[Redacted], Ken E., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Sep 27, 2022

Appeal No. 2022002570 (E.E.O.C. Sep. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ken E.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2022002570 Hearing No. 430-2020-00004X Agency No. PH-19-0041 DECISION Following its April 8, 2022, final order, the Agency filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge’s (AJ) finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Equal Opportunity (EO) Assistant, GS-07, at the Agency’s facility in Fort Lee, Virginia. On February 28, 2019, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him based on disability (blindness due to retinitis pigmentosa) when: 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. 2022002570 2 1. On January 25, 2019, Program Manager (PM) and Information Technology Program Management Office Director (IT Director) denied his reasonable accommodation request to make the Agency’s website and documents compliant with Section 508 of the Rehabilitation Act, which forced him to resign because he could not perform the essential functions of his position;2 and 2. From December 2018 to January 25, 2019, Alternative Dispute Resolution Manager/Disability Program Manager (DPM) failed to respond to his reasonable accommodation requests to make EEO office documents compliant with Section 508. 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 AJ. Complainant requested a hearing, and the AJ held a hearing on January 26-27, 2022.3 The AJ issued a decision finding discrimination. The Agency subsequently issued a final order rejecting the AJ’s finding that Complainant proved that the Agency subjected him to discrimination as alleged. The AJ found that the Agency initially hired Complainant to work in the Agency’s EEO Office on a temporary basis, but the temporary appointment had been extended numerous times. When Complainant began working at the Agency, his duties were at the level of an intern, but he progressed to performing EEO-related work that was more aligned with his job title of EO Assistant, and he attended EEO counselor training around April 2018. The AJ found that Complainant’s job duties included: maintaining files and records for all areas of EEO program management, such as special emphasis program files and complaint files; providing administrative support associated with the processing of individual and class action EEO complaints; recording and monitoring complaints; proofreading correspondence; and typing correspondence, reports, and records in final form from rough drafts. To do this work Complainant used various common EEO forms, including the EEO counselor’s report, intake forms, and reasonable accommodation request forms. The Agency’s EEO forms were housed on the Agency’s internal, cloud-based platform. Several Agency employees testified about Complainant’s effective job performance. DPM said he was able to perform any work assigned to him, and the EEO Director stated that Complainant did “good” work. 2 The AJ dismissed a portion of this claim-Complainant’s constructive discharge allegation- for untimely EEO counselor contact. Complainant does not dispute the dismissal on appeal, and we therefore do not further address his claim that he was forced to resign herein. 3 Prior to the hearing, Complainant filed a motion to amend the complaint, which the AJ denied. Complainant does not dispute the AJ’s decision to deny the motion on appeal or otherwise challenge the framing of the complaint. 2022002570 3 In August 2017, Complainant made a reasonable accommodation request for Job Access With Speech (JAWS) software, which is a screen-reader program for blind or visually impaired users that provides text-to-speech output. Complainant was granted this accommodation and used the program’s “auditory function” to review and draft documents. However, several forms that Complainant used as part of his job-such as the EEO counselor’s report, intake, and reasonable accommodation forms-were improperly labeled such that Complainant’s JAWS software was unable to access the documents. The mislabeling of the documents prevented JAWS from accurately conveying the information in those documents to Complainant so that he could enter text in proper fields. In addition, Complainant was unable to complete mandatory trainings due to inaccessibility issues unless he had a coworker sitting with him to assist. For instance, Complainant could not timely complete the annual cybersecurity training, which resulted in his common access card being locked. Complainant could not on his own access the Agency’s internal website, including the program he needed to complete his timecard. In an effort to rectify some of the accessibility issues Complainant faced, the Agency sometimes had one of Complainant’s coworkers, an Administrative Assistant (CW), sit with Complainant to assist him on certain tasks. Complainant had no full-time assist or reader, however, and he had to ask CW, who had her own role within the EEO office, for help when necessary. CW testified that at the beginning of Complainant’s employment, she assisted him for about 20 hours a week in setting up his computer and helping him navigate the office, though the time she spent assisting him declined as time went on, and she helped Complainant with mandatory trainings and reading various EEO forms as needed. Complainant made several verbal requests for reasonable accommodation to management, including DPM, the EEO Director, and PM, who was the Section 508 Coordinator. Section 508 