[Redacted], Vasiliki B., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Mar 2, 2022

Appeal No. 2020005090 (E.E.O.C. Mar. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vasiliki B.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2020005090 Hearing No. 430-2019-00600x Agency No. FS201601031 DECISION On July 10, 2020, 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 June 22, 2020, final order concerning her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Cook, WG-05, at the Agency’s Schenck Job Corps Civilian Conservation Center in Pisgah Forest, North Carolina. On October 28, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and disability (physical) 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. 2020005090 2 1. On September 1, 2016, Complainant’s supervisor (S1) implemented a rotating work schedule among similarly situated employees that negatively affected Complainant’s work schedule (eliminating recommended work breaks) in violation of her Reasonable Accommodation Agreement. On January 22, 2014, Complainant was in a serious car accident, which resulted in a crushed femur and broken tibia. See Report of Investigation (ROI) at 151. She was hospitalized, until March 2014, and was unable to work for over a year, taking leave under the Family and Medical Leave Act (FMLA). See ROI at 151, 168. In April 2015, prior to Complainant’s return to work, she submitted her FMLA medical documentation to the Agency’s Disability Coordinator to request a reasonable accommodation for her physical disabilities stemming from the accident. The requested accommodations included “rest breaks as needed, access to a chair/stool as needed, and use of a cane for ambulation.” See ROI at 164. In June 2015, Complainant returned to work. S1 and Complainant’s second-line supervisor, the Acting Center Director (CD), stated that they received a verbal request for accommodations, which they agreed to.2 These accommodations consisted of chairs in the kitchen to allow Complainant to sit down, mats to alleviate some of Complainant’s discomfort when standing, and parking close to the kitchen entrance. See ROI at 250, 266. S1 stated that Complainant chose not to use the mats because she did not want to put them away at the end of the day. See ROI at 250. Complainant stated that she is the only cook who works on a rotating schedule. Prior to her accident, she had every other weekend off. See ROI at 155. S1 explained that when Complainant returned to work, at Complainant’s request, her schedule was changed so her off days were Tuesday and Wednesday. See ROI at 250. S1 and one of the cooks (C1) stated that Complainant was told, at the time, that if the schedule was modified, it would not be changed again. See ROI at 250, 274. The schedule remained in place until approximately June 2016, when Complainant requested a return to her pre-accident schedule. See ROI at 250. S1 stated that when she asked C1 and the other cook if they would agree to changing the schedule again, both declined and so the schedule was not changed. See ROI at 250, 274. On July 26, 2016, Complainant filed a Step 1 Grievance through the Union, stating, in relevant part, that “the rotation of the cooks [sic] schedules is not fair and equitable. Especially concerning Complainant’s medical accommodations.” See ROI at 315. Thereafter, on September 12, 2016, Complainant initiated the EEO process regarding her work schedule. 2 The evidence indicates that Complainant’s reasonable accommodation arrangement with the Agency was an informal one, agreed upon by S1 and CD. See ROI at 159, 167-69, 266-67, 327- 330. 2020005090 3 On October 28, 2016, she filed a formal EEO complaint.3 She also filed a Step 2 Grievance on October 6, 2016. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a Motion to Dismiss pursuant to 29 C.F.R. § 1614.107(a)(4), arguing that Complainant raised the same issue in her July 26, 2016 Grievance. The AJ granted the Agency’s motion. On February 13, 2018, the Agency issued a final action adopting the AJ’s decision. Complainant appealed the decision to the Commission, which reversed the Agency’s decision “with respect to the issue of Complainant’s reasonable accommodation only.” See Vasiliki B. v. Dep’t of Agriculture, EEOC Appeal No. 0120181401 (Aug. 14, 2019). In our prior decision, we noted that there was no evidence that the grievance process addressed Complainant’s assertion that the Agency failed to accommodate her by “eliminating recommended work breaks” and remanded the matter to the Agency for further processing. On remand, Complainant again requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s March 30, 2020, motion for a decision without a hearing and issued a decision without a hearing on June 12, 2020. The AJ, noting that the denial of reasonable accommodation was the only remaining claim to be addressed, found the Agency did not fail to accommodate Complainant’s disability.4 The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency denied her a reasonable accommodation. CONTENTIONS ON APPEAL On appeal, Complainant challenges the “fairness” of the schedule because it requires her to work on the weekends, while her coworkers do not. She also reiterates that she is not permitted to take breaks, as necessitated by her disability. In response, the Agency contends that it has provided Complainant with her requested accommodations, noting that there is no evidence indicating that Complainant has ever been denied breaks. Additionally, the Agency argues that Complainant’s request for a schedule change, so as not work weekends, was not related to her disability. 