EEOC Appeal 2020001956

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.

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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.

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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).

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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.

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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.

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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