0720070027
10-13-2015
Yessenia H.,1 Complainant, v. Robert A. McDonald, Secretary, Department of Veterans Affairs, Agency.
Yessenia H.,1
Complainant,
v.
Robert A. McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0720070027
Hearing No. 370-2005-00137X
Agency No. 200N-V121-2003104297
DECISION
Following its December 28, 2006, final order, the Agency filed an appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(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 MODIFIES the Agency's final order (FO).
ISSUES PRESENTED
The issues presented in this decision are: (1) whether the AJ's finding that the Agency failed to provide a reasonable accommodation to Complainant is supported by substantial evidence in the record; and (2) whether the relief ordered, including compensatory damages, was appropriate.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant was employed as a Contract Specialist, GS-1102-11, with the Consolidated Contracting Activity of VISN 21, a multi-state division headquartered in San Francisco, California. Complainant's duty station was in Honolulu, Hawaii. The record reveals that Complainant sought EEO counseling on September 23, 2003, and filed a formal complaint on December 19, 2003, alleging that the Agency discriminated against her on the bases of disability (migraine headaches), sex, and in reprisal for prior EEO activity when:
1. she was denied a reasonable accommodation with regard to the lighting in her office, and in October 2003, the Agency failed to relocate her to an office with appropriate lighting;
2. from April 2002 to August 2003, the Agency requested copious and excessive medical documentation to determine her disability and failed to provide her with a reasonable accommodation;
3. from March to August 2003, the Agency did not provide her information about the measurements of the temperature and lighting in her office;
4. in October 2003, her supervisor (S1) did not respond to her emails; and
5. the Agency subjected her to a hostile work environment when, in October 2003, she received a telephone call that was immediately disconnected, and she was offended by an email from her second-line supervisor (S2) regarding a meeting on "women's issues."
In its letter dated September 17, 2004, the Agency dismissed issues 2 through 5 for failure to state a claim. With regard to issue 5, the Agency indicated that the incidents were not sufficiently egregious to state a claim of harassment that affected a term or condition of employment so as to render Complainant an aggrieved individual. The Agency accepted issue 1.
Following completion and submission of the Report of Investigation (ROI) dated October 29, 2004, Complainant requested a hearing before an EEOC Administrative Judge. The AJ held a hearing on December 7, 8, and 30, 2005, and February 6, 2006. On October 16, 2006, the AJ issued a decision finding that the Agency discriminated against Complainant with regard to issue 1.2
The AJ found that the Agency discriminated against Complainant based on disability (migraine headaches) in violation of the Rehabilitation Act.3 AJ's October 16, 2006 Decision (AJ Decision) at 41. Specifically, the AJ held that the Agency did not provide Complainant the effective reasonable accommodation requested by her physicians from March 2003 onwards, and that the Agency improperly disclosed her confidential medical information. Id. at 40.
AJ's Decision
The AJ found the following facts:
Complainant had headaches for many years that were eventually diagnosed as migraine headaches. Id. at 7. Complainant sought medical treatment for the headaches. Id. at 8. She also informed S1, who was located in San Francisco, of her condition and asked to be placed in an office with non-fluorescent lighting. Id. S1 requested medical documentation to support Complainant's request. Id. In response, Complainant provided a note from her ophthalmologist (Dr.1), dated March 13, 2001, stating that Complainant "suffers from headaches related to lighting. Please allow her to be seated in an office with natural lighting, or non-fluorescent lighting." Id.
Complainant contacted the Chief of Facility Management Service (CFMS) in Honolulu about the lighting in her office (Office 1). Id. He made some modifications to Complainant's lighting. Id. In an e-mail dated May 23, 2001 to S1, he proposed to "replace the ceiling mounted fluorescent lighting with ceiling mounted incandescent lighting producing the same amount of lumens" in Complainant's workspace. Id. at 9. In an e-mail dated May 29, 2001, S1 stated that Complainant would be moving to a different office (Office 2). Id. Complainant agreed to the delay of any modifications to the lighting until she moved to Office 2. Id. She expected to move within a month. Id. However, she did not move to Office 2, until December 2001, seven months later. Id.
Complainant's Office 2 had two windows, but a nearby office building blocked the natural light. Id. Complainant relied on artificial light for most of the day. Id. As a result, Complainant requested that S1 provide her with track lighting (individual lamps) until the ceiling lights could be replaced. Id. Complainant was provided several stand-alone lamps with 100 and 150 watt bulbs. Id. Complainant was able to read in the "11 by 17" space the lights illuminated; however, the rest of the office was a combination of glare from her computer screen and shadows. Id. Complainant reported this to S1, who instructed her to buy more lights. Id. at 10. Although she did, these additional lights did not illuminate the entire office. Id.
The Agency did not discuss replacing the fluorescent ceiling lights once Complainant moved to Office 2. Id. Instead, Complainant was again asked to provide additional medical documentation. Id. Complainant provided S1 with a letter from Dr.1, dated April 9, 2002, stating that she "suffers from headaches related/precipitated by fluorescent lighting." Id. Dr.1 further described Complainant's symptoms from the pain, and requested "an office with natural lighting that is supplemented by adjustable non-fluorescent daylight/full spectrum lighting," flexible fixtures and furniture, and total available illumination of "lux 500."4 Id.
In August 2002, S1 and Complainant's second-line supervisor (S2) asked the Safety Officer (SO) in Honolulu to inspect the levels of illumination in Complainant's office. Id. SO determined that the illumination level of was 20 lux from each of the stand-alone gooseneck lamps, and 260 lux from the overhead fluorescent lights. Id. The AJ found that this did not provide adequate lighting per Dr.1's specifications even if Complainant had used the fluorescent lights. Id.
