0120090181
10-13-2015
Geraldine B.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Geraldine B.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090181
Agency Nos. 200I-0317-2005103158,
200I-0317-2006101292
DECISION
Complainant timely filed an appeal from the Agency's final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
This case is before us following a final decision in which the Agency found that it had not failed to provide Complainant with reasonable accommodation for her claimed disability; that it had not subjected Complainant to disparate treatment based on race, sex, age, disability, and in reprisal for prior protected activity; and that it had not subjected Complainant to discriminatory harassment on the aforementioned bases. For the reasons which follow, the Commission MODIFIES the Agency's final decision, and finds that the Agency failed to provide Complainant with reasonable accommodation.
ISSUES PRESENTED
The issues presented on appeal are: (1) whether Complainant established that the Agency denied her a reasonable accommodation for her claimed disability; and (2) whether Complainant established that the Agency subjected her to hostile work environment harassment based on any of her claimed bases.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Publications Supply Clerk, GS-3, at the Agency's Regional Office in St. Petersburg, Florida. Report of Investigation (ROI), at 2. Complainant suffers from chronic pain from bilateral carpal tunnel syndrome, bilateral epicondylitis, and DeQuarvain's tenosynovitis. Id. at 4. Complainant's doctor noted that her conditions affect the use of her hands, and she experiences constant pain, swelling, and periodic numbness. ROI, Ex. C-7-4. Complainant's medical conditions affect her ability to walk and stand. Id. Complainant also has difficulties doing repetitive work with her hands and has to wear braces on her hands. Id. In addition, Complainant suffers from a right leg injury and a herniated disk. Id. Complainant had been on medical leave from January to August 1, 2005, for carotid endarterectomy surgery.
Upon returning to work on August 1, 2005, management assigned Complainant, for the first time, duties which primarily required her to photocopy service medical records for reproduction. ROI, Ex. B-1a, at 17, 34. Management provided Complainant with a chair and an electric stapler to operate the photocopy machine. ROI, Ex. B1, at 37. Complainant, however, was not satisfied with this accommodation. Id. Complainant indicated that the repetitive and fast nature of the photocopying aggravated her medical conditions. ROI, Ex. B-1a, at 22. Complainant reportedly asked for further accommodation, but alleges that management said there were no other accommodations available. ROI, Ex. B-1, at 40-41.
From August 1 to August 5, 2005, Complainant's first-level supervisor (S1) also requested that Complainant mail out certain requisition boxes. ROI, Ex. B-1, at 45-47. Complainant responded that she could not mail the boxes because it would violate her lifting restriction of 32.5 pounds. Id. However, S1 felt that the mailing of the boxes would not violate Complainant's lifting restriction. Complainant felt that S1 required her to lift boxes that were about 50 to 75 pounds. ROI, Ex. B1, at 47. On August 5, 2005, S1 replied to Complainant, "If I agree with you . . . if 32.5 pounds is the limit that you can only do per day . . . I have no more work for you." ROI, Ex. B2, at 24.
Complainant continued with her photocopying duties. In October 2005, S1 told Complainant that her production was not up to par. ROI, at 13. S1 indicated that Complainant did not meet her standards through the rating period of October 2005 through the end of January 2006. Id. at 14. S1 testified:
My instructions to [Complainant] and all the publication folks, when it came to copying and we need it front and back, if it's documentation on the front and there's documentation on the back, it needs to be duplex . . . .
Id. at 14.
Thereafter, on February 7, 2006, S1 issued Complainant a letter of warning of unacceptable performance and also placed her on a Performance Improvement Plan (PIP). Id. The letter of warning suggested to Complainant that using different copying techniques could help increase her production. ROI, Ex. C-11. Subsequently, on May 11, 2006, Complainant received a proposed removal from the Agency's Acting Chief based on unacceptable performance. The proposed removal noted that Complainant's average production effective ratio was below the 90 percent requirement. ROI, Ex. C-6-3. On May 31, 2006, Complainant, by memorandum, replied to the Agency's proposed removal of her. Therein, Complainant, among other things, listed the medical conditions that she suffered from. Despite Complainant's reply, the Agency subsequently removed Complainant from employment for lack of productivity, effective June 16, 2006. ROI, Ex. C-6-1.
