0120152916
11-09-2017
Doria R,1 Complainant, v. France A. Cordova, Director, National Science Foundation, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Doria R,1
Complainant,
v.
France A. Cordova,
Director,
National Science Foundation,
Agency.
Appeal No. 0120152916
Hearing No. 570-2014-00321X
Agency No. NSF-EO-10-002
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 30, 2015, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission MODIFIES the Agency's final decision.
ISSUES PRESENTED
The issues presented in this case are:
1) Did the Agency properly find that Complainant did not prove that she was subjected to unlawful harassment or disparate treatment based on her age, disability, and prior EEO activity;
2) Did the Agency properly find that Complainant did not prove that she was denied a reasonable accommodation for her disability; and
3) Is Complainant entitled to be reimbursed by the Agency for the cost she paid for a copy of the hearing transcript.
BACKGROUND
Complainant began working for the Agency in 1982. At the time of events giving rise to this complaint, Complainant worked as a GS-13 Grant and Agreement Specialist/Grants Officer (Specialist) within the Agency's Division of Grants and Agreements, Office of Budget, Finance and Award Management in Arlington, Virginia. In this position, Complainant mainly reviewed and processed grants, fellowships, and cooperative agreements. In 1997, Complainant was diagnosed with breast cancer, which went into remission after treatment. In 2009, Complainant learned that the cancer had returned in Stage IV and had metastasized to her bones and caused fractures in her spine.
At the beginning of the relevant time period, Complainant generally teleworked twice a week, in accordance with the Agency's telework agreement with employees. On January 4, 2010, Complainant requested that the Agency provide her with two core days of telework per week under a revised telework agreement, temporarily reduce her workload, and if her workload could not be reduced, to be reassigned. With this request, Complainant submitted a letter from her physician that stated that Complainant was being treated for recurrent breast cancer, and her treatment included intravenous infusions. The physician also reported that Complainant took medication with the side effects of back pain, depression, nausea, and fatigue. Complainant also informed the Agency that her three-hour commute was difficult because she was forced to stand for long periods on the Metro public transportation system, which threatened to aggravate her injured spine. On January 26, 2010, the Agency's Disability Program Manager emailed Complainant with a request that she provide additional documentation from her physician to support her accommodation request, including the nature, severity, and duration of her medical condition, her limitations, how her medical condition impacts her ability to perform her job, and how the requested accommodations would assist her in performing her job duties.
On February 13, 2010, Complainant was injured in a car accident, which exacerbated her spine fractures. On February 22, 2010, Complainant requested a five-day telework schedule on the basis that her physician did not want her traveling to work and attached a statement from the physician in which he stated that Complainant had deteriorated after the car accident, was in definite risk for the development of paralysis, and should avoid excessive travel and continue to work from home. Complainant also informed the Agency that she needed to telework five days per week until she could be scheduled for spinal surgery and during post-operative recovery, and she did not think the surgery would be scheduled until May 2010 because she needed radiation prior to surgery to address the cancer metastasis in her spine. Additionally, Complainant reiterated her request for a reduced workload and sick leave when unable to work.
On February 18, 2010, Complainant requested to telework on February 25, 2010 on the basis that her surgeon did not want her traveling to work but approved her to telework. On February 18, 2010, after meeting with his superiors, S1 denied the request based on "statistics" regarding Complainant's work productivity. However, S1 also requested that Complainant send medical documentation containing a detailed description of her medical condition and estimated projection for any time needed out of the office. On February 24, 2010, Complainant told S1 that she had already submitted the requested medical documentation to the Disability Program Manager and could not return to work until after her surgery and subsequent recovery.
In a letter to the Agency from Complainant's physician dated March 8, 2010, the physician stated, in relevant part, the following:
The patient states that in spite of my specific instructions that she should not be traveling on public transportation given her acute fracture, she has been denied the ability to work remotely from her home. I believe it is absolutely mandatory and a significant risk to the patient if her job requires her to travel in public transportation to go to and from the office until her fracture is stabilized surgically. This is a significant and serious problem and the patient has cancer so there should be no issues with approving this by a government agency.
Report of Investigation (ROI), F1a-4.
