0120142904
10-18-2016
Will K.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Will K.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120142904
Hearing No. 410-2013-00204X
Agency No. 200I05082012102236
DECISION
Complainant filed an appeal from the Agency's July 9, 2014 final order concerning his equal employment opportunity (EEO) complaint. He alleged 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Supply Technician, at the Agency's Sterile Processing Department (SPD), Nursing and Patient Services facility in Decatur, Georgia.
Complainant contacted an EEO counselor on March 30, 2010, and again on March 16, 2012 and April 13, 2012, alleging discrimination. On May 2, 2012, Complainant filed this EEO complaint. Specifically, he alleged that the Agency discriminated against him based on "disability, race, sexual harassment (male) when, after he was released by the doctor to return to work following a heart attack, and after he reported back for duty, he was sent home and 'not allowed to return to duty until restrictions were either lifted or expired.'" He also alleged that management continued to harass him, by charging him with Absence without Leave (AWOL), making false claims against him, and issuing multiple disciplinary actions against him.
Complainant identified four officials as the alleged responsible management officials: Assistant Manager of SPD ("RMO1") (African-American woman); Manager of SPD ("RMO2") (Caucasian male); Associate Nurse Executive of the Perioperative Specialty Surgery Clinics ("RMO3") (Caucasian female); and Associate Director ("RMO4") (Caucasian female).
The Agency framed the accepted issues as alleging a single hostile environment claim, which was that the Agency subjected Complainant to a hostile work environment on the bases of race (African-American), sex (male), and disability (service-connected mental health condition, heart condition), when:
1. On March 30, 2010, Complainant requested a copy of his performance appraisal, but he did not receive it until June 30, 2010.
2. In April 2010, Complainant's [former] supervisor told him that as part of a new plan, the work shifts would be rotated.
3. Starting on or about October 22, 2010, it took several months before the complainant was allowed to take possession of an empty locker.
4. On November 10, 2010, management did not respond to Complainant's report of contact (ROC) addressing a supervisor yelling at Complainant.
5. On April 28, 2011, his supervisor (RMO1) summoned the police and had Complainant escorted out of his department by VA police officers.
6. On May 11, 2011, after Complainant sent a letter to the Director, addressing the harassment to which he was being subjected, the director's response was not what he "would have liked."
7. On July 9, 2011, Complainant's supervisor (RMO1) did not respond to Complainant's request to have an audit conducted of his sick leave usage.
8. On July 30, 2011, RMO1 did not respond to Complainant's request to change his tour of duty.
9. On August 9, 2011, management denied Complainant's request for a shift change to permit him to go to his medical appointments.
10. On October 5, 2011, Complainant was accused of damaging government equipment.
11. On October 20, 2011, after Complainant became a member of the union, he received "harassment" from RMO1 when he requested an authorized absence to conduct union duties.
12. On at least two occasions, RMO1 accused Complainant of being absent from his work area (October 21 and December 9, 2011).
13. On February 14 and 29, 2012, Complainant was not cleared to return to work even though he submitted medical documentation from his physician that cleared him for duty.
14. On March 16, 2012, management sent Complainant home after his physician provided a statement, informing the Agency that Complainant could not lift anything weighing more than 20 pounds.
15. Complainant was suspended for 14-calendar days, effective May 6-19, 2012.2
The Agency accepted the complaint and conducted an investigation into its allegations. The evidence gathered shows that Complainant was a Medical Supply Technician, GS-0622-06. According to his position description, he was the primary liaison between the Sterile Processing Department (SPD) and the Operating Room Suite. He insures that the case-carts and other supplies are readily available for surgical use. He processes, cleans and decontaminates supply items. The work requires some standing and walking and the lifting of supply packages that occasionally can weigh as much as 25 pounds.
The record shows that on February 21, 2006, the Veterans Administration determined that Complainant had a service-connected disability of paranoid schizophrenia. ROI, p. 535. The disability is permanent. ROI, p. 422. In addition, the VA recognized this as a permanent "serious handicap that impacted his employment."