PROCEDURAL HISTORY
On August 20, 2005, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), disability, age (60), and reprisal for prior protected EEO activity under when:
1. beginning on July 8, 2005, the Agency failed to provide her with a reasonable accommodation for her disability;
2. from August 1 to August 4, 2005, the Agency expected her to perform her normal duties upon her return to work from an extended medical absence;
3. on August 5, 2005, S1 asked her to get her things and leave, failing to accommodate her disability; and
4. on May 27, July 8, July 11, and July 25, 2005, her requests for advanced sick leave were denied.
On March 21, 2006, Complainant filed a second EEO complaint, amended on May 12, 2006, alleging that the Agency subjected her to discriminatory harassment and disparate treatment on the bases of disability and reprisal for prior protected EEO activity under when:
5. S1 asked her to perform multiple tasks at the same time on an ongoing basis;
6 S1 monitored her daily production on an ongoing basis and presented her with her cumulative averages twice a month;
7. S1 changed the assignments he distributed to her on a daily basis;
8. on February 28, 2006, S1 publicly questioned her regarding a miscount on the daily shredding log;
9. S1 discussed with her on an ongoing basis the length of time it took her to complete tasks;
10. on an ongoing basis, S1 and another coworker "constantly yelled" in the workplace;
11. on February 7, 2006, the Agency placed her on a Performance Improvement Plan (PIP) due to unacceptable performance;
12. on February 21, 2006, the Agency charged her with a half hour of annual leave for an extended union meeting; and
13. on June 8, 2006, the Agency removed her from employment, effective June 16, 2006.
The Agency subsequently consolidated Complainant's two complaints, assigning them for investigation together on May 15, 2006. On July 15, 2006, Complainant filed a mixed-case appeal with the Merits Systems Protection Board (MSPB), raising the PIP and removal issues. Therein, the MSPB Administrative Judge (AJ) dismissed Complainant's appeal without prejudice because Complainant had previously filed an EEO complaint on the same matter.
On November 7, 2006, the Agency completed its investigation and provided Complainant with a copy of the report of investigation along with a notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Afterward, on October 31, 2007, the Agency issued its consolidated final decision on Complainant's two complaints, giving Complainant appeal rights to the MSPB, not the EEOC. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Thereafter, on December 4, 2007, the MSPB accepted Complainant's appeal pertaining to her PIP and removal claims. MSPB Docket No. AT-0432-08-0194-I-1 (April 4, 2008). The MSPB AJ reversed the Agency's removal, finding that the Agency failed to establish that the performance standard it relied upon to remove Complainant was valid. Id. The MSPB AJ ordered the Agency to cancel the removal and pay Complainant an appropriate amount of back pay.
The MSPB AJ further found that Complainant failed to establish that the Agency subjected her to reprisal for prior protected EEO activity. Id. The MSPB AJ did not address Complainant's discrimination claims on the bases of race, sex, disability, or age. The MSPB AJ also did not address the issues of reasonable accommodation and harassment.
On October 22, 2008, Complainant filed this instant appeal, asking for a review of the Agency's October 31, 2007, final decision with respect to her claims that were not addressed by the MSPB AJ.
Agency's Final Decision
In its decision, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency found that Complainant failed to establish a prima facie case of harassment. The Agency noted that Complainant failed to present sufficient evidence that its actions were based on Complainant's protected classes. The Agency also noted that Complainant failed to show that its actions were severe and pervasive enough to rise to the level of a hostile work environment. The Agency further found that Complainant failed establish a prima facie case of race, sex, and age discrimination. The Agency did, however, find that Complainant established a prima facie case of reprisal.
The Agency found that Complainant failed to establish a prima facie case of disability discrimination with respect to reasonable accommodation. Specifically, the Agency noted that Complainant failed to establish that she was a qualified individual with a disability under the Rehabilitation Act. In particular, the Agency the noted that Complainant could not meet her performance production standards, which resulted in her removal. The Agency further noted that Complainant failed to show that she has a physical impairment which substantial limited a major life activity.
The Agency further found that it articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency noted that Complainant was provided a chair for her to sit on while making copies. The Agency noted that it interpreted Complainant's 32.5 pound lifting restriction to mean that she could only lift that amount at one time. The Agency noted that management could only assign Complainant to photocopy and front desk duties because of her "stringent" medical restrictions. The Agency further noted that prior to August 2005, it was unable to provide Complainant with an accommodation because she could not use her hands.
