EEOC Appeal No. 0120122672
02-24-2017
Elden R. v. Dep't of the Interior
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
Elden R.,1
Complainant,
v.
Kevin Haugrud,
Acting Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Appeal No. 0120122672
Agency No. DOIFWS110362
DECISION
On June 11, 2012, Complainant filed an appeal from the Agency's May 15, 2012, final decision concerning his 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.2 For the following reasons, the Commission REVERSES the Agency's final decision.
ISSUES PRESENTED
1. Is Complainant an individual with a disability as defined by the Rehabilitation Act?
2. Is the Agency's "sit and reach" requirement for the Wildlife Refuge Position job-related and consistent with business necessity?
3. Did Complainant establish that he was subjected to disparate treatment when he was terminated from his position?
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Wildlife Refuge Specialist, GS-0485-05, in the Region 6 Regional Office, at the Rainwater Basin Wetland Management District in Funk, Nebraska.
While on active military duty, Complainant suffered an injury which resulted in two herniated disks in his neck (C5/6 and C6/7) and two herniated disks in his lumbar region (L4/5 & L5/S1). Complainant is considered a disabled veteran. Because of this impairment, Complainant is affected in the major life activities of sitting, reaching, and bending. Specifically, Complainant cannot sit on the floor with his legs held straight together, calves remaining on the floor, and reach to extend his fingers beyond his toes. Additionally, about once a year he experiences muscle spasms in his back, which he treats with a prescription muscle relaxant.
On or around June 29, 2010, Complainant applied for a Wildlife Refuge Specialist, GS-0485-05, position under Job Announcement Number R6-10-351567-D. This position includes law enforcement duties on a collaterally-assigned basis.
On September 1, 2010, Complainant was selected for the position. Complainant was informed in his selection letter than he was required to pass a physical examination and a subsequent Physical Efficiency Battery examination (PEB) before he could go for law enforcement training at the Federal Law Enforcement Training Center (FLETC) in Glynco, Georgia. Before accepting the position, Complainant talked with an official in Human Resources (HR1) and informed her of his back impairment and his concern for his lack of flexibility during the PEB. Complainant alleged that HR1 told him as long as he passed the initial physical examination, there would be no issues with physical requirements during the PEB.
On September 9, 2010, Complainant had a medical examination. On the medical certification form the physician noted Complainant's impairment, but stated that it does not impede his daily activities including strenuous work. The physician observed Complainant's ability to bend over while standing and touch his toes. Complainant passed the examination and the physician cleared Complainant for the position, stating that Complainant was qualified to perform the duties of the position in accordance with Agency standards and guidelines.
On October 25, 2010, Complainant began his position as a Wildlife Refuge Specialist. Complainant stated that on his first day he asked the Assistant Project Leader (S1) about the Agency's policy that allowed employees to work out for one hour three times a week, so that he could work on his flexibility prior to the PEB. S1 allegedly denied the request and told him to work out on his own time.
Between December 6, 2010, and December 10, 2010, Complainant participated in the PEB. The PEB is described as a fitness test consisting of five different components to measure the fitness level of the students. During the PEB he passed the "Body Composition" requirement, the "Agility Run" requirement, the "Bench Press" requirement, and the "1.5 Mile Run" requirement. The only requirement Complainant did not pass was the "sit and reach" requirement, which measures a person's ability to reach over his or her toes while sitting down with legs straight. The physical fitness coordinator recommended that Complainant use the Agency's policy to work out for one hour three times a week, and try the test again in a few weeks. However, S1 continued to deny Complainant's requests to use the Agency's policy to use official time to work out.
On December 14, 2010, Complainant informed the Regional Law Enforcement Chief for Region 6 (S3) about his disability and lack of flexibility, and his concerns about the "sit and reach" requirement of the PEB. He inquired about possible options to help him with the PEB.
On December 15, 2010, S1 and the Project Leader (S2) met with Complainant to discuss the issue. Complainant alleged that S1 told him that he was highly disappointed in him because he did not reveal his disability when he was interviewed, and he was more concerned with getting someone in the position that could perform the job than he was with Complainant. S2 allegedly was very upset by S1's comments to Complainant.3
On January 11, 2011, Complainant was retested for the PEB and again passed all requirements except for the "sit and reach" requirement. Complainant informed S3 that because of his disability he cannot reach over his toes.