On March 10, 2010, the Director of the Office of Diversity and Inclusion (ODI Director) asked Complainant's attorney to provide documentation from Complainant's physician that illustrated what her limitations might be and whether an alternative accommodation would be sufficient, such as two or three days of telework combined with periodic breaks during the workday. In response, Complainant provided a March 24, 2010 note from her physician that reiterated that he had advised the Agency that Complainant be allowed to telework five days per week to further compression and the chance of paralysis caused by commuting. The physician further stated that Complainant was substantially limited in her ability to sit, stand, and walk and remained at risk of paralysis until she was completely healed. The physician also stated that he did not believe that taking breaks at work would accommodate Complainant, and the restrictions would remain after surgery.
On April 7, 2010, Complainant underwent surgery to stabilize her spine and remained off work until July 2010. On May 10, 2010, the ODI Director asked Complainant's attorney to provide information from her physician indicating whether she could perform the essential functions of her job because she could not sit, stand, or walk; when her surgery would be; the duration of the accommodation after surgery; and if there was post-surgery plan. On May 10, 2010, Complainant's attorney asked the ODI Director to explain the business necessity for requesting additional information, and the ODI Director responded that the Disability Program Manager would respond to the inquiry. On June 10, 2010, the Agency submitted a three-page request for additional detailed medical information from Complainant. The request asked Complainant's physician to address each duty described in Complainant's position description and Complainant's ability to perform each duty with or without an accommodation.
On July 13, 2010, Complainant returned to work following surgery. On July 30, 2010, Complainant requested a third "floating day" of telework per week, in addition to her regular twice per week telework schedule. On August 9, 2010, the Agency's Senior Advisor in the Office of Equal Opportunity Programs (EEO Senior Advisor) responded that the Agency needed the medical documentation requested on June 10, 2010 so that it could process Complainant's reasonable accommodation request. On August 31, 2010, Complainant's attorney responded that Complainant had already provided medical documentation responsive to the Agency's June 2010 request, and asked the Agency to provide interim accommodation while it processed the request. On October 12, 2010, Complainant provided the Agency with an updated medical report from her physician that indicated that she would not reach maximum improvement until at least one year after her April 2010 spinal surgery, and that Complainant should be allowed to telework for one additional day per week because of her pain, fatigue, treatment, and side effects from medication.
On November 9, 2011, the Agency executed a signed reasonable accommodation agreement that allowed Complainant to have one floating day of telework, in addition to two days per week of telework. Complainant died on November 29, 2013.
Formal EEO Complaint
On May 14, 2010, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of disability (breast cancer and spine injury), age (born December 1958), and in reprisal for prior protected EEO activity when:
1. Complainant was subjected to harassment that included:
a. Complainant's supervisor (S1) constantly criticized her in contradictory ways, making it impossible for her to improve and required her to assist others with their work, but failed to provide Complainant with similar support;
b. S1 conducted Complainant's performance review on August 2, 2010, for the period April 1, 2009 through March 31, 2010, and rated her "Fully Satisfactory" in all critical elements, resulting in no monetary award, although in prior years she received a rating of "Very Good" if not "Outstanding" and received monetary awards of $2,500; and
c. S1 verbally notified other staff members, but not Complainant, that a $500 award that was distributed to staff members for the "Director's Award for Administrative Excellence" was distributed in error, not to spend the money, and that the money would have to be paid back before the end of the year;
2. Complainant's reasonable accommodation requests were denied; and
3. Complainant's rights were violated by the Agency when it made a request for medical documentation.
Complainant's Investigative Statement.
In an investigative statement, Complainant maintained that at the end of fiscal year 2009, S1 asked her to help two other Specialists process grants after she had finished her workload, although he always told her that her "numbers" were low, and she was not productive enough. Complainant stated that she had no control over the work assigned to her, and S1 determined her work assignments. Complainant further stated that she worked for the Small Business Innovative Research Program, which had congressionally-mandated deadlines for completing grants. She stated that she was backlogged with work at the end of 2009, but other Specialists in her section had very little work to do, and management did not provide her with assistance. Complainant further stated that on October 29, 2009, S1 entered into her office during her lunch break and accused her of threatening another employee based on the employee's accusations.
Regarding the rescinded award, Complainant that she received a July 13, 2010 letter informing her that she had to repay a $500 award she had received, and the debt would be collected by adjusting her pay. Complainant stated that compared to her peers, she was never advised of the need to repay this money, although she was out of the office from April 5, 2010, through July 13, 2010. She stated that she was informed by an employee that management held a meeting about the $500 error with the division, but no one informed her, although management knew she was home recuperating from surgery.