On August 26, 2002, S1 sent Complainant a letter entitled, "Certification of Need for a Reasonable Accommodation." Id. In the letter, S1 addressed Complainant's request for changes to her work place lighting and the medical information she had provided so far. Id. at 11. S1 informed Complainant that the Agency needed further information and documentation, including more specific medical documentation. Id. As a result, Dr.1 referred Complainant to a neurologist (Dr.2). Id. Dr.2 responded by letter dated December 12, 2002, stating that it was his opinion that Complainant suffered from migraine headaches that were aggravated by fluorescent lighting. Id. Dr. 2 also stated that Complainant reported that her work situation was stressful and that stress also triggers migraines. Id. Dr.2 recommended that Complainant avoid these triggers. Id. Dr.2 also provided that there were no medical tests to establish that a person suffers from migraine headaches; thus, he could not provide the documentation as requested in the Agency's Certification of Need letter. Id.
Prior to receiving Dr.2's letter, SO conducted another survey of the lights in Complainant's office in October 2002. Id. He reported getting a reading of 505 lux from an incandescent light bulb at two and one-half feet. Id. He also noted that Complainant requested only natural sunlight or to use 100 watt bulbs, because when bulbs of more than 100 watts were placed close to her they were too hot, and hurt her skin and made her sick. Id. at 12. Witnesses testified at the hearing that Complainant indicated that the heat from the lamps resulted in second degree burns. SO, at this point, suggested that nothing more could be done with respect to the lighting until a report was received from Complainant's doctor. Id.
In March 2003, S1 went to Honolulu and met with Complainant, SO, and a VA Attorney (VAA). Id. at 28. At that meeting, the VAA informed Complainant that he believed that at that point, Complainant had been accommodated. However, because she was still claiming that the accommodation was not effective, she was required to provide additional medical documentation. Id. As a result, Complainant provided a letter from Dr.1 dated April 21, 2003, requesting that she be provided with ambient light of 300 - 500 lux and task lighting of 750 lux. Id.
The VAA sent Complainant a letter dated August 13, 2003, stating that an additional light reading in her office showed her office "met VA guidelines, nothing more," and informed her that if she required additional accommodation, she was required to provide medical documentation.5 Id. at 29.
In 2004, the Agency retained a private contractor (PC) to assess whether the illumination readings in Complainant's workspace met Dr.1's recommendations. Id. PC conducted an Environmental, Health and Safety study of Complainant's office space and lighting on January 9, 2004. Id. The report by PC contained lighting recommendations based on the use of fluorescent lighting. Id. at 30. As such, the AJ found that the report "was essentially meaningless as a tool in the accommodation process." Id. PC did find, however, that in January 2004, Complainant's office was too dim for reading without the use of fluorescent lights. Id. The Agency did not modify the lighting in Complainant's office in response. Id.
In July 9, 2004, Dr.1 requested that Complainant "have a minimum of 700 lux for lighting her work space, a standard desk of 30"- 48", and to replace fluorescents with full spectrum lighting." Id. at 31. In August 2004, the Agency issued its final decision in Complainant's prior EEO complaint.6 Id. On September 9, 2004, S2 and S1 conducted as an "interactive accommodation session" with Complainant by telephone to discuss the VA's decision. Id. According to S2's memorandum of the conversation, Complainant was presented with three options to meet Dr.1's restrictions.7 Id.
One of the options was to "replace the overhead fluorescent light bulbs in [Complainant's] office with full-spectrum lights . . . ." Id. The AJ noted that this was the same option proposed by CFM in May 2001. Id. None of the three options was ever implemented. Id. S1 visited Honolulu again in October 2004 and took light measurements in and photographs of Complainant's Office 2 to show that she was using lamps. Id. at 32. S1 testified that she determined that Dr.1's requirements were satisfied. Id. She did not recall receiving any more complaints from Complainant until the end of her tenure as Complainant's supervisor in March 2005.
The AJ found that Complainant had headaches all her life. Id. at 7. These headaches were diagnosed as migraine headaches in 2000. Id. at 13. Complainant testified that fluorescent lighting and a lack of natural lighting exacerbated her headaches. Id. at 7-8. The AJ noted that Complainant testified that fluorescent, strobe, or other bright, flashing lights triggered her headaches. Id. at 13. The AJ found that Complainant testified that since 2000, she averaged two migraines per month, though she sometimes had one per week. Id. at 14. The migraines lasted from 12 hours to three to five days. Id. During a multiday migraine, she was "totally incapacitated for at least part of the time." Id. The resulting pain impacted her ability to eat, concentrate, sleep, and she was only minimally able to care for herself. Id. at 21. Further, the record reflects that medications did not provide relief or had negative side effects. Id. at 20. The AJ found that Complainant was a credible witness who suffered from severe, permanent, and chronic migraine headaches that substantially affect several major life activities, and therefore found Complainant to be an individual with a disability under the Rehabilitation Act. Id. at 21- 23. The AJ further found that Complainant was qualified for her position. Id. at 23.