For the period ending September 30, 2010, the record shows that Complainant's former supervisor, who was not named in his EEO complaint, rated his work performance as "minimally satisfactory." In August 2010, this same supervisor had issued Complainant a counseling letter for being AWOL.
On January 18, 2011, RMO1 became his supervisor. RMO1 acknowledged that she was aware of his disability. Complainant averred that RMO2 knew about his disability because Complainant shared it with him. RMO2 averred that he was aware of Complainant's "medical condition/illness."
Copy of performance appraisal
On March 30, 2010, Complainant requested a copy of his performance appraisal from RMO2 and RMO3. RMO2 stated that Complainant had previously made numerous requests for a copy and was informed to request a copy from Human Resources, because Complainant had already been given a copy. Complainant did not receive the copy of his appraisal until June 30, 2010. As a consequence, he alleged that he was unable to compete for a promotional opportunity which required him to submit his most recent performance appraisal.
Shift change
From the time he started in his position, Complainant worked the night shift, which allowed him to go to his medical appointments during the day. He was then informed that all employees were to be rotated into the day shift in order to receive training. Complainant alleged that after he received the training on the day shift, he requested that he be returned to the night shift. RMO2 denied his request to return to the night shift.
RMO2 stated that there were concerns that Complainant would "disappear" while working on the night shift, so he decided he should remain on days where there was "the strongest supervision." Complainant later asked RMO1, who also denied his request. RMO1 stated that by the time she became Complainant's supervisor he was already working full-time on the day shift. She stated he needed to be on the day shift in order to continue to receive training from the nurse educator, who only worked days.
Locker
Complainant requested permission from RMO2 to use an empty locker. He was granted permission, but was told he had to share the locker with other employees as there were only four lockers in the area. Complainant wanted his own locker, with his own lock on it all the time. RMO2 stated that Complainant had every right to use the locker when he was working there, but not on the dates he was not working in the de-contamination area. Complainant testified that he needed to store his medications. RMO1 disclaims knowledge of this issue, stating that this was prior to her assignment within Complainant's chain of command.
Management failed to respond complaint about supervisor's yelling
The record is unclear as to which date, and which supervisor, is charged with yelling. The supervisor identified by the Agency (in its acceptance letter) did not become Complainant's supervisor until January 18, 2011, after the event in question. The supervisor (RMO1) denies that she yelled at Complainant. The evidence showed that the supervisor (RMO1) was described by Complainant's witness as having a "military" manner and being brusque to everyone.
Escorted out of his department
On April 27, 2011, the day prior to his being escorted out of the building, Complainant had filed a Report of Contact against RMO1 with the Director. Complainant stated that RMO1 used this to instigate a heated argument with him. The next morning when he arrived for work, RMO1 questioned him about his leave. Complainant stated that he "had entered his leave." RMO1 disagreed. Complainant testified that RMO2 was sitting right outside the door. RMO2 denied that he heard the commotion and failed to take action.
RMO1 stated that Complainant had invaded her space and she did not know what Complainant might do next and she called to VA police and asked that they escort Complainant out of the department.
Complainant said he believed that "the real reason [for calling the police] was because he had met with the Director the night before to present a ROC [Report of Contact]" regarding RMO1. He claims hostile environment because "management has failed to stop [RMO1] from harassing me." B-1. Complainant averred that "management did nothing, absolutely nothing, to stop [her] from harassing [him] and subjecting [him] to harassment...especially after [he]decided [he] wanted to be a union steward."
Agency failed to act after harassment alleged
On May 10, 2012, Complainant sent an email to the Medical Center Director ("RMO6") (Caucasian male). In Complainant's email to RMO6, Complainant again stated his belief that he was being harassed in the work place. He claimed that the Agency failed to take steps to address his concerns. Complainant sent copies of the email to RMO2, RMO3, RMO4, and RMO5. Complainant attached his Reports of Contacts to the emails.