The Agency further noted that Complainant was granted 240 hours of sick leave, which was the maximum amount the Agency was allowed to provide in a given year. The Agency also noted that Complainant failed to provide additional medical documentation when requesting sick leave, and had exhausted all of her leave under the Family and Medical Leave Act (FMLA) on June 3, 2005. The Agency further noted that Complainant was charged with one-half hour of absence without leave (AWOL) because she failed to properly follow leave-request procedures. The Agency noted that Complainant requested annual leave just minutes before taking it and did not wait for approval from S1. As for claims 11 and 13, the Agency noted that it issued Complainant a PIP and removed her from employment because her average production effective ratio produced was below 90 percent.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that we review the Agency's October 31, 2007, final decision with respect to her claims that she reported before her removal. The Agency has not filed a brief in response to Complainant's appeal.
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
Initially, we note that Complainant was provided appeal rights to the MSPB, not the EEOC. We note that the MSPB did not address Complainant's reasonable accommodation and harassment claims. We also note that Complainant's August 20, 2005, complaint exclusively contained non-mixed matters appealable to the Commission. We find that the Agency should have provided Complainant with appeal rights to the Commission with respect to her August 20, 2005, complaint. We further note that the Agency processed both complaints together as mixed, but confusingly provided Complainant with a notice of her right to request a hearing before an EEOC Administrative Judge (AJ). See 29 C.F.R. � 1614.302(d)(2). We also note that the MSPB does not have jurisdiction over Complainant's reasonable accommodation and harassment claims because, unlike a performance-based removal, they do not constitute appealable matters. We note that when a complaint contains both appealable and non-appealable matters, the non-appealable issues should be processed separately from issues appealable to the MSPB. See Lethridge v. U.S. Postal Serv., EEOC Appeal No. 07A40076 (Nov. 29, 2004), req. for recon den'd, EEOC Request No. 05A50399 (Feb. 9, 2005) (citing Caldwell v. Office of Pers. Mgmt., EEOC Request No. 05910649 (Sep. 6, 1991)). Therefore, we will address Complainant's reasonable accommodation2 and harassment claims. However, we will not address the PIP and removal issues as those matters were already adjudicated by the MSPB.
Disability Discrimination
Under the Commission's regulations, federal agencies may not discriminate against individuals with disabilities and are required to make reasonable accommodations for the known physical and mental limitations of qualified individuals with disabilities, unless an Agency can show that providing reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p).
To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability, pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation).
1. Individual with a Disability
This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2005-2006, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an "individual with a disability."
Under the pre-ADA Amendments Act framework, Complainant, as a threshold matter, must establish that he is a person who has, has a record of, or is regarded as having a physical or mental impairment which substantially limits one or more of his major life activities, i.e., caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. � 1630.2(j). An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner, or duration under which an individual can perform a major life activity. 29 C.F.R. � 1630.2(j).
In the instant case, we find that the Agency erred in finding that Complainant was not an individual with a disability. We find that the record contains sufficient medical documentation to conclude that Complainant was an individual with a disability. We find that Complainant's medical conditions clearly substantially limited her ability to perform manual tasks. See Ghannam v. Agency for International Devel., EEOC Appeal No. 01990574 (Nov. 9, 2000) (finding that complainant's carpel tunnel syndrome, which limited rapid repetitive hand movement, substantially limited complainant in the major life activity of performing manual tasks).
The record contains a July 19, 2005, letter from Complainant's doctor. ROI, Ex.C-7-4. Therein, Complainant's doctor noted that Complainant suffers from chronic pain from bilateral carpal tunnel syndrome, bilateral epicondylitis, and DeQuarvain's tenosynovitis. Id. The doctor noted that Complainant's conditions are exacerbated by the use of her hands, and she experiences constant pain, swelling, and periodic numbness. Id. The doctor noted that Complainant also has, among other things, coronary artery disease, lumbar, and cervical herniation. Id. The doctor further noted that Complainant will periodically need to wear braces on her hands and must be subjected to very limited walking, standing, and pushing in order to prevent deterioration of her upper extremities. Id.
We note that the record contains another letter from Complainant's doctor dated February 22, 2005, and other documentation describing Complainant's conditions and limitations. ROI, Ex. C-7-2. Therefore, we find that the Agency erred in finding that Complainant did not establish that she is an individual with a disability.
