2020001956•EEOC Appeal 2020001956
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elias R.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020001956 Hearing No. 480-2018-00363X Agency No. SF-17-0672 DECISION On December 5, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 17, 2019 final order 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND On May 29, 2016, Complainant was hired as a Claims Specialist at the Agency’s Field Office in Hemet, California, under the Veterans Recruitment Appointment Authority, and subject to a two- year probationary period. On September 1, 2017, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on disability and in reprisal for prior EEO activity (request for reasonable accommodation) 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.
2 2020001956 1. on May 26, 2017, he was terminated as a Claims Specialist during his probationary period; and 2. the Agency failed to provide Complainant a reasonable accommodation that he requested on April 4, 2017. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion Without a Hearing. Complainant did not respond to the Motion. On December 13, 2019, the AJ issued a decision by summary judgment finding no discrimination. Subsequently, the Agency issued the instant final order implementing the AJ’s decision. The instant appeal followed. Complainant did not submit a brief on appeal. 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 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 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.
3 2020001956 Here, Complainant claimed that management did not provide him with reasonable accommodations for his disabilities. The AJ noted that in January 2017, Complainant informed his supervisor that he was disabled and had memory problems. Thereafter, the supervisor forwarded Complainant instructions for filing an online Reasonable Accommodation (RA) request through the RA Wizard. In her email, the supervisor indicated that Complainant needed to accompany his request with medical documentation. On April 4, 2017, Complainant filed a formal request for reasonable accommodation based on an alleged cognitive impairment. On May 10, 2017, the Center for Accommodation and Disability Services (CADS) acknowledged Complainant’s RA request. However, CADS indicated that Complainant needed to provide supporting medical documentation. On May 23, 2017, Complainant submitted medical documentation in support of the RA request. The medical records reflected diagnoses of obstructive sleep apnea syndrome, ankle pain, internal derangement of the knee, lower back pain, Post-Traumatic Stress Disorder, chalazion, and shoulder arthralgia. Complainant requested an unspecified adaptive device, job modification, changes in his hours of work, and a stand-alone printer. In his May 23, 2017 memorandum, the Agency’s medical officer determined that Complainant’s medical documentation was insufficient to determine that Complainant had a disability warranting a RA. Specifically, the medical officer determined that the documentation not describe severity of impairments, results of treatment, and the extent to which the impairments limit Complainant’s ability to perform the essential functions of his Claims Specialist position. Hence, the CADS indicated that on July 11, 2017, it was withdrawing Complainant’s RA request due to his separation. Substantial record evidence supports the AJ’s finding that Agency management officials were actively engaged in an interactive dialogue with Complainant concerning accommodations for his disabilities. Substantial evidence of record supports the AJ’s conclusion that the Agency was not in violation of the Rehabilitation Act with respect to attempting to accommodate Complainant prior to his termination. Disparate Treatment - Termination A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).
4 2020001956 In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Complainant was a Bilingual Claims Specialist trainee assigned to the Agency’s Hemet, California District Office, subject to a two-year probationary period. The Operations Supervisor was Complainant’s immediate supervisor. The District Manager was Complainant’s second-level manager. The Agency proffered several reasons for terminating Complainant in May 2017, after he completed one year of the two-year probationary period. These reasons were documented and corroborated and had nothing to do with Complainant’s disability or EEO activity. In sum, from the outset of Complainant’s probationary employment, Complainant made repeated errors on the job. The AJ noted that after his January 2017 assertion regarding memory issues, Complainant was provided counseling sessions, allowed extra time for interviews, provided extra time with mentors, a reduced workload, provided extra organization tools, and had cases reassigned to other employees. However, Complainant’s accuracy and volume did not improve. The District Manager stated that he issued Complainant a termination letter dated May 26, 2017. Therein, the District Manager notified Complainant that his employment was being terminated because he had not satisfactorily fulfilled the requirements of his position. He noted that based on the supervisor’s review of Complainant’s pending cases, she determined that he had a high volume of aging disability claims, retirement, survivors, auxiliary, and Medicare claims “many of which were started and not completed. His lack of knowledge retention and performance resulted in some egregious cases that resulted in delayed entitlements, loss in benefits, loss in medical coverage, and high volume of underpayments due to customers who in good faith filed an application for benefits with Complainant.” Beyond his bare assertions, Complainant failed to prove, by a preponderance of the evidence, that the legitimate, non-discriminatory reasons proffered by management officials for his termination were a pretext masking discrimination or unlawful retaliation. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination.
5 2020001956 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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.
6 2020001956 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 September 30, 2020 Date
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