EEOC Appeal No. 0120132463
05-13-2016
Michelle G. v. Dep't of the Treasury
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michelle G.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120132463
Hearing No. 560-2012-00064X
Agency No. IRS-11-0039-F
DECISION
Complainant timely filed an appeal from the Agency's May 8, 2013, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision.
ISSUES PRESENTED
The issues presented are (1) whether the Agency discriminated against Complainant on the basis of disability by denying her requests for reasonable accommodation, (2) whether the Agency subjected Complainant to harassment on the basis of disability, and (3) whether the Agency violated the confidentiality requirements of the Rehabilitation Act.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Correspondence Examination Technician (CET), GS-0503-7, at the Agency's Wage and Investment Service (W&I), Examination Operation, IRS, in Kansas City, Missouri. In an EEO complaint filed on December 10, 2010, and subsequently amended, Complainant alleged that the Agency discriminated against her on the basis of disability (attention deficit disorder, or ADD). The Agency defined the accepted issues as follows:
1. was Complainant subjected to a hostile work environment on the basis of her disability when the following events occurred:
A. on or about September 1, 2010, Complainant's right to privacy was violated when her performance counseling information was left out in an open area where other employees could see it;
B. on or about October 7, 2010, Complainant received an Opportunity to Improve letter, which was later rescinded;
C. on or about October 29, 2010, Complainant received an Opportunity to Improve letter;
D. on or about December 1, 2010, Complainant received negative performance and conduct counseling; the Agency did not provide her administrative time to prepare rebuttals to performance reviews, provided her with untimely and unclear counseling, and required her to perform duties outside of her job description;
E. on or about September 22, 2010, Complainant's manager did not respond to the union representative's request to meet with her at the beginning of her tour of duty and, as a result, Complainant was unable to meet with them;
F. on or about September 13, 2010, Complainant's manager questioned her as to when her meeting with the Treasury Inspector General for Tax Administration (TIGTA) representative had ended and insinuated she was lying;
G. on various dates from October 16, 2010, through April 20, 2011, Complainant received oral and written negative feedback regarding her performance and conduct;
H. on or about March 3 and 28, 2011, Complainant's manager yelled at her and reprimanded her for being in the work area after duty hours;
I. on or about March 4, 2011, Complainant's manager ordered her former Lead not to answer her questions;
J. on or about March 6, 2011, and again on April 6, 2011, Complainant's manager denied her request for Leave Without Pay (LWOP) in lieu of sick and annual leave; and
K. on or about March 8, 2011, Complainant's manager directed her to work from another employee's desk without access to her research materials;2 and
2. was Complainant discriminated against based on her disability when, on or about October 26, 2010, her manager denied her request for a reasonable accommodation.
As a Correspondence Examination Technician, Complainant examined income tax returns through telephone contact and written correspondence with taxpayers. The CET position description lists 18 "Major Duties," including the performance of case analysis on returns, contacting taxpayers to obtain information and encourage compliance, performing research, reconstructing transactions, preparing and providing telephone assistance to the public, processing "carryback/carry forward cases," and preparing "comprehensive workpapers, which fully document the technical and factual details of the case and action taken." The position description does not distinguish between the position's essential and marginal functions. It lists 13 "Knowledge" elements, including knowledge of tax rules and regulations, knowledge of taxpayer rights, the ability to interpret case files, and the ability "to provide clear and concise replies to taxpayers or their representatives, and to exercise tact and diplomacy in telephone contacts . . . ."
The Agency evaluates CETs according to five Critical Job Elements (CJEs): I. Employee Satisfaction-Employee Contribution; II. Customer Satisfaction-Knowledge; III. Customer Satisfaction-Application; IV. Business Results-Quality; and V. Business Results-Efficiency. Each of the CJEs involved sub-elements known as "Performance Aspects." On June 2, 2008, Complainant received an "Outstanding" rating on her performance appraisal for the period March 1, 2007, to February 29, 2008.
Complainant has stated that the Agency provided her with a "partial accommodation" in May 2007, but she did not identify the accommodation. In an October 17, 2008, letter to her then first-level supervisor (S1), Complainant requested a reasonable accommodation for her disability. She enclosed general information about ADD/ADHD; submitted a March 29, 2002, evaluation from a psychiatrist (Psychiatrist 1); and noted that she had previously submitted a letter from a Licensed Specialist Clinical Social Worker ("LSCSW"). In an October 8, 2008, letter to Complainant, the LSCSW noted that Complainant had asked her to describe the work adjustments that Complainant might need. The LSCSW suggested that Complainant have a desk that is in a quiet area and outside of the main flow of traffic, have work that is focused on the task at hand, avoid multi-tasking whenever possible, take time to readjust when moving from one thing to another, and take time to formulate ideas when trying to streamline questions or statements.
At some point, the Agency provided Complainant with a work area that was out of the main traffic flow and away from her team. Complainant has asserted that, in November or December 2008, a new Operations Manager "reorganized teams, duties, and seating" and that she "was forced to abandon [her] seating and move within [her] existing team." She also asserted that, although S1 was aware of her disability and her need to be seated in a quiet area, he nonetheless denied her request to select her new cubicle before new team members selected their cubicles. According to Complainant, her new seating was in a high-traffic area.
Complainant received a rating of "Exceeds Fully Successful" for the period March 1, 2008, to February 28, 2009. S1 was the rating official on the appraisal, and Complainant's then-Department Manager was the concurring official.
Complainant was moved from Team 201 to Team 203 in December 2009 or January 2010, and a Supervisory Financial Technician (S2) became her first-level supervisor at the end of January 2010. S2 asserted that she counseled Complainant about prioritizing her workload on February 1, about completing daily work forms on February 8 and February 11, and about incomplete work and staying past the end of her tour of duty on February 9, 2010.
On April 13, 2010, Complainant's psychiatrist (Psychiatrist 2) completed Part III of Agency Reasonable Accommodation Request Form 13661. He stated that Complainant had ADD and depression; that she "struggles with attention and concentration, poor memory, disorganization, anxiety, depressed mood, [and] impulsivity"; and that she could perform the essential functions of her position with reasonable accommodation. In Part I of the form, which Complainant did not date, Complainant stated that she had "requested seating in a remote area free of distractions [and] noise" and that she "was denied as a current team member of 201." Complainant has asserted that she submitted the form to Agency officials in April 2010. She also has asserted that S2 was informed of her disability in February 2010 and was given information about ADD/ADHD in April 2010, before S2 went on extended leave.
In a Performance Feedback Memorandum dated April 14 and given to Complainant on April 19, 2010, S2 stated that Complainant's work performance was unacceptable with respect to Critical Job Elements 5B (Time Utilization) and 5C (Workload Inventory Management). She cited various matters that occurred between January 27 and April 14, 2010. S2 noted, among other things, that she had spoken with Complainant on February 9, 2010, about Complainant's reason for not completing cases and that Complainant "tried to explain the difficulties [she has] working cases due to a medical condition."
