[Redacted], Mark K., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2020001132 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mark K.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020001132 Hearing No. 480-2018-00198X Agency No. HQ-17-0493-SSA DECISION On November 26, 2019, 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 October 28, 2019, final order 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., 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant was a Program Analyst, GS-0343- 12, in the Agency’s Office of Public Service and Operations Support (OPSOS) at Agency Headquarters in Baltimore, Maryland. On May 30, 2017, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him and subjected him to a hostile work environment on the bases of his race (Hispanic), sex (male), disability (bilateral upper extremity amelia) and age (42) when: 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. 2020001132 2 1. On February 27, 2017, Complainant was not selected for the Program Analyst position advertised under Vacancy Announcement No. SH-1825501; 2. On May 22, 2017, the Agency did not select Complainant and denied him reasonable accommodation for a GS-13 OPSOS Program Analyst position advertised under Vacancy Announcement No. No. SH-1846318;2 3. On April 2, 2017, Complainant’s telework approval was rescinded; and 4. On April 2, 2017, Complainant felt forced to transfer from a GS-12 Program Analyst position to a GS-11 Claims Specialist position in the Boyle Heights, California Field Office. 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 an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case issued a summary judgment decision in favor of the Agency on October 8, 2019, finding no discrimination. Complainant has the condition of bilateral upper extremity amelia, meaning he was born without arms. Complainant had been employed by the Agency for eight years at the time he filed the instant complaint. Complainant was a GS-11 Claims Representative in the Hollywood, California Field Office before he relocated to Baltimore as a GS-12 Program Analyst. The Agency provided Complainant with several accommodations while he was working in Maryland. Complainant received a raised chair to enable him to type with his feet; a phone headset; voice recognition software; modified restroom mounted hardware; a closer parking space; and a personal assistant. Complainant was able to perform the essential functions of his job with these accommodations and in fact, excelled at his job duties. In February 2017, Complainant’s wife, his primary caregiver, decided that she no longer wished to live in Maryland and returned to California. As a result, Complainant requested to be out- stationed to Los Angeles as a Program Analyst in Maryland. Agency management denied Complainant’s request, but recommended that he make a request for a hardship transfer. Complainant submitted a hardship transfer request citing financial and personal reasons. Agency management approved his hardship transfer request to return to California. At the time, there were no GS-12 positions available in California; therefore, the Agency offered Complainant a GS-11 Claims Specialist position with step increases to ensure no immediate loss of salary. Complainant began working in the Boyle Heights Field Office on April 2, 2017. With regard to claim (1), in November 2016, Complainant applied for a Program Analyst position advertised under Vacancy Announcement No. SH-1825501. 2 Complainant was in fact offered the GS-13 Program Analyst position; however, he declined because he could not be out-stationed in Los Angeles as discussed further herein. 2020001132 3 Complainant made the merit promotion certificate of eligible candidates based upon a review of resumes and supervisory recommendations. Ultimately, Complainant was not selected. Complainant acknowledged that the selectee was more qualified than him for the position. The Agency’s reason for selecting the selectee was that she was better qualified than Complainant based on her audit experience as opposed to Complainant who had no experience on the audit team. The position required experience in audits or the audit team. In terms of claim (2), Complainant applied for promotion to a GS-13 Program Analyst position located in Baltimore. Agency management offered Complainant the position in May 2017. Complainant requested that the position be out-stationed to Los Angeles. Agency management denied Complainant’s request. Complainant declined the position in Baltimore after the Agency rejected his request that the position be out-stationed to Los Angeles. Complainant had already returned to Los Angeles at that point on a hardship transfer. With regard to claim (3), Complainant claimed that Agency management rescinded his telework privilege. The Agency explained that Complainant’s hardship transfer request was granted, and Complainant was assigned to a field office that did not offer telework. The Agency provided Complainant with a list of locations where he could be placed, and Complainant was afforded the opportunity to reject any of the locations, but he did not do so. The Boyle Heights office, where Complainant was placed, was one of the sites on the list. The Agency explained that Complainant was placed in Boyle Heights because it was the office that had the greatest need. Complainant argued that he was placed at this location as a ploy to deny him telework. With respect to claim (4), Complainant alleged that he was forced to accept a demotion from his GS-12 Program Analyst position to the GS-11 Claims Specialist position. The Agency explained that Complainant, of his own volition, requested the hardship transfer from Maryland to California due to personal reasons (marital and financial). The Agency further noted that there were no GS- 12 positions available where Complainant could have been placed. According to the Agency, it placed Complainant in a GS-11 position and to compensate for