Regarding her performance evaluation, Complainant stated that S1 told her that her rating was reduced because she did not finish her work, but this was completely false. Complainant stated that she had an extremely large workload in fiscal year 2009, and she had not been rated "Fully Successful" since her first year at the Agency.
Regarding her reasonable accommodation requests, Complainant stated that the Agency denied her a reasonable accommodation because it only allowed her to telework two days per week for several months after her surgeon restricted her from commuting to work after her car accident in February 2010. Complainant also stated she Agency repeatedly asked her for medical documentation, although the documentation she initially provided in February 2010 was sufficient to support her accommodation requests.
AJ's Summary Judgment Decision and Previous Commission Appellate Decision
After 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). On February 9, 2012, the AJ issued summary judgment in favor of the Agency. In an appellate decision dated December 11, 2013, the Commission reversed the AJ's decision on the basis that there were genuine issues of material fact in dispute that made summary judgment inappropriate in this case. Doria R. v. National Science Foundation, EEOC Appeal No. 0120121886. Consequently, the Commission remanded Complainant's complaint to an AJ for a hearing.
On remand, a hearing in this case was held on October 21, 22, and 23, 2014. In an order of dismissal dated March 18, 2015, the AJ dismissed2 Complainant's hearing request on the basis that during the hearing, the lead counsel for Complainant's estate engaged in a pattern of using an aggressive and combative tone of voice and threatening mannerisms while questioning witness. The AJ recounted that on multiple occasions through the hearing, she had to interrupt the hearing, caution the estate's counsel about his conduct, and provide him with time to compose himself. The AJ noted that on October 23, 2014, the estate's counsel issued a letter of apology for his "inappropriate outburst:"
Final Agency Decision
Consequently, the AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant had not proven that the Agency subjected her to discrimination as alleged. Specifically, the Agency concluded that Complainant did not establish a prima facie case of discrimination or that the alleged actions were severe or pervasive enough to constitute a hostile work environment. The Agency further concluded that it did not deny Complainant a reasonable accommodation for her disability.
CONTENTIONS ON APPEAL
On appeal, Complainant's estate requests that the Commission find that the Agency discriminated against Complainant and award her estate appropriate damages associated with the finding. The estate argues that the Agency denied Complainant's requests for reasonable accommodation until November 9, 2011, when it executed a reasonable accommodation agreement with her that allowed her to have one additional floating day of telework per week in accordance with her physicians' recommendations. Additionally, Complainant requests that the Commission order the Agency to reimburse her for the cost of obtaining a copy of the hearing request.
The Agency requests that we affirm its final decision. The Agency maintains the only medical documentation initially provided by Complainant in January 2010 was a letter from her physician that said she was under treatment for recurrent breast cancer that required an intravenous transfusion and a daily pill, and the Agency accommodated her by granting her two telework days per week and reducing her workload. The Agency further maintains that Complainant's February 23, 2013 request for situational telework on February 25, 2010 was not supported by any medical documentation, and S1 denied the request based on the "statistics of her workload productivity." The Agency also maintains the documentation submitted by Complainant to support her February 22, 2010 request for a five-day per week telework schedule was insufficient to support the request, and consequently, the Agency requested additional documentation from Complainant on March 10, 2010. Additionally, the Agency contends that documentation submitted by Complainant on April 28, 2010 was also insufficient to support her request because it did not clarify whether she could perform the essential functions of her position. The Agency contends that on May 10, 2010, it again asked Complainant to provide additional medical documentation to support her request, but "at no point" did she provide medical documentation in response to its "reasonable requests."
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 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").
ANALYSIS AND FINDINGS
As an initial matter, we determine that claim 1 is a hostile work environment claim consisting of several alleged incidents. Moreover, although the Agency parsed claims 2 and 3 into two distinct claims, we find that they are essentially a single claim that Complainant was denied reasonable accommodations for her disability.
Qualified Individual with a Disability
We note that, the events in this case arose after January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which expanded the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Under EEOC regulations implementing the ADAAA, an individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has record of such an impairment; or (3) is regarded as having such an impairment. See 29 C.F.R. � 1630.2(g)(1)-(3). A physical or mental impairment is defined as: (1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or (2) any mental or psychological disorder, such as an intellectual disability (formerly termed 'mental retardation'), organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 C.F.R. � 1630.2(h) (2011).