Also on April 19, 2010, S2 gave Complainant an Observance of Duty Hours Memorandum. The Memorandum stated that Complainant had reported to work late on April 16 and 19, 2010, and that further unscheduled absences could result in disciplinary action.
Complainant received her performance appraisal for the period March 1, 2009, to February 28, 2010, on April 29, 2010. S2 gave Complainant an overall rating of "Exceeds Fully Successful." The person who became Complainant's Department Manager (S3) on September 9, 2009, concurred with the appraisal.
S2 was on leave from April 23 through June 1, 2010. A Lead Financial Technician (LFT1) who served as the Acting Manager while S2 was on leave issued Complainant a Performance Feedback Memorandum on May 13, 2010, and a Performance Feedback/Opportunity to Improve Letter on May 17, 2010. The Letter stated that Complainant's work performance was unacceptable with respect to Critical Job Elements 5A (Timeliness and Meeting Deadlines), 5B (Time Utilization), and 5C (Workload Inventory Management). In addition, the Letter asked Complainant to notify LFT1 if she believed that a medical condition contributed to her performance deficiency and stated that she would receive information regarding medical-documentation requirements. It also stated that Complainant had 60 calendar days within which to demonstrate that she could perform the job and that she could not work an alternative work schedule (AWS) during the opportunity period.
Complainant asserted that LFT1 issued the Opportunity Letter after she told him that she was going to request a reasonable accommodation. She alleged that LFT1 mentioned this during a management meeting and that S3 instructed LFT1 to "pull [Complainant's] inventory."
According to LFT1, he issued the Letter because Complainant "was not producing any work" and had completed only two cases during the five weeks that he was the Acting Manager. LFT1 stated that, during a staff meeting with S3, he "mentioned that [Complainant] was working on a reasonable accommodation request." He further stated, "[S1] stated that he had known of the request for about a year but never received the actual request from [Complainant]. After the staff meeting [S3] had instructed me to start issuing performance feedback letters to [Complainant] since she was performing below standards." In response to the EEO Investigator's question about whether S3 directed LFT1 to issue the Opportunity Letter after S3 learned that Complainant was going to request reasonable accommodation, LFT1 replied, "During one of the staff meetings I had mentioned that [Complainant] was preparing a reason[able] accommodation request because of her attention deficit disorder and both [S3 and S1] seem to have known about the request for about a year but neither one had actually received the request."
In a May 21, 2010, Performance Feedback During Opportunity Period Memorandum, LFT1 stated that Complainant's work performance was unacceptable with respect to Critical Job Elements (CJE) 5A, 5B, and 5C. In a June 18, 2010, Performance Feedback Memorandum, S2 stated that, although Complainant had shown some improvement regarding CJE 5A, her performance was still below the successful level in CJEs 5A, 5B, and 5C. On July 7, 2010, S2 extended the timeframe for the Opportunity to Improve Letter until July 30, 2010. S2 subsequently issued Performance Feedback Memoranda dated July 9, July 27, and August 30, 2010.
S2 asserted that the Agency provided Complainant with a remote work area on June 6 or 7, 2010. She also asserted that Complainant submitted an unsigned and incomplete reasonable-accommodation form on an unknown date, that Complainant "was provided the forms in June 2010," and that Complainant forwarded Part III to an EEO/Reasonable Accommodation Specialist (RA Specialist) around June 28, 2010. In an August 9, 2010, e-mail to S2, the RA Specialist stated that she had received Parts I and III of the reasonable-accommodation form from Complainant on August 3, 2010, and that she wanted to schedule an interactive-process conference call. S2 was on leave from August 6 through 24, 2010, and the conference call occurred on August 26, 2010.
Complainant gave the Agency a document listing ten requested accommodations. Although a handwritten note on the document states that it was received on approximately August 29, 2010, S2 stated in her affidavit that Complainant submitted the list on August 26, 2010. Complainant requested the following accommodations:
1. a remote area with no distractions;
2. with respect to telephone calls,
(a) "eliminate the arbitrary expectation [regarding] how long it should take [Complainant] to handle the phone call from beginning to end and hold [her] to a measurement standard or statistic";
(b) eliminate the requirement that Complainant enter history notes while the caller is on the line;
(c) eliminate the expectation that Complainant should summarize her discussion within "an arbitrary number of minutes" and allow her "whatever time it takes" her to do it;
(d) not schedule Complainant's telephone time for the beginning of her shift, at 5:00 p.m., although Complainant understands that it might be necessary to do so occasionally;
3. because she "becomes overwhelmed with anxiety" when "assigned too many cases," assign fewer cases at one time and assign new cases after Complainant has turned in completed work;
4. provide concrete and specific directions regarding performance expectations;
5. communication with the Lead or a manager several times per week or on an as-needed basis to discuss priorities and review work;
6. "a supportive work environment, less hostile communications," and time-management assistance such as "checking in more frequently, intermediate deadlines, multi-staged tasks, [and] feedback to stay grounded";
7. additional training, such as Enterprise Learning Management System (ELMS) classes on such topics as writing concisely and time management;
8. "leeway with time" and flexibility to adjust her work schedule because of her difficulty in "gathering things to leave [her] house . . . or maybe just make it at all";
9. flexible leave, advanced leave, or leave without pay; and
10. "[o]penness in supervision and communication."
S2 stated in her affidavit that she completed Part II of the reasonable-accommodation form on September 1, 2010. According to S2, her records reflect that she "indicat[ed] in box 2 that the Applicant/Employee oral request was 8/30/10." The record does not contain a copy of Part II of the form.
When Complainant arrived at work on September 1, 2010, the first page of the Performance Feedback Memorandum that S2 issued on July 27, 2010, was on her desk. On the bottom of the page was a fax confirmation showing that 25 pages had been faxed to the fax number of the RA Specialist. Complainant has alleged that the Agency violated confidentiality requirements and that the document was sent to the RA Specialist in an effort "to show [Complainant] in an unfavorable light." Complainant also has alleged that a copy of her EEO complaint was left on a fax machine on August 9, 2011. She asserted, "[A named individual] came to my cubicle and handed me the first page of my EEO complaint which shows my claims."
S2 acknowledged that she faxed Complainant's performance feedback letters to the RA Specialist, that a fax receipt printed on one of the pages, that she was not aware that this would happen, and that she did not check the fax machine for a receipt. She stated that she subsequently completed a Personally Identifiable Information (PII) report about the incident.
Complainant met with the Treasury Inspector General for Tax Administration (TIGTA) representatives on September 13, 2010. When she returned to her desk, she noticed that S3 had left three notes asking her to see S3 when she returned from the TIGTA office. Complainant has asserted that, as she was reading the notes, S3 approached her and asked when she got back and why she had not gone to see S3. She also has asserted that S3 stood at her desk, asked her many questions, mocked her, and sneered at her.
S3 denied that she sneered at or mocked Complainant or insinuated that Complainant was lying. She confirmed that she asked what time Complainant had returned to the desk. According to S3, Complainant's manager had said that the TIGTA meeting had ended, and Complainant had not returned to the desk for more than an hour. S2 stated that she asked Complainant what time the meeting ended, that Complainant responded, and that S3 sent her an e-mail stating that there had been a significant gap between the time that Complainant returned to her desk and when Complainant reported that the meeting had ended.