RMO6 acknowledged, in writing, management's receipt of the documents on or around May 11, 2011. In the response, RMO6 indicated he would forward Complainant's concerns to Human Resources to conduct an inquiry into the matter and report back to management for appropriate action, if any. RM)6 copied Complainant's union on the acknowledgment. Complainant stated he believed that the Director "allowed the hostile work environment to continue by the fact that he did not do anything about."
In July of 2011, two months after he sent an email complaining of retaliatory harassment, RMO1 issued Complainant a counseling letter for insubordination. On October 18, 2011, the Associate Director of Nursing (RMO3) issued Complainant a written reprimand.
Denied an audit
Complainant alleged that he had to use sick leave to attend medical appointments. He said he asked ROM1 to conduct an audit of his sick leave. RMO1 did not respond to Complainant's request to have an audit conducted of his sick leave usage. RMO1 stated that employees have been given instructions on printing out their leave requests and on how to check their own leave balances on the computer.
Accused of damaging equipment
On October 5, 2011, RMO1 accused Complainant of damaging government equipment and issued a removal notice. He denied damaging the equipment, but the record links Complainant to the damaged equipment. RMO1 stated that Complainant's name was tagged on the items, and he was assigned to work in that area." RMO2 averred in his deposition that "through tracking, it was shown that Complainant was the one who scanned the piece of equipment, he was the one that processed it, and that was the item that was broken twice."
On October 18, 2011, RMO3 issued Complainant a written reprimand for unauthorized absence, failure to follow proper leave requesting procedure and damage to government equipment. RMO3 did not testify at the hearing and was not called by the Agency.
Harassment after Complainant requested time to conduct union duties
In October of 2011, RMO1 denied Complainant's request for authorized absence to conduct union duties. RMO1 stated that she denied the request per the direction of the Human Resources Chief ("RMO5") (African American female). RMO1 received an email from the Chief of Human Resources informing her that there were now four full-time union stewards and other staff, like Complainant, who had been conducting union business in addition to their regular duties were no longer authorized to do so on official time.
Absence from work area
On at least two occasions, RMO1 accused Complainant of being absent from his work area (October 21, 2011 and December 9, 2011). On these occasions, she stated that Complainant returned back to work late from his authorized breaks.
On January 25, 2012, RMO4 authorized a three-day suspension for unauthorized absence. ROI, Exhibit 6, pages 246-247. RMO4 did not testify at the hearing.
Complainant not permitted to return to work until medical restrictions were lifted
On January 29, 2012, Complainant suffered the first of two heart attacks. A second occurred two month later in March 2012. On both occasions, he went to the emergency room, and was later permitted by his physician to return to work with a light duty restriction not to lift over twenty pounds. He provided management with the light duty letter from his physician. Both times Complainant was not permitted by management to return to work until the weight restriction limitation of 20 pounds was lifted or expired.
RMO1 stated that when Complainant gave her his return to work letter from the hospital, she instructed him to report to the employee health unit for a clearance that he could perform the duties of his position description. RMO2 acknowledged that Complainant had been cleared by his physician to come back to work with restrictions, but the restrictions were viewed as outside of Complainant's position description that required the lifting of trays sometimes weighing over 25 pounds. RMO3 confirmed that management did not have a light duty position for him and he would have to either take annual leave or sick leave.
According to Complainant, management permitted others with weight-lifting restrictions to work in the same area where Complainant worked, but did not permit him to work, claiming there was no available work within his restriction. The record shows that the Agency did permit several others employees in Complainant's work area with 20 pound restrictions to return to work with light duty assignments. Two of the individuals given light duty were Black males, who also had to lift loaner trays similar to the ones Complainant had to lift.
Management witnesses stated that these employees were on workers' compensation, while Complainant was not. Complainant claimed that he tried to apply for workers' compensation, but management delayed the proper submission of his paperwork for so long that his claim was denied.