On January 21, 2011, Complainant discussed a waiver of the flexibility requirement with a Senior Human Resources Specialist (HR2) located in headquarters. HR2 contacted the Chief of the Refuge Law Enforcement Program (S4) in headquarters regarding the possibility of a testing waiver for Complainant. Subsequently, S4 spoke with Complainant about the possibility of a waiver for the "sit and reach" flexibility requirement. However, no information was ever provided to Complainant regarding whether they would grant Complainant's request for a waiver.
On January 31, 2011, Complainant was issued notification that he was being terminated because he could not meet the physical requirements of the "sit and reach" portion of the PEB.
On February 28, 2011, S2 met with Complainant and offered him a position where he would continue working at the Rainwater Basin essentially performing the same tasks, but as a contract worker instead of an employee. Complainant declined the position because it did not include any benefits or leave.
On April 11, 2011, Complainant appealed the Agency's decision to remove him to the Merit Systems Protection Board (MSPB). On May 19, 2011, the MSPB found that it did not have jurisdiction over the claim because he alleged disability discrimination and he was still a temporary employee. MSPB Docket No. DE-315H-11-0311-I-1 (May 19, 2011). Complainant was subsequently referred to an EEO Counselor.
On July 27, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (herniated disks in the back and neck) when, on March 12, 2011, he was terminated from his position as a Wildlife Refuge Specialist.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, 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 him to discrimination as alleged.
CONTENTIONS ON APPEAL
In support of his appeal, Complainant contends that the record establishes that the Agency violated the Rehabilitation Act. Complainant contends that the Agency refused to reasonably accommodate his disability by waiving the "sit and reach" requirement. Complainant contends that his impairment meets the definition of a disability, and the Agency was aware of his disability. Further, Complainant asserts that he could perform all the duties of the Wildlife Refuge Specialist position, and that the "sit and reach" requirement is not job-related or a business necessity. Complainant contends that the Agency also regarded him as disabled when it terminated him from his position. Complainant requests that the Commission reverse the Agency's final decision and find that he was discriminated against in violation of the Rehabilitation Act.
In opposition to the appeal, the Agency contends that Complainant is not an individual with a disability. The Agency asserts that even if the Commission were to find that Complainant was an individual with a disability, he was not qualified for the position because he failed to meet the job-related qualification requirements for the Wildlife Refuge Specialist position. The Agency notes that although there is conflicting testimony in the record as to whether Complainant was entitled to official duty training time, he was not entitled to the training time because he had not yet completed FLETC training. The Agency contends that it articulated legitimate, nondiscriminatory reasons for terminating Complainant, and Complainant failed to rebut those reasons. Finally, the Agency argues that Complainant was not entitled to a waiver of the PEB's "sit and reach" standards, which are job-related and consistent with business necessity. The Agency requests that the Commission affirm its final decision.
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 Chap. 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").
Is Complainant an individual with a disability?
Complainant alleges that the Agency perceived him as an individual with a disability when he was terminated from his position due to his back impairment. Complainant asserts that his physical impairment substantially limits his major life activities of sitting, bending, and reaching. In contrast, the Agency asserts that Complainant did not establish that he is an individual with a disability because he has not established that his physical impairment limits one or more major life activities.
The Commission's regulations implementing the ADA Amendments Act of 2008 (ADAAA), 42 U.S.C. 12101, et seq., which amended Title I of the Americans with Disabilities Act (ADA), and as a result, the Rehabilitation Act, state:
The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA. Consistent with the Amendments Act's purpose of reinstating a broad scope of protection under the ADA, the definition of "disability" in this part shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis. 29 C.F.R. � 1630.1(c)(4).