2. Qualified Individual with a Disability
After Complainant has shown that she is an individual with a disability, the Complainant must then establish that she is a "qualified individual with a disability," an individual who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
In analyzing whether an employee who requests reassignment as a reasonable accommodation is a qualified individual with a disability, the fact-finder must determine whether the employee (1) satisfies the requisite skill, experience, education, and other job-related requirements of the position, and (2) can perform the essential functions of the new position, with or without reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation.
We find that the record contains sufficient evidence to establish that Complainant was a qualified individual with a disability. Complainant's doctor noted that Complainant "will need to wear braces on her hands while performing fast and repetitive jobs which should be done intermittently to alleviate further pain and deterioration of her upper extremities . . ." ROI, Ex.C-7-4. Complainant's job of regularly being assigned to the photocopy machine was clearly repetitive in nature. Complainant indicated that the fast and repetitive nature of the photocopying made her medical conditions worse. ROI, at 14. Although the Agency provided Complainant with a chair and an electronic stapler, Complainant maintained that the photocopying still aggravated her medical conditions. ROI, Ex. B1, at 37. We note that a reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). Given that the accommodation provided by the Agency aggravated Complainant's condition, we cannot find that the accommodation was effective.
The regulatory definition of "qualified individual with a disability," however, provides 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). We note that the Agency did not address whether Complainant could perform the essential functions of a position to which she could be reassigned.3
While Complainant could not perform the essential functions of her photocopying position, she did identify other Agency positions that were available. Complainant indicated that these positions did not require any heavy lifting or excessive repetitiveness. Complainant indicated that she could have performed the essential functions of these other positions. Specifically, Complainant testified, "[The Agency] had a job in Supplies in the main Admin [sic] Office. That job has not been filled. We need us a lead clerk down in Publications. We don't have one there. That's why every three weeks a certain one of us has to be on the front desk doing paperwork." ROI, Ex. B-1, at 25. The Agency does not dispute Complainant's testimony that there were other vacant positions which she was capable of performing, to which she could have been reassigned. Therefore, we conclude that Complainant has presented evidence sufficient to establish that she is a qualified individual with a disability.
3. Reasonable Accommodation
Once a complainant has demonstrated that she is a qualified individual with a disability, the complainant must then establish that the Agency failed to provide a reasonable accommodation. Generally, a complainant with a disability must request a reasonable accommodation by letting the employer know she needs an adjustment or change at work for a reason related to a medical condition. See Enforcement Guidance on Reasonable Accommodation. After receiving a request for reasonable accommodation, the employer should engage in an informal process with the individual with a disability to clarify what the individual needs and identify the appropriate reasonable accommodation. Id.
A modification or adjustment is reasonable if it appears to be feasible or plausible. The employer may choose among reasonable accommodations as long as the chosen accommodation enables the individual with a disability to perform the essential functions of his or her job. See Enforcement Guidance on Reasonable Accommodation, Question 32.
When an employee can no longer perform the essential functions of her original position, with or without a reasonable accommodation, because of a disability, an employer must reassign her to an equivalent vacant position for which she is qualified, absent undue hardship. See Enforcement Guidance on Reasonable Accommodation. If no equivalent vacant position (in terms of pay, status, etc.) exists, then the employee must be reassigned to a lower graded position for which she is qualified, absent undue hardship. Id.
We note that upon her return to work on August 1, 2005, Complainant was primarily assigned to photocopying duties. Complainant's doctor noted that Complainant "will need to wear braces on her hands while performing fast and repetitive jobs which should be done intermittently to alleviate further pain and deterioration of her upper extremities . . ." ROI, Ex. C-7-4. Complainant noted that her photocopying duties, which included pulling staples out of documents, were very fast and repetitive. We note that most, if not all, of Complainant's job duties required her to photocopy service medical records and reproduction. Complainant testified that after management provided a chair and electronic stapler, she reported that she needed further accommodation, but management indicated that no other accommodation could be provided.
We note that S1 testified that Complainant never requested a reasonable accommodation. ROI, Ex. B2, at 14. The Agency is reminded, however, that under the Rehabilitation Act, an employee is not required to use the "magic" words "reasonable accommodation" when making a request. See Enforcement Guidance on Reasonable Accommodation, Question 1. Instead, the employee or the employee's representative need only inform the agency that he or she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. U.S Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24. 2006), req. for recon den'd, EEOC Request No. 05A60859 (Sep. 19, 2006). Even assuming Complainant did not verbally request reasonable accommodation, the record contains several instances where management officials should have been on notice that Complainant was seeking a reasonable accommodation.
