[Redacted], Ileen C., 1 Petitioner,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Oct 31, 2022

Appeal No. 2021000865 (E.E.O.C. Oct. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ileen C.,1 Petitioner, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Petition No. 2022002757 Appeal No. 2021000865 Agency No. DAL-19-114-SSA DECISION ON A PETITION FOR CLARIFICATION The Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for clarification to examine the enforcement of an Order set forth in EEOC Appeal No. 2021000865 (Feb. 3, 2022). The Commission accepts this petition for clarification pursuant to 29 C.F.R. § 1614.503. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Social Insurance Specialist at the Agency’s field office located in Pasadena, Texas. Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the bases of national origin (Hispanic), sex (female), disability (PTSD, autoimmune deficiencies, sinusitis, asthma, chronic pneumonia, and respiratory conditions), age (52), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq, Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq, and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2022002757 2 Petitioner appealed the Agency’s final decision to the Commission, and in Appeal No. 2021000865, we found that the Agency failed to reasonably accommodate Petitioner. Accordingly, the Commission ordered relief which included, in relevant part: IV. Within ninety (90) days from the date this decision is issued the Agency is ordered to provide eight hours of in-person or interactive training to AD Manager and all employees at the Agency’s field office in Pasadena, Texas, specifically with regard to employees' protections for disabilities and related reasonable accommodations. The matter was assigned to a Compliance Officer and docketed as Compliance No. 2022001725 on February 10, 2022. On April 7, 2022, the Agency submitted a Petition for Clarification of the Order for Remedial Action. The Agency has requested clarification regarding item IV involving training. Specifically, the Agency requests clarification as to whether training for non-management employees is necessary, contending that there are approximately 63 bargaining unit employees at the office who had no role in the decision to deny Complainant's request for a reasonable accommodation. In addition, the Agency has inquired as to whether the managers could satisfy the training in four hours, and if ordered to train the non-management employees, whether it could satisfy the training for non-management employees in two and a half hours. In support of their request for a reduced training time, the Agency references the recent reopening of their offices in January 2022 following the closures due to the COVID-19 pandemic. The Agency also reports that they are serving approximately 250 daily walk-ins, and upwards of 300 daily telephone appointments, as well as fielding 1500-2400 unscheduled telephone calls daily. The Agency contends that it is confident that it can effectively meet the remedial objectives of the Commission's order through a 4-hour training program tailored for Agency managers. The Agency also contends that a 2.5-hour training for non-management regarding the specifics of requesting a reasonable accommodation would be more appropriate and satisfactory. In response, Complainant argues that the Agency's statistics regarding phone appointments and calls are not accurate, and in fact cites to materials which indicate that the Agency appointment system currently scheduled 28 retirement applications and four post-entitlement interviews per day, totaling 32 scheduled appointments per day. Complainant also contends that the Agency has not specified the ways in which the four-hour training program will be high quality, and has not provided course material, lesson plans, or any other assurances. Regarding the training for the non-management employees, Complainant reports that the employees of the office are deeply upset about her treatment by management and some of her peers, and that the problem was not that she did not know how to properly file for a reasonable accommodation. Moreover, she reports that due to the nature of her treatment, moving desks repeatedly throughout the day, many of her coworkers began to treat her disparagingly. 2022002757 3 As such, she does not agree that a two and a half-hour training on the reasonable accommodation process would be sufficient. ANALYSIS AND FINDINGS The Commission's regulations provide that a complainant may petition the Commission for enforcement of an appellate decision. 29 C.F R. § 1614.503(a). Further, the Office of Federal Operations may, on its own motion or in response to a petition for enforcement or in connection with a timely request for reconsideration, issue a clarification of a prior decision. § 1614.503(c). A clarification cannot change the result of a prior decision or enlarge or diminish the relief ordered but may further explain the meaning and intent of the prior decision. Id. At the outset, we find that a request for clarification is not the proper venue to request that the Commission change or reduce its orders in Appeal No. 2021000865. To this end, a request for reconsideration would have been the proper venue to seek a reduction in training hours, or to contest which employees should be required to participate in training. See, e.g., Heath P. v. Dep’t of the Navy, EEOC Request No. 0120162808 (Feb. 14, 2019) (addressing Agency request for reconsideration on an appellate decision by requesting that the Commission decrease the ordered eight hours of EEO training to two hours). In Heath P., the Commission determined that while all management and supervisory officials should receive eight hours of training, it was sufficient for the Agency to provide two hours of training to the Agency’s nonsupervisory, non- management personnel. Therefore, in the present case, as the Agency is in fact seeking a reduction in remedy ordered, a request for reconsideration would have been the appropriate course of action. The Agency cannot use a Petition for Clarification as a method to circumvent an untimely request for reconsideration. As such, we deny the Agency’s petition to reduce the hours of training or limit the training participants. Therefore, as clarification as to the training mandate contained herein, the Agency is ordered to fully comply with the Order as stated. However, we note, to alleviate some of the issues raised by the Agency, it may provide separate trainings over multiple days which in sum would total the ordered eight hours of training for management and its employees. Moreover, the Agency may, to the extent necessary, expand training to include other aspects of EEO law in order to satisfy the eight-hour requirement. Therefore, the Agency’s trainings should at the very least address the Agency’s reasonable accommodation procedures and disability-based discrimination including denial of reasonable accommodation, but the training may also include additional EEO laws and policies, such as unlawful retaliation and harassment.2 2 In the event the Agency needs additional guidance on appropriate EEO trainings to incorporate, we direct them to the Federal Sector Trainings portion of the EEOC website, found at https://www.eeoc.gov/federal-sector/federal-training-outreach. 2022002757 4 CONCLUSION The Petition for Clarification is DENIED, and the decision in EEOC Appeal No. 2021000865 otherwise remains the Commission’s decision. The Agency shall comply with the Order consistent with this decision and as set forth below. ORDER The Agency is ordered to take the following remedial action, to the extent it has not done so already: I. Within forty-five (45) calendar days of the date this decision is issued, to restore any leave used by Complainant based on the Agency’s failure to provide a reasonable accommodation. II. Within thirty (30) calendar days of the date the decision is issued, to provide Complainant with the reasonable accommodation in the form of a single workstation assignment for the day. III. To conduct a supplemental investigation on the issue of Complainant’s entitlement to compensatory damages with respect to the finding of unlawfully denying Complainant’s reasonable accommodation request and determine the amount of compensatory damages to which Complainant is entitled. Complainant will cooperate in the Agency’s efforts to compute the amount of compensatory damages, if any, and provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission. A copy of the final decision must be submitted to the Compliance Officer referenced below. Within thirty (30) days of its determination of the amount of compensatory damages owed to Complainant, the Agency shall pay Complainant that amount. IV. Within ninety (90) days from the date this decision is issued the Agency is ordered to provide eight hours of in-person or interactive training to AD Manager and all employees at the Agency’s field office in Pasadena, Texas, specifically with regard to employees' protections for disabilities and related reasonable accommodations. V. Within sixty (60) days from the date this decision is issued, the Agency shall consider taking disciplinary action against AD Manager. If the Agency decides not to take disciplinary action, it shall set forth its reason for its decision not to impose discipline. If the identified employees are no longer employed by the Agency, the Agency shall furnish proof of the date of separation. The Commission does not consider training to be disciplinary action. 2022002757 5 VI. The Agency shall post a notice in accordance with the paragraph entitled “Posting Order.” The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Field Office in Pasadena, Texas copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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. 2022002757 6 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 CFR § 1614.503(f) for enforcement by that agency. 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. 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. 2022002757 7 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 October 31, 2022 Date