Patricia W.v.Dep’t of Homeland Sec.

Equal Employment Opportunity Commission

Mar 26, 2019

EEOC Appeal No. 0120172637 (E.E.O.C. Mar. 26, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Patricia W.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Headquarters),
Agency.

Appeal No. 0120172637

Agency No. HSHQ238652015

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 23, 2017
final decision concerning an equal employment opportunity (EEO) complaint claiming
employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Management and Program
Analyst/Contracting Officer Representative (COR), GS-14, at the Agency’s Information
Technology Services Office (ITSO), Acquisition Services Division (ASD), Acquisition
Management Branch (AMB) in Washington, D.C.
In 2012, Complainant filed a prior EEO complaint (Agency No. HS-HQ-22346-2012)
concerning the Agency’s failure to provide her with reasonable accommodation for her
disabilities. In that complaint, Complainant identified some of the same management officials as
those more fully identified later in this decision as the responsible management officials in that
present matter.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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In that prior complaint, this Commission concluded the Agency failed to demonstrate good faith
efforts in providing Complainant with reasonable accommodations and had subjected
Complainant to a hostile work environment over the period of January through December 2012.
See Complainant v. Dep’t. of Homeland Security, EEOC Appeal No. 0120141732 (December
30, 2016). In EEOC Appeal No. 0120141732, we found that the responsible management
officials “abruptly revoked Complainant’s telework accommodation [from January 19, 2012
through July 1, 2012], inexplicably delayed restoring Complainant’s telework for four months
[from March 3, 2012 to June 20, 2012], failed to respond to Complainant’s request for assistive
technology, software, and training [as of August 2013, 8 months after DNS training was
recommended], and subsequently penalized Complainant [around December 2012] for its own
failure to reasonably accommodate her.”
In EEOC Appeal No. 0120141732, the Commission ordered that the Agency provide
Complainant with reasonable accommodation, expunge all related written warnings, reprimands,
and counseling issued to Complainant, restore all leave taken by Complainant as a result of the
Agency’s failure to accommodate her, conduct a supplemental investigation to determine
whether Complainant was entitled to compensatory damages, provide eight hours of training to
the responsible management officials involved regarding their responsibilities under the
Rehabilitation Act, and take appropriate disciplinary action against the responsible management
officials.
On August 11, 2015, more than a year before the decision in Appeal No. 0120141732 was
issued, Complainant filed another formal EEO complaint – the one at issue in the instant appeal.
In that complaint, Complainant claimed that the Agency continued in its failure to accommodate
her disabilities, as well as discriminating against her based on disability and in reprisal for her
prior protected activity when:
1. From November 30, 2011 through present, management failed to provide
Complainant with the necessary equipment, software, and formal training required for
Complainant’s disability.
2. From December 2014 through present, in weekly status meetings and regularly
exchanged emails, a Management and Program Analyst stated that Complainant’s
work product was incomplete and incorrect.
3. From December 2014 through present, in weekly status meetings and regularly
exchanged emails, the Acting Director and the Management and Program Analyst
subjected Complainant to constant harassment in the form of inconsistent and vague
instructions and criticisms
4. In or around February 2015, management reduced and altered Complainant’s
workload to include additional administrative duties. Complainant stated that her
workload was considerably smaller than that of other employees who held the same
position and were not disabled or did not work from home as a reasonable
accommodation.
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5. On March 17, 2015, management issued Complainant a Performance Counseling
Memorandum which warned her of termination of her full-time telework, which
included unfounded allegations of deficient performance which would remain in her
personnel file for one year and imposed a requirement that all correspondence with
Complainant’s assigned clients must go through the Management and Program
Analyst. Complainant further stated that no other Contracting Officer Representative
(COR) was required to comply with the requirement that all correspondence with
assigned clients must go through the Management and Program Analyst.2
6. On March 17, 2015, and on or about April 20, 2015, the Acting Director stated that
Complainant’s continued connectivity and log-in issues were “unique” to her
situation.
7. On April 20, 2015, the Acting Director stated that Complainant’s position was not
amenable to full-time telework, and that no positions in the Acquisition Support
Division (ASD) lent themselves to full-time telework.
8. In May 2015, the Management and Program Analyst terminated Complainant’s COR
appointment on a contract due to alleged performance deficiencies.
9. On June 30, 2015, the Acting Director denied Complainant’s requests for an air card,
an additional external hard drive, and permission to maintain necessary software at
Complainant’s home.
10. On August 21, 2015, the Acting Director issued Complainant a Performance
Improvement Plan (PIP) based on inaccurate allegations of deficiencies in
Complainant’s performance.
On February 25, 2016, Complainant amended the instant formal complaint to include the
following three claims:
11. On December 3, 2015, the Acting Director determined that Complainant had not met
the requirements imposed in the PIP and issued her a Notice of Proposal to Remove
her from federal service;
12. On January 30, 2016, the Deputy Executive Director deactivated Complainant’s
Personal Identity Verification (PIV) access to her equipment, work emails,
documents, and the DHS server.