In a September 15, 2010, letter to the RA Specialist, an Occupational Medicine Consultant from the Federal Occupational Health Service (FOH) of the Department of Health and Human Services stated that he had reviewed the following medical documentation: the October 8, 2008, letter from the LSCSW; a June 8, 2009, "WH-380 form" (a Family and Medical Leave Act (FMLA) form); and the Form 13361 that Psychiatrist 2 completed on April 13, 2010. The Consultant also stated that Complainant had declined to sign a release allowing FOH to contact her health care providers. He concluded that Complainant has a medical condition that substantially limits a major life activity and that Complainant's "cognitive abilities are significantly impaired with difficulties in organizing, prioritizing, and multitasking among other mental processes."
In a September 20, 2010, e-mail to S2, Complainant asked for union time to meet with her union representative on September 22 at 5:00 p.m. S2 replied that she would permit Complainant to meet with the representative from 9:00 p.m. to 10:00 p.m. rather than at 5:00 p.m. In a September 21, e-mail to S2, the union president explained that he would not be at the office at 9:00 p.m. and asked S2 to reconsider her decision. S2 replied that, because of the phone schedule, 8:00 p.m. was the earliest that she could release Complainant. Complainant then sent an e-mail to the union president stating that she was not scheduled to handle the phones on September 22 until 6:30 p.m. The union president sent an e-mail to S2 asking how they could handle the matter if Complainant could not be released to meet with him while he was at the office. S2 did not reply to the e-mail.
Complainant asserted that the denial of her request for the 5:00 p.m. meeting time was "a continuation of management's unwillingness to work with" her. S2 asserted that Complainant often requested time for union, EEO, and TIGTA matters during peak phone time. She stated that she "held firm" and followed guidelines for handling requests for union time during peak hours. In an e-mail response to the EEO Investigator's request for a copy of the September 22, 2010, phone schedule, S2 stated that the document reflected that Complainant was "not scheduled on the phones until 6:00 p.m." Noting that another employee requested leave for September 22, S2 claimed that the phone schedule "more than likely changed." S2 acknowledged that she did not have a revised phone schedule for September 22 and asserted that "that would not be unusual." The September 22 schedule that S2 submitted has Complainant scheduled for phone duty at 6:30 p.m.
In a September 21, 2010, memorandum to Complainant, S2 stated that Complainant had not adhered to the phone schedule and had logged onto the phone late on September 7, 8, 17, 20, and 21, 2010. She noted that Complainant's actions could affect CJEs 1B and 5B and advised Complainant to be more aware of her phone-schedule responsibilities. In addition, referring to eight of Complainant's daily work forms, S2 stated that Complainant had not worked a case since September 14, 2010, and that Complainant's performance was unacceptable in CJEs 5A, 5B, and 5C.
In a Performance Feedback/Opportunity Letter dated October 5, given to Complainant on October 6, and apparently rescinded on October 8, 2010, S2 wrote that Complainant's work performance was unacceptable with respect to five Critical Job Elements: 3B (Written Communication), 4E (Problem Identification), 5A (Timeliness and Meeting Deadlines), 5B (Time Utilization), and 5C (Workload Inventory Management). She stated that Complainant's daily work forms were unclear. She also stated that Complainant over-researched cases, tended to become overwhelmed and confused, had difficulty following through with her thoughts, spent excessive time on non-productive tasks, did not adhere to the phone schedule, did not control phone conversations with taxpayers, and did not manage her workload effectively. S2 noted that, although the Agency had placed Complainant in a cubicle away from other employees as a reasonable accommodation in June 2010, Complainant's workload management had not improved. S2 asked Complainant to notify the Agency if she believed that a medical condition contributed to her performance deficiency and stated that Complainant would receive information regarding medical-documentation requirements. S2 also stated that the following reasonable accommodations were in effect: "assignment of fewer cases maintained in [her] inventory to prevent confusion and overwhelming workload [and] seclusion away from other IRS employees to prevent distraction." Further, S2 stated that Complainant had 60 calendar days within which to demonstrate that she could perform the job and that she could not work an alternative work schedule during the opportunity period.
Complainant contacted an EEO Counselor on October 8, 2010. The EEO Counselor interviewed Complainant on October 19 and 20, contacted S2 and S3 on October 22, and interviewed S3 on October 27 and S2 on October 28, 2010.
In a memorandum dated October 27 and apparently issued on October 29, 2010,3 S3 responded to Complainant's request for reasonable accommodation. The memorandum stated that the Agency had granted Complainant's request 1 to work in a remote area and that the Agency had provided Complainant with a printer at her desk. With respect to Complainant's request 2, S3 stated that (a) multi-tasking and being flexible were essential to Complainant's position; (b) the position description required employees to handle telephone contacts "in a clear[,] concise[,] and timely manner"; (c) CETs were expected to input history in a reasonable amount of time; and (d) management would schedule Complainant's phone time after 5:00 p.m. "as much as possible" but it would depend on "the phone scheduling from JOC and team workload." With respect to request 3, S3 stated that the Agency was not required to lower production standards or reduce inventory and that management would "assign a full case load and monitor [Complainant's] inventory for timely completion of cases." S3 further stated, with respect to request 4, that management had provided CJEs to Complainant on August 30 and October 13, 2010, and had "discussed at length these job elements." S3 also stated that management had explained what Complainant needed to do to improve her performance. In response to Complainant's request 5 for communication with her lead or manager several times per week, S3 stated that each CET has a team lead or manager to help with priorities and case work and that the position description "requires seasoned CET[s] to perform their job[s] unassisted."
In addition, the memorandum asserted that the Agency had met request 6 by providing a supportive environment and, for example, giving Complainant "a priority listing at the beginning of the week and ask[ing] her to complete the task by the end of the week." With respect to request 7, S3 stated that management provides all employees with 16 hours of self-development time per year for ELMS courses. With respect to requests 8 and 9, S3 stated that it was not reasonable for employees not to report to work on time. S3 also stated that management would consider Complainant's request for flexible leave "pending approval of acceptable medical documentation," but the memorandum did not identify the medical documentation that the Agency wanted Complainant to submit. The memorandum stated that management did not understand request 10 and that Complainant needed to provide specific information.
According to the memorandum, Complainant's union representative submitted two additional reasonable accommodation requests on October 13, 2010. S3 stated that Complainant asked to return to an AWS schedule because she had appointments with her therapist on her "RDO" day and the appointments were mentally and physically taxing. Management agreed to return Complainant to an AWS schedule "with the understanding that, when the proper corrections are made to the PIP letter and it is reissued, [Complainant] will again be removed from AWS per Article 23(3)(D)(2) of the National Agreement." In addition, management agreed to approve Complainant's request for a leave of absence for treatment, pending receipt of acceptable medical documentation. The memorandum did not explain what documentation was needed.
