[Redacted], Mitchell K., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022002733 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mitchell K.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2022002733 Hearing No. 443-2020-00100X Agency No. FPAC-2020-00293 DECISION On April 19, 2022, 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 April 14, 2022, final order 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. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment for the position of Human Resources Specialist, GS-201-12, at the Agency’s Kansas City Farm Production and Conservation (FPAC) Business Center, Workforce Management Division hub,2 in Kansas City, Missouri. Complainant applied for the position under the Schedule A hiring authority, which allows federal agencies to non-competitively appoint individuals with disabilities. See Report of Investigation (ROI) at 61 and 117. Complainant qualified for Schedule A hiring because he had been diagnosed with injuries to the eye, hip, and 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. 2 FPAC operates “major hubs” in Kansas City, Missouri, Raleigh, North Carolina, Portland, Oregon, and Washington, D.C. ROI at 123. 2022002733 2 head, that caused him to experience eye fatigue, chronic hip pain, chronic fatigue, and cognitive impairment. Id. at 114-18. Complainant applied for the position while residing in Mauston, Wisconsin, with his family. Id. at 59. On August 15, 2019, Complainant received a conditional offer of employment from the Supervisory Human Resources (HR) Specialist, who served as the Selecting Official for the position. ROI at 128. The offer of employment included a $10,000.00 relocation incentive. Id. In his new role, Complainant would be required to coordinate and carry out hiring, staffing, examining programs and services; provide technical assistance to managers and employees and other staffing specialists; provide advice and guidance to management officials; lead or participate on work teams; and meet and coordinate regularly with representatives of assigned organizational components. Id. at 119-21. After accepting the conditional offer, Complainant began the onboarding process. On August 30, 2019, the Supervisory HR Specialist notified Complainant that he had been cleared to begin work and asked Complainant when he could start so that a firm job offer could be extended. ROI at 133. Complainant responded by asking the Supervisory HR Specialist whether he could work full time from home in Mauston. Id. at 132. Complainant ultimately did not provide the Supervisory HR Specialist with a preferred start date as he wanted to “see how things are moving.” Id. After the Supervisory HR Specialist informed Complainant that the Agency did not allow employees to telework full time, Complainant asked the Supervisory HR Specialist whether the Agency had a Disability Program Manager who could assist him with filing a request for reasonable accommodation. ROI at 131. Complainant expressed hope that the Agency would allow him to telework full time from Mauston after completing the requisite training, as he did not want to have to relocate his family from Mauston to Kansas City. Id. The Supervisory HR Specialist responded to Complainant’s email the following day and informed Complainant that while the Human Resources Specialist position was not a 100 percent telework position, he was open to “seeing what our [Employee and Labor Relations] folks have to say regarding flexibilities due to your request.” Id. at 130. The Supervisory HR Specialist ultimately processed Complainant’s inquiry as a request for reasonable accommodation. ROI at 144-45. After reviewing Complainant’s medical documentation from August 2017, wherein Complainant’s physician opined that Complainant’s request to telework was reasonable given his hip pain when immobile for extended periods, the Supervisory HR Specialist informally notified Complainant on September 23, 2019, that the Agency would not grant him full time telework. Id. However, the Supervisor HR Specialist informed Complainant that the Agency was willing to offer him alternate accommodations that would allow him to telework four days a week, receive reimbursement for transportation from an eligible hub of his choice via the Transit Subsidy Program, and use a sit/stand adjustable desk. Id. 2022002733 3 Complainant reiterated that he was willing to travel to Kansas City on a temporary basis to complete the requisite training and emphasized that he did not want to relocate there. ROI at 142-43. The Supervisory HR Specialist ultimately issued Complainant a formal decision on October 11, 2019, denying his request for full time telework. ROI at 150-51 and 159-60. In denying Complainant’s request, the Supervisory HR Specialist explained that the requested accommodation of full-time telework “would be ineffective” as 20 percent of the essential functions of Complainant’s position required in-person presence. Id. In lieu of the requested accommodation, the Supervisory HR Specialist, again offered Complainant the opportunity to telework four days a week, reimburse him for transportation from an eligible hub of his choice to the office via the Transit Subsidy Program, and provide him with a sit/stand adjustable desk. Id. The Supervisory HR Specialist also offered Complainant visual assistive technology as needed. Id. On October 12, 2019, Complainant submitted another note from his treating physician, which noted that Complainant had chronic fatigue because of a traumatic closed head injury and experienced chronic right hip pain due to an acetabular (hip) fracture. ROI at 118. Complainant’s physician, however, did not opine whether Complainant had any limitations because of his impairments and simply noted that additional information could be obtained by calling his office. Id. On November 1, 2019, Complainant emailed the Disability Program Manager to inform him that he wanted to appeal the accommodations that were offered to him by the Supervisory HR Specialist and attached the requisite reasonable accommodation request form, dated October 29, 2019, for the Disability Program Manager’s review. ROI at 161-162 and 163. In filing the request, Complainant explained that the alternate accommodations provided by the Supervisory HR Specialist would require him to relocate his family from Mauston to Kansas City, which he did not want to do. Id. He emphasized that forcing him to relocate would increase his mental stress from having to adjust to a new environment and cause him pain and fatigue. Id. In lieu of the offered alternate accommodations, Complainant suggested that the Agency pay him the $10,000.00 relocation incentive so that he could purchase video teleconference equipment needed to transform his home in Mauston into the Kansas City office. Id. He emphasized that the transformation would make teleconferences “look and feel” like he was in the Kansas City office. Id. He also requested “placement assistance for [his] wife, relocation services for [his] kids, as well as additional time and services for [him] to establish the many services” that he had in place in Wisconsin. Id. Despite Complainant’s attempt to persuade the Agency to allow him to telework full-time, the Agency denied his second request for reasonable accommodation on November 14, 2019, and confirmed to Complainant on November 22, 2019, that the requested accommodation would not be granted. Id. at 167-68 and 175-76. 