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

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2020004111 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lawrence L.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2020004111 Agency No. NY-19-0780 DECISION On July 9, 2020, 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 June 15, 2020 final agency decision (FAD) concerning his equal employment opportunity (EEO) 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, the Commission AFFIRMS the Agency’s FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Case Technician/Legal Assistant, GS-968-08, at the Agency’s Office of Hearing Operations (Hearing Office) in San Juan, Puerto Rico. As a Senior Case Technician, Complainant’s duties included: drafting documents, scheduling hearings for Administrative Law Judges, communicating with representatives, obtaining evidence, conducting research, communicating with legal staff, and working at the front desk approximately one day a week. See Report of Investigation (ROI) at 87 and 874-878; see also FAD at 16-17. 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. 2020004111 2 On September 19, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black) and disability (back/post-traumatic stress disorder/anxiety) when: 1. on May 14, 2019, management treated him unfairly by restricting his access to the office upon arrival while his coworkers were allowed to enter prior to 6:30 a.m.; 2. on May 14, 2019, management sent an email only to him with instructions not to enter the office upon arrival any earlier than 6:30 a.m.; and 3. from July 24, 2018, management did not honor Complainant’s request for increased telework days and additional schedule modifications. Claim 3 - Alleged Denial of Reasonable Accommodation On April 24, 2018, Complainant made a request via email to telework three days a week. ROI at 44. The National Reasonable Accommodation Coordinator (NRAC) denied the request on July 24, 2018. Id. In the denial correspondence, the NRAC noted that the medical documentation submitted was insufficient to establish a third day of telework was necessary for Complainant to perform the essential functions of his position. Id. Further, the letter provided Complainant with the opportunity to submit additional information or documentation for consideration. Id. Complainant alleged that the Agency has denied him a reasonable accommodation since that date. Following the NRAC’s denial, there is no evidence that Complainant provided additional medical documentation until over a year later, on or after October 9, 2019. This followed his second request for accommodation on May 8, 2019. Complainant made his second request for reasonable accommodation, to telework three or four days a week, via the “Reasonable Accommodations Wizard,” on May 8, 2019. ROI at 984. Although the Agency ultimately did not grant this request, denying it on October 10, 2019, it reiterated on that day that alternative accommodations - breaking up his 15-minute afternoon break into shorter and more frequent 5-minute breaks, using flex-time or Leave Without Pay (LWOP) if more break time is needed - had been offered and declined by Complainant. ROI at 73; 1549-1551. Complainant’s first-line supervisor, Supervisory Attorney Advisor (hereinafter “Supervisor”) reported that between February 26 and July 19, 2019, she discussed possible accommodations with Complainant multiple times. ROI at 721-23. The Regional Chief Administrative Law Judge (hereinafter “Chief”), Complainant’s third-line supervisor, stated he was responsible for Complainant’s telework requests at issue in 2018 and 2019, though the NRAC signed and issued the denial letters. Id. at 826-828. 2020004111 3 According to the NRAC, she denied Complainant’s telework request because, despite providing medical documentation and other supporting information, he did not “demonstrate a nexus” between his medical conditions and the requested accommodation of additional telework.2 ROI at 838; see also id. at 984-1543. Claims 1 and 2 - Early Entrance to the Office Supervisor became Complainant’s first-level supervisor in February 2019. ROI at 720. On May 14, 2019, Complainant sent a time-stamped voice mail from his office at 6:14 a.m. Supervisor responded, by email, informing Complainant that he was “not permitted to be in the office” before 6:30 a.m. Id. at 57, 923. According to Complainant, employees had been allowed to enter the office prior to 6:30 a.m. for the last eight years. Id. at 57. Complainant further stated that there were already four other employees in the office before 6:30 a.m. that day. Id. Days later, on May 20, 2019, Complainant stated that he was stopped by the guard in the parking lot at around 6:08 a.m. According to Complainant, two colleagues who also entered the parking lot before 6:15 a.m., were not stopped by the guard. Id. Between May 14 and July 11, 2019, from his parked car, Complainant said he observed other employees enter the building before 6:30 a.m. Id. A Language Specialist (Hispanic, no disabilities), under a different supervisor than Complainant, stated that she usually arrived “very early” and had never been told not to enter