2 The Agency did not discuss this claim in its decision. The Agency stated that it was already
under orders to expunge this counseling from Complainant’s record in accordance with the
Commission’s December 30, 2016 decision instructing the Agency to expunge from
Complainant’s personnel file and from all official Agency records all written warnings,
reprimands, and counseling issued to Complainant since November 28, 2011.
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13. On February 9, 2016, the Deputy Executive Director terminated Complainant’s
employment with HQ, and did not consider Complainant’s response to the proposed
removal before making his decision.
After the investigations of Complainant’s claims, the Agency provided Complainant with a copy
of the reports of investigation and notices of the right to request a hearing before an EEOC
Administrative Judge.3 In accordance with Complainant’s request, the Agency issued a final
decision on June 23, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discriminatory or
retaliatory harassment, as well as no support for the claim that the Agency denied Complainant’s
requests for reasonable accommodation.4
In its final decision, the Agency dismissed claims 11 and 13, pursuant to 29 C.F.R. §
1614.107(a)(4). The Agency found that on May 30, 2017, Complainant filed an appeal with the
Merit Systems Protection Board (MSPB) regarding these claims which relate to Complainant’s
removal from Agency employment. The Agency determined that even though Complainant
initially sought to pursue her removal as a mixed-case claim through the EEO complaint process,
Complainant’s MSPB appeal was filed before the Agency issued its final decision and therefore,
Complainant elected to pursue a mixed-case appeal on her removal with the MSPB (claims 11
and 13 of her EEO complaint).
The instant appeal followed.

ANALYSIS AND FINDINGS

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, at Chapter 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”).

3 There are two separate Reports of Investigation (ROI) in the record. The first ROI, submitted
on February 23, 2016, covers claims 1 through 10. A supplemental ROI, submitted, June 17,
2016, covers claims 11 through 13.

4 The Agency limited its decision to accommodation requests that were outstanding as early as
2014.

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Preliminary Matters
Effect of the MSPB Appeal
We take administrative notice that on December 28, 2017, an MSPB administrative judge issued
a ruling in Complainant’s appeal from her February 2016 removal that the Agency denied
Complainant due process by failing to consider her response to the proposed removal.
Complainant was reinstated to her position by order of the MSPB judge. MSPB Case No DC-
0432-17-0536-I-1. The Agency filed a Petition for Review by the full Board of this Initial
Decision on February 1, 2018. It appears that, to date, no decision has been issued by the MSPB
on this Petition.
However, on February 15, 2018, the Agency issued a second proposal to remove Complainant
based on her alleged failure to demonstrate adequate performance during the 2015 PIP. This
time, Complainant was provided with the opportunity to respond to the proposal. On April 27,
2018, the Agency issued its final decision to remove Complainant from her position.
Complainant again filed an appeal of the removal to the MSPB, which was docketed as MSPB
Case No. DC-0432-18-0552-I-1. On November 28, 2018, the MSPB administrative judge in this
second appeal dismissed it without prejudice for a period of up to 180 days5 because the full
Board had not yet ruled on the Petition in Complainant’s original appeal. The MSPB
administrative judge further indicated that if no decision was rendered on the Petition within 180
days, the judge would automatically refile the appeal and initiate a status conference.6
Therefore, we conclude that the issue of Complainant’s removal (claims 11 and 13) are still
pending before the MSPB and will not be addressed in this decision. However, as the record is
clear that claims 1-10 and 12 are not subject to the jurisdiction of the MSPB, we deny
Complainant’s request for a stay of the Commission’s decision pending the adjudication of the
MSPB appeals.
Analysis of Merits of Claims