Finally, the memorandum stated that, based on statements from Complainant's doctor and the FOH, management had concluded that Complainant could not perform the essential functions of her position. According to the memorandum, management agreed to look for GS-07 positions that did not require phone work. The memorandum asserted, "If no vacant funded positions are available and management has exhausted all options, then as the last resort, management will approve reassignment for the employee."
Also on October 29, 2010, S2 issued Complainant a Performance Feedback Memorandum that stated that Complainant's work was unacceptable with respect to three Critical Job Elements: 5A (Timeliness and Meeting Deadlines), 5B (Time Utilization), and 5C (Workload Inventory Management). S2 cited six cases where Complainant "failed to utilize proper workload management and follow established guidelines." In addition, S2 asked Complainant to notify the Agency if she believed that a medical condition contributed to her performance problem and stated that Complainant would receive information regarding medical-documentation requirements. S2 stated that the following reasonable accommodations were in effect: "seclusion away from other IRS employees to prevent distraction and a desk top printer to alleviate any confusion from screen prints." Further, S2 stated that Complainant had 60 calendar days within which to demonstrate that she could perform the job, that a work leader would provide Complainant with one hour of coaching per week, and that S2 would reduce Complainant's inventory to 10 cases in an effort to help Complainant to manage her caseload. Finally, S2 stated that Complainant could not work an alternative work schedule during the opportunity period.
Complainant alleged that the October 5 and 29 opportunity letters were based on her disability and "used language from [her] disability papers." She asserted that management changed the review process. She also asserted that management changed the opportunity letters with respect to what was being reviewed and how it was reviewed. Although she acknowledged that cases sometimes remained in her inventory, Complainant argued that management should consider that she often received special projects that other employees did not receive. In addition, Complainant alleged that managers frequently interrupted her when she was on the phone with a taxpayer, that the interruptions were very distracting, and that it was difficult for her to regain her focus after the interruptions.
A Human Resources Specialist stated that she reviewed the first opportunity letter and "determined that a more clear explanation of the issues was appropriate." Accordingly, the first letter was rescinded and the second, October 29, 2010, letter was issued.
S2 confirmed that Labor Relations told her to rescind the first letter and to issue a new letter that fully explained the issues and what needed to be done to resolve them. According to S2, the letters were issued "after multiple written feedback as well as verbal feedback regarding time utilization, workload management and timeliness and meeting deadlines." S2 asserted that Complainant did not submit completed daily case-time-management records and that cases remained in Complainant's inventory for an extended time and had to be reassigned to other employees. S2 also asserted that, as a reasonable accommodation, Complainant had 10 or fewer cases in her inventory. She argued that Complainant's performance had not improved despite "ample opportunity" and that Complainant "must be able to perform her job with or without a disability in order to maintain her position."
S3, who concurred with the issuance of the opportunity letter, stated that Complainant could not manage her inventory or complete her work in a timely manner. According to S3, Complainant was transferred to Team 203 in December 2009 or January 2010 because other employees had expressed concern that the Team 201 Team Leader (LFT2) had shown favoritism toward Complainant. S3 stated that, approximately one to two months after the transfer, she became aware that Complainant was not working her inventory.
On December 1, 2010, S2 gave Complainant a leave-counseling memorandum for arriving late to work on November 17 and 22, and for being away from her desk without approval on November 19, 2010. She also gave Complainant a performance-feedback memorandum.4 Complainant asserted that she called to inform S2 that she would be late for work on the November dates. She also asserted that she sent S2 an e-mail on November 19 to request permission to go to the union office, that S2 did not respond, and that she called her union representative during her lunch break. Complainant acknowledged that she sometimes arrived late to work, asserted that she called in advance when she was going to be late, and argued that she had requested a more flexible shift because of her disability. In addition, Complainant asserted that she had received several untimely and unclear performance counselings. She claimed that she "would ask [S2] for clarification on the CJE and expectations and would be told to ask the person [who] wrote the CJE." Complainant also claimed that S2 did not respond to her request for time to rebut the memoranda.
S2 stated that Complainant received "numerous" performance letters because she did not complete her work in a timely manner and "several" conduct letters because she consistently did not provide S2 with daily case-time-management forms. She stated that she issued a December 1, 2010, leave-counseling memorandum because Complainant was late on November 17 and 22. S2 also stated that she issued a December 1, 2010, feedback memorandum that contained her observations and suggestions. S2 asserted that she gave Complainant examples of job-performance issues and explained the importance of working on cases in a timely manner. She stated that she explained the CJEs to Complainant several times and that, once, she read the CJEs and gave examples of how they applied to Complainant's duties. S2 acknowledged that, when Complainant did not accept one of S2's answers about a CJE, she told Complainant to ask the person who wrote the CJE. She denied that the memoranda were untimely or unclear and asserted that she never refused to give Complainant time to prepare rebuttals.
The Agency granted Complainant's request for advanced sick leave, and Complainant was off work for approximately six weeks. S2 stated in her affidavit that Complainant submitted medical documentation indicating that Complainant would be incapacitated from work for the period January 6 to February 16, 2011. S2 also stated that the Agency granted the advanced sick leave as a reasonable accommodation.
Complainant has asserted that, in March 2011, S3 reprimanded her for being in her work area after her duty hours. She alleged that, while she was working at her cubicle at 1:05 a.m., S3 screamed and raised her voice and told Complainant to go home. According to Complainant, S3 then realized that Complainant was on her tour of duty and asked if Complainant was cleaning her desk. Complainant asserted that two employees from a different team were not reprimanded when the stayed past their tours of duty. In addition, she alleged that S3 continually came to her desk and distracted her even though she had told management that, because of her disability, she has difficulty dealing with distractions.
S3 denied that she yelled at Complainant. She stated that Complainant and LFT2, who carpool together, have been told on "numerous occasions" to leave the work area after work hours. S3 told them that "the time band ends at 1:30 a.m. and they cannot be working after hours." According to S3, the Agency "can be held liable when employees are working past their tour of duty hours." She stated that other employees have been told to leave "and most usually comply and do not do it again."
In March 2011, S3 told LFT2's manager (S4) to instruct LFT2 not to answer any of Complainant's questions. Complainant has asserted that, three or four weeks later, S3 prohibited LFT2 from answering anyone's questions but that he subsequently was permitted to answer others' questions.
S4 confirmed that S3 instructed him to tell LFT2 that he would be written up if he answered Complainant's questions. He estimated that, since April 26, 2010, Complainant had asked LFT2 four or five questions.
S3 stated that Complainant should have brought her questions to her own team lead and not to LFT2, who was the lead of Complainant's former team. In response to the EEO Investigator's question about whether CETs are permitted to go to other team leads when their own team leads or managers are not available, S3 replied that CETs should not ask questions outside of their own teams. She asserted that Complainant had been moved from her former team because of "a sensitive situation regarding" Complainant and LFT2 and that it was in "the best interest of the employee[s] in that team that [Complainant] not continue to visit" LFT2. S3 did not know how often Complainant asked LFT2 for help.
