07A30060
02-24-2004
Anna W. Matthews, Complainant, v. Cari M. Dominguez, Chair, Equal Employment Opportunity Commission, Agency.
Anna W. Matthews v. Equal Employment Opportunity Commission
07A30060
February 24, 2004
.
Anna W. Matthews,
Complainant,
v.
Cari M. Dominguez,
Chair,
Equal Employment Opportunity Commission,<1>
Agency.
Appeal No. 07A30060
Agency No. 0-0000017-SD
Hearing No. 0-0000017-SD
DECISION
INTRODUCTION
Following its July 29, 2002 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an independent Administrative Judge's (AJ) finding that the agency failed
to provide complainant with reasonable accommodations in violation of
the Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The agency also requests that the
Commission affirm its rejection of the AJ's order to provide complainant
with sick leave earned from April 1, 2000 through November 8, 2001;
back pay for the same period less any Office of Workers Compensation
Program (OWCP) payments; and attorneys fees in the amount of $23,137.68.
Complainant also appealed the AJ's decision solely on the matter of
remedies.
ISSUE PRESENTED
The issue presented herein is whether the AJ's factual findings are
supported by substantial evidence in the record and the AJ's conclusions
of law are correct.
BACKGROUND
Complainant was an Investigator employed at the agency's San Diego
Area Office facility. In November 1998, complainant filed a worker's
compensation claim due to an injury to her right upper extremity caused by
repetitive stress from writing and typing. Specifically, complainant was
diagnosed with tendinitis in her right rotator cuff, epicondylitis in her
right elbow, and carpal tunnel in her right hand. Due to her conditions,
she was limited in lifting over five pounds, typing or writing for more
than five minutes at a time for a total of fifteen minutes an hour,
and no pushing or pulling. Based on her physician's recommendation,
complainant went out on leave from March 15, 1999 through April 19, 1999.
She subsequently sustained an injury due to repetitive stress on her
left arm and was diagnosed with epicondylitis in her left elbow.
While complainant was out on leave, she contacted the agency's Disability
Coordinator (DC) seeking assistance in obtaining reasonable accommodations
that would enable her to perform her position. During the same time,
complainant believed that the director of the area office (Area
Director) made some disparaging comments about her. Complainant was
told that the Area Manager told a trial attorney within the office that
complainant did not have to work because her husband had a good job.
Complainant felt that the Area Manager was attempting to sully her good
name and reputation.
On May 7, 1999, complainant submitted a memorandum making her request for
reasonable accommodations. Specifically, she requested Dragon "Naturally
Speaking" computer program recommended by the DC (Software), an ergonomic
study of her work station, paraffin treatment machine as suggested
by the DC, and a notetaker. On May 26, 1999, the agency's Director
of the Office of Human Resources (HR Director) informed complainant,
the Area Director, and the Director of the Los Angeles District Office
(District Director), that the request for the Software was approved.
The Software and additional memory for complainant's computer in order
to run the Software were received on July 27, 1999. The agency also
paid for training for eight hours for complainant on the Software and
additional equipment such as a digital recorder with built in speaker and
microphone and a premium microphone headset. The DC provided complainant
with names of other agency co-workers who use the same Software and have
been successful with the system.
Despite the installation of the equipment and the Software, the training,
and practice so that the Software recognizes her speech, complainant
indicated that the Software was not working. The Software failed to
recognize any of her words and produced only letters on the screen that
were unrelated to the words complainant spoke. The trainer suggested that
the Software that was purchased was not what she needed and suggested
another version of it. The DC rejected the trainer's suggestion noting
that the Software was ordered based on a conversation with the computer
company, prior purchases of the Software for other employees, and was
the latest version at the time of the purchase. The DC informed the
Computer Specialist at the Los Angeles District Office of the problems
complainant was having with the Software. The Computer Specialist went
to the Area Office in order to look into the problems. The DC also
tried to set up a phone call between complainant and the Director of
Assistive Technology at the Columbia Lighthouse for the Blind to try to
figure out why complainant was having difficulties with the Software.
The DC attempted three times to set up a meeting. Following the third
attempt, the DC was informed that complainant was not in the office.