The impairment must substantially limit Complainant, or significantly restrict her as to the condition, manner, or duration under which she performs a particular major life activity as compared with the performance of the average person in the general population. See 29 C.F.R. � 1630.2(j)(1)(ii). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i)(1)(i). Major life activities also include the operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. 29 C.F.R. � 1630.2(i)(1)(ii).
Upon review, we note that it is undisputed that during the relevant time period, Complainant had been diagnosed with breast cancer, and that Complainant experienced several serious long-term or permanent medical conditions associated with breast cancer and its treatment, including spinal fractures, back pain, depression, nausea, and fatigue. Additionally, during the relevant time period, Complainant's cancer had returned from remission, metastasized into her bones, and caused her spinal vertebrae to become very brittle. Further, a car accident exacerbated Complainant's spinal condition to such an extent that she was at high risk of paralysis and had to have surgery. Cancer substantially impacts the operation of the major bodily function of normal cell growth. See Carroll v. Comprehensive Women's Health Services, 2016 WL 4284386 (M.D. Pa. 2017) ("It is axiomatic that cancer literally is abnormal cell growth."). Therefore, we find that Complainant was an individual with a disability under the Rehabilitation Act. See George v. Fersenius Medical Care North America, et al., 2016 WL 4944130 (M.D. La. 2016) ("There is no dispute that cancer and lymphedema qualify as disabilities under the ADA").
Further, the record reflects that Complainant successfully performed the essential functions of her position, as reflected by her "Fully Successful" performance evaluation during the relevant time period. Thus, as held in our previous decision on this case, we find that Complainant is a qualified individual with a disability. See Doria R. v. National Science Foundation, EEOC Appeal No. 0120121886.
Hostile Work Environment.
In order 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 environment, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Upon review, regarding claim 1, we determine that Complainant did not show that the alleged actions occurred because of a protected EEO class. In so finding, we note that the Agency provided legitimate, nondiscriminatory reasons for its alleged actions. Specifically, S1 stated that Complainant was given assignments in the same manner as other Specialists, and her workload generally was determined by her scientific program within the organization. He stated that Complainant's third-level supervisor (S3) decided to move Complainant to another portfolio assignment in January 2009, and S1 was not consulted about this assignment. S1 further stated that three Specialists had more than 300 pending actions in their portfolios, and had to travel as part of their jobs; therefore, he asked Complainant if she could help them with some of their work. S1 stated that Complainant responded that she had enough work on her own, was preparing for a presentation, and believed it would take too much time to learn different programs. He stated that he had no choice but to reassign some of two of the coworkers' work to Complainant anyway because of their workload situation. S1 stated that later in the fiscal year, the division received the authority to hire former staff members to help with the situation, and management was eventually able to take away work from Complainant that she had not yet started to review.
S1 further stated that he only recalled one occasion in which Complainant was turned down when she requested help. S1 stated that he told Complainant to wait to see things unfolded because other Specialists were busy, and he wanted to see what was able to be completed. He stated that Complainant received more assistance than any other employee in the Branch. S1 further stated that the average employee had 100 cases in their portfolio, and Complainant had slightly fewer than 100 cases. S1 stated that when Complainant asked for a reduced workload, management had already given her a "soft workload" that did not compare with the workload of other Specialists who had many more cases.
S1 also stated that on October 29, 2009, he came into Complainant's office because another employee felt threatened by her and said that he was going to call Security about an incident that occurred in his office. He stated that the employee considered filing a grievance against Complainant, and he needed to find out what happened. S1 stated that management resolved the situation by asking Complainant to deal only with the employee's supervisor when she needed assistance, which worked well.
Regarding Complainant's performance appraisal, S1 stated that Complainant was rated "Fully Successful" because she did little or nothing to stand out and distinguish herself when opportunities to do so arose, whereas other employees did so. He stated that Complainant was evaluated based on the time that she worked, and once she received her diagnosis, her sick leave was excluded from her performance evaluation. S1 further stated that the rating period included the period when the Agency received an additional $3 billion in funding under the Recovery Act, and the workload for the entire Directorate increased substantially for the entire staff, not just Complainant. S1 stated that Complainant's "numbers' should have been considerably higher because her workload was increased by about half, as was everyone else's workload in DGA, and her cooperation "was not the best." He also stated that there were problems with the grants that Complainant processed, and new templates had to be created and put into the system, which created delay. However, he stated that Complainant had other grants to work on during the period, and if she wanted to be someone who excelled, she could have asked for more work, but did not do so. S1 further stated that Complainant's 2009 rating was not the same as 2008's rating because employees had 50 percent more work to do and had a shorter period to complete the work.