LFT2 estimated that he had answered four or five questions from Complainant. He stated that S4 directed him not to answer any of Complainant's questions and to have no professional contact with Complainant. He was not permitted to answer anyone's questions from May 5 until June 27, 2011, and then he was allowed answer questions from everyone except Complainant.
On March 8, 2011, S2 directed Complainant to work from another employee's desk and to perform telephone duty. Complainant asserted that that was the first day that she performed phone duty since her extended leave, that it is hard for her to change environments, and that she told S2 that she did not have her research materials with her. She also asserted that S2 replied that she did not need the materials and directed her to get on the phone.
S2 stated that Complainant was directed to work from another employee's desk because Complainant's phone was not working. She denied telling Complainant that she did not need her research materials. Instead, according to S2, she told Complainant that the necessary reference materials were available through the Agency's system.
Complainant alleged that S2 denied her requests for LWOP on April 6 and 13, 2011.5 She stated that she called in sick on April 6 and requested LWOP because she had a negative sick-leave balance. She requested annual leave on April 13 but did not have sufficient leave for the request. Complainant claimed that her reasonable-accommodation agreement allowed her to use LWOP and that her requests therefore were not subject to the Agency's policy regarding the use of LWOP. S2 stated that she does not have authority to approve LWOP and that LWOP must be approved by the Department Manager. S3 stated that the approval of LWOP is within the manager's discretion. She did not recall Complainant asking her to approve a request for LWOP.
With respect to her claim that the Agency denied her a reasonable accommodation, Complainant stated that the requested accommodations would have allowed her to work in a stress-free environment and to take extra time to perform the essential functions of her position. She noted that the Agency had accommodated her in the past by placing her in a remote location but then returned her to an area that held other members of her team. According to Complainant, when she was seated in a remote location, she "was able to perform [her] duties with a 4.4 and higher overall performance rating."
In addition, Complainant argued that entering history notes while the caller is on the telephone is a procedure, not an essential function. She also argued that cognitive thinking was not an essential function because it was not an observable or reviewable task. She acknowledged that the Agency lowered the number of cases assigned to her "for a short period of time" but stated that, at the time of her affidavit, her case inventory was higher. She argued that management did not work with her to find an effective accommodation and that "[i]t was a struggle to get the few accommodations provided."
Complainant asserted that she provided all of the necessary medical documentation and that the FOH physician did not request additional documentation. Noting that she did not sign the FOH medical release, Complainant argued that the release was not necessary for any of her requested accommodations. She stated that management never requested additional medical documentation or otherwise indicated that the documentation that she provided was insufficient.
S2 stated that the March 29, 2002, evaluation from Psychiatrist 1; a March 20, 2007, progress note from Psychiatrist 1; and the October 8, 2008, letter from the LSCSW were in Complainant's "EPF file" and that she reviewed the file in March 2010, after she became Complainant's manager. She also stated that Complainant submitted a January 6, 2011, doctor's note indicating that Complainant would be incapacitated from work until February 26, 2011,6 and that S2 received a copy of the September 15, 2010, FOH letter on September 27, 2010.
S2 argued that Complainant was not able to perform the essential functions of her position. She stated that Complainant consistently did not complete her cases, had "excessively long" phone conversations with callers, spoke in a rambling and disjointed way, and could not manage her time. In addition, S2 stated that the Agency searched for other jobs for Complainant at the same grade level but none were available. According to S2, one job at a lower-graded level became available but had not been offered to Complainant "yet."
Further, S2 asserted that cases had remained in Complainant's inventory for as long as a month and had to be reassigned to other CETs. She claimed that, "[m]ost of the time, [Complainant] does not work her cases at all." S2 argued that that the Agency gave Complainant reasonable accommodation and "ample opportunity and assistance to improve."
S3 asserted that Complainant could not perform the essential functions of her position. She argued that Complainant would not have been able to perform her job even if she had received such accommodations as a flexible tour of duty, flexible hours, flexible leave, weekly meetings with her manager, and no phone expectations.
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 but subsequently withdrew her request. In her Order returning the case to the Agency for disposition, the AJ noted that Complainant "submitted supplemental documentation after discovery was concluded that is contained on a portable flash drive."
Final Agency Decision
The Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). In its final decision, the Agency stated that Complainant had retired from the Agency.7 The Agency found that it was undisputed that Complainant was an individual with a disability. With respect to claims 1(C) and 1(J), the Agency found that management articulated legitimate, nondiscriminatory reasons for its actions and that Complainant did not show that the articulated reasons were a pretext for disability-based discrimination. With respect to the remainder of Complainant's harassment claims, the Agency found that Complainant did not establish that the criticisms of her performance and conduct were not legitimate. The Agency also found that the actions at issue did not rise to the level of a hostile work environment.
With respect to Complainant's allegation that the Agency did not provide her with reasonable accommodation, the Agency found that Complainant did not establish a prima facie case of discrimination. The Agency concluded that Complainant was not qualified for her position because she could not perform the essential functions of her position. In that regard, the Agency noted that it was not required to eliminate essential functions as a form of reasonable accommodation. According to the Agency, "[m]anagement explained that it did not grant Complainant's requests for elimination of requirements for time spent on phone calls or when to take notes regarding the information produced by phone calls because being flexible, multi-tasking, and inputting case histories in a reasonable amount of time were essential elements of her position." The Agency noted that, although it was not required to eliminate production standards as a reasonable accommodation, management nonetheless reduced Complainant's inventory. The Agency stated that Complainant was assigned five cases on July 6 but had not completed any of them by August 9, 2011. The Agency concluded that the reasonable accommodation "of working in a quiet, remote area and having a reduced caseload did not result in Complainant being able to perform the essential functions of her job." It found "that a preponderance of the evidence supports management's assessment that Complainant failed to organize, prioritize, and manage her time well, which resulted in her not being able to meet the CJEs of business Results/Efficiency, Timeliness and Meeting Deadlines, Time Utilization, and Workload Management." Finally, the Agency stated that, although it did not offer Complainant "a lower-graded position once a comparable position could not be found, Complainant did not raise this matter as an issue in the case."
CONTENTIONS ON APPEAL
On appeal, Complainant states that she submitted more than 1,000 pages of evidence on a USB drive and that the AJ accepted the information into evidence. She argues that the Agency erroneously failed to consider that evidence.
Complainant asserts that the Agency did not interpret her position description, CJEs, and essential functions accurately. She also asserts that completing the daily case report was not an essential function of her position. In addition, Complainant argues that the Agency did not show that it would have been an undue hardship to provide her with LWOP and that the Agency did not engage in the interactive process in good faith. She alleges that "[t]he Agency took as much as seven months to complete the interactive process, and only then when it was pointed out to the RA Specialist that management had been untruthful with the Specialist, that the interactive process ended." Complainant argues that the counseling and opportunity letters issued by S2 were not accurate and notes that LFT1 issued the first opportunity letter after she told him that she was going to submit reasonable-accommodation documentation. She asserts that she "has always been an outstanding employee in performance and ERQS reviews showed this to be true." Finally, Complainant argues that the Agency subjected her to severe and pervasive treatment that constituted a hostile working environment.