requires federal agencies to make electronic documents and websites accessible to disabled individuals. When Complainant’s verbal requests were unsuccessful, Complainant followed up with a written request for reasonable accommodation on September 21, 2018, which stated, “EEO office forms need to be relabeled for compatibility with screen reader. . . The forms would need to be converted so that my screen reader is able to allow me to complete daily work duties,” including “finish[ing] an EEO Complaint.” Complainant agrees that the Agency corrected both the reasonable accommodation form and the intake form, which left 9 or 10 forms inaccessible to him, including the EEO counselor’s report. These forms were never corrected during Complainant’s employment, and DPM agreed that only the two forms had ever been fixed. As the Section 508 Coordinator, PM acknowledged that DPM and Complainant had informed him that “a lot more” forms required correction. He further admitted that the Agency’s noncompliance began before Complainant was hired, that it never achieved compliance during Complainant’s employment, and that PM was concerned the Agency could face a lawsuit as a result of its noncompliance. On November 30, 2018, after several months of attempting to receive his accommodation, the EEO Director emailed Complainant saying there was no funding available to address the Section 508 compliance that would have made the necessary documents accessible. 2022002570 4 After learning that his accommodation requests would not be granted, Complainant resigned from his position, claiming that the resignation was out of frustration that he would be unable to work independently. Based on his factual findings, the AJ found that Complainant was a qualified person with a disability. The AJ concluded that Complainant’s only difficulty involved processing certain EEO forms because they were inaccessible to his JAWS software. The AJ found that had his reasonable accommodation requests been met-namely, if the Agency had complied with Section 508-Complainant would have been able to perform the essential functions of his EO Assistant position. The AJ addressed the Agency’s argument that “Complainant’s position was merely that of an assistant and involved no EEO counseling.” The EEO Director testified that the Agency gave Complainant the opportunity to do EEO counseling “as an opportunity to grow and learn,” and that his position description was “identical” to that of CW, the administrative assistant. The AJ found that the EEO Director’s testimony lacked credibility and was disputed by the record, especially in light of the fact that CW and Complainant had different job titles. The AJ also rejected the Agency’s arguments that its “workaround” of having other employees assist Complainant constituted an effective accommodation. The AJ found that Complainant was unable to work independently and that he credibly testified he often needed help completing tasks when no coworkers were available to assist him. The AJ therefore found that the Agency’s attempts at accommodation were ineffective and that the Agency failed to provide Complainant with a reasonable accommodation in violation of the Rehabilitation Act. For relief, the AJ first addressed Complainant’s request for nonpecuniary, compensatory damages. Based on Complainant’s testimony at the hearing, the AJ found that Complainant struggled in his position because of the accessibility issues and that he was frustrated by having to ask coworkers, who were busy with their own work, for help, especially around the holidays when fewer employees were at the office. Complainant testified that he felt discouraged and that he was not as effective as he wanted to be in his position, as he believed he could have accomplished more had there been no accommodation obstacles. Complainant also testified that he already had difficulties getting opportunities as a disabled person, and that his opportunity to work for the Agency was taken from him. He also testified that the discrimination “stifled [his] career trajectory,” as he was unable to reach his full potential at the Agency and could have gone further in his career. He also felt “gun-shy” about pursuing other federal jobs out of fear he would encounter the same problems with accessibility. Complainant also testified about financial difficulties after his resignation, such as having to pay his rent by credit card and lacking funds for transportation, which caused him stress. Based on this testimony, the AJ awarded Complainant $20,000 in nonpecuniary, compensatory damages. The AJ also awarded Complainant attorney’s fees. Based on Complainant’s petition for attorney’s fees and expenses, to which the Agency did not submit any objections before the AJ, the AJ awarded Complainant $8,265 in attorney’s fees for 28.5 hours of work. 2022002570 5 The AJ also ordered that the Agency place a copy of a notice advising employees of the finding of discrimination at the Agency’s facility in Fort Lee, Virginia, that the Agency ensure full compliance with Section 508, and that the Agency “take corrective, curative, and preventive action to ensure that a Rehabilitation Act violation does not recur.” On appeal, the Agency’s main contention is that it was under no obligation to provide a reasonable accommodation for functions not essential to Complainant’s position. The Agency argues that Complainant’s training as an EEO counselor and his advising complainants on their complaints are not essential functions of an EO Assistant, but that his major