3 The complaint included additional claims which the Agency dismissed. These claims are not before us on appeal. 4 The AJ acknowledged that the parties disputed whether Complainant’s claim of race discrimination survived the Commission’s decision in EEOC Appeal No. 0120181401, but found that, even assuming Complainant’s race discrimination claim was still valid and Complainant was able to establish a prima facie case of race discrimination, no fact-finder would be able to find race discrimination because S1 is of the same race as Complainant. See Decision and Order Granting Agency’s Motion for Summary Judgment at 2 n.1. 2020005090 4 ANALYSIS AND FINDINGS Standard of Review 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 EEOC “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”). Summary Judgment We will first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing 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 a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. 2020005090 5 Here, Complainant asserts generally that there is a need for a hearing to determine the fairness of a work schedule, where she alone is forced to work every weekend and is required to open after closing the night before. Complainant has not, however, identified any material facts in dispute. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). We find that the AJ properly determined that there are no genuine issues of material fact in dispute and therefore, his issuance of a decision without a hearing was appropriate. Denial of Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with a disability. See generally 29 C.F.R. Part 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she 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. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p). At the outset, we note, and the Agency does not dispute, that Complainant is a qualified individual with a disability as defined in the regulations. Complainant contends that she was denied a reasonable accommodation when she was not able to take breaks as needed and her request for a schedule change, allowing some weekends off, was denied. Complainant stated that when she is the only person in the kitchen, she cannot take breaks and that she has no assistance because the Agency took the student cooks out of the kitchen. See ROI at 154. She also asserted that the schedule is unfair because she is the only one required to work every weekend. We find that the Agency has provided Complainant with a reasonable accommodation for her disability. With regard to Complainant’s assertion that she is unable to take breaks, the evidence in the record does not indicate that Complainant has been denied breaks. Moreover, S1 asserted that Complainant has been able to take regular breaks, when needed, and clarified that Complainant is not required to seek permission in order to take breaks. See ROI at 249; Agency’s Motion for Summary Judgment, Ex. A at 2. Complainant acknowledged, in her deposition, that her work schedule overlapped with that of S1 and the other cooks and agreed that she could take breaks by asking either S1 or the culinary arts instructor to cover for her. See Agency’s Motion for Summary Judgment, Ex. D at 172, 180. 2020005090 6 The record reflects that Complainant stated she requested a schedule change in 2016, to no longer work every weekend, because she wanted to attend church on Sundays. See Agency’s Motion for Summary Judgment, Ex. D at 163, 184-85. To the extent Complainant alleges a denial of reasonable accommodation when she was required to work on weekends, because Complainant’s request is not related to her disability, it cannot constitute a violation of the Rehabilitation Act. See Brown v. U.S. Postal Serv., EEOC Appeal No. 01A42650 (Sep. 2, 2004); Siddiqui v. U.S. Postal Serv., EEOC Appeal No. 01995062 (Nov. 28, 2001). Moreover, in November 2018, while this case was pending, the Agency agreed to a schedule change for all cooks, including Complainant. See Agency’s Motion for Summary Judgment, Ex. D at 37-38, 41-42. Complainant acknowledged in her deposition that each cook has a weekend off every three weeks. See id. Complainant further agreed that the new schedule is fair and equitable. See id. at 38. We conclude that Complainant did not establish that she was denied a reasonable accommodation as alleged. 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. 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 2020005090 7 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. The court has the sole discretion to grant or deny these types of requests. 2020005090 8 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 March 2, 2022 Date