Reasonable Accommodation Claims

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
(Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A qualified person with a

5 The 180-day period would end in May 2019.

6 It is unclear from the record whether or not Complainant is currently working at the Agency
based on the original reinstatement order or whether she remains no longer employed by the
Agency pending the adjudication of her appeals.
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disability is an individual who can perform the essential functions of the position with or without
an accommodation.

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.

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 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. 1630 app. § 1630.9; see also
Enforcement Guidance on Reasonable Accommodation at Question 9.

Here, the evidence developed during the investigations shows that Complainant was involved in
a car accident on November 29, 2011, and was diagnosed with lumbar sprain/strain, thoracic
sprain/strain, cervical sprain/strain, and muscle spasms and suffers from nerve spasms, herniated
discs, and fibromyalgia. The record indicates these conditions were ongoing, and includes
physician assessments, dated December 4, 2012, May 10, 2012, June 11, 2012, and September
10, 2015, indicating that Complainant’s diagnoses had not changed. The assessments further
indicate that Complainant’s limitations included driving, sitting, and standing not to exceed 20
minutes, walking not to exceed 50 feet, lifting no more than 10 pounds, and no repetitive
stooping, bending, twisting, and reaching. The assessments explain that the “mobility, distance,
time of actions and travel required [for Complainant to work in the office] all exceed her current
medical limitations.” For this reason, the physician recommended that Complainant continue to
work from home with proper accommodations. Based on this evidence, we find Complainant is a
qualified individual with a disability within the meaning of the Rehabilitation Act.
As noted earlier in this decision, the Commission, in EEOC Appeal No. 0120141732, has already
found that the Agency violated the Rehabilitation Act when it failed to accommodate
Complainant’s disabilities by denying her request to telework full-time from home between
January and July 2012. Our earlier decision also found that after Complainant was eventually
granted the accommodation of full-time telework, she made repeated requests for assistive
technology, software and training, which the Agency improperly denied. Finally, our prior
decision expunged written warnings, reprimands and counseling memoranda issued over the
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course of 2012, finding they were the direct result of the Agency’s failure to provide
Complainant with reasonable accommodation.

Assistive Technology, Equipment, Software and Training Necessary for Effective Telework
Accommodation

In the instant complaint, Complainant alleges, among other things, that Agency management was
still failing to reasonably accommodate her disabilities concerning her ongoing requests for
assistive technology, software and training to allow her to work effectively from home. A
February 2013 assessment of Complainant’s position indicates it was, “sedentary and required
researching and reviewing documents, composing contract documents and reports, managing
acquisitions and awards, querying and inputting contract and financial data web-based systems,
using DHS and outside training data web-based systems, producing complex documents such as
Standard Operating Procedures, corresponding via email.”
Complainant explained that in January or February 2012, the Agency’s Office of Accessible
Systems and Technology (“OAST”) conducted a “Needs Assessment” and determined that
Complainant required specific equipment to enable her to effectively telework from home. This
equipment included government-issued laptop, Blackberry, printer and supplies, ergonomic
keyboard, ergonomic and ambidextrous mouse, webcam, Dragon Naturally Speaking Software
(“DNS”), DNS training, USB Hub-4 port, air card, encrypted storage drive (Iron Key) as well as
a recliner chair, two medically adjustable tables, one computer table, laptop docking station, and
PIV card reader. However, Complainant states that management has, as of 2015, provided her
with inadequate or defective accommodations even though these accommodations were
necessary for Complainant to perform her daily work functions while teleworking.
Specifically, Complainant stated that management has failed to adequately provide the
following:
Flexible-time schedule, a reliable laptop computer (between December 2014 and
May 2015, management replaced [her] laptop 4 to 5 times because of image
problems, corrupted files, end-of-life computers and/or obsolete, not enough
memory space/RAM, fire hazards, and network issues); encrypted external hard
drive (received two years after request and it did not have enough storage);
recliner chair (after great delay, [Complainant] purchased on for [herself] with
[her] own funds); an additional computer table ( after great delay, [Complainant]
purchased on for [herself] with [her] own funds); an air card; timely and sufficient
training for the DNS software; an additional computer monitor (the initial second
monitor provided by management was broken and a functioning one was only
provided in November 2015); a functioning docketing station (management
issued [her] a faulty and defective docking station and only replaced it in May
2015); and periodic toner cartridges for the printer.