The AJ also found that the Agency had been aware of Complainant's disability since 2000-2001. Id. at 24. The AJ reviewed the history of Complainant's requests for reasonable accommodation from March 2001, and determined that the Agency repeatedly failed to provide an accommodation. Specifically, the AJ noted that neither S1 nor S2 "gave serious attention to or made any meaningful attempt to comply with [Complainant's] requests." Id. at 24-26. The AJ found that S1 explained that she did not replace the overhead florescent lighting with incandescent lighting because Dr.1 stated that Complainant required fixtures that were adjustable. Id. at 32. According to S1, fixed lamps on the ceiling would not be as flexible and movable as the individual lamps Complainant already had. Id. Therefore, S1 did not replace the overhead lights due to Dr.1's recommendation in one of her letters. The AJ found that S1 never informed Complainant of her interpretation of Dr.1's letter. Id. at 33.
In addition, S1 never consulted with Dr.1 regarding her understanding of the recommendation for "adjustable nonfluorescent daylight/full spectrum lighting" and a workspace with flexible, fixtures/furniture that could easily be reconfigured. Id. The AJ noted that Dr.1 never indicated that Complainant's office could not be lit with overhead lights. Id. The AJ found that S1's contention that Complainant's office met Dr.1's recommended lighting standards was not credible because she admitted that internal readings and an external report indicated otherwise. Id. The AJ found S1's explanations were "utterly ridiculous" and "nonsensical," and concluded that S1 failed in her legal obligations to respond to Complainant's ongoing requests for reasonable accommodation. Id. at 32 -33.
S2 was Complainant's second-line supervisor from July 2000 until early 2005, and her direct supervisor from March through May 2005. Id. at 33. The AJ concluded that, even though S2 claimed that he was ignorant of Complainant's migraine headaches, or that they were triggered by fluorescent lights, or her repeated requests for an accommodation until later on in the process, the record showed that he became aware of this issue in December 2000 when Complainant requested an accommodation. Id. Further, the AJ found that S2 testified that on his first visit to Complainant's office in May 2001, Complainant only had a lamp on, not the overhead fluorescents, and that it was dark in her office. Id.
The AJ found that S2 testified that, during a February 2002 counseling session he and S1 had with Complainant at Office 2, Complainant did not link the lighting problems to her migraines. Id. S2 told her to buy more lamps because the lamps were cheap. Id. S2 also claimed that Complainant said she could not work under incandescent lights. Id. However, the AJ noted that S2 admitted that this statement did not make sense because she was using incandescent lights in her office. Id. at 34. The AJ found that Complainant was credible when she stated that she did not make such a statement. Id. This was corroborated by S1. Id.
The AJ also addressed a document dated September 9, 2004, where S2 memorialized a meeting with Complainant and S1 in a "Report of Contact." Id. at 35. The AJ concluded that the report "does not contain any evidence that meaningful 'interaction' occurred with [Complainant]. She merely was presented with alternatives determined in advance by the supervisors." Id. The AJ also did not give credence to S2's position that Complainant rejected a proposal to replace her overhead fluorescent lights. Id. Instead, the AJ found that Complainant had agreed to the light replacement solution in May 2001. Id. S2 testified that he raised the issue of "medical retirement" as an option because the meeting was a "brainstorming session." Id.
The AJ determined that S2's reason was not credible and was disingenuous. Id. Instead, the AJ determined that S2 suggested retirement to Complainant in order to induce Complainant to leave the Agency. Id. The AJ also found that S2 was not able to satisfactorily explain why he suggested in the report that Complainant "should be moved from Bishop Street back to an office at Tripler so that management could 'accommodate her as well as oversee her actions and performance better.'" Id. The AJ found that because the meeting was held to discuss Complainant's prior EEO activity and within one week of her filing a second informal complaint, S2's statement "[raised] the distinct possibility of unlawful retaliation." Id. The AJ found that S2's "testimony overall to be riddled with contradictions and erroneous statements, [and] that he did not provide truthful testimony." Id. The AJ also found that "he never made any meaningful effort to comply with the Agency's obligation to provide reasonable accommodation to a person with a disability." Id.
The AJ further found that S2 testified that he informed Complainant in February 2001 that if she obtained medical certification for her need of non-fluorescent lighting, the Agency would provide it. Id. at 35-36. S1 and S2 testified that Complainant provided adequate certification in March 2001. Id. at 36. However, the AJ determined that, as of March 2005, the record demonstrated that Complainant had yet to be provided with an effective accommodation even though S1 and S2 stated that Complainant had provided adequate documentation as far back as 2001. Id.
The AJ found that Complainant's new supervisor as of May 29, 2005 (S3) testified that in September 2005, she met with Complainant to discuss her performance standards. Id. S3 testified that when she became Complainant's supervisor, no one told her that Complainant was unable to use florescent lighting. Id. at 37. Although S3 noticed during her visit that Complainant was not using the fluorescent lights in her office, she did not inquire about this matter even though she wondered how Complainant could see in such a dark office. Id. S3 testified that she only learned about the lighting problems approximately one week before the hearing. Id. The AJ determined S3's lack of knowledge about Complainant's disability and her past and current accommodation requests for non-fluorescent lighting to be "nothing short of astounding." Id. The AJ noted that by March 2005, S1, S2, and others in the Agency had been dealing with Complainant's request for an accommodation for four years. The AJ found that, if S3's testimony were credible, then this further demonstrates how the Agency "utterly failed to meet its statutory obligations." Id.
The AJ noted that purchasing lamps and taking light readings were not effective accommodations. Id. at 38. The AJ found that CFMS's email proposal in May 2001 to install overhead incandescent lights in Complainant's office would have adequately addressed the problem. Id. However, the AJ found that this solution was never implemented and no witness ever provided an adequate explanation of why the fluorescent lights were not replaced. Id. The AJ further determined that the evidence at the time of the hearing demonstrated that track lighting installed by the Agency did not adequately address Complainant's needs.