S1 also stated that in evaluating Complainant, he also asked for feedback on her from the Chief Program Officer and the Team Leader after she presented at the semi-annual conference in September 2009. He stated that the Program Officer reported that Complainant's presentation was "short and to the point," and no one asked her any questions. He further stated that Complainant showed "excessive anger" at a July 16, 2010 meeting when S3 mentioned other employees who were highly productive. S1 stated that Complainant told S3 in a booming voice, "I work as hard as I possibly can, and I felt like you are dressing us down, and we didn't do anything."
Regarding the rescinded $500 award, S1 stated that Human Resources sent out an email to all staff who erroneously received cash awards that had to be returned. He stated that there may Complainant may not have received the email message from Human Resources regarding the problem with the Director's Award because the message was sent while she was on leave. He stated that if Complainant did not have access to her government-issued computer, she would not have been able to read emails sent to her government email account.
Upon review, we find that Complainant did not prove that the Agency's nondiscriminatory explanations for the aforementioned actions were pretext for unlawful discrimination. In so finding, we note that the record supports the Agency's contention that Complainant's division was overwhelmed with a heavy workload during the relevant time period partly because of an infusion of funds from the Recovery Act. Moreover, although there is ample evidence that Complainant performed well in her position during this period, she did not show that her "Fully Successful" rating was so unreasonable that it reflects discriminatory animus. Additionally, we are persuaded that the Agency's failure to give Complainant advanced notice of the rescinded monetary award was attributable to the fact that she was on extended leave when the Agency notified employees of the error, not discriminatory motive. Consequently, we find that regarding claim 1, the Agency properly found that Complainant was not subjected to unlawful harassment or disparate treatment. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
Reasonable Accommodation
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.
Reduced Workload as a Reasonable Accommodation
In this case, on or about January 4, 2010, Complainant requested that the Agency provide her with two core days of telework per week under a revised telework agreement; temporarily reduce her workload; and if her workload could not be reduced, to be reassigned. At that time, Complainant also disclosed that she spent three hours commuting a day by train and Metro public transportation, the ride was rough on her back, and many times she was forced to stand on the Metro because there were no seats. Complainant also stated that on January 4, 2010, she told her supervisor that she could not return to the pace of production that were set forth in a November 2009 meeting with him because the "stress will kill me." She further stated that she could not operate in the foreseeable future at the rate previously expected of her, and if it meant moving her to less stressful environment or having sliding expectations, she would appreciate that accommodation. With this request, Complainant submitted a January 5, 2010 letter from her physician that stated that Complainant was being treated for recurrent breast cancer, and her long-term treatment included intravenous infusions and medication, with side effects of back pain, depression, nausea, and fatigue. We find that this constituted a request for reasonable accommodations.
The record reveals that in response to Complainant's January 2010 request, S1 replied that Complainant already could telework twice a week; had her business travel responsibilities removed; and had another employee present at a conference in early March 2010. However, S1 further stated that the Agency could not reduce her workload while she continued to work fulltime.
Upon review, we note that Complainant did not identify to the Agency what specific actions she sought to decrease her workload. It is therefore unclear how Complainant wanted the Agency to reduce her workload beyond the removal of her duty to present at a conference and to fulfill travel assignments. To the extent that Complainant sought a reduction in production standards, we note that an employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job. Enforcement Guidance, at Question 1. Consequently, lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation. Id. Therefore, we find that Complainant did not prove that the Agency failed to provide her with a reasonable accommodation regarding her workload.
Telecommuting as a Reasonable Accommodation
Additionally, on February 18 and 22, 2010, Complainant informed the Agency that she had been in a car accident that exacerbated her spinal condition; needed future surgery on her spine; and needed to telework five days per week because her surgeon restricted her from commuting to work because of the spinal injury. On or about February 22, 2010, Complainant submitted documentation from her physician that stated that Complainant was at "definite risk" of paralysis after her car accident and to avoid excessive travel by continuing to work from home. Additionally, on February 23, 2010, Complainant requested "situational telework" for February 25, 2010 because her surgeon advised her not to travel to work, which was denied by S1 on the basis that the "statistics" of Complainant's workload productivity since she began teleworking. After returning to work from surgery on July 30, 2010, Complainant requested to have a "floating day" of telework per week, in additional to her regular twice per week teleworking scheduling. We find that this documentation provided the Agency with notice that Complainant was requesting an expansion of her teleworking to accommodate her disability, which was a request for a reasonable accommodation.