May 6 to May 19, 2012 suspension
On April 24, 2012, Complainant was issued a fourteen-day suspension by RMO4, effective May 6th through May 19, 2012, for AWOL and failure to follow leave requesting procedures. The suspension had been proposed by RMO3 on March 29, 2012. The suspension decision does not contain details of the asserted infractions. However, the record contains numerous memoranda and reports of contact concerning management communicating to Complainant that he was not properly submitting leave requests or was extending his breaks without authorization. He was warned that failure to correct his actions would result in being charged with AWOL.
RMO4, who was the sustaining official for the suspension, stated in her deposition that she reviewed Complainant's employment file and confirmed that Complainant had a prior suspension for episodes of AWOL, failure to follow instructions and conduct unbecoming a federal employee.
Complainant filed a grievance on the May 2012 suspension. As a result, on July 2, 2012, RMO4 rescinded the April 24 notice of suspension and reissued the suspension, retroactive to May 6 - 19, 2012, with a more detailed recitation of Complainant's prior disciplinary record. Complainant did not dispute that he received repeated disciplinary actions in the past for similar offenses, but argued that the reasons for them were not legitimate.
Hearing Before EEOC Administrative Judge
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
The AJ held a two-day hearing that began on May 29, 2014. The AJ addressed a single issue during the hearing and in the decision. That issue was whether the Agency subjected Complainant to a hostile work environment because of his race, sex or disability.
During the hearing, Complainant called three witnesses, in addition to himself. The Agency called only one witness, RMO1, who became Complainant's supervisor on January 18, 2011. The AJ allowed RMO1 to testify and introduce into evidence exhibits regarding the incidents and disciplinary actions, including those that occurred in 2010, before she became Complainant's supervisor. All of the Agency's testimony was allowed to be introduced through the single witness and the Agency's documents were permitted to be moved into evidence based on the testimony of RMO1.
At the end of the hearing and before he rendered his bench decision, the AJ asked each party whether they had any objection to the handling of the hearing. Neither party objected to the hearing process.
On June 27, 2014, the AJ issued a brief bench decision concluding Complainant had not established his claims of disability, race or sex discrimination. In essence, the AJ found race and sex were not a factor because RMO1 was also African American and two of Complainant's witnesses, "Both black males, received light duty." The AJ also referenced the testimony of the witnesses that RMO1 was "degrading to all of her employees" and "was very military in her demeanor."
The AJ also found that "Complainant did not dispute the charges for which he was disciplined", but "he testified that he thought that [RMO1] mistreated him because of his disability." He found that Complainant was not an individual with a disability. In reaching the conclusion that Complainant was not an individual with a disability, the AJ referenced Complainant's reply, when the AJ asked him what major life activities were impaired by his disability, Complainant said "parachuting, Six Flag rides, and carrying medicine and my card." The AJ found that "[T]hese are not major life activities and thus I find that he is not a qualified individual with a disability under the Rehabilitation Act."
The AJ concluded, "In sum, I find no evidence that Complainant was discriminated against by the Agency because of his race, sex or disability."
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed.
Neither party submitted a brief on appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
As an initial matter, we find that a fair reading of Complainant's allegations shows that he has essentially raised two, rather than one, claim. First, as identified by the AJ and Agency, Complainant has alleged that he was subjected to ongoing harassment/hostile work environment because of his race, sex and disability. Second, we conclude that Complainant has also raised a claim of failure to reasonably accommodate his disability.
Harassment/Hostile Work Environment Claim
To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
To prove his harassment claim, Complainant must establish that he 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, because of his race, sex or disability. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
In finding Complainant failed to establish a prima facie case of race or sex discrimination, the AJ noted that the named management official (RMO1) is of the same race as Complainant and that two of Complainant's witnesses, who were also black males, had received light duty while Complainant was denied the same. We disagree with the holding that race discrimination was disproved simply because RMO1 was African-American. Moreover, the record shows that the 14-day suspension, the denial of return to work, and other personnel actions at issue were recommended or sustained by managers who are not African-American.