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Complainant stated that, during the relevant time period, the Acquisition Support Division
Acting Director (“Acting Director”) was her first-line supervisor, and an identified Management
and Program Analyst (“M1”) became the Acting Branch Chief in 2014 and had reviewed
Complainant’s work since January 2015.
A February 20, 2013 OAST assessment indicates that Complainant had received a DNS software
and headset, ergonomic keyboard, webcam, laptop, printer, Blackberry, and air card,7 and
Complainant had purchased a medical recliner chair and over-the-chair rolling table. The
assessment further indicates that Complainant still required the following items: two additional
hours of DNS training, Kensington expert mouse, adjustable keyboard lap tray, a 4 port USB
Hub, Iron Key USB storage device, and use of an air card. Complainant had initially received
prior training for an incorrect version of DNS software which “caused too many failures required
more time to fix documentation and/or data.”
We find that the record supports a finding that the Agency unduly delayed Complainant’s access
to technologies necessary for Complainant to effectively telework from home. The 2012 and a
February 2013 OAST assessment determined that Complainant required a Kensington expert
mouse and an ergonomic keyboard lap tray. Complainant could not operate a standard mouse
due to her “dexterity limitations” and the expert mouse did not require movement of
Complainant’s shoulder or arm and could be used with either her left or right. Because of right
knee surgery and subsequent swelling, Complainant required an ergonomic keyboard tray to
prevent her from resting her ergonomic keyboard on her legs. However, the record indicates that
Complainant was not provided these items until April 2013, almost one year after the OAST
determined that Complainant required these items in 2012.
The February 2013 OAST report also indicated that Complainant required additional DNS
training. The record, however, indicates that the Acting Director approved this training eight
months later on December 8, 2014 without additional explanation for the delay. Complainant
required training on a new version of DNS software because she only knew “basic commands
such as opening/closing applications, turning the microphone on/off/sleep/awake, and the most
very basic text dictation in a Word document.” The record further indicates that Complainant
was unable to schedule any DNS training as of March 11, 2015 because the DNS contactor had
not received a signed quote or a Purchase Order from management for the amount of training
services.
The February 2013 OAST assessment further indicated that Complainant required use of an air
card and an external storage device (iron key USB storage), but the Acting Director waited
almost two years, on June 30, 2015, to deny these requests. In his denial, the Acting Director
stated that an air card was not a reasonable accommodation and that employees were responsible
for providing their own internet access. However, the OAST assessment indicated that the

