[Redacted], Barrett V., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Missile Defense Agency), Agency.

Equal Employment Opportunity Commission

Apr 25, 2022

Appeal No. 2021001566 (E.E.O.C. Apr. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barrett V.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Missile Defense Agency), Agency. Request No. 2021004104 Appeal No. 2021001566 Hearing No. 420-2020-00121X Agency No. 2019-MDA-004-CE DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021001566 (June 3, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). For the following reasons, we DENY the Agency’s request. BACKGROUND At the time of events giving rise to the instant complaint, Complainant worked as a NH-0201-3 Human Resources Specialist at the Agency’s Redstone Arsenal in Huntsville, Alabama. 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. 2021004104 2 On April 23, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on disability (Aurora Vertigo and Irritable Bowel Syndrome) and in reprisal for prior protected EEO activity (request for reasonable accommodation) when: 1. on January 16, 2019, Complainant’s reasonable accommodation request (which took the Agency 71 business days to approve) to telework was approved for only two days per week even though his medical provider recommended more days; 2. on January 18, 2019, Complainant was issued a negative performance appraisal for the rating period of April 15, 2018 through September 30, 2018; 3. on March 8, 2019, Complainant was issued a Notice of Leave Requirements - Time and Attendance by his first level supervisor; and 4. on April 16, 2019, Complainant was issued a memorandum regarding performance expectations which referenced dates from the preceding year. After its investigation into the accepted claim, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested an AJ hearing but subsequently withdrew his hearing request. On December 8, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. Complainant appealed. The appellate decision in EEOC Appeal No. 2021001566 affirmed in part and reversed in part the Agency’s final decision. In our prior decision, we found that the Agency unreasonably delayed processing Complainant’s October 1, 2018, reasonable accommodation request as alleged in Claim 1. Complainant provided a note from his physician dated October 1, 2018, that identified his diagnosis and his medical limitations and recommended various accommodations, including situational telework. On November 18, 2018, more than one month after he submitted his request, the Agency requested clarification regarding the end date for Complainant’s need for situational telework. Complainant’s physician estimated that Complainant would require situational telework through March 31, 2019. On January 22, 2019, Complainant was approved for two days of situational telework per week, not to exceed March 31, 2019. Our previous decision found that there was no reasonable explanation for why the Agency took three months to process Complainant’s request for accommodation. Although Complainant’s second-level supervisor (S2) stated she believed there was a delay because it was difficult to determine when to start accommodating Complainant, the record reflected that Agency officials were more concerned with when the accommodation of situational telework would end. Moreover, the Disability Program Manager (DPM) stated that she was uncertain why the process was delayed but noted that she informed Complainant’s first-level supervisor (S1) and S2 that they had exceeded the Agency’s 30-business day deadline to respond. We concluded that the record did not establish that the Agency in acted in good faith in responding Complainant’s reasonable accommodation request. We ordered various remedies, including a supplemental investigation concerning Complainant’s entitlement to compensatory damages. 2021004104 3 Regarding his remaining claims, we found that Complainant failed to establish that he was subjected to discrimination. The Agency filed the instant request for reconsideration. The Agency contends that the appellate decision was based on clearly erroneous interpretations of material fact and of law. According to the Agency, Complainant contributed to the delay in processing his request for reasonable accommodation because he was absent from work for 25 days and because he delayed providing medical documentation, to which the Agency attributes 17 days of delay. According to the Agency, of the 71-day delay, 42 days of delay were attributable to Complainant, and seven days were due to federal holidays from October 2018 through January 2019. The Agency requests that its final decision finding no discrimination be affirmed. In response to the Agency’s request for reconsideration, Complainant contends that his absences had no bearing on the Agency’s ability to process his request. Complainant also asserts that, on November 19, 2018, management unreasonably demanded he provide an end date for his medical limitations even though his medical provider already stated that his prognosis was unknown and that, therefore, Complainant did not cause a delay as alleged. ANALYSIS AND FINDINGS The Agency contends that the Commission erred in finding that the Agency unreasonably delayed processing Complainant’s request for reasonable accommodation. In support of this argument, the Agency cites the Commission’s decision in Justine R. v. Dep’t of Agric., EEOC Appeal No. 0120181093 (June 25, 2019), req. for recon. denied, EEOC Request No. 2019005955 (Jan. 31, 2020). In Justine R., the Commission found that, although it took approximately eight months to approve complainant’s request for accommodation, the agency did not unreasonably delay providing a reasonable accommodation because much of the delay was due to complainant’s extended absences from work and her delays in completing the necessary forms. Id. In Justine R., complainant’s medical restrictions prevented her from working at all for weeks at a time. Id. Her agency email address was deactivated for a period of time, and complainant did not complete requested forms for nearly two months. Id. However, we find that the instant case is distinguishable from Justine R. Here, Complainant provided the Agency with medical documentation in early October 2018,2 that reflected that he was able to work if he was able to telework one to four days per week when experiencing symptoms if he was near a restroom, could shift positions frequently, and could lie down for a few minutes when experiencing vertigo. Report of Investigation (ROI) at 28-35. Without the ability to telework, Complainant was forced to take sick leave when his medical conditions prevented him from traveling to the office, whereas in Justine R., the complainant was medically unable to work for significant amounts of time even with a reasonable accommodation. If the 2 On request for reconsideration, the Agency contends that, although the medical documentation is dated October 1, 2018, Complainant did not provide it to the Agency until October 9, 2018. This does not affect our analysis. 2021004104 4 Agency had timely processed Complainant’s request for accommodation or provided an interim accommodation while considering his request, the record reflects that Complainant would not have needed as much leave. Further, although the October 2018 medical documentation was clear regarding Complainant’s current limitations and need for accommodation, one month later, on November 18, 2018, the DPM asked Complainant to provide additional documentation about the end date for Complainant’s need for situational telework. Complainant provided the requested documentation on November 29, 2018, which is not comparable to the nearly two-month delay caused by the complainant in Justine R. Even after Complainant provided the requested documentation, Agency did not offer Complainant a reasonable accommodation until January 22, 2019, more than three months after receipt of medical documentation demonstrating Complainant’s need for accommodation and nearly two months after receipt. The Agency has not provided a reasonable explanation for the delay. We do not find that the Agency has shown that the Commission’s determination, that the Agency unreasonably delayed processing Complainant’s request for reasonable accommodation was clearly erroneous. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. CONCLUSION The Agency’s request for reconsideration is DENIED. The decision in EEOC Appeal No. 2021001566 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the ORDER as set forth below. ORDER The Agency is ORDERED to take the following actions: 1. Within thirty (30) calendar days from the date this decision is issued, the Agency shall determine and restore the sick leave days Complainant took from October 1, 2018, through January 22, 2019, - the period Complainant’s reasonable accommodation request was pending. 2. Within sixty (60) calendar days from the date this decision is issued, the Agency shall conduct a separate investigation into Complainant’s entitlement to compensatory damages regarding the Agency’s failure to timely process Complainant’s reasonable accommodation request (Claim 1) and issue a decision on compensatory damages thirty (30) days after the investigation is completed. 3. Within ninety (90) calendar days from the date this decision is issued, the Agency will provide S1 and S2 a minimum of eight (8) hours of in-person EEO training 2021004104 5 focusing on processing reasonable accommodation requests and the Agency’s responsibility to timely respond to these requests. 4. Within thirty (30) calendar days from the date this decision is issued, the Agency shall post a notice in accordance with the statement entitled “Posting Order.” 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 evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Redstone Arsenal facility 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). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. 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 2021004104 6 complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. 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 April 25, 2022 Date