In response, the Agency argues that the final agency decision accurately set forth the facts and law applicable to this case. The Agency contends that Complainant has not raised any substantive issues that would support a different finding in this matter.
STANDARD OF REVIEW
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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 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 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").
ANALYSIS AND FINDINGS
As a preliminary matter, we note that Complainant asserts that she submitted evidence on a USB drive and that the AJ accepted it. The AJ, however, stated in her Order that Complainant submitted the information after the close of discovery. Complainant has not refuted the AJ's statement and has not established that the information was admitted into evidence. Accordingly, we decline to consider the late submission.
Reasonable Accommodation
Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and 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 reasonable accommodation would cause an undue hardship. See 29 C.F.R. � 1630.2(o), (p). To establish that she 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 her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance on Reasonable Accommodation"). An individual with a disability is "qualified" if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
An employer should respond expeditiously to a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation 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. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors 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.
A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002) ("the word 'accommodation . . . conveys the need for effectiveness"). If more than one accommodation will enable an individual to perform the essential functions of his or her position, "the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide." 29 C.F.R. pt. 6130 app. �1630.9; see also Enforcement Guidance on Reasonable Accommodation at Question 9.
The duty to provide a reasonable accommodation is ongoing. "If a reasonable accommodation turns out to be ineffective and the employee with a disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship." In the absence of an effective alternative accommodation, "the employer must attempt to reassign the employee to a vacant position for which s/he is qualified, unless to do so would cause an undue hardship." Enforcement Guidance on Reasonable Accommodation at Question 32.
In this case, it is undisputed that Complainant is an individual with a disability. It also is undisputed that Complainant, who worked as a CET at least since March 1, 2007, met the requisite skill, experience, education, and other job-related requirements of the CET position. For the reasons explained below, we find that Complainant was a qualified individual with a disability who could perform the essential functions of her CET position with reasonable accommodation. We further find that the Agency discriminated against Complainant on the basis of disability when it did not provide certain requested accommodations.
According to Complainant, the Agency provided her with a "partial accommodation" in May 2007. The record establishes that she performed at an "Outstanding" level for the period March 1, 2007, to February 28, 2008. Then, in October 2008, Complainant submitted documentation supporting her need to have a quiet work area, to have work focused on the task at hand, to avoid multi-tasking when possible, and to take time to formulate ideas and to readjust when moving from one thing to another. Although the Agency at some point permitted Complainant to work from a remote location, it moved her to a new cubicle in a high-traffic area in November or December 2008.
It was not until June 2010 that the Agency provided Complainant with a quiet work area. The record is devoid of any justification for the Agency's egregious delay in providing Complainant with an effective accommodation. Agency supervisors and managers knew of Complainant's need for reasonable accommodation in October 2008 and were reminded of that need in early 2010. In that regard, we note that S2 stated in a Performance Feedback Memorandum that Complainant had said on February 9, 2010, that she had difficulty working cases because of a medical condition. Further, S2 stated in her affidavit that she reviewed Complainant's October 2008 documentation in March 2010. Moreover, according to LFT1, he mentioned during a staff meeting that Complainant was preparing a reasonable-accommodation request, and "both [S3 and S1] seem to have known about the request for about a year but neither one had actually received the request." Rather than act on Complainant's known need for reasonable accommodation, S3 instructed LFT1 to issue performance feedback letters to Complainant. Nothing in the record explains why Complainant's managers did not act on Complainant's need for accommodation or why they waited until June 2010 to return Complainant to a quiet area.
Complainant submitted another request for a quiet area in April 2010. 8 She submitted a more detailed reasonable-accommodation request in August 2010. The Agency responded two months later. In the response, S3 noted that the Agency already had placed Complainant in a remote work area.
With respect to telephone calls, S3 agreed to schedule Complainant for phone duty after 5:00 p.m. "as much as possible" but did not agree to Complainant's other requests. The Agency has not established that it would have been an undue hardship to provide the other requested telephone-related adjustments. Although handling phone calls might have been an essential function of Complainant's position, the Agency has not shown that it would have been a significant difficulty or expense to modify the manner in which Complainant performed the function. For example, S3's assertion that multi-tasking and being flexible were essential to Complainant's position does not establish that the Agency could not have been flexible regarding its expectations for how long it should take Complainant to handle a phone call. Moreover, S3's statement that Complainant had to handle taxpayer calls "in a clear[,] concise[,] and timely manner" sheds no light on why the Agency refused Complainant's request to eliminate the requirement that she enter history notes while the caller was on the phone. Similarly, S3's statement that CETs must input history in a reasonable amount of time does not explain whether, or to what extent, the Agency was willing to eliminate the expectation that Complainant summarize phone discussions "within an arbitrary number of minutes." Although it might have been an undue hardship to allow Complainant to perform the task in "whatever time it takes," there is no showing that the Agency would have incurred an undue hardship by allowing Complainant more time to perform the task.
Complainant asked to be assigned fewer cases at one time and to receive new cases after she turned in completed work. S3 stated in the response to Complainant's reasonable-accommodation request that the Agency was not required to lower production standards or reduce inventory and that Complainant would receive a full case load. Complainant, however, did not ask for a lower production standard. Instead, she asked for an adjustment in the manner in which cases were assigned. Although the Agency does not have to lower a uniformly applied production standard as a reasonable accommodation, it does have to provide a reasonable accommodation that enables an employee to meet a production standard when doing so would not result in an undue hardship. See Enforcement Guidance on Reasonable Accommodation (General Principles). The Agency has not shown that it would have been an undue hardship to adjust the manner in which cases were assigned to Complainant by assigning fewer cases at once.
We note that S2 stated that she reduced Complainant's inventory to 10 cases and that Complainant stated that the Agency lowered her inventory for a short time but subsequently raised it. To the extent that the Agency only temporarily granted Complainant's request to have fewer cases in her inventory and to receive new cases after she completed other cases, the Agency has not shown that it would have been an undue hardship to continue this accommodation.
Similarly, the Agency has not shown that it would have been an undue hardship to give Complainant specific directions regarding performance expectations and to allow her to communicate with her Lead or manager several times per week about priorities and work. S3's statement, in the memorandum responding to Complainant's reasonable-accommodation request, that management had provided the CJEs to Complainant and had discussed the job elements "at length" does not establish that managers explained their expectations in an understandable manner. We note, for example, that S2 acknowledged that she once told Complainant to ask the person who wrote the CJE. Likewise, S3's statement that each CET has a team lead and that seasoned CETs should perform their jobs unassisted does not address Complainant's request to communicate with the Lead or manager on an as-needed basis. The Agency has not shown that it would have been an undue hardship to grant Complainant's request.
It appears that the Agency granted Complainant's request for time-management assistance, such as intermediate deadlines and multi-staged tasks, by giving her a weekly "priority listing" with a task that should be completed by the end of the week. Although S3 responded to Complainant's request for additional training by stating only that all employees receive 16 hours for ELMS courses, there is no evidence that the Agency denied any specific request for an ELMS course. Complainant has argued that the Agency denied her request for additional training, but she has not identified any class that the Agency refused to allow her to take.