7 Complainant clarifies in her affidavit that she was in need of a replacement air card.
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Agency had provided Complainant with an air card in 2009, but she was “recently instructed not
to use it.”
The OAST identified the air card as “an alternative mode of internet service” necessary to allow
Complainant to continue to work from home when she encountered connectivity issues.
Presumably, a replacement air card would have helped Complainant on June 26, 2015, when an
IT official determined that Complainant’s government furnished equipment “would not connect
to her home internet either over WiFi or Ethernet cable.” Therefore, the air card was necessary
equipment that would allow Complainant to effectively telework from home.
Similarly, the OAST assessment also identified the external hard drive as necessary equipment
that would provide a safe repository for her to save all of her documents because the P drive was
too small. The Acting Director stated in his denial, that an external hard drive was not a
reasonable accommodation and did not affect Complainant’s ability to meet her performance
expectations. However, the record supports that the IT official submitted a request on November
23, 2015, for Complainant to receive a replacement external hard drive because the external hard
drive she had was failing and the replacement would ensure that her files would not get lost.
Therefore, the record indicates that the external hard drive would have an impact upon
Complainant’s ability to meet her performance expectations.
The record supports that the laptop Complainant received to telework from home was defective
and the subsequent replacement laptop Complainant received still required additional repairs. In
March/April 2013, Complainant stated that she received the first replacement laptop because her
then-laptop was “end-of-life and there was a hole in the bottom of the machine.” Complainant,
however, subsequently received “four or five replacement laptops between December 2014 and
June 2015 because of “end-of-life issues.”
The record further supports that the Acting Director and M1 were aware of these defects. The
Acting Director stated on January 29, 2015, that Complainant’s replacement laptop was “end-of-
life.” Complainant notified the Acting Director on March 12, 2015, and again on April 20, 2015,
that over a month had passed since a ticket had been issued to fix her replacement laptop and
informed the Acting Director that the repairs prevented her from completing her work.
Complainant further notified the Acting Director that she did not have “adequate IT equipment,
software, and training to promptly complete [her] tasks.”
Although Complainant’s laptop was returned to her on May 1, 2015, she soon notified the Acting
Director by email that “the past three days, [she had] been having WAAS network issues which
have impeded on [her] professional performance. This has happened a few times during the day
where it could last from 30 minutes to an hour each time.” Complainant further stated:
Besides trying to do my work and since I just received my laptop, I will be
spending the next few business days working with IT to make sure that everything
is working and transitioning files and emails over from WAAS to my Government
furnished equipment. Please be advised again that besides not access to having
certain software and certain web tools required to do my job in its entirety, a
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WAAS user cannot save anything outside of the network drives or print while
using WAAS on their personal laptop – which also impedes on my professional
performance.
Also, be advised that the DHS-HQ remote team has informed me that both
WAAS and the VPN must not work at the same time – otherwise, the network
and/or software may crash at any point – which also impedes on my professional
performance.
Complainant informed the Acting Director 26 days after getting her laptop back that she still was
unable to save her files on the network. Complainant also informed M1 during a June 2015 one-
on-one meeting that she has had “persistent IT issues which hinders her ability to perform work.”
As late as September 2015, Complainant continued to notify M1 during a one-on-one meeting
that she lost documents because her computer kept shutting down and her files would get deleted
when attempted to save documents on her personal commuter while using WAAS.
On June 26, 2015, an IT support desk official determined that Complainant’s government
furnished equipment “would not connect to her home internet either over WiFi or Ethernet
cable.” A November 23, 2015 email indicates that an IT official determined that Complainant’s
“external hard drive is failing,” she had “an older encrypted hard drive model,” and submitted a
requested “to replace the current model with another encrypted hard drive to ensure there are no
lost files.”
In sum, there is ample evidence in the record to support Complainant’s claim that she was not
properly accommodated when her requests for assistive technology, equipment, software and
training were either unreasonably delayed, denied or did not work properly. The record also
establishes that the Acting Director, as well as M1 when she started reviewing Complainant’s
work, were repeatedly and fully apprised by Complainant of these technological failures, and
their continuing and significant impact on Complainant’s ability to perform her duties.
Performance Counseling Memorandum – Attempt to Rescind Telework