Complainant went out on extended sick leave as of March 17, 2000, and
did not return to work. During complainant's leave, the Software on
her computer was upgraded and the DC planned on providing complainant
with additional training.
Complainant also requested an ergonomic study of her work station,
paraffin treatment machine, and a notetaker. Complainant's physician did
not think that the paraffin treatment machine would help her. As for
notetakers, the agency provided a stay-in-school student and other new
investigators, as part of training, as assistants to complainant in taking
notes, typing, writing, and making copies. During the relevant time, the
agency modified complainant's assignments. For example, complainant was
on an intake rotation. When it was time for her to do intake, if she did
not feel well, they would just go to the next person on the list. Also,
the Area Director averred that he made others available to her in order
to perform her assignments such as the student and new investigators.
The agency authorized the ergonomic study of complainant's work station in
May 1999. Due to an administrative error, the money for the study was not
available for complainant. The funds were transferred from the agency's
headquarters to the local office but were not recognized as funds for
complainant's study. Despite complainant's inquiries into the matter,
the error was not corrected. Complainant contacted the DC in November
1999, seeking assistance again in having the study conducted. At that
point, the funds were resent to the LA District Office and complainant
was allowed to select an ergonomic consultant and to schedule the study.
The study was conducted on January 18, 2000. The study report recommended
a different ergonomic chair than the one she had, a split keyboard, a
wrist rest for her mouse, a document holder, and a footrest. Complainant
faxed the report to the DC on February 22, 2000. On or about April 6,
2000, complainant sent the DC a memorandum regarding implementation of
the study's recommendations. As a result of the report, the DC procured
a split keyboard and a wrist rest for complainant. The office space
already had a footrest and an ergonomic chair. The DC began working
with complainant in order to find a new ergonomic chair more in line
with the study's recommendation.
On August 25, 1999, complainant asked the Area Director to provide her
with a new desk with drawers that were easier to open. At the time, the
Area Office had received several new desks for its Alternative Dispute
Resolution Division which had just been put into place. The Area Director
had a conference call with the DC and the Union Representative to make
sure that if complainant was provided with one of the new desks, there
would be no violation of the Memorandum of Understanding (MOU) between
the agency and the union. Complainant received the new desk on October
20, 1999.
Due to her condition, complainant went out on leave from March 7-20,
2000, and again on or about April 18, 2000. During this time, complainant
requested and received advanced sick leave. Complainant did not return
from leave and did not see any of the changes made to her work station
in response to the ergonomic study.
Believing she was subjected to unlawful discrimination, complainant
filed a formal EEO complaint with the agency on February 15, 2000,
alleging that the agency had discriminated against her on the bases of
sex (female), disability (tendinitis, epicondylitis; and neuropathy of
upper extremities), and reprisal for prior EEO activity and requesting
reasonable accommodation. In the narrative provided along with her
formal complaint, complainant contends that the agency failed to
provide her with reasonable accommodations and that the Area Director
made disparaging comments in order to ruin her name and reputation.
Complainant submitted an amendment to her complaint stating that the
agency failed to provide her with the specific accommodations listed
within the ergonomic study and working Software.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an AJ. The AJ
issued summary judgment as to complainant's claims of discrimination
based on sex and reprisal. Following a hearing solely on the reasonable
accommodation issue, the AJ found that complainant established that she
was a qualified individual with a disability. In particular, the AJ
concluded that complainant was substantially limited in the major life
activity of manual tasks. Further, the AJ noted that complainant could
perform the essential functions of taking in charges, investigating,
analyzing charges, and issuing findings. The AJ determined that writing
and typing were not essential functions.
The particular accommodations in this dispute were Dragon Naturally
Speaking software (hereinafter "Software"), a new desk, conducting and
implementation of an ergonomic workstation study, advanced sick leave, an
assistant to take notes, and a telephone headset. As for the Software,
the agency provided complainant with the program along with training
but it never worked. Complainant indicated that the Software did not
recognize her voice and would produce letters unrelated to what was
spoken. The trainer provided by the agency indicated that the Software
needed an upgraded program. The AJ noted that the agency's disability
coordinator disagreed with the trainer based on her experience with others
who have used the Software. The AJ found that the agency's dismissal
of the trainer's suggestion was inadequate. The AJ concluded that the
agency should have investigated the problem further and engaged in the
interactive process.
