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

Equal Employment Opportunity Commission

Feb 9, 2022

Appeal No. 2021000470 (E.E.O.C. Feb. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rufus G.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021000470 Hearing Nos. 410-2019-00237X 410-2019-00240X Agency Nos. ATL-17-0873-SSA ATL-18-0520-SSA DECISION The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 7, 2020 final order concerning the two formal complaints which claimed unlawful 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. BACKGROUND During the period at issue, Complainant worked as a Senior Case Technician (SCT), GS-7, at the Agency’s Savannah Office of Hearing Operations (OHO) in Savannah, Georgia. The two Group Supervisors were Complainant’s first level supervisors (“S1” and “S2”). The Hearing Office Director was his second line supervisor and the Chief Administrative Judge was the head of the Savannah OHO. 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. 2021000470 2 Complainant filed two formal complaints, which were consolidated by the Agency for processing. Complaint 1 - Agency No. ATL-17-0873-SSA Complainant claimed that the Agency discriminated against him based on sex, disability and in reprisal for prior EEO activity when: 1. Since April 16, 2017, a management official repeatedly winked at him throughout the office and on July 25, 2017, inappropriately touched him; 2. He was subjected to ongoing non-sexual harassment beginning March 8, 2018; and 3. On February 21, 2018, his medical information was shared with other employees. Complaint 2 - Agency No. ATL-18-0520-SSA The second complaint alleged that Complainant was unlawfully retaliated against for prior EEO activity when: 4. Since February 21, 2018, management delayed acting on her requests for reasonable accommodations involving exercises and control measures. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ subsequently issued a decision by summary judgment finding no discrimination in favor of the Agency. The Agency issued its final order adopting the AJ’s finding of no discrimination. 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 2021000470 3 that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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 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. Reasonable Accommodation: Claim 4 Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is an individual with a disability. Complainant identified his disabilities as Post-Traumatic Disorder Stress (PTSD), panic attacks, concentration problems, and depression. He is seeing a mental health counselor due to his inability to sleep. Complainant’s reasonable accommodation requests relate to two separate matters. First, Complainant requested a special chair for neck and back pain. Second, Complainant requested accommodation for needed space and time to practice relaxation techniques. We will address the AJ’s findings on both matters as follows, and we determine that the AJ’s findings are supported by the record and remain undisputed on appeal. Regarding the request for a chair, the AJ expressly noted that an Agency supervisor stated that “the Complainant requested a chair which [the Agency] gave him.” Regarding the relaxation techniques, the AJ noted that there were a series of discussions in February and March 2018, which resulted in temporary accommodations, which allowed Complainant additional time to process work and perform relaxation techniques, but which did not reduce work expectations. The temporary accommodation also provided for the granting of liberal leave and flextime. Subsequently, the Agency continued to grant liberal leave and flextime use originally provided during the temporary accommodation period. In addition, Complainant was provided with two 15-minute breaks per day to engage in the relaxation exercises, in addition to his lunch break. Complainant was advised he could use a stairwell, a vacant office, a parking lot, his car, or his cubicle to perform relaxation techniques. Complainant was required to notify his supervisor via email of the location of his relaxation technique breaks, when be began them, and when he would return to work. 2021000470 4 With regard to Complainant’s request for extra time to complete his work, Complainant’s supervisor stated that she denied Complainant’s request for additional time to complete his assigned work because he had not submitted medical documentation supporting his request. The AJ expressly noted that the Agency had taken “considerable strides to accommodate” Complainant, and that the evidence did not support a finding that he provided medial documentation to supported further accommodations. We agree with the AJ’s determination on this issue. Claim 3 - Alleged Disclosure of Medical Information The Rehabilitation Act provides that information obtained regarding the medical condition or history of any employee shall be treated as a confidential medical record. 