With regard to his disability claims, we consider whether Complainant was disabled within the scope of the Rehabilitation Act. The AJ found that Complainant did not establish that he had a medical condition that substantially limited a major life activity. However, we find that the AJ's finding and conclusion of law that Complainant was not an individual with a disability is contradicted by the record evidence that the Agency itself acknowledged him as having a "substantial handicap" and the undisputed testimony that the Agency took action against him based on its perceptions that he could not perform the essential duties of his position due to his medical condition. Therefore, we reverse the AJ's determination with that Complainant was not an individual with a disability as defined in the Rehabilitation Act.
Although we disagree with the AJ's analysis on the points discussed above, we concur with the ultimate conclusion that Complainant failed to prove that the incidents which comprised his claim of ongoing harassment occurred because of his race, sex or disability (with the exception of his reasonable accommodation claim which will be discussed below). Other than Complainant's bare assertions, there is simply no evidence that his race, sex or disability played any role in the disputed events. On the other hand, the evidence of record, gathered both during the investigation and at the hearing, provides an articulation by responsible management officials of legitimate, non-discriminatory reasons for the actions taken. This testimony is bolstered by evidence that shows that Complainant's supervisor prior to the events at issue, who was not named in his EEO complaint, had also counseled Complainant for being AWOL and had rated his work performance as "minimally satisfactory." While Complainant contests the fairness of many management decisions, he has not provided any evidence that discriminatory factors motivated these actions.
Accordingly, we affirm the Agency's final order concluding Complainant failed to prove his claim of ongoing discriminatory harassment.
Denial of Reasonable Accommodation
The Agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. �� 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act ("Enforcement Guidance on Reasonable Accommodation"), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Dept. of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015).
Here, while not analyzed by the AJ or the Agency, the record shows that Complainant made two separate reasonable accommodation requests. First, Complainant asked to be returned to the night shift in order to accommodate his frequent medical appointments necessitated by his disabling conditions. Second, after he returned to work following his heart attacks, he asked to be allowed to work with his medical restriction which prevented him from lifting more than 20 pounds. Agency management denied both requests.
To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a "qualified" individual with a disability, pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See Enforcement Guidance. As already discussed, the evidence indicates that Complainant is an individual with a disability. The record also shows that he was a "qualified" individual with a disability as he satisfied the skill, experience and educational requirements for the position, and could perform the essential functions of the position with or without accommodation.
With regard to the request to return to the night shift, the record shows that Complainant was originally moved to the day shift in order to obtain training from the nurse educator, who only worked days. However, the record indicates that even after the training was completed, management denied Complainant's request to return to nights. RMO2 stated that the continued denial was to provide Complainant with more close supervision due to his tendency to "disappear" when he was on the night shift. Based on this evidence, we conclude that the Agency failed to establish it would have been an undue hardship to grant Complainant's request to return to the night shift. It appears that the same duties were available on both the day and night shifts. The Agency offered no proof that Complainant had not completed his training with the nurse educator or that there was inadequate supervision on the night shift. At a minimum, the Agency failed to consider rotating Complainant's shifts between days and nights in order to accommodate his need for frequent medical appointments.
Complainant also requested that his lifting restriction be accommodated after he was released by his doctors to return to work following his heart attacks. Complainant was restricted from lifting more than 20 pounds, and management witnesses stated that his job sometimes required him to lift "loaner" trays that were over 25 pounds. First, the Agency offered no evidence establishing the lifting more than 20 pounds was an essential function of Complainant's position. Complainant and his witnesses said that lifting more than 20 pounds rarely occurred. Management witnesses stated that "some" of the trays weighed more than 25 pounds. However, there was no evidence offered of how often lifting in excess of 20 pounds was required, or why there were no alternatives to seek help in lifting heavy objects. An employer cannot require an employee to return to work to "full duty" if the employee cannot perform marginal functions because of a disability or requires reasonable accommodation that would not impose an undue hardship. Reasonable accommodation can include restructuring a position to reallocate or redistribute functions that are marginal which the employee cannot perform because of a disability. See Enforcement Guidance on Reasonable Accommodation.
