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

Equal Employment Opportunity Commission

Apr 5, 2021

Appeal No. 2020003155 (E.E.O.C. Apr. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Micha T,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020003155 Hearing No. 531-2018-00001X Agency Nos. COI-16-0790 COI-18-0179 DECISION On April 16, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 6, 2020, final order concerning her 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. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Equal Employment Specialist, GS-0260-13, at the Agency’s Office of Civil Rights and Equal Opportunity, Center of Complaints Processing in Baltimore, Maryland. On October 31, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability (physical) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973. Follow several amendments to the complaint, the Agency accepted the following claims of discrimination 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. 2020003155 2 1. From April 2016 to present, the Agency failed to accommodate Complainant’s disability; 2. From April 2016 and ongoing, while working from home, Complainant is forced to manually release work, while other similarly-situated employees are assigned an in- house analyst to release their work; 3. From April 2016 and ongoing, Complainant is forced to perform duties and work in an unsuitable environment after her physician placed her on restrictions; 4. On April 22, 2016, Complainant was denied overtime; 5. On an unknown date, Complainant was made aware of a coworker going on detail. Complainant was unaware of promotional opportunities; therefore, Complainant was not afforded the chance to apply for a promotional detail; 6. On October 14, 2016, Complainant was made aware that the Agency has not properly maintained her medical file and misplaced her previously submitted reasonable accommodations including all medical documents establishing that she has a disability; 7. On an unknown date, several managers made remarks about Complainant’s husband after he passed away.2 8. Complainant was informed that her telework schedule was indefinitely suspended as of December 6, 2016; 9. On December 20, 2016, Complainant was issued a proposed notice to suspend for 30 days; 10. On May 10, 2017, her supervisor pointed her finger at Complainant’s face during Complainant’s mid-year discussion; 11. On May 10, 2017, during Complainant’s mid-year discussion, her supervisor stated that Complainant had 15 intakes and two reports of investigation that were late, but did not identify the case numbers or give Complainant the opportunity to respond; and 12. On May 12, 2017, Complainant was charged eight hours of Leave Without Pay (LWOP). Complainant subsequently filed another formal complaint on January 22, 2018, wherein she alleged discrimination on the bases of disability and reprisal when: 1. Ongoing and continuous since Complainant filed prior EEO complaints, Complainant has been denied awards; and 2. On October 30, 2017, Complainant became aware that she was being held to a different standard than her coworkers, when she received a level 3 rating on the Fiscal Year (FY) 2017 Performance Accountability and Communication System (PACS) in the elements of Job Knowledge and Business Results, while her team members who only completed one portion of the EEO specialist job function were rated a the 5 level in the elements on Job Knowledge and Business Results. 2 On January 13, 2017, the Agency dismissed claim 7 for failure to state a claim. 2020003155 3 After its investigation into the complaint, the Agency provided Complainant with a copy of the reports of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). The assigned AJ consolidated the above matters pursuant to Complainant’s request. On November 28, 2018, the Agency submitted a motion for a decision without a hearing. In response to the Agency’s motion, Complainant filed a brief opposing the Agency’s motion; however, her filing was untimely. The AJ ultimately issued a decision by summary judgment in favor of the Agency. On March 6, 2020, the Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. 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. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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 2020003155 4 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). 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. 2020003155 5 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 April 5, 2021 Date