As for the desk, the AJ found that it was not a necessary accommodation.
The AJ noted that it was not on complainant's initial list of
accommodations presented to the Disability Coordinator and complainant
did not consider it until she saw the new desks. The AJ determined
that the agency unreasonably delayed the ergonomic study. Clearly the
record indicated that it was an oversight, however, the AJ was concerned
that no steps were taken to uncover the problem. As for the notetakers,
the AJ noted that the agency officials should have been more aggressive
in ensuring that complainant could use notetakers more often. The AJ
determined that the agency acted appropriately in providing complainant
with advanced sick leave. Finally, the AJ found that the telephone
headset was unnecessary in that she had a speakerphone.
Accordingly, the AJ concluded that the agency failed to provide
complainant with the reasonable accommodations of the Software and the
ergonomic study. The AJ also noted that complainant suffered no damage
in that she left as a result of a worsening of her condition that could
not be accommodated. The AJ provided complainant with the opportunity
to show that this conclusion is incorrect.
The AJ then issued her decision regarding remedies available to
complainant. The AJ noted that in her previous decision, she found
that the agency's actions were in good faith. Accordingly, the AJ
concluded that complainant was not entitled to compensatory damages.
The AJ also determined that due to the failure to accommodate complainant
earlier, she was forced to take sick leave. Therefore, the AJ found
that complainant could have delayed using sick leave thereby earning
more in salary. Hence, the AJ awarded complainant back pay from April
2000 until November 8, 2001, less OWCP payments. The AJ also awarded
complainant sick leave she would have earned from April 1, 2000 until
November 8, 2001. The AJ determined that back pay and sick leave would
cease on November 8, 2001, the date of the hearing when the complainant's
attorney stated that complainant was unable to return to work. As such,
the AJ also noted that complainant cannot be reinstated to her position.
Further, complainant was not entitled to front pay. Finally, on June 19,
2002, the AJ issued her amended order setting forth the remedies awarded
complainant along with an award of $23,137.68 for attorney's fees.
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that the AJ erred in finding that the agency violated
the Rehabilitation Act. In particular, the agency contends that it is
not liable for the delay in the ergonomic study and the failure in the
Software. The agency notes that the delay itself was not a violation
in that the agency had provided extensive accommodations to address
complainant's condition during the delay thereby negating any effect
of the delay. Further, the agency argues that it is not obligated to
provide each of complainant's requested accommodations. During the time
of the delay, the agency provided other effective accommodations rather
than those requested by complainant. Accordingly, the agency requests
that the Commission reject the AJ's conclusion that the agency violated
the Rehabilitation Act.
Complainant submitted a response to the agency's appeal. Through her
attorney, complainant argues that the delays in the ergonomic study
and correction of problems with the Software were violations of the
Rehabilitation Act. Complainant contends that the delays adversely
affected her. Complainant asserts that the AJ properly awarded her relief
in the form of restoration of sick leave, back pay, and attorney's fees.
Complainant did not contest the issuance of summary judgment on the
claims of discrimination based on sex and reprisal nor the AJ's findings
as to the desk request, the use of advance sick leave, and a headset.
Accordingly, complainant asks that the Commission affirm the AJ's finding
of liability.
Complainant also appealed the AJ's award of relief. She claims that
she is entitled to compensatory damages due to the agency's failure
to demonstrate good faith when it did not engage in the interactive
process and delayed in conducting the ergonomic study. Complainant argues
specifically that she should be awarded past and future pecuniary damages,
non-pecuniary damages, and front pay. Finally, complainant states that
the AJ should not have reduced the award of attorney's fees by forty
percent for "merit-less claims." The agency rejects complainant's
appeal. The agency contends that its actions were in good faith and
that complainant has not shown an entitlement to front pay.
ANALYSIS AND FINDINGS
Summary Judgment
Neither party contests the AJ's issuance of summary judgment on the bases
of sex and reprisal. Therefore, after a careful review of the record, we
discern no basis to disturb the AJ's decision without a hearing finding no
discrimination as to the bases of sex and reprisal. Accordingly, we shall
only address complainant's claim of denial of reasonable accommodations.