The AJ determined that the Agency's failure to address a request for reasonable accommodation constituted a recurring violation that repeated each day that the accommodation was not provided. Id. at 40. The AJ ultimately concluded that the Agency failed to provide a reasonable accommodation to Complainant in violation of the Rehabilitation Act and that the actions of the Agency's managers, specifically S1 and S2, were inadequate and insufficient. Id. The AJ also found that the Agency improperly released Complainant's confidential medical information. Id. at 41.
As for the Agency's liability for relief regarding the failure to provide a reasonable accommodation, the AJ established March 2003 as the beginning of the time period for this complaint, although she allowed testimony covering the period from 2000-2001 as background information.8 Id. at 20 n. 10. Concluding that the Agency did not act in good faith, the AJ ordered injunctive relief to provide the lighting necessary and to safeguard medical information, and awarded compensatory damages and attorney's fees. Id. Specifically, the AJ ordered compensatory damages in the amount of $63,544.80, including $60,000 in non-pecuniary damages. Id. at 48-49.
On November 20, 2006, the AJ issued a second decision awarding attorney's fees and costs. Decision on Attorney's Fees and Costs (Attorney's Fees and Costs Decision). The AJ awarded Complainant attorney's fees in the amount of $57,784, and $755.21 for costs and witness fees. Id. at 6.
In its FO, the Agency accepted the AJ's finding of discrimination regarding the improper release of confidential medical information.9 The Agency, however, declined to implement the AJ's finding that the Agency failed to provide reasonable accommodation, and rejected all relief awarded.
CONTENTIONS ON APPEAL
In its brief on appeal, the Agency argues that the AJ erroneously found that Complainant was an individual with a disability under the Rehabilitation Act. The Agency also argues that regardless, it made good faith attempts to provide reasonable accommodation to Complainant and that she was not entitled to a monetary remedy. The Agency maintains that the AJ erred in determining that the period of liability began in March 2003, and additionally argues that its agreement in a prior EEO complaint brought by Complainant - that she was an individual with a disability - should not be binding in this case. The Agency also argues that the award of compensatory damages was excessive and not warranted because Complainant should not have prevailed in this case; and that Complainant should not receive attorney's fees, costs, or witness fees. Finally, the Agency maintains that Complainant filed a civil action alleging that the Agency failed to provide her with a reasonable accommodation for her migraine headaches.
In response to the Agency's appeal, Complainant submits a brief in support of the AJ's decision. Complainant argues that the AJ's decision is supported by substantial evidence and that her credibility findings were proper. Complainant also requests that we affirm the AJ's findings and conclusions, and the remedy provided.
ANALYSIS AND FINDINGS
The Commission has the discretion to review only the issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-10 (Aug. 5, 2015). Because Complainant did not contest the dismissal by the Agency of claims 2 - 5 or the AJ's determination that those dismissals were proper, we decline to review these matters here.
Procedural Matters
Generally, a complaint that is the basis of a civil action decided by a United States District Court to which a complainant is a party will be dismissed. 29 C.F.R. 1614.107(a)(3). We note that the record reveals that Complainant filed a civil action in the United States District Court for the District of Hawaii alleging that the Agency failed to provide her an accommodation since 2001. Complainant subsequently filed a Motion for Dismissal without Prejudice on May 16, 2007, stating that "many if not all, of the facts that will [be] presented before this Court were presented and examined by the [AJ] in [this case]." Motion for Dismissal without Prejudice at 5. On June 1, 2007, after both parties signed a "Stipulation for Dismissal with Prejudice Order," the District Court dismissed the civil action. As part of the stipulation, the parties agreed that the complaint be dismissed "with prejudice each party to bear its own fees and costs."
The record reveals that the civil action was filed after the Commission issued its decision in EEOC Appeal No. 01A46121 (Sept. 28, 2005), request for reconsid. denied, EEOC Request No. 0520060119 (Nov. 16, 2005). In that case, the Commission reviewed Complainant's allegations that she was not provided a reasonable accommodation from 2000 to April 21, 2003. As addressed below, although it appears that the instant case is based on some of the same matters raised before the District Court, the matters that occurred after April 21, 2003, were not part of the civil action. Accordingly, we find that the reasonable accommodation at issue in this case is distinguishable from the matter raised in the civil action; therefore, we decline to dismiss the instant complaint on the grounds that it was the basis of a civil action decided by the United Stated District Court.
Standard of Review
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. National Labor Relations Board, 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 determinations, if based on the demeanor of a witness, the tone of voice, and the substance of testimony, 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, � VI.B. (Aug. 5, 2015).
The Agency argues on appeal that the AJ erred in finding that the relevant time period for liability in this case began March 2003. Specifically, the Agency argues that in EEOC Appeal No. 01A46121, the Commission, in finding that the Agency had adequately accommodated Complainant, considered evidence up until March 2003. In EEOC Appeal No. 01A46121, the Commission found that Complainant submitted a letter from her doctor dated April 21, 2003. We also determined that "in response to the letter, [the Agency] provided Complainant with adjustable non-florescent lighting day/full spectrum lighting, that she picked from a catalogue." EEOC Appeal No. 01A46121, at 3. Accordingly, we agree with the Agency that the April 21, 2003 letter was considered in the previous case. As a result, we find that the AJ erred in considering March 2003 as the start of the violation period at issue in this case. Rather, we limit the Agency's liability to the period arising after April 21, 2003.