the building before 6:30 a.m. until a June 13, 2019 staff meeting, when the policy on when to enter the building was announced. ROI at 859. She confirmed Complainant’s account, that the absence of a prohibition on early building access had been policy “for at least 10 years.” Id. According to the Language Specialist, she had “never been restricted” with respect to building access. Id. A Customer Service Specialist (Hispanic, no disabilities), however, reported that “all employees are restricted from entering the office until after 6:20 a.m.” Id. at 867. She described previously having her access restricted. Id. Supervisor said her email reply to Complainant was typical of her responses to those who did not follow proper leave procedures. ROI at 727, 923. She denied any discriminatory animus and noted that she was away from the office between May 17 and June 6, 2019. Therefore, she had no “personal knowledge” of Complainant’s contentions regarding other employees’ access to the building during that time period. Id. Supervisor related that, at a staff meeting on June 13, 2019, these early-access issues were addressed and staff were reminded that they could not enter the building before 6:20 a.m. Id. at 727-28, 939. 2 At the time of NRAC’s affidavit, Complainant’s October 7, 2019 request for telework under the Agency’s work at home by exception (WAHBE) policy was still being processed. ROI at 872; Agy. App. Br. 14. No further information on that request is included in the record. 2020004111 4 At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision on June 15, 2020, pursuant to 29 C.F.R. § 1614.110(b). With regard to claim 3, the Agency found that Complainant was a qualified individual with a disability. However, the Agency reasoned that Complainant failed to establish that his medical conditions precluded him from performing the essential functions of his position. Specifically, the Agency noted that the medical documentation provided by Complainant did not demonstrate that his anxiety or spinal lumbar condition, for example, prevented him from performing essential functions such as communicating with ALJs, drafting legal documents, or categorizing data. FAD at 17. The Agency further found that even if Complainant could make such a showing, management reasonably accommodated his disabilities by providing him with alternative accommodations. As for claim 1, the Agency found that Complainant’s chain of command had legitimate, nondiscriminatory reasons for instructing Complainant not to enter the office earlier than 6:30 a.m., as it was against Agency policy. The Agency concluded that Complainant failed to persuasively rebut management’s articulated explanation. Regarding the email from management, claim 2, the Agency found that Complainant could not prevail on his claim of discriminatory harassment because he failed to show that management singled him out or treated him unfairly because of his race or disability. The Agency concluded that Complainant did not prove he was discriminated against as alleged. Complainant filed the instant appeal. CONTENTIONS ON APPEAL On appeal, Complainant asserts that management “was aware of [his] medical conditions” and he submitted “more than 600 pages of medical evidence . . .” He further contends that the responsible management officials “did not perform a [groupwide] meeting immediately” but waited until he complained about “being the only one being regulated on a policy that does not exist.” The Agency opposes Complainant’s appeal and requests that the Commission affirm its final decision. The Agency argues that “the medical documentation Complainant provided did not indicate any specific functional limitations, recommend an accommodation, or explain how two additional days of telework per week would enable him to perform the essential functions of his position.” On appeal, contends the Agency, Complainant still has not argued or pointed to specific medical evidence that indicates any functional limitations or recommended accommodations. 2020004111 5 However, even assuming, arguendo, that Complainant was entitled to accommodation, the Agency contends it offered him accommodations that effectively addressed his needs. The Agency further maintains that Complainant failed to prove his allegations of disparate treatment and harassment. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Reasonable Accommodation To establish that he was unlawfully denied a reasonable accommodation, a complainant must show that: (1) he is an individual with a disability as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him 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. Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). The Commission also notes that an employee must show a nexus between the disabling condition and the requested accommodation. Smith, Jr. v. U.S. Postal Serv., EEOC Appeal No. 01A43217 (Jan. 6, 2005), citing Wiggins v. U.S. Postal Serv., EEOC Appeal No. 01953715 (Apr. 22, 1997). An agency is not required to provide a requested accommodation if it does not assist the disabled employee to perform the essential functions of his or her position. Id., citing Bullard v. U.S. Postal Serv., EEOC Appeal No. 01934156 (May 3, 1994). We shall assume, for the purposes of analysis only, that Complainant was a qualified individual with a disability. 