Findings Following the Hearing
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Under the Commission's regulations, an agency is required to make
reasonable accommodation 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. As a threshold matter in a case of disability discrimination
under a failure to accommodate theory, the complainant must demonstrate
that she is an "individual with a disability." EEOC Regulation 29
C.F.R. � 1630.2(g) defines an individual with a disability as one who
has a physical or mental impairment that substantially limits one or
more of that person's major life activities or has a record of such
impairment. EEOC Regulation 29 C.F.R. � 1630.2(h)(2)(i) defines "major
life activities" as including the functions of caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. The record indicates that complainant has
tendinitis, epicondylitis; and neuropathy of upper extremities. Due to
her conditions, she is unable to lift over five pounds. The AJ found
complainant to be limited in the major life activity of manual tasks.
Upon review, we find that there is insufficient evidence regarding
how complainant's impairments affect her outside of work to determine
that she is limited in manual tasks. However, it is clear from the
record that complainant is substantially limited in the major life
activity of lifting. Accordingly, we conclude that is covered under
the Rehabilitation Act in that she is an individual with a disability.
Complainant also must show that she is a "qualified" individual with
a disability within the meaning of 29 C.F.R. � 1630.2(m). The term
�qualified individual with a disability,� with respect to employment,
is defined as a disabled person who, with or without a reasonable
accommodation, can perform the essential functions of the position
held or desired. 29 C.F.R. � 1630.2(m). Both parties agreed that the
essential functions of complainant's position included taking in charges,
investigating, analyzing charges, and issuing findings. The record
indicates that complainant could not write or type, however, the parties
stipulated that these were not essential functions. Accordingly, the AJ
properly concluded that complainant has shown that she was a qualified
individual with a disability.
Therefore, absent a showing of undue hardship, the agency is obligated
to provide complainant with effective accommodation. Complainant argues
that the agency failed in furnishing her with a functioning version of the
Software and an ergonomic study. Further, the AJ found that the agency
was not aggressive in making notetakers available to complainant. Neither
party contests the AJ's findings of no violation as to the requests for
a new desk, advance sick leave, and a headset. Accordingly, we shall
limit our review to the Software, the ergonomic study, and the notetakers.
The Software
The AJ found, with respect to the Software, that the agency failed to
engage in the interactive process. Based on this finding, she concluded
that the agency violated the Rehabilitation Act. Determining an
appropriate reasonable accommodation for an employee with a disability
should be an interactive process involving both the employee and
the employer. 29 C.F.R. 1630.9; see also EEOC Enforcement Guidance
on Reasonable Accommodation under the Americans with Disabilities
Act, No. 915.002 (rev. Oct. 17, 2002) at Question 5. However, the
Commission has recognized that an agency's failure to engage in the
interactive process does not, in itself, constitute a violation of the
Rehabilitation Act. Doe v. Social Security Administration, Appeal No.
01A14791 (February 21, 2003). Liability depends on a finding that,
had a good faith interactive process occurred, the parties could have
found a reasonable accommodation. Id. Therefore, we find that the AJ's
conclusion that failure to engage in the interactive process constitutes
a violation of the Rehabilitation Act to be incorrect. Further analysis
is required to determine whether or not a violation occurred.
The agency purchased the Software for complainant's computer which would
have allowed her to speak into the computer so that she does not have
to type. The Software was loaded on to the computer however, in spite of
the training she was given and the amount of time she spent practicing,
the Software failed to recognize what she spoke into the computer.
Complainant informed the agency of the problems. Complainant asserted
that the agency delayed in providing her with functioning software that
would have effectively accommodated her condition.
Upon review of the record, we find that complainant failed to show that
the agency violated the Rehabilitation Act regarding the Software.
The record clearly shows that the agency made great efforts to try to
fix the problems. The DC provided complainant with training, gave her
names of others within the agency that used the Software, had a computer
specialist from the Los Angeles Office check the program, and purchased
an upgrade on the Software when that became available. Therefore,
based upon our review of the record, we find that complainant failed to
show that the agency took no action to correct her computer problems.