The ADAAA altered the interpretation and application of the critical statutory term "individual with a disability" in fundamental ways. Pursuant to the EEOC regulations implementing the ADAA, an individual with a disability is one who: (i) has a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment as described in paragraph (l) of this section. This means that the individual has been subjected to an action prohibited by the ADA, as amended, because of an actual or perceived impairment that is not both "transitory and minor." 29 C.F.R. � 1630.2(g).
Furthermore, the regulations explain that the following principles also apply under the "regarded as" prong of the definition of disability above:
(1) Except as provided in � 1630.15(f), an individual is "regarded as having such an impairment" if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity. Prohibited actions include but are not limited to refusal to hire, demotion, placement on involuntary leave, termination, exclusion for failure to meet a qualification standard, harassment, or denial of any other term, condition, or privilege of employment.
(2) Except as provided in � 1630.15(f), an individual is "regarded as having such an impairment" any time a covered entity takes a prohibited action against the individual because of an actual or perceived impairment, even if the entity asserts, or may or does ultimately establish, a defense to such action.
(3) Establishing that an individual is "regarded as having such an impairment" does not, by itself, establish liability. Liability is established under title I of the ADA only when an individual proves that a covered entity discriminated on the basis of disability within the meaning of section 102 of the ADA, 42 U.S.C. 12112. 29 C.F.R. � 1630.2(l).
Coverage under the "regarded as" prong of the definition of disability should not be difficult to establish. See 2008 House Judiciary Committee Report at 17 (explaining that Congress never expected or intended it would be a difficult standard to meet). Under the third prong of the definition of disability, an individual is "regarded as having such an impairment" if the individual is subjected to an action prohibited by the ADA because of an actual or perceived impairment that is not "transitory and minor." Appendix to Part 1630 - Interpretive Guidance on Title I of the Americans With Disabilities Act (Interpretive Guidance) at Section 1630.2(l).
The "regarded as" prong of the definition of disability was originally intended to express Congress's understanding that "unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities are often just as disabling as actual impairments, and [its] corresponding desire to prohibit discrimination founded on such perceptions." 2008 Senate Statement of Managers at 9; 2008 House Judiciary Committee Report at 17 (same). In passing the original ADA, Congress relied extensively on the reasoning of School Board of Nassau County v. Arline 480 U.S. 273, 282-83 (1987) "that the negative reactions of others are just as disabling as the actual impact of an impairment." 2008 Senate Statement of Managers at 9. The ADAAA reiterates Congress's reliance on the broad views enunciated in that decision, and Congress "believe[s] that courts should continue to rely on this standard." Id.; Interpretive Guidance at Section 1630.2(l).
Accordingly, the ADA Amendments Act broadened the application of the "regarded as" prong of the definition of disability. 2008 Senate Statement of Managers at 9-10. In doing so, Congress rejected court decisions that had required an individual to establish that a covered entity perceived him or her to have an impairment that substantially limited a major life activity. This provision is designed to restore Congress's intent to allow individuals to establish coverage under the "regarded as" prong by showing that they were treated adversely because of an impairment, without having to establish the covered entity's beliefs concerning the severity of the impairment. Joint Hoyer-Sensenbrenner Statement at 3; Interpretive Guidance at Section 1630.2(l).
The record reveals that Complainant was injured during Desert Storm while serving in the military. Complainant suffered an injury to two herniated disks in his neck (C5/6 and C6/7) and two herniated disks in his lumbar region (L4/5 & L5/S1). As a result, his back impairment prohibits him from bending over and touching his toes while in a seated position. The record also reveals Complainant was terminated from his position because he could not meet the Agency's PEB "sit and reach" standard due to his back impairment. Accordingly, we find Complainant has established he is an "individual with a disability" because the Agency took prohibited action by applying a qualification standard and terminating him as a result of his back impairment. See 29 C.F.R. �1630.2(g)(iii). Further, there is also anecdotal evidence in the record that S1 perceived Complainant as an individual with a disability when, after his first unsuccessful attempt at meeting the Agency's flexibility standard, S1 allegedly remarked that he was "highly disappointed" that Complainant was not more honest during his interview about his having a disability.
Upon a finding that Complainant is an individual with a disability, the next inquiry is whether Complainant is a "qualified individual with a disability." The term "qualified," with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. �1630.2(m).