2020004111 6 While Complainant requested increased telework as a reasonable accommodation, the record reflects that the Agency accommodated Complainant by providing him with smaller, more frequent breaks; allowing him the use of flex time and/or leave without pay; and/or considering a WAHBE telework arrangement. While we acknowledge that Complainant was dissatisfied with these alternative accommodations and rejected the Agency’s offer, we find Complainant’s displeasure, standing alone, is insufficient to establish a failure to accommodate. The Commission has held that employees are not entitled to accommodations of their choice, but to an effective accommodation. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). We note that providing an employee with an option to take leave, which the Agency did in this case, is a form of reasonable accommodation. See McRae v. U.S. Postal Serv., EEOC Appeal No. 0120064701 (Mar. 25, 2008), citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Notice No. 915.002 at question 16 (Oct. 17, 2002) (noting that permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee’s disability). It is Complainant’s burden to show both that he needed an accommodation to perform the essential functions of his job and that the alternative accommodations offered by the Agency were ineffective. Because he failed to do so, we conclude that the accommodations offered by the Agency were sufficient to meet its obligations under the Rehabilitation Act. Disparate Treatment In claims 1 and 2, Complainant alleges that he was subjected to disparate treatment when on May 14, 2019, he was the only person prevented from beginning work prior to 6:30 a.m. and notified via email not to enter the workplace early. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination on his protected bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions in claims 1 and 2. Namely, it maintained regular business hours at the facility for safety reasons, which Complainant violated by arriving before 6:30 a.m. The Agency contends, consistent with such policy, when Supervisor learned that Complainant was at the facility early, she sent the email instructing him to comply with the start-time restriction. 2020004111 7 As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In arguing pretext, Complainant asserted that he was the only individual who was instructed not to arrive earlier than 6:30 a.m. He maintained that the Agency allowed many individuals, including judges and attorneys, to arrive early, but he was denied the same opportunity. Complainant attributed the disparate treatment to his race and color. As noted above, while Customer Service Specialist said she was prevented from coming early, Language Specialist noted she usually arrived early and was not restricted. It was not until the June 13, 2019 staff meeting, after the events in claims 1 and 2, that Language Specialist was informed of the early arrival policy. Therefore, at a minimum, the record reflects that the restriction was inconsistently applied. Nevertheless, Complainant has not met his burden in showing that the time restriction was applied to him because of his protected bases. Complainant has not shown that the Agency’s proffered reasons were a pretext to mask discriminatory animus. Furthermore, while we are mindful that Language Specialist attested that management did not stop her from arriving early, we find that this individual was not similarly situated to Complainant. Complainant and Language Specialist had different supervisors and positions. To demonstrate that another employee is a similarly situated comparator, a complainant must show that all relevant aspects of the comparator’s work situation were nearly identical to his own. Martinez v. Dep’t of Homeland Sec., EEOC Appeal No. 0120113436 (Nov. 1. 2011) (finding comparators were not similarly situated when they had different supervisors and/or a different chain of command than complainant). Given the differences in title, grade, and supervision between Complainant and Language Specialist, we do not find them to be similarly situated. Furthermore, to the extent that Complainant argues he had been allowed to arrive early for the past eight years, we note that he began working for a new first-level supervisor in February 2019. An employer is entitled to make its own business judgments. The reasonableness of the employer’s decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). 2020004111 8 Complainant has not shown that the change in permissible start-time, was due to his protected classes rather than attributable to the new supervisor and needs of the Agency. Lastly, to the extent Complainant alleges that the underlying incidents in claims 1 and 2 amounted to a hostile work environment, we conclude that a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final 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. 2020004111 9 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 (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 November 22, 2021 Date