29 C.F.R. § 1630.14(c). The Commission regards documentation of an individual's diagnosis or symptoms as confidential medical information. ADA Enforcement Guidance: Preemployment Disability- Related Questions and Medical Examinations” (October 10, 1995) at 22 n.26. Regarding claim 3, Complainant alleged that on February 21, 2018, his medical information was shared with other employees. However, the second Group Supervisor (female) stated that it was Complainant himself, not management, who had informed virtually all the office employees about his medical information. The Group Supervisor asserted that there was nothing about his medical information that he has not shared with others from the first week Complainant arrived at the Savannah OHO. Moreover, the Group Supervisor stated that on or around February 21, 2018 (the date Complainant asserted the disclosure occurred), she did not hear any employee or management official share Complainant’s medical information with other employees. The record evidence supports the AJ’s conclusion that Complainant failed to prove, by a preponderance of the evidence, that management improperly disclosed medical information about Complainant in violation of the Rehabilitation Act. Harassment/Hostile Work Environment: Claims 1 and 2 To prove his harassment/hostile work environment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his sex, disability or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). 2021000470 5 Regarding claim 1, Complainant asserted that on April 16, 2017, a management official repeatedly winked at him throughout the office and on July 25, 2017, and inappropriately touched him. Complainant’s supervisor stated that on August 28, 2017, the other Group Supervisor informed her that Complainant was talking to his mentor and mentioned somebody “doing something” to him. The mentor advised Complainant to report the matter to Agency management, but Complainant stated he could not report it to management because it involved a member of management. The HOD (male) stated that he was Complainant’s second line supervisor. He stated that when Complainant first started, he met with Complainant for approximately one hour and introduced him to all employees and talked with him about his duties. He noted that on occasion, he asked Complainant how he liked his job and how he was doing. HOD stated that before he became aware of Complainant’s complaining about his winking in September 2017, he winked at other employees as a form of acknowledgement. He stated that he stopped winking at anyone at work. Regarding Complainant’s claim that on July 25, 2017, HOD inappropriately touched him. Complainant stated that on that day, HOD was preparing to leave for lunch when he placed the palm of his right hand on the back of his left leg and rubbed his calf muscle. He noted that HOD moved his right hand forward, grabbed and shook his left pant leg and said, “Those pants look good on you.” HOD explained his version of the July 25, 2017, stating that Complainant was in the break room when he walked in to get a shake from the refrigerator and had his gym bag in his hand, because he was heading to the gym for lunch. HOD acknowledged complimenting Complainant’s socks. He denied touching Complainant or the mention about his pants. Thereafter, HOD stated that the Special Projects Officer with the Region IV Regional Office in Atlanta, Georgia contacted him regarding Complainant’s allegations and directed him not to have contact with Complainant Regarding Complainant’s allegation that HOD subjected him to ongoing non-sexual harassment, HOD stated that the only times he had any communication with Complainant was in March 2018 when he sent out office-wide communications and Complainant was included along with the rest of the staff. In addition, on March 30, 2018, he was testing the duress alarm and had to notify Complainant by instant message/Officer Communicator because he failed to respond to the group email. With regard to Complainant’s allegation that HOD “cut his eyes” at him on March 8 and 9, 2019, as he passed his cubicle and that he stood near his cubicle as an intimidation tactic, conversing with S2, HOD stated that he does not know what he meant by “cut your eyes” and does not take actions to intimidate any employees. Complainant’s supervisor stated that she first learned of Complainant’s allegations when she returned to work on August 28, 2017, after being on leave. On January 12, 2018, Complainant stopped by her office and started to talk about the incident with HOD. She said Complainant stated “he touched me” and then Complainant “looked agitated and went on to say that what happened really was not a big deal and the whole thing could have been straightened out if only [Complainant] and HOD had got together and talked about it, but management had to report it to the RO, so now “it is on!” 2021000470 6 S1 stated that while HOD is her supervisor, she stated that HOD issues compliments periodically. For example, S1 stated that HOD “might say, ‘That’s a nice dress,” and wink at the employee, but there is nothing sexual about the way he winks at people.” In sum, the evidence fully supports the AJ’s determination that the evidence either does not support Complainant’s version of what occurred or, even if it did occur, the incidents were so isolated and of relatively minor severity that they did not amount to a violation of Title VII. CONCLUSION After careful consideration of the record and the arguments presented on appeal, we AFFIRM the Agency’s final order, implementing the AJ’s summary judgment 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 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. 2021000470 7 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 February 9, 2022 Date