any immediate wage loss, Complainant received the step level comparable to his pay as a GS-12 Program Analyst. In her decision, with respect to Complainant’s request for reasonable accommodation, the AJ noted that Complainant’s request for a reasonable accommodation was triggered by his wife’s departure to California as he no longer had a personal caregiver at his residence. The AJ stated that the request for reasonable accommodation was therefore for personal reasons and did not serve any employment need. The AJ found that the Agency was not required to accommodate such a request. Next, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim (1), Agency management selected the selectee because it was an audit- based position and the selectee had the desired audit experience. As to claim (2), the AJ observed that the Agency offered Complainant the position but denied his request to out-station in the position because he did not have the requisite 10 years to be out-stationed. The AJ stated that Complainant identified several employees who were out-stationed but that the record does not show that they were similarly situated to Complainant. 2020001132 4 The AJ noted that Complainant pointed to an exception that would have allowed employees with fewer than 10 years with the Agency to be out-stationed. However, the AJ stated that Complainant failed to identify any proper comparative employees who were granted this exception. With respect to claim (3), the Agency explained that it never rescinded Complainant’s telework privilege; rather, Complainant requested a hardship transfer and was granted a transfer to the Los Angeles area. Complainant was provided a list of places he could transfer and did not object to any office listed. Agency management then transferred Complainant to the office with the greatest need, which was an office where no employees could telework. Finally, as to claim (4), the Agency granted Complainant’s hardship transfer request but had no available GS-12 positions to place Complainant. As a result, management placed Complainant in the GS-11 position with step increases to compensate for any wage loss. The AJ determined that Complainant failed to show that the Agency’s reasons for its actions were pretextual. 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 implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS 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). An AJ may issue a summary judgment decision only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose summary judgment, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. 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. 2020001132 5 Denial of Reasonable Accommodation The Commission notes that an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); 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); Barney G. v. Dep't of Agriculture, EEOC Appeal No. 0120120400 (Dec. 3, 2015). Complainant has been diagnosed with bilateral upper extremity amelia. It is undisputed that Complainant is a qualified individual with a disability. The record reveals that Complainant received several accommodations at the Baltimore Headquarters including, a raised chair to enable him to type with his feet; a phone headset; voice recognition software; modified restroom mounted hardware; a closer parking space; and a personal assistant. Complainant was able to perform the essential functions of his job with these accommodations. and in fact, excelled at his job duties. The AJ determined that the request for reasonable accommodation by being out-stationed in California was for personal reasons and was not to allow him to perform the essential duties of his position. The Commission notes that although individuals protected under the Rehabilitation Act are entitled to reasonable accommodation, they are not necessarily entitled to their accommodation of choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also Enforcement Guidance on Reasonable Accommodation at Question 9. We find that Complainant’s request to out-station in California was for purposes of meeting personal needs rather than a means to eliminate a barrier to the performance of the essential duties of his position. Notwithstanding, the record reflects that the Agency made a good faith effort to place Complainant in a position in California through a hardship transfer that was equivalent to the GS-12 position he held in Baltimore. Complainant has presented no evidence that there was a vacant, funded position at the GS-12 level. The Agency subsequently offered Complainant the GS-11 position and increased the steps so he would receive salary retention. Complainant has presented no evidence that the provided accommodations were ineffective. Accordingly, we find that in this instance the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. 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). 2020001132 6 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming, for purposes of this decision only, that Complainant established a prima facie case of discrimination based on his race, sex, disability, or age, like the AJ, we find that the Agency articulated, legitimate, non-discriminatory reasons for its actions as were set forth in detail above. We also find no evidence of pretext. Complainant has simply not provided any evidence that raises a genuine issue of material fact that his protected bases played any role in any of the actions in dispute. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination as alleged. Hostile Work Environment Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 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 Service, 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 order. . 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. 2020001132 7 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 (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. 2020001132 8 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 22, 2021 Date