A review of the record reveals that Complainant met all the qualifications of the position except for the requirement that he be able to "sit and reach." The Agency stated that the physical demands of the Wildlife Refuge Specialist position are as follows:
Work involves standing, bending, walking, and sometimes heavy exertion in rough, rocky terrain. About 50% of the incumbent's work is performed outdoors, often in difficult terrain, with the remainder in meetings or office environments. Work requires above average agility and stamina. Incumbent may be required to lift objects over 50 pounds. (Standard Position Description, Wildlife Refuge Specialist, Exhibit 16)
The record supports Complainant's assertions that he can perform all of the physical demands described for the position. This is supported by the physician who filled out Complainant's medical certification, in which he stated that Complainant could perform all of the functions of the position, including strenuous work. (Certificate of Medical Examination, Exhibit 15).
Further, the record shows that Complainant was successfully performing the duties of the position, including law enforcement duties, for many months before he was terminated. The record contains a performance appraisal of "Fully Successful" with only positive comments written throughout, such as Complainant "works very hard to do a thorough job with all assigned tasks," Complainant "made good use of time," Complainant "did a great job of acquiring the required training to fully perform his job duties," and Complainant "did an outstanding job making sure that himself and others working around him worked safely!" (Report of Investigation at Attachment F-13). As a result, we find that Complainant was qualified for the position.
Is the Agency's "Sit and Reach" requirement job-related and consistent with business necessity?
The question now is whether the "sit and reach" requirement that Complainant failed is consistent with the requirements of the Rehabilitation Act. If the standard itself fails to meet the "job-related and consistent with business necessity" requirement, or if the Agency failed to apply the standard in an appropriate way (for example, by failing to determine whether performance could be achieved through reasonable accommodation) Complainant has a valid claim. See Nathan v. Dep't of Justice, EEOC Appeal No. 0720070014 (July 19, 2013).
The Rehabilitation Act prohibits a covered entity from engaging in discrimination against a qualified individual on the basis of disability in, among other things, hiring. 42 U.S.C. � 12112(a). Such discrimination includes "using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability ... unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity. Id. � 12112(b)(6); see also 29 C.F.R. � 1630.10 (making unlawful a covered entity's use of qualification standards that screen out or tend to screen out an individual with a disability unless such standard is job related and consistent with business necessity); Nathan v. Dep't of Justice, supra.
The term "qualification standard" is not defined in the statute. The regulations define "qualification standard" as "the personal and professional attributes, including the skill, experience, education, physical, medical, safety, and other requirements established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired." 29 C.F.R. � 1630.2(q).
There is nothing in the record that would lead us to conclude that the "sit and reach" requirement was job-related for the position in question and also consistent with business necessity. We note that not one management official, human resources official, physical fitness official, law enforcement official, or coworker was able to state in the record how a Wildlife Refuge Specialist's ability to reach over his toes while sitting down with his legs outstretched was related to any of the functions of the position. Nowhere in the record did the Agency include a single scenario where a Wildlife Refuge Specialist may need to reach over his toes while sitting down with his legs straight out and against the ground. Instead, all witnesses generally stated that it was required because it was part of the PEB.
Further, the record reflected that, while management officials in Region 6 generally stated that the PEB requirements must be strictly adhered to for law enforcement positions, the Agency's Region 4 waived the PEB "sit and reach" requirements for an individual in a substantially similar law enforcement position. Finally, while Wildlife Refuge Specialists are required to pass the PEB when they are first hired, they are never required to pass the PEB again during their employment. We note that even on appeal the Agency did not link the "sit and reach" requirement to a specific job duty of the position. As a result, we find that the Agency failed to meet its burden of proof with regard to establishing that the "sit and reach" requirement was job-related to the Wildlife Refuge Specialist position, or that it was consistent with business necessity.
Further, we note that, with regard to safety requirements that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, an employer must also demonstrate that the requirement is job related and consistent with business necessity. The regulations provide that an Agency can meet this standard by showing that the requirement, as applied to the individual, satisfies the "direct threat" analysis set forth in 29 C.F.R. � 1630.2(r). 29 C.F.R. 1630 App. 1630.15(b) and (c). However, the Agency provided no argument or evidence suggesting that Complainant posed a direct threat to the health or safety of himself or others.