duties were instead administrative in nature. The Agency relies heavily on Complainant’s position description, arguing that “EO Assistants solve routine problems of limited complexity, gather and provide factual information, or perform tasks in support of higher-level specialists.” The Agency also points to the testimony of the EEO Director, who explained that the essential EO Assistant functions did not change even though Complainant “cross-train[ed]” to do EEO counseling duties. The Agency also claims that Complainant admitted during cross-examination that the essential functions of his position did not include the higher-level functions of an Equal Employment Specialist (EES)-a position that regularly deals with EEO case processing. With regard to Complainant’s difficulty in completing mandatory training, the Agency argues that Complainant’s annual training was not part of the essential functions of his job as an EO Assistant and that the Agency’s noncompliance with Section 508 did not prevent Complainant from performing his job duties or from passing the mandatory training. The Agency also argues that Complainant did not submit a reasonable accommodation request between his request for JAWS around August 2017, and when he returned from EEO counselor training in August or September 2018. The Agency points to the period of more than a year where “there is no mention [in the report of investigation] of problems with the EEO counselor forms,” as well as the EEO Director’s testimony that Complainant did not complain to her regarding those forms until he returned from EEO counselor training. The Agency further argues that the AJ’s finding that the EEO Director’s testimony lacked credibility was based on a misunderstanding of the Agency’s migration to a new pay system, which resulted in Complainant and CW having different job titles. The Agency also contends that Complainant’s effective job performance and his nomination for an Agency award “demonstrates he could perform the essential functions of his EO Assistant position” without further accommodation. Despite the Agency’s position that it was not obligated to provide Complaining with reasonable accommodations for nonessential functions, the Agency argues that it “greatly exceeded legal requirements by trying to fix the EEO forms or altering templates so the Complainant’s screen reader could read” the inaccessible forms. In addition, the Agency argues that Complainant was responsible for the breakdown in communication during the interactive process, largely pointing to the fact that, after multiple revisions between Complainant and DPM regarding the fixing of the reasonable accommodation form, Complainant ultimately failed to give final confirmation that the form was accessible. 2022002570 6 The Agency argues that if the finding of discrimination is upheld, we should find that the Agency acted in good faith to accommodate Complainant’s disability and that we should deny Complainant compensatory damages. The Agency claims it “worked doggedly to solve difficult accommodation problems, but it took some time to fix the complex issues with 508 compliance of the EEO documents.” The Agency also contends that it “demonstrated good faith by diligently taking several very positive steps in trying to accommodate the Complainant under very difficult conditions like procuring the JAWS software, obtaining a screen reader, making forms 508 compliant, and using coworkers to bridge the gaps.” Other than asking that we “disallow any compensatory damages and attorney fees,” the Agency does not address any other relief ordered by the AJ. Complainant on appeal requests that we affirm the AJ’s decision in full. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility, that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Reasonable Accommodation Under the Commission’s regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (October 17, 2002). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. 2022002570 7 Here, it is undisputed that Complainant is an individual with a disability and that he was qualified to perform the essential functions of his position. We find that substantial evidence supports the AJ’s determination that the Agency violated the Rehabilitation Act when the Agency failed to accommodate Complainant’s disability by not making its forms and websites compliant with Section 508. Without Section 508 compliance, Complainant’s assistive technology was unable to read or access the forms or websites necessary to do his work. The Agency’s position is that the duties for which Complainant required reasonable accommodations were nonessential, and that he was able to perform all essential functions of the EO Assistant position without further Section 508 compliance. Substantial evidence, however, supports the AJ’s finding that Complainant’s EEO processing duties were part of the essential functions of his position. The Agency also misstates Complainant’s testimony when it claims Complainant admitted “the essential functions of his job as an EO Assistant did not include the higher[-]level functions of an EES.” In his testimony, Complainant acknowledged that the EES position had more responsibility than his position and that EES employees had a higher case load of EEO complaints, but his testimony is clear that he considered EEO case processing-which required access to the noncompliant forms-part of his duties. As for there being no mention of reasonable accommodation issues in the report of investigation for the year-long period between Complainant’s