Despite his knowledge of the significant technological challenges Complainant was facing, on
March 17, 2015, the Acting Director issued Complainant a performance counseling
memorandum regarding his and M1’s concerns about Complainant’s work performance. The
Acting Director explained that Complainant had “extensive and ongoing information technology
problems related to [her] hardware, software, and connectivity to DHS networks” requiring that
Complainant use time in troubleshooting these issues, and that this time-use prevented
Complainant from completing her work. As such, the Acting Director determined that full-time
telework has become “an unreasonable hinderance” in Complainant’s ability to perform her job
and recommended that Complainant’s “part-time presence in the office should alleviate IT issues
and facilitate quicker resolution through deskside assistance.” Consequently, the Acting Director
reduced Complainant’s telework schedule to no more than three days per week, requiring her to
come into the office two days per week effective March 31, 2015.
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The Acting Director indicated at the time that no position in the Acquisitions Support Division
was suitable for full-time telework.8 It appears, however, that the alteration to Complainant’s
telework schedule never became effective after Complainant reminded him of her medical
documentation that supported her inability to travel into the office.
In the Performance Counseling Memorandum, the Acting Director further required that
Complainant copy M1 “on all work-related emails, effective immediately.” M1 stated that all
AMB employees were required to copy her on “all contract action email communications,” and
this requirement was not unique to Complainant.
Performance Improvement Plan (PIP)
On August 21, 2015, the Acting Director notified Complainant of his decision to place her on a
60-day PIP.9 The Acting Director explained that Complainant needed to improve in Core
Competency 2: customer service, Core Competency 5: technical proficiency, and Performance
Goal 5: acquisition planning. The Acting Director stated that he believed that Complainant’s
technical proficiency was “contributing to delays” in Complainant’s ability to complete her work
and had caused “problems with the quality of [her] work products.” Regarding acquisition
planning, the Acting Director stated that Complainant’s “work products were turned [in] late,
incorrect and/or incomplete.”
The record, however, supports a finding that the Acting Director used the PIP to undermine
Complainant’s accommodation of full-time telework when its imposition did not account for the
ongoing failure to provide Complainant with technologies and training necessary to effectively
support telework as a reasonable accommodation. The Acting Director did not account, in
justifying the PIP, for any of Complainant’s frequent repairs to her government-issued laptop,
delayed DNS training, and her technological difficulties which resulted in her inability to save
her files to the Agency network. The PIP is also devoid of any suggestion that Complainant had
repeatedly notified the Acting Director that she lacked “adequate IT equipment, software, and
training to promptly complete [her] tasks.”
The record further supports a finding that the Acting Director improperly used Complainant’s
COR appointment removal as a reason for placing Complainant on the PIP. The Acting Director
asserted that Complainant was removed as COR on a contract in May 2015 for “failure to
process invoices timely and effectively administer the IAA.” However, the May 2015 COR
removal termination notice, issued by the Contracting Official, states:

8 However, Complainant, in her brief on appeal, submitted documentation that the Acting
Director stated, in a January 7, 2016 email to M1, that “none of the positions in ASD require
daily face-to-face contact with their supervisor, colleagues, client/customers or the general public
[emphasis added].” He went on to opine that the positions did “require a certain amount of face-
to-face contact [emphasis added]” without defining that amount.

9 Complainant’s PIP was initially for a 60-day period but was extended to a total of 71 calendar
days.
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[Complainant] is hereby terminated as the COR under the subject IAA. This
termination is not performance related. It is only to change the COR on record.

There was no mention in the COR termination that Complainant was removed from her
appointment because of poor performance and the Acting Director, therefore, incorrectly
determined that Complainant’s removal was performance-related.

While the Acting Director references other instances in support of his determination that
Complainant had unsatisfactory performance in Customer Service, Technical Proficiency, and
Acquisition Planning, we are unpersuaded by the Agency’s argument these instances were
sufficient to legitimize placing Complainant on the PIP and does not negate the fact that the
Acting Director failed to provide or delayed providing Complainant with adequate resources as
part of her reasonable accommodation. These facts support Complainant’s contention that the
Acting Director penalized her by placing her on a PIP for alleged work deficiencies which
Complainant explains were related to the Acting Director’s own failure to adequately support her
reasonable accommodation to telework from home.

