the District Manager, indicating that the Agency’s Chicago office had a similar employee with a service dog and the office had a barrier wall to separate the Claims Specialist (and the service dog) from the public. While there was apparently no such barrier currently at the Hammond Office, the Agency provided no explanation for why one could not be installed if necessary. In sum, there is adequate support for a finding that there remain unresolved issues concerning whether or not granting Complainant’s accommodation request would have caused an undue hardship for the Agency. While avoiding the undue hardship analysis in her decision, the AJ focused on the Agency’s decision to offer Complainant alternative accommodations to the service dog such as unpaid breaks, a quieter workspace, and a privacy canopy over her desk. 7 The record supports that this determination affirmed local management’s initial September 17, 2019 review of Complainant’s reasonable accommodation requests. 2022000745 8 We acknowledge that although protected individuals are entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice. See EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (“Guidance”), Question 9. However, alternative proposed accommodations must be “effective.” See U.S. Airways v. Barnett, 535 U.S. 391, 400(2002). “An ineffective ‘modification’ or ‘adjustment’ will not accommodate a disabled individual's limitations.” Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. See Guidance. Here, there remains a significant unresolved issue of how the alternative accommodations proffered by the Agency would have been an effective alternative to the ones Complainant requested. In sum, significant issues of the material fact remain in dispute in this case, including whether Complainant had a medical need for a service animal; whether Complainant’s dog qualified as a service animal; and whether the Agency fulfilled its obligations under the Rehabilitation Act to provide Complainant with effective alternative accommodations. Therefore, we find that a decision by summary judgment should not have been granted in this case and a hearing is required.8 CONCLUSION Therefore, after a careful review of the record, including Complainant’s arguments on appeal and the Agency’s response, and arguments and evidence not specifically discussed in this decision, the Commission REVERSES the AJ’s summary judgment decision and REMANDS the matter to the Agency in accordance with this decision and the ORDER below. ORDER Within thirty (30) calendar days of the date this decision is issued, the Agency shall submit to the Hearings Unit of the EEOC’s Chicago District Office a renewed request for a hearing on this complaint, the complete complaint file, and a copy of this appellate decision. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 8 We also note that while on appeal there has been significant focus on the denial of Complainant’s request for a service dog, she also requested a variety of other accommodations (see footnote of this decision). It is somewhat unclear which of these accommodations have been granted and if Complainant is still pursuing some of them. This should be clearly resolved at the hearing. 2022000745 9 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2022000745 10 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 2022000745 11 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 May 9, 2022 Date