[Redacted], Tyson L., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Aug 4, 2021

Appeal No. 2020000408 (E.E.O.C. Aug. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyson L.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice, Agency. Appeal No. 2020000408 Agency No. OBD-2013-00942 DECISION On October 20, 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 September 19, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as an Accessibility Code Specialist, Grade GS- 14, at the Agency’s the ADA Design Unit of the Disability Rights Section (DRS), Civil Rights Division, in Washington, D.C. On August 23, 2013, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), color (Black), 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 202000408 physical disability (partial paralysis caused by cerebral venous thrombosis and medically-treated diabetes), age (61), and in reprisal for prior protected EEO activity2 when: 1. From March 2013, until his retirement on March 6, 2014, the DRS Chief and the DRS Deputy denied Complainant's requests for reasonable accommodations. 2. On June 20, 2013, the DRS Deputy denied Complainant a within-grade increase and retroactively changed Complainant's annual performance rating from "Successful" to “Minimally Satisfactory.” 3. On July 23, 2013, DRS Deputy placed Complainant on a Performance Improvement Plan. 4. The DRS Deputy made degrading and offensive race-based, disability-based, and age- based comments to Complainant. The DRS Deputy also segregated Complainant from interacting with other DRS employees, prevented Complainant from attending external meetings, and withheld information necessary to perform his duties. Initially, this matter had been a part of a class complaint that had been filed by Complainant and other employees from the Agency’s Civil Right Division. However, on June 17, 2016, an EEOC Administrative Judge (AJ) denied class certification and remanded Complainant’s claims to the Agency for processing as an individual complaint. On July 18, 2016, the Agency issued a final action adopting the AJ’s decision. The Agency concluded its investigation of Complainant’s individual complaint in March 2017. Thereafter, the Agency provided Complainant with a copy of the report of investigation of the individual complaint, and notice of his right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. On April 10 and April 29, 2019, the assigned AJ ordered Complainant to respond in writing to various Agency requests for discovery. The AJ determined that Complainant failed to comply with her orders to provide responses to the Agency. On June 27, 2019, the AJ entered an order of dismissing the hearing and remanded the formal complaint to the Agency. The Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant contends that the Agency’s legal representative had been deceptive, and that the AJ had been prejudiced against his position. Complainant states that the Agency failed to completely investigate his complaint. 2 Complainant described a protracted history of prior EEO activity and asserted that the DRS Chief and DRS Deputy were aware of it. The two management officials denied knowledge of this prior EEO activity. However, the investigation failed to produce adequate evidence on this issue. Therefore, for the sake of analysis, we will assume the two management officials were aware of Complainant’s prior protected activity. 3 202000408 Complainant states further that the Agency had failed to provide him timely notice of his right to hearing in a timely manner. Complainant accused the Agency of failing to respond to his discovery request, and that the AJ did not sanction the Agency for failing to do so. Complainant accused the AJ and Agency of engaging in ex parte communications. Complainant asserts that the Agency- contracted EEO investigator should have taken Complainant’s own deposition before taking depositions from Agency management. Complainant argues that he could not respond to the AJ’s orders or the Agency’s discovery requests because he had never received them. Complainant states that the AJ and Agency had sent correspondence to his former email address at the Agency more than five years after he had left the Agency. Complainant further states that the Agency failed to take depositions from a former supervisor whose testimony could have corroborated that a co- worker had harassed him with degrading jokes about his race and disability. Complainant argues that whereas he had requested a typing assistant, the Agency had instead provided him voice-to- text software that was incompatible with his partial paralysis in that the software had trouble recognizing his diction. 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). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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 we “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”). As an initial matter, we have reviewed Complainant’s various appellate contentions that processing of this case was procedurally or legally defective. However, after a close review of all evidence, we reject these arguments. Complainant was, at a minimum, partially responsible for some delays that he questioned on appeal. The record included a memorandum from the EEO Investigator detailing how Complainant was difficult to reach on by telephone and then he insisted on contact through mail only. We also determine Complainant failed to establish good cause for his failure to properly respond the discovery requests as ordered by the AJ which resulted in the dismissal of his hearing request. Denial of Reasonable Accommodation: Claim 1 Under the EEOC Regulations 29 C.F.R. §§ 1630.2(o) and (p), federal agencies may not discriminate against individuals with disabilities; federal agencies are required to make reasonable accommodations for the known physical and mental limitations of qualified individuals with disabilities, unless an agency can show that reasonable accommodation would cause an undue hardship. 4 202000408 To establish that the Agency improperly denied him a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability, pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002). “Reasonable accommodation” means modifications or adjustments to the work environment, or to the manner or circumstances under which the position held is customarily performed that enable a qualified individual with a disability to perform the essential functions of the position in question. 