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 2003, 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, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and (p). As a threshold matter, Complainant must establish that she is an "individual with a disability." An individual with a disability is one who (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment. Interpretive Guidance on Title I of the Americans with Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
The term "substantially limits" means that Complainant is "[s]ignificantly restricted as to the condition, manner or duration under which [she] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. � 1630.2(j)(1)(ii). Factors to determine whether an individual is substantially limited in a major life activity include: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; (3) the permanent or long-term impact, or the expected permanent or long term impact of or resulting from the impairment. 29 C.F.R. � 1630.2(j)(2). Chronic, episodic conditions may constitute substantially limiting impairments if they are substantially limiting when active or have a high likelihood of recurrence in substantially limiting forms. Hunter v. Social Security Admin., EEOC Appeal No. 0720070053 (Feb. 16, 2012).
The Agency argues that Complainant failed to demonstrate that she is an individual with a disability. Specifically, the Agency argues that Complainant failed to establish that her migraines always resulted in incapacitation, and that she testified that during some migraines she was able to remain at work. The Agency further argues that Complainant's testimony regarding her recollection of her migraines in 2005 was imprecise. Finally, the Agency argues that Dr.2 stated that Complainant's only limitation was that she had difficulty working with lights.
Upon review of the record, the Commission determines that there is substantial evidence to support the AJ's finding that Complainant is an individual with a disability under the Rehabilitation Act. The record reveals that Complainant's headaches were diagnosed as migraine headache syndrome in 2000. Hearing Transcript Day 1 (HT1) at 26. Complainant testified that fluorescent lighting and a lack of natural lighting exacerbated her headaches. Id. Complainant testified that the headaches occurred as often as once or twice per week. Id. at 32. Complainant's migraine headaches were triggered by fluorescent, strobe, or other bright, flashing lights. Id. at 33. The AJ found that Complainant credibly testified that since 2000, she averaged two migraines per month, though she sometimes has one per week. Id. The migraines lasted from 12 hours to three to five days. Id. During a multiday migraine, she was "totally incapacitated for at least part of the time." Id. The resulting pain impacted her ability to eat, concentrate, sleep, and she was only minimally able to care for herself. Id. at 28-29. Further, the record reflects that medications did not provide relief or had negative side effects. Id. at 34-35. The record reveals that the testimony of Complainant's ophthalmologist and neurologist corroborated Complainant's testimony that she had headaches once or twice a week which lasted three to five days. We note that the record reflects that the physicians did not observe Complainant during a migraine.
We find that, based on this evidence and testimony, Complainant established that the nature and severity of her impairment was such that she was substantially limited in the major life activities of eating, sleeping, and caring for herself. Additionally, Complainant's doctors corroborated Complainant's testimony regarding the nature and severity of the migraines. We note that every time Complainant had a migraine it did not result in complete incapacitation; however, Complainant testified that there were episodes that were severe and resulted in an inability to care for herself, think, concentrate, or eat. The Agency has not offered any persuasive evidence to contradict or call into question Complainant's testimony regarding those severe episodes. Further, even though the Agency correctly reiterates the AJ's finding that Complainant's testimony regarding her migraines in 2005 was imprecise, we find that this is not sufficient to refute Complainant's testimony regarding the nature and severity of her migraines. We note that nothing in the record demonstrates that the AJ erroneously found that Complainant was a credible witness based on her demeanor and the substance of her testimony specifically regarding her recollection of her migraines in 2005. AJ Decision at 20-21.
Additionally, with regard to the Agency contention that Dr.2's testified that Complainant is only limited in "working with lights," we find this argument is not determinative given the substantial evidence in the record to support the AJ's findings regarding the nature and severity of Complainant's migraines. Accordingly, we find that Complainant has demonstrated that her episodic migraine headaches are sufficiently severe or recur with sufficient frequency to be substantially limiting when active. Accordingly, we find that Complainant has established that she is an individual with a disability.
Qualified Individual with a Disability
We must now determine whether Complainant has met her burden of proof to establish that she is a qualified individual with a disability within the meaning of the Rehabilitation Act. An individual with a disability is qualified if she satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without accommodation, can perform the essential functions of such position 29 C.F.R. � 1630.2(m); see also 29 C.F.R. � 1630.3 (exceptions to definition).
The record reflects that Complainant had the requisite skills, education, and experience such that she was qualified to perform the essential functions of the position. The Agency did not dispute this on appeal. Moreover, S1 testified that Complainant was promoted to her position at the time of this complaint because her work was very good and that she was given more complex projects as a consequence. Hearing Transcript, Day 2 (HT2) at 9. Thus, we find that Complainant is a qualified individual with a disability.
Reasonable Accommodation
A reasonable accommodation may consist of modifications or adjustments to the work environment or to the manner or circumstances under which the position held is customarily performed that enables a qualified individual with a disability to perform the essential functions of that position. 29 C.F.R. � 1630.2(o)(ii). Complainant may use "plain English" and need not mention the Rehabilitation Act or use the phrase "reasonable accommodation" when requesting a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 1 (as revised October 17, 2002) ("Enforcement Guidance").
One category of reasonable accommodation is a modification or adjustment to the work environment that enables a qualified individual with a disability to perform the essential functions of that position. Enforcement Guidance at 2. A modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of cases"; this means it is "reasonable" if it appears to be "feasible" or "plausible." Id. at 4. An accommodation also must be "effective" in meeting the needs of the individual: the accommodation must remove a workplace barrier, thereby providing the individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment. Id. at 4-5, 18.