Complainant asked for a flexible work schedule because of her difficulty in organizing herself to leave the house. It may be a reasonable accommodation to modify an employee's schedule by adjusting arrival or departure times. See Enforcement Guidance on Reasonable Accommodation at Question 22. In this case, however, Complainant's request for an adjusted work schedule was too open ended and vague. In that regard, we note that the request referred both to a need for "leeway with time" and to Complainant's difficulty in "mak[ing] it at all." Nothing in the record explains whether Complainant needed a few minutes occasionally, an unlimited number of minutes frequently, or a random amount of unpredictable absences.
Complainant also asked for flexible leave and for a leave of absence. It is a reasonable accommodation to permit an employee to use accrued or unpaid leave. Id. at Questions 17-21. The record indicates that the Agency allowed Complainant to take approximately six weeks of leave in January and February 2011 and that the Agency provided Complainant with advanced sick leave. To the extent that Complainant is arguing that the Agency denied her a reasonable accommodation by requiring her to use accrued leave rather than LWOP, Complainant's argument fails. An employer may choose between effective accommodations. 29 C.F.R. pt. 6130 app. � 1630.9; see also Enforcement Guidance on Reasonable Accommodation at Question 9. With respect to her request for leave, the Agency provided Complainant with an effective accommodation when it granted her request for leave.
S3 stated in the October 29, 2010, reasonable-accommodation memorandum that management would return Complainant to an AWS schedule until the PIP letter was re-issued and then would remove her from AWS "per Article 23(3)(D)(2) of the National Agreement." S2 stated in the October 29, 2010, Performance Feedback Memorandum that Complainant could not work an alternative work schedule during the opportunity period. There is no showing that that the Agency would have incurred an undue hardship by allowing Complainant to have an alternative work schedule. In that regard, we note that the record does not contain a copy of Article 23 of the collective bargaining agreement and that S3 did not explain the why the provision would prevent the Agency from granting the requested accommodation. Moreover, S3 expressly stated in the Agency's reasonable-accommodation response that it was a union representative who requested this reasonable accommodation on Complainant's behalf.
We note that S2 claimed that Complainant had "ample opportunity and assistance to improve." The record, however, refutes that assertion. The Agency removed Complainant from a quiet work space in November or December 2008 and did not return her to a quiet location until June 2010. Complainant, who previously had performed at an "Outstanding" or "Exceeds Fully Successful" level, notified S2 on February 9, 2010, that she was experiencing work difficulties because of a medical condition. S2 has acknowledged that she became aware of Complainant's October 2008 reasonable-accommodation request in March 2010. Ultimately, the Agency denied Complainant's request for reasonable accommodations such as communication with the Lead or manager on an as-needed basis and a modification in the manner in which she performed telephone duties and entered history notes. Rather than provide Complainant with "ample opportunity," the Agency denied Complainant an equal opportunity to attain an acceptable level of performance.
We find, therefore, that the Agency unlawfully denied Complainant a reasonable accommodation for her disability. We further find that the Opportunity to Improve letters and negative performance feedback were the direct result of the Agency's failure to provide Complainant with reasonable accommodation. By issuing the letters and feedback, the Agency penalized Complainant for its failure to provide her with reasonable accommodation that would have enabled her to perform the essential functions of her position. Accordingly, we find that the Agency discriminated against Complainant on the basis of disability when it issued negative performance-related letters and memoranda after Complainant submitted her request for reasonable accommodation. Given that Complainant stated that she submitted the request in April 2010 and that Psychiatrist 2 signed the Agency's reasonable-accommodation form on April 13, 2010, we will order the Agency to remove the letters and written performance counseling issued after that date from Complainant's official personnel record.
Harassment
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 harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of the Rehabilitation Act must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
In this case, Complainant alleged that the Agency subjected her to disability-based harassment with respect to several matters. As noted above, we find that the Agency's failure to provide Complainant with reasonable accommodation for her disability led to the issuance of the Opportunity to Improve letters and written performance counseling memoranda. Those documents include (1B) the Performance Feedback/Opportunity Letter dated October 5 and rescinded on October 8, 2010; (1C) the October 29, 2010, Performance Feedback Memorandum; (1D) the December 1, 2010, Performance Feedback Memorandum; and (1G) negative feedback on various dates from October 16, 2010, through April 20, 2011. Because we have found that these matters were related to the denial of reasonable accommodation and have ordered an appropriate remedy, we need not address whether they also created a hostile work environment.
We find that Complainant has not established that the other incidents raised in her harassment claim occurred because of her disability. For example, Complainant has not shown that disability-based bias motivated S2's issuance of the December 1, 2010, leave-counseling memorandum. Similarly, Complainant has not shown that disability-based bias, rather than ignorance and carelessness, caused S2 to leave the first page of the July 27, 2010, Performance Feedback Memorandum on the fax machine. In that regard, we note that Complainant has not refuted S2's statement that she was not aware that the fax machine would print a receipt. Complainant also has not shown that her disability was the reason for S2's denial of her request to meet with a union representative at 5:00 p.m. on September 22, 2010. Although Complainant was not scheduled for phone duty at that time, we cannot say that S2 acted out of disability-based bias when she told the union representative that 8:00 p.m. was the earliest that she could release Complainant. Complainant's assertion that management was unwilling to work with her does not establish that S2's actions were discriminatory. Further, Complainant has not refuted S2's explanation that she instructed Complainant to work from another employee's desk on March 8, 2011, because Complainant's telephone was not working.
In addition, Complainant has not established that S3 inquired about when the TIGTA meeting ended, reprimanded her for being in the work area after duty hours, or directed LFT2 not to answer her questions because of her disability. S3 stated that Complainant had not returned to her desk for more than an hour after the TIGTA meeting ended and that she told Complainant and LFT2 to leave the work area after work hours because of the Agency's liability for employees who work past their duty hours. S3's claim that there was "a sensitive situation" involving Complainant and LFT2 may indicate that she acted on the basis of rumor or gossip, but it does not mean that she had a discriminatory motivation for prohibiting LFT2 from answering Complainant's questions.
Finally, Complainant has not shown that S2 denied her requests for LWOP in lieu of sick or annual leave because of her disability. Complainant has not refuted S2's statement that she did not have authority to approve LWOP. As noted above, to the extent that Complainant is asserting that the denial of LWOP constituted a denial of reasonable accommodation, the Agency may choose between effective accommodations. There is no evidence that the Agency charged Complainant with being absent without leave or required Complainant to work on the dates for which she requested leave.
The evidence of record does not establish that the Agency took these actions because of Complainant's disability. Accordingly, we find that Complainant has not demonstrated that the Agency subjected her to harassment based on disability.