2022002733 4 After Complainant continued to request fulltime telework, the Agency reiterated that it would not offer him the requested accommodation and advised Complainant of his right to file an EEO complaint. ROI at 170-71. According to the Supervisory HR, no final job offer was extended to Complainant because Complainant “was still in the reasonable accommodation process.” Id. at 83. The Chief Human Capital Officer also confirmed that “a final job offer was not issued. Id. at 102. On February 5, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on disability (injuries to the brain, hip and eye) when: 1. Since August 30, 2019, management has failed to provide him a final employment offer subsequent to its issuance of a tentative employment offer on August 30, 2019. 2. On November 14, 2019, management denied his request for a reasonable accommodation to telework full-time. During the EEO investigation, the Supervisory HR Specialist vehemently denied Complainant’s allegations of discrimination and maintained that Complainant was not entitled to full-time telework as a reasonable accommodation because Complainant’s request was not based on his disabilities but rather largely based on his professed need to reside in Mauston to pursue his 27 pending EEO cases against the Department of the Army. ROI at 91 and 155. Complainant, however, vehemently denied telling the Supervisory HR Specialist that his need to remain in Mauston was largely based on his 27 pending EEO complaints and maintained that his reasons for wanting to stay in Mauston included his 27 pending EEO complaints, but that reason was “not a large basis for [his] need, nor is it a deciding basis.” ROI at 77-78. Complainant also clarified that he received a final offer from the Agency on August 30, 2019; and emphasized that “it was never an issue of not having a final employment offer” but rather his inability to commence work due to the Agency’s failure to provide him with an effective reasonable accommodation. Id. at 65-66. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing; however, on October 7, 2020, the Agency filed a motion for a decision without a hearing, arguing for summary disposition, as the undisputed record showed that it did not unlawfully deny Complainant a reasonably accommodation and had legitimate, nondiscriminatory reasons for not extending a final offer to him. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s October 7, 2020, motion for a decision without a hearing. In finding in favor of the Agency, the AJ first addressed claim 2, concerning Complainant’s denial of reasonable accommodation claim. After reviewing the record, the AJ found that Complainant was not entitled to his requested accommodation because the record clearly showed that Complainant “was willing and capable” of traveling to Kansas City but did not want to do so to avoid relocating his family. Furthermore, 2022002733 5 the AJ noted that Complainant had “also made statements that part of the reason he did not want to relocate was related to the processing of 27 EEO complaints lodged against the Department of the Army.” As Complainant was seeking full time telework for matters unrelated to his disability, the AJ concluded that Complainant could not prevail on claim 2. The AJ then addressed claims 1 and 2 under the legal standard for disparate treatment and ultimately concluded that the Agency had legitimate, business reasons for taking the underlying actions. In so finding, the AJ explained that “[e]vidence in the record indicates that the Agency wanted to provide [a] final offer with start dates and even suggested dates predicated on [Complainant’s] move to Kansas City.” However, “rather than giving a start date, Complainant requested 100 percent virtual employment which prevented any final offer from being issued.” As the AJ found no persuasive evidence that the Agency discriminated against Complainant, the AJ concluded that Complainant could not prevail on the merits of either claim. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. On appeal, Complainant vehemently disputes the AJ’s finding of no discrimination and argues that the decision is wrong for many reasons. While Complainant acknowledges that some of the reasons why he wanted to telework full time were based on non-disability related matters, he maintains that he also had disability related reasons. The Agency, however, opposes Complainant’s appeal largely on the grounds that it previously asserted, namely that there is no evidence that full time telework was medically necessary. In so arguing the Agency points out that Complainant’s physician never stated that Complainant needed 100 percent telework and only opined that Complainant’s request to work from home was reasonable given Complainant’s complaints of hip pain when immobile for extended periods of time. Furthermore, the Agency notes that Complainant made multiple admissions that he was seeking full-time telework for non-medical reasons and emphasizes that the subject position was never advertised as a full-time telework position because at least 20 percent of the essential duties of the position could not be performed remotely. 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. (Aug. 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). 2022002733 6 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 factfinder 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 Agency was entitled to summary judgment, because the evidence did not establish a genuine dispute of material fact warranting a hearing. CONCLUSION Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision finding no discrimination. 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 2022002733 7 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. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter 2022002733 8 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 January 31, 2023 Date