On appeal, the Agency argues that the AJ erred in finding that Complainant had been denied a reasonable accommodation because it acted in good faith and provided her with an effective accommodation. Specifically, the Agency argues that our decision in EEOC Appeal No. 01A46121 determined that the Agency engaged in good faith efforts to accommodate Complainant and expressly refers to the Agency's efforts since April 21, 2003. The Agency further argues that, assuming that the period of liability is from March 2003 to September 2006, the Agency satisfied its obligations. Specifically, after receipt of the April 21, 2003, letter from Dr.1, Complainant refused to use the lamps because of the heat they produced. The Agency also argues that it undertook additional measures to accommodate her. Specifically, in October 2004, Complainant was moved to a room with windows; in 2005, they installed non-florescent track lighting, ordered shades and filters, and erected an office at the Tripler Army base for Complainant. The Agency argues that Complainant is not entitled to an accommodation of choice, just an effective accommodation.
As noted above, we find that the period of liability arose after April 21, 2003. In response to the Agency's argument that we previously determined that it acted in good faith, we note that the period after April 21, 2003 was not the subject of the complaint at issue in EEOC Appeal No. 01A46121. Accordingly, the determination that the Agency previously acted in good faith is not dispositive here because the question at issue is whether the Agency acted in good faith after April 21, 2003.
An employer should respond expeditiously to a request for reasonable accommodation. Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), Number 915.002 (October 17, 2002), Question 10. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation of the ADA. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would include: (1) the reason(s) for the delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. Id. n.38.
The record reveals that Complainant repeatedly requested an accommodation in her workspace such that her migraine headaches would not be triggered or exacerbated by the lighting. Complainant provided a letter on April 21, 2003, from Dr.1 requesting that her lighting levels be "Ambient lighting: 30-50 foot-candles (300-500 lux) [and] task lighting (writing/reading/hard copy): 75 foot candles (750 lux)." Complaint file 1 at 227. In July 9, 2004, Dr.1 requested that Complainant "have a minimum of 700 lux for her lighting for her work space, a standard desk of 30"- 48," and to replace fluorescents with full spectrum lighting." Id. at 212. The record reveals that Complainant occupied Office 2 until she moved to Office 3 sometime in October 2004. HT1 at 24-25. In both Office 2 and 3, Complainant used four non-florescent lamps in a room that had windows with ambient lighting. Id. at 73-74.
The Agency argues on appeal that it made a good faith effort to accommodate Complainant. However, we find that the record reveals that the Agency unduly delayed providing Complainant with an effective accommodation. Specifically, the Agency failed to show that it took appropriate action after Complainant's April 21, 2003, and July 9, 2004 requests. We find it particularly troublesome that even as late as September 2005, Complainant's office was still not illuminated to the appropriate lux level as requested by Dr.1 on April 21, 2003, and again on July 9, 2004.
After receiving the April 2003 request from Dr. 1, the Agency took temperature and light readings of Complainant's office on August 7, 2003. Complaint File 1 at 60. Thereafter, in a letter dated August 13, 2003, the Agency informed her that the light reading in her office showed her office "met VA guidelines, nothing more," and informed her that if she required additional accommodation, she was required to provide medical documentation. Id. S1 testified that she did not believe that the April 2003 letter was responsive to the Agency's previous request for more information regarding Complainant's need for an accommodation. HT2 at 330. However, there is nothing in the record to explain why the Agency took nearly four months to respond to Complainant's request. Further, the record reveals that, six months later, Complainant was still working in an office without adequate lighting when the Agency's PC determined, in January 2004, that Complainant's office was too dim for reading without the use of fluorescent lights. Complaint File at 245.
Likewise, we note that, in response to Dr.1's July 9, 2004, letter, S1 testified that light readings were taken in October 2004. HT2 at 75. Additionally, Complainant was moved into Office 3 as a result of an "interactive accommodation session" on September 9, 2004. Id. However, nothing in the record adequately explains why it took, at the earliest, two months to respond to this request. Further, the record reveals that the lighting in Office 3 was problematic given that nearly one year later, in September 2005, S3 observed that Complainant was not using the fluorescent lighting in her office and wondered how Complainant could see in a dark office. HT1 at 200.
Based on our review of the record, we find that the Agency did not respond to Complainant's request for an accommodation within a reasonable period of time. We further find that the Agency unnecessarily delayed responding to Complainant's request and that the delayed response constituted a violation of the Rehabilitation Act. See Cruzan v. Dep't of Defense, EEOC Appeal No. 0120071893 (Aug. 15, 2008)(finding that management's failure to advise complainant of its decision on his accommodation request for four months constituted unnecessary delay in violation of Rehabilitation Act); Villanueva v. Dep't of Homeland Security, EEOC Appeal No. 01A34968 (August 10, 2006)(finding that agency's six month delay in processing complainant's accommodation request violated Rehabilitation Act).
The Agency also argues on appeal that Complainant declined to use the appropriate lighting because of the heat produced by the lamps, and that caused the delay in her being accommodated. We are not persuaded by the Agency's position. In analyzing whether Complainant or the Agency caused the delay, we find that Complainant complained to the Agency that the lamps were excessively hot and caused her second degree burns. HT1 at 67, 199, and 210; HT2 at 35; and 160-161. The Agency was obligated to continue seeking an effective accommodation that did not cause Complaint harm, in a timely manner. The record reveals that it failed to do so here.