We note that Commission precedent clearly has established that a request for telecommuting or a shorter commuting time because of a disability triggers an Agency's responsibility under the Rehabilitation Act. See Lavern B. v. Dep't of Housing and Urban Development, EEOC Appeal No. 0720130029 (Feb. 12, 2015)(Agency denied Complainant reasonable accommodation by not providing him with ability to telework fulltime); Jones v. Dep't of Agriculture, EEOC Appeal No. 0120080833 (July 18, 2012) (Agency denied complainant a reasonable accommodation when it did not grant his request to telecommute because of condition); Hupka v. Dep't of Defense, EEOC Appeal No. 02960003 (August 13, 1997) (agency violated the Rehabilitation Act when it refused to allow complainant with a disability that was exacerbated by his long commute to work at home or at a local alternative work site, but did not prove that doing so would be an undue hardship). Additionally, we note that providing disabled employees with the reasonable accommodations of telecommuting is consistent with the Rehabilitation Act's goal of assuring "equality of opportunity, full participation, independent living, and economic self-sufficiency" for individuals with disabilities. 42 U.S.C. � 12101(a)(7).
The Agency did not immediately provide Complainant with her requested accommodation of additional telework. Instead, it repeatedly asked her for more documentation on the basis that her request was not supported by adequate documentation. We disagree. In the February 2010 documentation submitted to the Agency, Complainant and her physician attested that Complainant suffered spinal injuries in a car accident that exacerbated her spinal condition resulting from breast cancer and rendered her unable to commute without imposing a "definite risk" of paralysis to her. The Agency maintains that it asked Complainant's physician follow-up questions to determine whether she could perform the essential functions of her job because the physician reported that Complainant was substantially limited in her ability to sit, stand, or walk. However, the physician did not indicate that Complainant had any restrictions that impacted her ability to perform her job duties, beyond her ability to telecommute. It is clear that the physician's reference to Complainant's sitting, standing, and walking restrictions were related to her inability to commute, not to a general inability to perform work duties. We find that the February 2010 documentation submitted by Complainant was sufficient to substantiate Complainant's request for additional telework days. Therefore, the Agency was not justified in asking Complainant for more documentation to support her request for additional teleworking.
The Agency maintained that Complainant's productivity precluded it from approving her to telework on February 25, 2010. However, the Agency has not provided any specific evidence that teleworking negatively impacted Complainant's productivity in comparison to working in the office. Moreover, Complainant received a "Fully Successful" performance evaluation while teleworking two days per week. As such, the Agency's assertion that she could not telework additional days because of productivity concerns is unsubstantiated and unworthy of belief.
Further, there is no evidence that granting Complainant additional days of telework would have negatively impacted the mission or operations of the Agency, would have been implausible because of the nature of Complainant's work duties, or would have been unduly difficult or expensive for the Agency to provide. Significantly, the Agency ultimately approved Complainant for an additional telework day, which reflects the plausibility of providing Complainant with additional telework days. Consequently, we find that the Agency did not prove that timely granting Complainant additional telework would have imposed an undue hardship.
We note that an employer should respond expeditiously to a request for reasonable accommodation. Enforcement Guidance, at Question 10. In this case, The Agency provided Complainant with additional telework in November 2010, but Complainant initially made and substantiated this request in February 2010. Complainant needed additional telework immediately, and each day the Agency failed to provide her with additional telework threatened to exacerbate her serious medical condition, to the point of paralysis. We find that the Agency's ten-month delay in providing Complainant with additional telework was unreasonable, and there is no evidence Complainant contributed to this delay. Consequently, we find that the Agency also failed to accommodate Complainant regarding her need for additional telework. See Villanueva v. Dep't of Homeland Security, EEOC Appeal No. 01A34968 (Aug. 10, 2006) (undue delay in providing a reasonable accommodation where Complainant made request in February 2001, but agency did not respond until October 2001, and there was no indication Complainant contributed to the delay or that the Agency did anything about the request during the delay).