29 C.F.R. §1630.2(o)(1)(ii). Reasonable accommodations may include job restructuring, modified work schedules, reassignment, or acquisition or modifications of equipment or devices. 29 C.F.R. §1630.2(o)(2)(ii). The record revealed that the DRS Chief (female, African American, age 45) and DRS Deputy (male, Caucasian, age 65) did not dispute that Complainant was disabled. Both testified that they were aware that Complainant had impaired mobility. DRS Chief stated that she had approved Complainant’s request for two days per week of telework. DRS Deputy stated that he had approved speech recognition software for Complainant because he could only type with one hand. Complainant had asserted that the speech recognition software was not compatible with his voice but provided inadequate evidence to support this claim. Complainant stated that the Agency should have provided a typist to assist him, as opposed to the voice recognition software. Complainant admits that he was provided with a typist when administrative staff was available and was otherwise advised to use the speech recognition software that typed for him. Here, Complainant did not show the Agency denied him reasonable accommodations. Instead, the record revealed that the Agency provided multiple accommodations in addition to telework, dictation software, and some typing assistance. Management’s genuine efforts to help Complainant also included extended deadlines, IT assistance, training and a parking pass. We remind Complainant that the Agency was obligated to provide an accommodation that was effective, rather than the accommodation of his choice. Owen T. v. Dep't of the Army, EEOC Appeal No. 0120180596 (June 12, 2019). Disparate Treatment: Claims 2 - 4 Complainant also alleged the Agency treated him disparately in his remaining claims. The Commission applies the U.S. Supreme Court’s three-part analysis from its decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by presenting facts that reasonably give rise to an inference that the Agency illegally considered his protected statuses (race, gender, disability, age or EEO activity) in adverse employment action against him. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The second burden shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its decisions. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, if the Agency has met its burden, Complainant must persuade us by a preponderance of the evidence that the Agency’s justification was a pretext to mask an actual prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 5 202000408 We presume, for purposes of the following analysis, that the prima facie case was established. As will be discussed hereafter, the Agency has presented non-discriminatory reasons for its actions at issue and the Complainant did not prove that those reasons were pretextual. Claim 2 - Performance Rating Downgrade and Denial of Within-Grade Step Increase DRS Deputy and DRS Chief did not deny that they had originally rated Complainant’s overall performance as “Successful” which would have entitled him to within-grade pay increase. However, the Agency ultimately admitted that Complainant had received the originally overall “Successful” rating erroneously. The record reflects that that DRS Deputy had rated Complainant’s 2011 to 2012 performance only minimally satisfactory in two out of five critical areas. Under the performance management standards for the Civil Rights Division, an overall successful rating required successful or better on all but one critical element of the performance appraisal. Based on the applicable policies, we find that the Agency legitimately corrected Complainant’s performance evaluation and denied his within-grade increase to Step 9. Claim 3 - Performance Improvement Plan Complainant alleged the Performance Improvement Plan showed that the Agency was targeting him for discriminatory reasons and setting him up for failure. To the contrary, the present record supports a finding that Complainant struggled with quality on his written work products. Contemporaneous correspondence showed that Complainant’s prose simply did not meet his supervisor’s expectations in terms of either clarity or accuracy. Moreover, DRS Deputy documented that Complainant did not regularly read emails he received and did not respond to them in a timely manner. Claim 4 - Derogatory Comments and Exclusion from Meetings Complainant stated that the DRS Deputy referenced his childhood in a non-diverse area but said he had Black childhood friends as evidence that he was not racist. Complainant also said that the DRS Deputy belittled his success stories by asserting they were no greater than his own. He also said that DRS Deputy made comments about older people “losing it”, which Complainant interpreted as a reference to himself. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that claims of discriminatory harassment are actionable if sufficiently severe or pervasive to alter the conditions of the complainant's employment. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’.” Following a review of the record, we find that in the instant case, viewing Complainant’s allegations about the DRS Deputy’s comments together and assuming they occurred as alleged, Complainant fails to present a viable claim of discriminatory harassment. The actions alleged, without more, are simply insufficiently severe or pervasive to state a valid claim. 6 202000408 To the extent that Complainant perceived that that he had been segregated, sworn statements showed that the nature of his everyday work and the structure within its organization had changed under different management. However, we were not persuaded that Complainant was subjected to treatment that was unlawfully motivated by animus against his race, disability, age, or EEO activity. CONCLUSION Based on an extensive review of the whole record and the contentions on appeal, we AFFIRM the Agency’s decision finding Complainant did not prove, by preponderant evidence that he was subjected to 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. 7 202000408 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 August 4, 2021 Date