Accordingly, we find the Agency's application of the PEB standard in this case was discriminatory and the Agency failed to carry its burden of proving the standard was job related and consistent with business necessity.
Disparate Treatment
In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies that its decisions were motivated by Complainant's disability and there is no direct evidence of discrimination, the Commission applies the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S 792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, Complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
The Complainant has established that he is an individual with a disability, that he is qualified for the Wildlife Refuge Specialist position, that he was subjected to an adverse employment action when he was removed from the position, and that the circumstances surrounding the adverse action give rise to an inference of discrimination. Therefore, Complainant has established his prima facie case of discrimination.
The Agency articulated that Complainant was terminated from his position because he cannot meet the physical requirements for the position. Specifically, Complainant was tested for flexibility on December 8, 2010, and again on January 11, 2011, and in both instances he was unable to meet the minimum requirements.
As we have found the Agency did not carry its burden of establishing that the "sit and reach" flexibility standard was job-related and consistent with business necessity, we find that the Agency failed to establish that it terminated Complainant for a legitimate, nondiscriminatory reason. Additionally, the record shows that Agency officials have been employing this discriminatory practice at least throughout all of Region 6. As a result, we find that Complainant established that the Agency violated the Rehabilitation Act when it terminated him from his position.
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 because a preponderance of the evidence of the record establishes that the Agency discriminated against Complainant as alleged.
ORDER
The Agency is ORDERED to take the following actions:
1. Within (120) calendar days of the date of this decision, the Agency shall offer Complainant a permanent Career Conditional GS-5 Wildlife Refuge Specialist position at the Rainwater Basin Wetland Management District, or a substantially equivalent position, subject to his successful completion of FLETC training. Complainant shall have 15 days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the 15-day period will be considered a declination of the offer, unless Complainant can show that circumstances beyond his control prevented a response within the time limit. If the offer is accepted, appointment shall be retroactive to the date of his termination, and he shall receive any step-increases that he would have received had he not been terminated.
2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision was issued. Back pay shall begin from the date of Complainant's termination until the date he is placed back in his position, or the date he rejects the offer of employment. Complainant shall also be paid for proven increased tax liability stemming from his back pay award. The 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 the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. The Agency shall conduct a supplemental investigation into Complainant's entitlement to compensatory damages and attorney's fees and costs. The Agency shall afford Complainant a minimum of forty-five (45) days to provide evidence bearing on his entitlement. The Complainant shall cooperate in the Agency's efforts to compute the compensatory damages, attorney's fees, and costs, and shall provide all relevant information requested by the Agency. Within (60) calendar days of the Agency's receipt of Complainant's compensatory damages evidence and attorney's fees statement, the Agency shall issue a final decision addressing the issues of attorney's fees, costs, compensatory damages, and back pay. The Agency shall submit a copy of the final decision to the Commission's Compliance Officer.
4. Within (120) calendar days of the date of this decision, the Agency shall consider taking appropriate disciplinary action against the Responsible Management Officials. 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 for its decision not to impose discipline. If the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of their departure dates.
5. Within (120) calendar days of the date of this decision, the Agency shall provide eight (8) hours of live, in-person EEO training to S1, S2, S3, and S4, with an emphasis on the Rehabilitation Act.
6. The Agency shall post the attached notice, as prescribed in the "Posting Order," below.
7. 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 (G1016)
The Agency is ordered to post at its Rainwater Basin Wetland Management District in Funk, Nebraska, 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 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 (H1016)
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 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 (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 (M0416)
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 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. 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 Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Bernadette B. Wilson's signature
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
2-24-2017
__________________
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 This case arose after January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Because this matter occurred in 2010, the Commission will use the analytical framework as it exists pursuant to the ADAAA.
3 S2 retired before the investigation into this complaint and therefore there is no statement from him in the record.
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2
01-2012-2672
14
0120122672