[Redacted], Lino L., 1 Complainant,v.Jennifer M. Granholm, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Feb 15, 2022

Appeal No. 2021000755 (E.E.O.C. Feb. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lino L.,1 Complainant, v. Jennifer M. Granholm, Secretary, Department of Energy, Agency. Appeal No. 2021000755 Agency No. 18-0081-BPA DECISION On November 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 September 28, 2020 final decision 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 On September 5, 2017, Complainant began working as a Program Support Specialist II (PSSII) in Information Technology (IT) at the Agency’s Bonneville Power Administration in Portland, Oregon. Complainant worked under a contract between the Agency and an employment agency (EA1). On November 10, 2017, EA1 terminated Complainant’s assignment with the Agency. On August 24, 2018, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of disability (Ocular Albinism (both eyes)) and reprisal for prior protected EEO activity (the instant matter) when it denied his request for reasonable accommodation (to not have to read from a projector screen during monthly meeting presentations and to get two larger computer monitors) and removed him from employment. The Agency accepted Complainant’s complaint for EEO investigation. 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. 2021000755 2 During the EEO investigation, Complainant stated, during a private discussion, he informed the Lead IT Portfolio Manager (S1) and Business Services Lead that he has a visual acuity condition that prevents him from seeing things that are far away. He asked to not have to run the projector screen and read from afar for monthly meeting presentations. Complainant alleged that management instructed him to ask his fellow PSSII (C1) to switch duties for the meetings (from presenting to notetaking) and C1 became hostile toward him after his request. Complainant stated, prior to that meeting, consistent with the contractor handbook, he asked his employment agency, EA1, to request two 25-inch monitors for him from the Agency. Complainant stated that he did not get a response, so he asked C1 to assist him because she was the liaison for contractors and the Supplemental Labor Management Office (SLMO). S1 stated that Complainant informed him of his medical condition about three to four weeks after he started working at the Agency. S1 stated that Complainant informed him that he has a vision condition and did not want to operate the screen projector for meeting presentations. S1 stated that he told Complainant to work with his colleague, C1, who also ran the monthly meetings, to work the monitor and read the projector screen while Complainant took notes. S1 stated that he did not instruct Complainant to disclose his medical information to C1. S1 stated that he supported Complainant’s request to change meeting duties. S1 stated, during a subsequent meeting, he noticed Complainant constantly looking at his cell phone and distracted while note-taking and that his notes were poorly written. S1 stated that Complainant did not express concerns about friction with C1 following the change of meeting assignments. S1 stated, however, C1 and several project managers expressed concerns about Complainant’s performance of PSSII duties. S1 stated that he was aware that Complainant took too long to complete tasks and showed no sense of urgency and displayed difficulty understanding and implementing written or verbal instructions and technology. S1 stated that Complainant was given feedback about his performance, but because he was a contractor, no formal written performance evaluation was generated. S1 stated, as a result of Complainant’s performance shortcomings, the Agency terminated his assignment. C12 stated that the original plan was that she and Complainant would alternate the duty of presenter and notetaker for their monthly meetings, but she did not have a problem with him solely notetaking. C1 stated that S1 asked her to work the screen projector because Complainant had “problems with his vision.” C1 stated that there was friction with Complainant from the first week they worked together because he did not perform his duties well or within a timely manner. C1 stated that Complainant asked her to help him get larger computer monitors due to his vision problems and she attempted to assist only because she previously worked in SLMO and was familiar with certain processes. She stated that she was not a contractor-to-SLMO liaison. For computer monitors, S1 stated Agency policy is that hardware equipment and furniture have to be ordered by communication through a contractor’s supplier and SLMO. 2 C1 was also on assignment to the Agency but under a different employment agency. 2021000755 3 The SLMO Contracting Officer (S2) stated, on September 18, 2017, Complainant’s supplier, EA1, requested two 22-inch computer monitors for Complainant due to a visual acuity condition. S2 stated that 22-inch monitors are Agency standard and IT support confirmed that Complainant had 22-inch monitors. S2 stated that she asked IT support about increasing the size on the display or a magnifying monitor. S2 stated, on October 23, 2017, EA1 then requested two 25-inch monitors for Complainant. S2 stated that the monitors were not provided prior to the end of Complainant’s contract in November 2017. S2 stated that she communicated with EA1 and not Complainant about the monitors, consistent with Agency policy. Following the investigation, the Agency informed Complainant of the right to request a hearing before an EEOC Administrative Judge or an immediate final agency decision. Complainant requested a final decision. On September 28, 2020, the Agency issued a final decision finding no discrimination. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS 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”). Reasonable 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). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (October 17, 2002); see also, Abeijon v. Dep’t of Homeland Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). Here, Complainant was a contract Program Support Specialist II, PSSII, at the Agency since September 5, 2017. He stated that he has Ocular Albinism that impacts his visual acuity. 2021000755 4 In late September or early October 2017, Complainant asked the Agency to not require him to operate a projector screen and read from afar to give presentations at monthly meetings. The record confirms that Complainant was granted his request and C1 took over operating the projector screen and Complainant the note-taking duties. Complainant also alleged that he requested larger computer monitors due to his condition, but the Agency did not provide them. Management stated that Complainant’s employment agency, EA1, requested 22-inch monitor screens but that was Agency standard and it was confirmed that Complainant already had 22-inch screens at his desk. Management stated, on October 23, 2017, EA1 requested 25-inch monitor screens, but, while they were approved, the Agency did not provide before Complainant’s assignment was terminated approximately two weeks later. Management stated that Complainant’s assignment was ended because he did not complete tasks in a timely manner and did not display a sense of urgency in his work, and he had difficulty understanding and executing instructions and technology. Here, we find that assuming Complainant is a qualified individual with a disability, he presented no evidence that the Agency denied him reasonable accommodation in violation of the Rehabilitation Act. In addition, the evidence does not support a finding that the Agency engaged in unlawful retaliation against Complainant for his requesting accommodations for his disability. With that said, however, we are concerned about suggestions that the Agency either had Complainant discuss his need to change duties due to his medical condition with C1 or it did so on his behalf. Complainant stated that management instructed him to work out the change in duties with C1. Management acknowledged that it instructed Complainant to work with C1 to change duties but stated that it did not instruct Complainant to reveal his medical condition to C1. C1 stated that management asked her to change duties with Complainant due to his condition. C1 also stated that Complainant asked for her help with getting a larger monitor due to his vision problem. The record is unclear exactly on what occurred regarding disclosure of Complainant’s medical condition, but we caution the Agency to be careful regarding placing an employee in a position to involuntarily disclose confidential medical information to justify a reasonable accommodation to a coworker or the Agency doing so on Complainant’s behalf. See Enforcement Guidance on Reasonable Accommodation, Question 42. CONCLUSION Accordingly, we AFFIRM the final agency decision finding no discrimination or unlawful retaliation. 2021000755 5 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. 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). 2021000755 6 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 February 15, 2022 Date