Confidentiality of Medical Information
Under the Rehabilitation Act and Americans with Disabilities Act (ADA), information "regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record . . . ." 29 C.F.R. � 1630.14(c)(1) (emphasis added); see also 42 U.S.C. � 12112(d)(4)(C). This requirement applies to all medical information, including information that an individual voluntarily discloses. EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), EEOC Notice 915.002 (July 27, 2000) (Enforcement Guidance on Employee Inquiries and Examinations); see also EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, EEOC Notice 915.2002 (Oct. 10. 1995) (Enforcement Guidance on Preemployment Inquiries and Examinations) at 21-22. Documentation concerning an individual's diagnosis or symptoms is confidential medical information. Enforcement Guidance on Preemployment Inquiries and Examinations at 22 n.26. An employer may not keep confidential medical information in an employee's non-medical personnel file. Id. at 22. Employers may share confidential medical information only in limited circumstances: supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations, first aid and safety personnel may be told if the disability might require emergency treatment, and government officials investigating compliance with the ADA and Rehabilitation Act must be given relevant information on request. 29 C.F.R. � 1630.14(c)(1).
Complainant has alleged that the Agency violated the Rehabilitation Act's confidentiality requirements and that S2 improperly left the first page of the July 27, 2010, Performance Feedback Memorandum on the fax machine. Our review of that page did not reveal any confidential medical information. Complainant asserted that the page contained the fax number for the RA Specialist but that assertion, without more, does not establish that the Agency violated the Rehabilitation Act's confidentiality provisions when S2 left the page on the fax machine.
Complainant also alleged, in her affidavit, that someone left the first page of her EEO complaint on a fax machine on August 9, 2011. She asserted that the page contained her EEO claims. The first page of the formal EEO complaint in the record, however, does not contain any confidential medical information. Although Complainant listed her disability on the second page of the form, she did not provide any medical information on the first page. We find, therefore, that the evidence does not establish that the fax constituted a violation of the confidentiality provisions.
We are very troubled, however, by S2's statement that the March 29, 2002, evaluation from Psychiatrist 1; a March 20, 2007, progress note from Psychiatrist 1; and the October 8, 2008, letter from LSCSW were in Complainant's "EPF file." Although S2, as Complainant's supervisor, could be informed of Complainant's work restrictions and accommodations, the documents that S2 cited constitute confidential medical information and should have been kept in a separate, confidential medical file. Given Complainant's allegations that the Agency violated the statutory confidentiality provisions, and in light of S2's clear statement that Complainant's medical documents were in her personnel file, we find that the Agency violated the Rehabilitation Act by keeping Complainant's confidential medical information in her non-medical personnel file. Accordingly, we will order the Agency to remove all confidential medical information from Complainant's personnel file. We remind the Agency that it has an obligation to keep all employees' medical information confidential, and we strongly urge the Agency to take whatever steps necessary to ensure that confidential medical information is maintained on separate forms and in separate medical files.9
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency violated the Rehabilitation Act when it did not provide Complainant with reasonable accommodation and when it failed to maintain her confidential medical information in a separate medical file. We further find that Complainant did not establish that the Agency subjected her to disability-based harassment. Accordingly, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision. The complaint is REMANDED for compliance with this decision and the Order below.
ORDER
The Agency is ordered to take the following remedial actions:
1. The Agency shall expunge from Complainant's personnel file and from all official Agency records all Opportunity to Improve letters and records of performance counseling issued to Complainant since April 13, 2010, and continuing until her retirement, including but not limited to the Performance Feedback/Opportunity Letter dated October 5 and rescinded on October 8, 2010; the October 29, 2010, Performance Feedback Memorandum; the December 1, 2010, Performance Feedback Memorandum; and negative feedback issued on various dates from October 16, 2010, through April 20, 2011.
2. The Agency shall expunge all medical information concerning Complainant from non-medical files, including personnel files, and shall ensure that Complainant's medical information is maintained in a separate and appropriate medical file.
3. The Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages as a result of the discriminatory denial of reasonable accommodation and the failure to maintain her medical information in a confidential medical file. The Agency shall afford Complainant an opportunity to establish a causal relationship between the Agency's violations of the Rehabilitation Act and any pecuniary or non-pecuniary losses. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages she may be entitled to and shall provide all relevant information requested by the Agency. The Agency shall issue a new Agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below.
4. The Agency shall provide eight (8) hours of training to the responsible management officials, including S2 and S3, regarding their responsibilities under the Rehabilitation Act, with a special emphasis on the Agency's obligation to provide reasonable accommodation and to maintain employees' medical information in separate and appropriate medical files.
5. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
6. The Agency shall post a notice in accordance with the paragraph below entitled "Posting Order."
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Wage and Investment Service (W&I), Examination Operation, IRS facility in Kansas City, Missouri, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report one hundred and twenty (120) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), 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, P.O. Box 77960, Washington, DC 20013. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
May 13, 2016
Date
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 Complainant also alleged that the Agency subjected her to a hostile work environment on the basis of disability when: L. on or about March 22, 2011, Complainant received a conduct memorandum recommending discipline for a performance issue; and M. on or about April 19, 2011, Complainant received a memorandum for a second offense of failure to follow a directive. She withdrew those claims on September 18, 2011.
3 A handwritten note on the memorandum states, "Rescinding the previous letter to include this letter with the letterhead." The note contains S3's initials and is dated October 29, 2010.
4 The documents are not in the record.
5 In its letter accepting Complainant's complaint for investigation, the Agency identified March 6 and April 6, 2011, as the dates of the denial of LWOP. In her affidavit, Complainant stated that the denials occurred on April 6 and 13, 2011.
6 This document is not in the record.
7 According to the Agency, Complainant provided information about her retirement in a "Complainant's Statement" that she submitted to the AJ. That document is not in the record before us. On appeal, Complainant notes that she retired in March 2012.
8 Complainant reiterated her request for a remote work area in Part I of an Agency Reasonable Accommodation Request Form 13661. Psychiatrist 2 completed Part III of the form on April 13, 2010, and Complainant asserted that she submitted the form in April 2010. S2, who claimed that Complainant "was provided the forms in June 2010," asserted that Complainant forwarded Part III to the RA Specialist on June 28, 2010. In an e-mail to S2, the RA Specialist stated that she received Parts I and III on August 3, 2010. Given that the evidence clearly establishes that Complainant requested a quiet area in October 2008; that the Agency had an ongoing obligation to provide reasonable accommodation, see Enforcement Guidance on Reasonable Accommodation at Question 32; and that Psychiatrist 2 could not have completed in April a form that Complainant ostensibly received in June, we find that Complainant's renewed request occurred in April 2010.
9 We note that Complainant was not required to prove that the Agency disclosed her confidential medical information to unauthorized persons. The plain language of the statute and regulation expressly states that medical information must be "collected and maintained on separate forms and in separate medical files." 42 U.S.C. � 12112(d)(3)(B), (4)(C); 29 C.F.R. � 1630.14(c)(1). The Agency's failure to maintain Complainant's medical information in separate medical files constitutes a violation of the Rehabilitation Act, even in the absence of an unauthorized disclosure.
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