On December 3, 2015, the Acting Director issued Complainant a Notice of Proposal to Remove
her from her position. In the letter, the Acting Director indicated that Complainant had not
demonstrated that she had met the expectations for the core competencies and performance goal
identified in her PIP. A notification of personnel action indicates that Complainant’s removal
was effective February 9, 2016.
In sum, we conclude that the Agency failed in its duty to reasonably accommodate
Complainant’s disabilities by either not providing Complainant with adequate equipment,
software and training, or unreasonably delaying the provision of necessary technologies, to
support her accommodation of full-time telework which, in turn, negatively impacted
Complainant’s work performance. We further find that the performance counseling
memorandum and the PIP summarizing Complainant’s unsatisfactory work performance directly
resulted from the Agency’s failure to provide Complainant with adequate technologies required
to effectively telework from home as a reasonable accommodation to her disabilities.
Based on our finding that the Agency failed to make good faith efforts to reasonably
accommodate Complainant, we will remand the matter for a supplemental investigation into
whether Complainant is entitled to compensatory damages. Under Section 102 of the Civil
Rights Act of 1991, compensatory damages may be awarded for pecuniary losses, emotional
pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. However, this
section also provides that an agency is not liable for compensatory damages in cases of disability
discrimination where it demonstrates that it made a good faith effort to accommodate the
complainant’s disability. A good faith effort can be demonstrated by proof that the agency, in
consultation with the disable individual, attempted to identify and make a reasonable
accommodation. Schauer v. Soc. Sec. Admin., EEOC Appeal No. 01970854 (Jul. 13, 2001).
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Here, the Agency temporarily and unreasonably revoked Complainant’s telework
accommodation, delayed providing Complainant with necessary telework equipment and
training; provided defective equipment that required continuous repairs, and penalized
Complainant for its own failure to reasonable accommodate her. These actions demonstrate a
lack of good faith in the Agency’s accommodation efforts.

Disparate Treatment: Claims 8 and 12

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).10

Here, the Agency articulated a legitimate non-discriminatory reason for its actions for claims 8
and 12.

Regarding the termination of Complainant’s COR responsibilities (claim 8), the Acting Director
and M1 denied being responsible for this action. Rather, the Acting Director and M1 stated that
only the Contracting Official had the authority to remove an individual from a COR
appointment. The record supports that the Contracting Official recommended and removed
Complainant from her COR appointment. The record includes a May 11, 2015 email indicating
that the Contracting Officer recommended terminating Complainant’s COR appointment.

10 We presume, for purposes of analysis only and without so finding, that Complainant is an
individual with a disability.
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The May 2015 COR removal email states that, “[Complainant] is hereby terminated as the COR
under the subject IAA. This termination is not performance related. It is only to change the
COR on record.”
Regarding claim 12, the record supports that the Agency allowed Complainant to keep her
government-furnished equipment until January 26, 2016 so that she could respond to the
Agency’s proposal to remove her by the January 26, 2016 extended deadline. The record further
supports that the Agency deactivated Complainant’s PIV card access on January 30, 2016, after
the Agency had denied Complainant’s second extension request and after the January 26, 2016
deadline had passed.

The preponderance of the evidence in the record does not establish that these legitimate, non-
discriminatory reasons for claims 8 and 12 are a pretext for discrimination.

Hostile Work Environment: Claims 2-4

To establish a claim of hostile environment harassment, Complainant must show that: (1) she
belongs to a statutorily protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on her statutorily protected class; (4) the harassment affected a term or
condition of employment and/or 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 Agency. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also,
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8,
1994).

In other words, to prove her harassment claim, Complainant must establish that she was
subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant’s position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis – in this case, her
disabilities or prior EEO activity. Only if Complainant establishes both of those elements –
hostility and motive – will the question of Agency liability present itself.