Compensatory Damages
Where a discriminatory practice involves the provision of a reasonable accommodation, damages may be awarded if the agency fails to demonstrate that it made a good faith effort to provide the individual with a reasonable accommodation for his disability. 42 U.S.C. � 1981a(a)(3); Gunn v. U.S. Postal Serv., EEOC Appeal No. 0120053293 (June 15, 2007). In this case, the Agency repeatedly asked Complainant to provide documentation to substantiate her reasonable accommodation requests, although we find that Complainant immediately substantiated the need for her requests with documentation from her physician. Moreover, the Agency was well-aware of Complainant's long-term battle with cancer and her car accident that exacerbated her condition. Further, the accommodations that Complainant requested were consistent with and related to her condition, and as such, should not have required prolonged analysis or deliberation by the Agency. Under these circumstances, we cannot find that the Agency acted in good faith in responding to Complainant's reasonable accommodation requests. Therefore, Complainant's estate is entitled to proven compensatory damages for the Agency's failure to accommodate Complainant.
Request for Reimbursement of Cost for Hearing Transcript
Finally, we note that Complainant's estate requests for reimbursement of the cost it paid for copies of the hearing transcript in this case, which the Agency opposes. The record indicates that Complainant did not receive a copy of the transcript, and the Agency denied Complainant's request for it to provide her with a copy of the transcript. Consequently, Complainant paid to obtain a copy of the transcript, which the Agency did not reimburse. The Agency contends that it did not provide a copy of the transcript to Complainant because the AJ sanctioned Complainant by canceling her hearing request, and the transcript is no longer part of the record of this case.
Upon review, we note that 29 C.F.R. � 1614.109(i) provides, in pertinent part, that "[t]he administrative judge shall send copies of the hearing record, including the transcript, and the decision to the parties." Further, Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 7-3 (Aug. 5, 2015) provides, in pertinent part, that "[t]he agency shall arrange and pay for a verbatim transcript (printed or typewritten) of the hearing proceedings pursuant to � 1614.109(h)." See also Complainant v. U.S. Postal Serv., EEOC Appeal No. 0520140056 (Apr. 3, 2014).
Contrary to the Agency's assertion, the hearing transcript remains record evidence in this case despite the AJ's dismissal of Complainant's hearing request. The Agency clearly had a copy of the transcript because it submitted the transcript to the Commission on appeal. As such, Complainant was entitled to a copy of the hearing transcript, and the Agency should have paid for it. The record reveals that Complainant's counsel paid $3,051 for a copy of the hearing transcript. Therefore, we order the Agency to reimburse Complainant $3,051 for the cost of obtaining a copy of the transcript.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding of no discrimination or harassment with regard to claim 1. Regarding claims 2 and 3, the Commission REVERSES the Agency's finding that it did not deny Complainant a reasonable accommodation for her disability and REMAND this matter to the Agency to undertake further action consistent with this decision and the ORDERS below.
ORDER
The Agency is ordered to undertake the following remedial actions:
1. Within 120 calendar days after this decision is issued, the Agency shall provide eight hours of in-person EEO training to all its Arlington, Virginia (Division of Grants and Agreements) management officials and supervisors, ODI personnel, and EEO personnel, with an emphasis on the Agency's obligation to provide reasonable accommodations to individuals with disabilities, as well as to prevent reprisal.
2. The Agency shall conduct a supplemental investigation pertaining to Complainant's estate's entitlement to compensatory damages incurred as a result of the Agency's discriminatory actions in this matter. The Agency shall issue a final decision determining the estate's entitlement to compensatory damages within 60 calendar days after this decision becomes final.
3. The Agency shall consider taking appropriate disciplinary action against those agency officials responsible for the decision to delay provision of the reasonable accommodation at issue in this complaint. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s);
4. Within 60 calendar days after the date this decision becomes final, the Agency shall pay Complainant's estate $3,051 in transcript costs.
5. The Agency shall post a notice in accordance with the paragraph below.
POSTING ORDER (G0617)
The Agency is ordered to post at its Arlington, Virginia 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).
ATTORNEY'S FEES (H1016)
If Complainant's estate has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), the estate 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant's estate. If the Agency does not comply with the Commission's order, the Complainant's estate may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant's estate 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 (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant's estate 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 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
11-09-2017
__________________
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 November 3, 2014, the Agency filed a Motion for Sanctions regarding the alleged threatening and outrageous conduct of the estate's counsel.
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