JAWS software request and his completion of EEO training, Complainant denied that he made no complaints during that time, and the AJ found Complainant’s testimony credible. The apparent gap in the report of investigation does not sufficiently contradict Complainant’s testimony to reject the AJ’s finding in that regard. The Agency’s other arguments are unavailing. Complainant’s mandatory training is part of his job requirements, and the Agency was required to accommodate him so he could complete the training in a timely manner without his employee identification card being locked. See, e.g., Alonzo N. v. U.S. Postal Serv., EEOC Appeal No. 0120181502 (Sept. 17, 2019) (Commission found the agency had failed to reasonably accommodate complainant when he was not provided a certified interpreter during training and safety meetings). The testimony of the EEO Director is not sufficiently supported by the record for us to reject the AJ’s finding that she lacked credibility when she claimed CW and Complainant had identical job duties. We also reject the Agency’s argument that Complainant was able to effectively perform his job without the websites and forms complying with Section 508. That Complainant managed to complete his tasks using frustrating workarounds, such as asking CW and other Agency employees for help when he needed it, does not mean such workarounds constituted an effective accommodation satisfying the Agency’s obligations under the Rehabilitation Act. We reject the Agency’s argument that Complainant contributed to a breakdown in the interactive process. Complainant’s disability was obvious and undisputed, and the reasonable accommodation had been identified, namely that documents be made compliant with Section 508 so that his screen-reader could access them. The Agency attempted to grant Complainant his requested accommodation by correcting some of the forms, but ultimately failed to make many forms and websites accessible to Complainant. 2022002570 8 Complainant’s purported lapse in providing final confirmation that one of the dozen or so noncompliant forms had been corrected-after several emails back and forth between him and DPM regarding edits-does not constitute Complainant’s failure to cooperate in the interactive process such that the Agency may avoid liability. Damages and Other Relief Compensatory Damages Where an Agency has failed to provide a reasonable accommodation for an individual with a disability, compensatory 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); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120053293 (June 15, 2007). In this case, we find that the Agency failed to demonstrate a good faith effort in providing a reasonable accommodation to Complainant, resulting in his resignation. The Agency never attempted to make all the necessary forms and websites accessible to Complainant, and multiple management officials admitted that the Agency was far from fully compliant with Section 508. Moreover, the other accommodations the Agency provided, such as having coworkers help Complainant, were not fully effective accommodations such that the Agency can show it acted in good faith. See, e.g., Waltraud R. v. Dep’t of Agric., EEOC Request No. 2021004595 (Mar. 7, 2022) (finding that the agency could not show it acted in good faith when the accommodations offered were not effective). The Agency’s arguments that fixing its Section 508 issues were “complex” and that it was working “under very difficult conditions” are unpersuasive. The Agency does not explain why accommodating Complainant was so difficult or why fixing the forms Complainant needed was prohibitively complex. Indeed, all federal agencies are required to comply with Section 508. Outside of its bare assertions, the Agency provides no evidence that its failure to make the documents and websites accessible was in good faith. As such, Complainant is entitled to compensatory damages. Nonpecuniary damages are available to compensate an injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed simply because complainant is a victim of discrimination. See Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 5 (July 14, 1992). The existence, nature, and severity of emotional harm must be proved. Id. We note that for a proper award of nonpecuniary, compensatory damages, the amount of the award should not be “monstrously excessive” standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Ward-Jenkins v. Dep’t of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th Cir. 1989)). In Carle v. Dep’t of the Navy, the Commission explained that evidence of nonpecuniary damages could include a statement by complainant explaining how he was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). 