Turning to the issue of whether the required accommodation was simple or too complex to provide, it appears from the record that installing track lighting with the appropriate shades and filters in an office with natural lighting would have provided Complainant with an effective accommodation. We find that the required accommodation was not too complex to provide for Complainant. The Agency argues on appeal that it had installed track lighting in order to accommodate Complainant. HT2 at 236 -237. However, Complainant complained that the lights were too hot without shades and filters. HT1 at 67; 199. The Agency ordered shades for Complainant but discovered they were the wrong type. HT1 at 67-68. We note that the Agency has not proffered any evidence to demonstrate that ordering the correct shades would have been unduly burdensome.
Further, we note that, at the time of the hearing, the Agency still had not installed the proper shades so that Complainant could use the track lighting. HT1 at 69. S2 testified that the Agency was in the process of building an office specific to Complainant's needs. HT2 at 163. However, the future promise of an accommodation did not absolve the Agency of its responsibilities to provide Complainant with an effective accommodation after April 23, 2003.
Additionally, we find that the Agency has failed to put forth any evidence to demonstrate that the AJ erred in finding S1, S2, and S3's testimony to not be credible. Accordingly, we find substantial evidence to support the AJ's determination that the Agency unreasonably delayed in providing Complainant with an effective accommodation after April 21, 2003 and therefore failed to act in good faith when it did not provide her with a reasonable accommodation.
REMEDIES
In its appeal brief, the Agency argues that the award of $60,000 in non-pecuniary damages is monstrously excessive and an award of $40,000 is more aligned with our cases. The Agency did not raise any contentions regarding the AJ's award of $3,544.80 in pecuniary damages. With regard to the issue of attorney's fees, costs and witness costs, the Agency merely argues that Complainant "should not receive an award of attorney's fees or expert witness fees." We note that the Agency failed to offer any specific argument in support of this contention other than its belief that Complainant should not have prevailed with respect to her discrimination claim. Accordingly, we find that the Agency has failed to demonstrate that the AJ's award of attorney's fees in the amount of $57,784, $755.21 for costs and witness fees, and $3,544.80 in pecuniary damages are not supported by substantial evidence in the record.
Non-pecuniary damages
When discrimination is found, the respondent Agency must provide the employee with a remedy that constitutes full, make-whole relief to restore the employee as nearly as possible to the position he or she would have occupied absent discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975). The Commission is authorized to award compensatory damages as part of the "make whole" relief for intentional discrimination. Compensatory damages, however, are limited to the amount necessary to compensate an injured party for actual harm caused by the Agency's discriminatory action, even if the harm is intangible. Damiano v. U.S. Postal Serv., EEOC Request No. 05980311 (Feb. 26, 1999). Compensatory damages should consider the extent, nature and severity of the harm and the length of time the injured party endured the harm. Id.; Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. The Commission notes that a proper award of non-pecuniary compensatory damages, the amount of the award should not be "monstrously excessive" standing alone, the product of passion or prejudice, and consistent with the amount awarded in similar cases. See Ward-Jenkins v. Dep't of Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). Because we find that the AJ's determination that Complainant was discriminated against was proper, we turn to the Agency's argument that the AJ's award of $60,000 in nonpecuniary damages is excessive.
The AJ found the following with regard to Complainant's testimony concerning the effect of the Agency's failure to provide her a reasonable accommodation: Complainant stated that she was humiliated by her supervisors' reactions to her requests for accommodation. AJ Decision at 43. Complainant's supervisors did not believe her and called her a liar. Id. This made her feel horrible, worthless, and less confident. Id. Complainant also became angry and frustrated because she could not understand why the Agency did not take relatively simple measures to help her do her job. Id. She became disillusioned about the future of her career. Id. Complainant was preoccupied with the situation and no longer enjoyed activities and hobbies. Id. Her stress level increased, and she wakes up at night feeling anxious. Id. at 43-44. Her increased stress and anxiety negatively affected her migraines. Complainant began seeing a psychiatrist on November 25, 2002, and continued to see him about once a month. Id.
Complainant's psychiatrist testified that during her visits, Complainant discussed her reaction to her employer's response to her requests for accommodation for her migraine headaches. The psychiatrist corroborated that Complainant was frustrated by the lack of action on the part of the Agency. Id. Complainant's psychiatrist diagnosed her with Anxiety Disorder NOS (not otherwise specified). Id. He reached this conclusion based on the fact that Complainant was nervous, anxious, angry, frustrated, depressed and irritable, and had problems eating and sleeping. Id. She also exhibited rapid eye movements, rapid speech, and quicker motor movements. Id.
Complainant's anxiety primarily related to the Agency's failure to accommodate her. Id. at 45. Complainant was prescribed medications, including Welbutrin, which she took for a while, but she stopped taking the medications because of the adverse side effects. Id. Complainant currently is prescribed anti-anxiety and sleep medications as needed. Id. Complainant's psychiatrist described Complainant's Anxiety Disorder as "moderately severe" and noted that there has been no improvement in her condition because she did not feel she was being treated fairly at work and still had not been accommodated. Id. The AJ concluded that, based on the uncontested medical evidence and the credible testimony of Complainant and her psychiatrist, Complainant suffered mental and physical distress and loss of enjoyment of life that was directly and solely attributable to the Agency's discriminatory actions.
The Agency argues that Complainant's psychiatrist testified that if Complainant is provided with an effective accommodation and feels better as a result, her mental state would begin to improve within a few months. We find that this does not obviate the AJ's finding regarding the nature of the harm already suffered by Complainant or its severity during the relevant time period. In fact, this further demonstrates that the Agency's failure to accommodate Complainant is largely responsible for Complainant's anxiety and stress.