We further note that the Agency placed Complainant on Performance Improvement Plan (PIP) and subsequently issued her a notice of removal for her lack of productivity in photocopying. However, Complainant was clearly experiencing difficulties in photocopying due to pain in her hands, of which the Agency should have been aware. Although the Agency provided Complainant with a chair and an electronic stapler, the record reflects that this was not an effective accommodation. When it was clear that Complainant could no longer perform the essential functions of her photocopy position, the Agency was obligated to reassign Complainant to a vacant, funded position for which she was qualified, if one was available. The Agency did not do so, and instead issued her a notice of removal for a lack of productivity.4 We note that Complainant testified that there were positions available to which she could have been assigned. Specifically, Complainant testified, "[The Agency] had a job in Supplies in the main Admin [sic] Office. That job has not been filled. We need us a lead clerk down in Publications. We don't have one there. That's why every three weeks a certain one of us has to be on the front desk doing paperwork." ROI, Ex. B-1, at 25. The Agency does not address the positions Complainant indentifies, nor why it did not reassign her. Therefore, we find that the Agency failed to reasonably accommodate her disability.
4. Liability for Compensatory Damages
We turn now to the matter of the relief to be afforded to Complainant, which included requests for 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 her disability. 42 U.S.C. � 1981a(a)(3). In this case, the Agency removed Complainant from employment rather than make any further attempt to accommodate her. This clearly constitutes bad faith. Complainant is therefore entitled to present a claim for compensatory damages. See West v. Gibson, 527 U.S. 212 (1999).
Harassment
Harassment is actionable only if the incidents to which Complainant has been subjected were "sufficiently severe or pervasive to alter the conditions of [Complainant's] employment and create an abusive working environment." Harris at 21 (1993); see also Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998); Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Although we have determined that the Agency violated the Rehabilitation Act by failing to provide Complainant with a reasonable accommodation, there is insufficient evidence in the record to show that the cumulative incidents cited are also sufficiently severe or pervasive to create a hostile work environment. We find that the majority of Complainant's allegations were part of her reasonable accommodation claim; the remaining allegations amounted to unpleasant actions that occurred during the normal course of business. We note that not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation. See Shealey v. Equal Employment Opportunity Comm., EEOC Appeal No. 0120070356 (Aug. 18, 2011) (citing Oncale, 523 U.S. at 81; Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009)).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision. We order the Agency to take remedial action in accordance with this decision and the Order below.
ORDER
The Agency is ordered to take the following remedial action:
1. Within thirty (30) days from the date this decision becomes final, the Agency and Complainant shall engage in the interactive process to identify vacant, funded positions that Complainant is able to perform, with or without reasonable accommodation. Once a position has been identified, Complainant shall be placed into the position.
To the extent that it has not already done so pursuant to the MSPB determination referenced herein, 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 becomes final. 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."
2. 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. Department of the Navy, EEOC Appeal No. 01922369 (January 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. � 1614.108(f).
3. Within ninety (90) days of the date this decision becomes final, the Agency shall provide training as to its obligations under the Rehabilitation Act to the management officials who denied Complainant reasonable accommodation in the present matter. The Commission does not consider training to be a disciplinary action.
4. The Agency shall consider taking disciplinary action against the management official(s) identified as being responsible for the discrimination perpetrated against Complainant. 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. If the management official(s) are no longer employed by the Agency, the Agency shall provide evidence of the date of separation.
5. 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 back pay 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 Regional Office in St. Petersburg, Florida, 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 (M0815)
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, 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 Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Ca
Carlton M. Hadden, Director
Office of Federal Operations
Oct. 13, 2015
__________________
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 Although Complainant alleges disparate treatment based on race, sex, age, disability, and reprisal, we find that Complainant's allegations are more properly viewed as a denial of reasonable accommodation.
3 See the discussion of reasonable accommodation, infra.
4 We take judicial notice of the MSPB AJ's finding in MSPB Docket No. AT-0432-08-0194-I-1 (April 4, 2008) that the Agency failed to establish that the performance standard it relied upon to remove Complainant was valid.
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