2022002570 9 Complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. However, evidence from a health care provider is not a mandatory prerequisite to establishing entitlement to nonpecuniary damages. Sinnott v. Dep’t of Defense, EEOC Appeal No. 01952872 (September 19, 1996). The more inherently degrading or humiliating the defendant’s action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id. The AJ awarded Complainant $20,000 in nonpecuniary, compensatory damages based on his testimony that he struggled in his position, felt discouraged and ineffective in his job and that obstacles kept him from accomplishing more, especially because he felt it was already difficult to get opportunities as a disabled person. The AJ also considered Complainant’s testimony about his “stifled” career trajectory and the financial hardships he faced after resigning that caused him stress. Complainant asks that we affirm the AJ’s nonpecuniary damages award, and the Agency does not substantively address the amount of damages the AJ awarded. Taking into consideration Complainant’s testimony, we find that the AJ’s award of nonpecuniary damages in the amount of $20,000 is supported by substantial evidence, neither “monstrously excessive” nor the product of passion or prejudice, and consistent with prior Commission precedent. See Lydia F. v. Dep’t of Veterans Affs., EEOC Appeal No. 2020001007 (Sept. 16, 2021) (Commission awarded complainant $20,000 in nonpecuniary, compensatory damages for denials of reasonable accommodation that caused emotional distress during a “relatively short” period of employment); Garland C. v. Dep’t of Transp., EEOC Appeal No. 0120182009 (Jan. 29, 2020) (Commission affirmed an award of $20,000 in nonpecuniary, compensatory damages for discrimination resulting in stress, embarrassment, and damage to professional reputation). Attorney’s Fees By federal regulation, the Agency is required to award attorney’s fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. 29 C.F.R. § 1614.501(e)(1)(H). To determine the proper amount of the fee, a lodestar amount is reached by calculating the numbers of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983). All hours reasonably spent in processing the complaint are compensable. 2022002570 10 Fees shall be paid for services performed by an attorney after the filing of a written complaint, provided that the attorney provides reasonable notice of representation to the agency, AJ, or the Commission, except that fees are allowable for a reasonable period of time prior to the notification of representation for any services performed in reaching a determination to represent the complainant. 29 C.F.R. § 1614.501(e)(1)(iv). The AJ awarded Complainant $8,265 in attorney’s fees, which was all that was requested. On appeal, the Agency does not specifically dispute the AJ’s award of attorney’s fees. While it contends that it is not liable for violating the Rehabilitation Act, the Agency makes no argument contesting Complainant’s fee petition. Upon review the fee petition, we affirm the AJ’s award of $8,265 in attorney’s fees at the hourly rate of $290 for entries totaling 28.5 hours. Other Relief The Agency did not address the other relief the AJ awarded, which included orders to post a notice to Agency employees of the finding of discrimination, to comply with Section 508 within one year, and to “take corrective, curative, and preventive action to ensure that a Rehabilitation Act violation does not recur.” Because the Agency does not dispute these remedies, we affirm such relief. We note that the AJ did not order the Agency to consider discipline or conduct EEO training for any managers or supervisors at its Headquarters facility. We find that such relief is appropriate in this case and order it herein. CONCLUSION We REVERSE the Agency’s final order rejecting the AJ’s decision finding discrimination. The matter is REMANDED to the Agency for further action in accordance with the Order herein. ORDER To the extent it has not already done so, the Agency shall take the following actions: 1. Within 60 days from the date this decision is issued, the Agency shall pay Complainant $20,000.00 in nonpecuniary, compensatory damages. 2. Within 60 days from the date this decision is issued, the Agency shall pay Complainant $8,265.00 in attorney’s fees. 3. Within 90 days from the date this decision is issued, the Agency shall provide at least eight hours of EEO training to PM, DPM, IT Director, and EEO Director. The training shall place special emphasis on the Agency’s obligation to provide reasonable accommodation to qualified individuals with disabilities, including the need to be compliant with Section 508. The Commission does not consider training to be a disciplinary action. 2022002570 11 4. Within 60 days from the date this decision is issued, the Agency shall consider taking disciplinary action against PM, DPM, IT Director, and EEO Director for the failure to provide a reasonable accommodation found to have occurred in this complaint. If the Agency decides to take disciplinary action, it shall identify the actions taken. If the Agency decides not to take disciplinary action, then it shall set forth the reason(s) with specificity for its decision not to impose discipline. If these officials have left the Agency’s employment, then the Agency shall furnish documentation of their departure dates. 5. The Agency shall ensure full compliance with Section 508 to avoid further failure to accommodate claims under the Rehabilitation Act. These measures shall occur as soon as possible, but no later than one year after the date this decision is issued. 6. The Agency shall take corrective, curative, and preventive action to ensure that a Rehabilitation Act violation does not recur. POSTING ORDER (G0617) The Agency is ordered to post at its Fort Lee, 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 (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/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 receipt of this decision. 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 (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the 2022002570 12 compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. 2022002570 13 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022002570 14 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 September 27, 2022 Date