EEOC Appeal No. 0120132563
08-11-2015
Complainant v. Dep't of the Treasury
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120132563
Agency No. IRS-12-0204-F
DECISION
On June 18, 2013, Complainant filed an appeal from the Agency's May 21, 2013, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customer Service Representative at the Agency's Wage and Investment Service Center facility in St. Louis, Missouri.
The record indicates that Complainant was diagnosed with osteoarthritis, degenerative joint disease, and acute (chronic) lumbar disc disease all causing back pain. She was not at work from May 27 to October 31, 2011, due to a furlough. On November 2, 2011, when Complainant returned to work, she realized that her ergonomic chair which the Agency provided her for her medical condition was missing.
Complainant emailed her manager (Manager) on November 3, 2011, for assistance in locating her ergonomic chair as she was experiencing severe back pain. The Manager tried to locate Complainant's chair by emailing the floor for employees to check for the chair. She also searched for the chair by serial number. When it was not found, she initiated a service ticket to have a replacement chair purchased for Complainant. In response to the service ticket, Complainant was fitted for a chair, but a new one did not arrive until January 18, 2012. Complainant indicated that due to the delay in obtaining a chair for her, she experienced a worsening of her back pain.
On February 14, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when, on or about November 2, 2011, management failed to provide Complainant with an effective reasonable accommodation.
Complainant indicated that she to take leave, including the use of a time-off award, as a result of the chronic back pain she experienced due to the disappearance of her ergonomic chair. She had asked for paid administrative leave for the time her chair was missing. In June 2012, the Manager issued Complainant a Leave Counseling memorandum regarding her "excessive absences/irregular attendance." Complainant subsequently filed an amendment to her pending complaint. She alleged discrimination on the basis of disability when, on June 25, 2012, Complainant received the memorandum.
The Agency accepted both the complaint and the amendment to the complaint. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant initially requested a hearing, but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In making this decision, the Agency found that Complainant was a qualified individual with a disability under the Rehabilitation Act. The Agency then determined that it provided Complainant with a replacement chair. The Agency noted that the delay was caused by the vendor and that the vendor offered Complainant a temporary chair which she declined. The Agency then turned to the issue of the leave memorandum and held that it provided legitimate, nondiscriminatory reasons for its action. The Agency found that Complainant had exhausted her leave and, as a result, was issued the memorandum. In sum, the Agency concluded that Complainant failed to show that the alleged actions constituted a violation of the Rehabilitation Act.
The instant appeal followed. On appeal, Complainant argued that the Agency did not offer her a temporary ergonomic chair while her new one was on order. Further, she claimed that she had to be absent from the workplace due to the ergonomic chair issue and should not have been issued the leave memorandum.
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. (November 9, 1999) (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").
As an initial matter, we find that the Agency failed to correctly frame the claim being raised by Complainant. The Agency found that Complainant alleged two separate claims. We find that, a review of the record clearly showed that Complainant alleged one single claim of denial of reasonable accommodation. As a result of the denial of reasonable accommodations, she was incurred back pains resulting in her use of leave. Based on her leave usage, she was issued the memorandum. Therefore, we find that there is only one claim of denial of reasonable accommodation before the Commission.
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. We note that in its final decision, the Agency specifically found that the evidence of record established that Complainant was an otherwise qualified individual with a disability within the meaning of the Rehabilitation Act.
In the matter at hand, Complainant alleged she was denied a reasonable accommodation when she reported her ergonomic chair was missing on November 3, 2011, and the Agency did not replace it until January 18, 2012. Complainant asserted that the Manager failed to promptly respond to her request. The Manager indicated that she emailed the 8th floor employees to see if someone else had Complainant's chair. She also checked the serial numbers for the chairs, but could not find Complainant's ergonomic chair. Therefore, she indicated that another chair was requested. The Agency found in its final decision that the Vendor committed an error during the ordering that causing the delay.
However, the record does not support this finding by the Agency. The record included copies of emails between Complainant and management regarding the issue of the chair. Although the Manager indicated that she ordered the chair on December 6, 2011, the actual order was not placed until January 6, 2012. The Facilities Management Specialist (Specialist) stated in an email to Complainant that no one had placed the order. In addition, during this time, the Agency argued that Complainant was offered a loaner chair, but declined the chair from the Vendor. Again, this is not supported by the record. The Specialist asked Complainant if she had a loaner chair by email dated January 3, 2012. Complainant stated that there was no loaner chair and that the only chair she had was the one found by management for her to use. Complainant noted that this chair was not effective and had informed management several times starting in November 2011 that the chair was not effective.
An employer should respond expeditiously to a request for reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (revised October 17, 2002) at question 10. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation of the ADA. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would include: (1) the reason(s) for delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. Id. at n. 38.
Upon review of the record, we find that the weight of the evidence shows that the Agency caused the delay in violation of the ADA. We note that Complainant informed the Agency of the missing chair on November 3, 2011. It is reasonable for the Manager to search for the chair as this was not the first time Complainant returned from an absence to find her ergonomic chair missing. However, once the Manager searched for the chair and no chair was found, the Manager should have taken immediate steps to procure another effective chair for Complainant. During this time, Complainant sent several emails stating that she was in pain due to the chair she was using and had to take leave because of her back pain.
However, the Manager waited until December 2011 to submit a request for a new chair, and the new chair was not actually ordered by the Agency until January 6, 2012. There is no explanation for the delay as evidenced by the email from the Specialist to Complainant when she checked on the status of her chair order. Therefore, the record shows that the Agency did not actually order the chair until January 6, 2012. The Manager asserted that Complainant was offered a loaner chair provided by the Vendor. Complainant's testimony, supported by emails from November 2011 to January 2012, contradicts the Manager's assertion. It appears that the Vendor did bring a temporary chair for Complainant. However it was not fitted with the correct cushioning and was not given to Complainant. Accordingly, we conclude that the Agency was primarily responsible for the delay in providing Complainant with a reasonable accommodation.
In addition, Complainant asked for paid administrative leave while waiting for the new chair, which was not granted. Further, due to the Agency's delay in providing her with a chair, Complainant incurred additional back pain which resulted in additional leave and leave without pay usage. As a result, Complainant was issued the leave memorandum by the Manager. We find that that the memorandum was issued as a direct result of the delay in proving Complainant with the ergonomic chair. Accordingly, we determine that the Agency violated the Rehabilitation Act.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following remedial action:
I. The Agency shall remove the June 2012 Leave Counseling memorandum and any references thereto from all of Complainant's personnel records.
II. The Agency shall review Complainant's leave record and restore leave used in connection with the delay in providing Complainant with the ergonomic chair. In addition, the Agency shall provide Complainant with a backpay award for any use of leave-without-pay in connection with the delay in securing the ergonomic chair.
III. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. � 1614.110.
IV. The Agency is directed to conduct training for Manager who was found to have violated the Rehabilitation Act. The Agency shall address the Manager's responsibilities with respect to reasonable accommodation requests.
V. The Agency shall consider taking disciplinary action against the Manager. The Agency shall report its decision. 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.
VI. The Agency shall complete all of the above actions within 120 calendar days from the date on which the decision becomes final.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of backpay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Wage and Investment Service Center copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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. 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 filed your appeal with the Commission. 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. 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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 11, 2015
__________________
Date
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0120132563
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0120132563