Any Agency claim of undue hardship is significantly undermined by the fact that other similarly situated employees with similar lifting restrictions were permitted to work. Management witnesses attempted to justify this by stating that these employees were on workers' compensation and Complainant was not. The purpose of the workers' compensation law is to provide a system for securing prompt and fair settlement of employees' claims against employers for occupational injury and illness. The Rehabilitation Act is broader, prohibiting federal agencies from discriminating against all qualified individuals because of disability, whether work-related or not, in all aspects of employment. If an employer reserves light duty positions for employees with occupational injuries, the Rehabilitation Act requires it to consider assigning an employee with a disability who is not occupationally injured to such positions as a reasonable accommodation. The employer cannot establish undue hardship by asserting it needs to reserve its light duty for employees approved by workers' compensation. See EEOC Enforcement Guidance: Workers' Compensation and the ADA, EEOC Notice No. 915.002 (September 3, 1996), Question 28.
For these reasons, we find that the Agency violated the Rehabilitation Act when it denied Complainant's requests for reasonable accommodation regarding returning to the night shift and being allowed to work with a 20 pound lifting restriction.
CONCLUSION
Accordingly, we MODIFY the Agency's final order adopting the AJ's decision and REMAND the matter to the Agency for the following remedial relief.
ORDER
The Agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days from the date of this decision, the Agency shall permit Complainant, at his request, to return to the night shift to permit him to schedule his medical appointments during the day. The Agency is also reminded of its ongoing responsibility to provide Complainant with needed and effective reasonable accommodations.
2. No later than sixty (60) calendar day from the date of this decision, the Agency shall determine the appropriate amount of back pay (with interest, if applicable) lost by Complainant because of its denial of his request to return to work with the 20 pound lifting restriction. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount. Complainant may petition for enforcement or clarification of the amount in dispute. Complainant must file his or her petition for clarification or enforcement with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. Within thirty (30) days of the date this decision, the Agency shall determine and restore to Complainant the appropriate amount of leave he used, if any, as a result of its denial of his request to return to work with the 20 pound lifting restriction.
4. The Agency is directed to conduct training for RMO1, RMO2, and RMO3, on their responsibilities under the Rehabilitation Act to provide reasonable accommodation to individuals with disabilities.
5. The Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages and shall afford Complainant an opportunity to establish a causal relationship between the denial of reasonable accommodation and any pecuniary or non-pecuniary losses. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages, and shall provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages. 29 C.F.R. � 1614.110. The supplemental investigation and issuance of the final decision shall be completed within one hundred and twenty (120) calendar days of the date of this decision. The Agency must submit a copy of the final decision to the Compliance Officer, as referenced below.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision."
ATTORNEY'S FEES
If complainant has been represented by an attorney (as defined by 29 C.F.R. �1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complainant 29 C.F.R. �1614.501(e). The award of attorney's fees incurred 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.
POSTING ORDER
The Agency is ordered to post at its Sterile Processing Department, Nursing and Patient Services facility in Decatur, Georgia 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if Complainant or the Agency submits a written request containing arguments or evidence which tends 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. The requests 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 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 (R0610)
This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
October 18, 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 On September 18, 2012, the complaint was amended to add claim 15. See Report of Investigation (ROI), Exhibits A-5 and A-6. We note that the personnel action referenced in claim 15 occurred after the filing of the complaint at issue. The record indicates that the Agency considered the claim as part of the harassment claim and referenced the claim in its decision.
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