The Agency also argues that comparator cases show that the award is monstrously excessive. We find, however, that the award of $60,000 is consistent with the amount awarded in similar cases. Miller v. U.S. Postal Serv., EEOC Request No. 05A40871 (Jun. 29, 2006) (complainant awarded $70,000 in compensatory damages due to agency's failure to accommodate complainant's disability which resulted in complainant experiencing emotional distress stemming from financial problems caused by denial of accommodation); Henery v. Dep't of the Navy, EEOC Appeal No. 07A50034 (Sep. 22, 2005) (complainant awarded $60,000 in compensatory damages due to agency's failure to accommodate complainant's disability for four year period where complainant suffered from frustration, negativity, and loss of sleep and physical pain associated with resulting excessive walking, and caused significant increase in complainant's need for medical treatment, as well as increase in physical and emotional harm); Court v. U.S. Postal Serv., EEOC Appeal No. 07A10114 (May 15, 2003) (complainant awarded $60,000 in compensatory damages due to agency's failure to accommodate complainant's disability which resulted depression and physical suffering for more than two years).
Accordingly, we affirm the AJ's award of $60,000 in non-pecuniary compensatory damages, $3,544.80 in pecuniary damages, and attorney's fees in the amount of $57,784, and $755.21 for costs and witness fees.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFIY the Agency's final order. We REVERSE the Agency's determination that Complainant was not discriminated against based on her disability when she was denied a reasonable accommodation. We, however, AFFIRM the Agency's acceptance of the AJ's determination regarding claims 2-5; and the finding of discrimination regarding the improper release of confidential medical information. The Agency is required to comply with the Order below.
ORDER
The Agency is ORDERED take the following remedial action, to the extent it has not already done so, within one-hundred and twenty (120) calendar days of the date this decision becomes final:
1. Provide a reasonable accommodation for Complainant's disability. As the duty to accommodate is a continuing one, if Complainant currently requires a different accommodation than the one sought in this case, the Agency must provide an effective accommodation for Complainant's current condition;
2. Pay Complainant $60,000 in non-pecuniary compensatory damages and $3,544.80 in pecuniary damages,
3. Pay Complainant $57,784.00 in attorney's fees and $755.21 in costs.
4. Conduct training for all management officials involved in this case regarding their obligations under the Rehabilitation Act, specifically regarding providing reasonable accommodations
5. 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 EEOC's compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
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 verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its San Francisco, California and Honolulu, Hawaii offices 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)), he/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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
___________________________
Carlton M. Hadden, Director
Office of Federal Operations
__10/13/15________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 The AJ, in affirming the dismissals of issues 2 through 5, noted that the claims raised in issues 2 through 4 did not affect the "conditions or privileges" of Complainant's employment.
3 The AJ's "Report on Pre-Hearing Conference" on September 23, 2005, listed only disability as a basis. The record indicates that, after the Agency completed the ROI, the bases of sex and reprisal were no longer part of Complainant's claims. While it is unclear from the record when these bases were withdrawn, we note that Complainant did not object and the hearing proceeded only on the basis of disability. Accordingly, we will only address Complainant's disability claim here.
4 A lux is an International system for the measurement of illumination. A lux is equal to one lumen per square meter. The American Heritage Dictionary of the English Language (4th ed. 2000). A lumen is equal to the amount of light given out through a solid angle by a source of one "candela" intensity radiating equally in all directions. Id.
5 We note that the record reveals that this letter memorialized a temperature reading that occurred in Complainant's office on August 13, 2003. The Agency further stated that "[Complainant] must first provide basic medical information related to her claim of a disability and need for reasonable accommodation." ROI at 42. However, the Agency did not indicate why the April 21, 2003, letter was not sufficient to offer Complainant a reasonable accommodation.
6Complainant alleged that the Agency failed to provide a reasonable accommodation for her migraines starting in 2001. The AJ in that case issued a decision without a hearing finding that Complainant failed to demonstrate that she was not accommodated. The Commission affirmed the AJ's finding in that case. EEOC Appeal No. 01A46121 (Sept. 28, 2005)
7 The three options were:
1. The Agency will find alternative space in E-Wing or the ACC at the PIHCS facility which has full spectrum lighting and natural lighting at or above 700 LUX. Necessarily, [Complainant] will have to vacate the Bishop Street office since the current PTSD program there, from which we are borrowing her current office, will be leaving that office next June, 2005.
2. And/or the [Agency] will replace the overhead fluorescent light bulbs in [Complainant's] office with full-spectrum lights for a temporary resolution until [Complainant] can move to the E-Wing at Tripler.
3. And/or the [Agency] will purchase more lights (possibly a floor lamp) to supplement her other four table lamps we procured in 2002/2003.
ROI at C9.
8 The record reveals that the AJ denied the Agency's motion to limit Complainant's evidence regarding her allegations of disability discrimination to the period of time following the Agency's final order in her prior case, August 19, 2004. Report and Order on Telephone Conference and Second Supplement to Pre-hearing Report (November 3, 2005) The AJ found that "the prior case involved issues arising in 2001 and 2002. The claims in this case begin in March 2003." Id. The AJ concluded that she would consider Complainant's claims arising since March 2003.
9 Because the Agency accepted the AJ's finding on the improper release of confidential medical information and Complainant did not raise this issue on appeal, we will not be addressing this issue herein.
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0720070074
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
Washington, DC 20013
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0720070027