However, despite the agency's and complainant's efforts, the Software
did not work properly. The record does not show that the Software was
ever an effective accommodation for complainant.
During the time the agency and complainant were trying to get the
Software to function properly, the agency also provided alternative
accommodations. The agency had a stay-in-school student as well as
other investigators and employees available to help complainant with
typing and copying. Therefore, although the Software was not effective
due to the problems complainant was having, the agency was providing
other effective accommodations, i.e. notetakers, to assist complainant.
Accordingly, we find that the AJ erred in finding that the agency violated
the Rehabilitation Act as to the Software.
Notetakers
The AJ noted that the agency officials should have been more aggressive in
ensuring that complainant used the notetakers. The Commission finds that
the AJ incorrectly determined that the agency violated the Rehabilitation
Act. The record shows that the agency informed certain employees that
they were to make themselves available to complainant for notetaking
purposes. Complainant would determine when such assistance was necessary
for her. Upon review, complainant has not shown how making the notetakers
available was ineffective. Accordingly, we conclude that complainant
has not demonstrated that the agency violated the Rehabilitation Act.
Ergonomic Study
The AJ found that the agency unduly delayed providing complainant with
the funds so that an ergonomic study could have been conducted and changes
implemented. Complainant requested an ergonomic study to be performed on
her workstation in May 1999. The agency initially authorized that study
the same month. The record is unclear what exactly happened, however, it
is certain that money set aside for the ergonomic study became lost due to
an administrative mix up. The record shows that the DC secured a second
money transfer in November 1999. At that time, complainant could make an
appointment with an ergonomic consultant and the study could be conducted.
While the AJ found that the administrative error was understandable,
she found that it was unclear as to why no agency officials took steps
to uncover the problem earlier considering complainant's condition.
An employer should respond expeditiously to a request for reasonable
accommodation. EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act (revised
October 17, 2002) at question 10. If the employer and the individual with
a disability need to engage in an interactive process, this too should
proceed as quickly as possible. Id. Similarly, the employer should act
promptly to provide the reasonable accommodation. Id. Unnecessary delays
can result in a violation of the ADA. Id. In determining whether there
has been an unnecessary delay in responding to a request for reasonable
accommodation, relevant factors would include: (1) the reason(s) for
delay, (2) the length of the delay, (3) how much the individual with
a disability and the employer each contributed to the delay, (4) what
the employer was doing during the delay, and (5) whether the required
accommodation was simple or complex to provide. Id. at n. 38.
Based on these factors, it is clear that the agency delayed in providing
complainant with the funds necessary to conduct an ergonomic study.
The only reason for the delay was an administrative error on the agency's
part. The delay was for over eight months. The delay in providing
such a simple request is completely attributed to the agency. However,
the analysis does not stop there. During the delay, as noted above,
the agency provided other accommodations that would allow complainant
to perform her position. The agency made available notetakers and other
assistance. During the relevant time, the agency modified complainant's
intake assignment. When it was complainant's turn to do intake, if she
did not feel well, the agency would skip her name and just go to the next
person on the list. The agency also provided complainant with advanced
sick leave and the desk she requested. Therefore, although there was an
unwarranted delay in conducting the ergonomic study, the agency worked
with complainant in order to provide other reasonable accommodations.
Accordingly, we conclude that the AJ erred in concluding that the delay
amounted to a violation of the Rehabilitation Act.
Complainant's Appeal
Complainant filed an appeal with the Commission contesting the remedies
awarded by the AJ. Due to our finding that the agency has not violated
the Rehabilitation Act, complainant is not entitled to any remedy.
Accordingly, we shall not address complainant's appeal regarding remedies.
CONCLUSION
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
affirms the agency's final order rejecting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
February 24, 2004
__________________
Date
1In the instant matter, the Equal Employment Opportunity Commission
is both the respondent agency and the adjudicatory authority. The
Commission's adjudicatory function is separate and independent from
those offices charged with the in-house processing and resolution of
discrimination complaints. For purposes of this decision, the term
"Commission" or "EEOC� is used when referring to the adjudicatory
authority and the term "agency" is used when referring to the respondent
party in this action. The Chair has recused herself from participation
in this decision.