Regarding Complainant’s weekly meetings with M1, M1 testified that she did not supervise any
employees and was not in Complainant’s chain of command but served as a Team Lead and
Acting Acquisition Management Branch (AMB) Manager from January 5, 2015 to November
30, 2015. In this role, M1 assigned, tracked, and reviewed work of AMB staff work
assignments. M1 explained that several of Complainant’s work products (a March 10, 2015
Potomacwave Burn Rate Report, two ITSO Active Contract Lists submitted on June 2, 2015 and
September 23, 2015, and an August 6, 2015 Invoice Status Report) were incomplete or
inaccurate and she provided input to correct the deficiencies. M1 further stated that she provided
feedback to Complainant through weekly meetings and emails.
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The record includes minutes from a June 3, 2015 one-on-one meeting between Complainant and
M1 indicating that Complainant stated, “I am playing catch-up, so that I can complete all of my
outstanding work assignments.” The minutes also indicate that Complainant informed M1 that
“she has persistent IT issues which hinders her ability to perform work.” Complainant also
informed M1 that she “should not be given a new assignment to generate APDS Records . . . in
addition to her other duties.” Regarding Complainant’s workload, M1 explained that
Complainant stated that she had “too much work,” but declined M1’s offer to reassign two of her
assignments. M1 clarified that the quantity of contracts assigned to each staff member varies
because not all contracts are the same. M1 explained that Complainant was the COR on a
major/complex project while other employees were assigned smaller contracts.
While we have already found that Complainant’s perceived performance deficiencies were the
direct result of management’s failure to properly accommodate her disabilities, we do not find
adequate evidence that discriminatory or retaliatory animus played a role in M1’s monitoring of
Complainant’s work or assignment of tasks. Therefore, we conclude Complainant has not
established she was subjected to unlawful harassment by M1.
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed, we find that the Agency violated the Rehabilitation Act when it failed to
adequately accommodate Complainant’s disabilities by providing her with the necessary
technological support to allow her to telework effectively, as well as by issuing her a
performance counseling memorandum and a PIP. To remedy Complainant, we REMAND the
complaint for further action in compliance with this decision and the ORDER below.
ORDER
The Agency is ordered to take the following remedial action:
1. Within 45 calendar days of the date this decision is issued, the Agency shall expunge
from Complainant’s personnel file and from all official Agency records the March 17,
2015 Performance Counseling Memorandum, as well as the August 2015 Performance
Improvement Plan (PIP).
2. Conduct a supplemental investigation within 90 calendar days of the date this decision
is issued, to determine whether Complainant is entitled to compensatory damages and if
so, the amount of damages Complainant is entitled for this violation of the Rehabilitation
Act.

a. Notify Complainant of her right to submit objective evidence based our guidance
in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)11 and

11 For more information on determining compensatory damages: EEOC Management
Directive 110, Ch. 11 § VII (Aug. 5, 2015), available at
https://www.eeoc.gov/federal/directives/md-110_chapter_11.cfm (provides the types of
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request objective evidence from Complainant in support of compensatory
damages (providing an option and instructions to request an extension in the case
of extenuating circumstances).

b. Issue a written decision on the results of the investigation to Complainant with
appeal rights to this Commission.

c. Pay Complainant the determined amount of compensatory damages. If there is a
dispute regarding the exact amount of compensatory damages, the Agency shall
issue a check to the Complainant for the undisputed amount. Complainant may
petition for enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer, at the
address referenced in the statement entitled “Implementation of the Commission’s
Decision.”

3. Within 90 calendar days from the date this decision is issued, the Agency shall
provide at least eight hours of in-person training to the Acting Director regarding his
responsibilities under the Rehabilitation Act with special emphasis on the Agency’s
obligation to provide reasonable accommodations.

4. Within 90 calendar days from the date this decision is issued, the Agency shall
consider taking appropriate disciplinary action against the Acting Director. 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 the Acting
Director has left the Agency’s employ, the Agency shall furnish documentation of his
departure dates.

5. Within 30 calendar days from the date this decision is issued, the Agency shall post a
notice in accordance with the paragraph below.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation of the Agency's calculation of back pay and
other benefits due Complainant, including evidence that the corrective action has been
implemented.

compensatory damages available under Title VII and “Objective Evidence” of entitlement); and
N. Thompson, Compensatory Damages in the Federal Sector: An Overview, EEOC Digest Vol.
XVI, No. 1 (Winter 2005) available at https://www.eeoc.gov/federal/digest/xvi-1.cfm#article
(explains Carle v. Dep’t of the Navy under the subsection “Proof of Damages”).
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POSTING ORDER (G0617)
The Agency is ordered to post at its Headquarters - Acquisition Services Division (ASD) 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 was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's
Decision," within 10 calendar days of the expiration of the posting period. The report must be in
digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29
C.F.R. § 1614.403(g).
ATTORNEY'S FEES (H1016)
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 the date this decision was issued. 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 (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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.
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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 (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (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
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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

March 26, 2019
Date