Anna W. Matthews, Complainant,v.Cari M. Dominguez, Chair, Equal Employment Opportunity Commission,<1> Agency.

Equal Employment Opportunity CommissionFeb 24, 2004
07A30060 (E.E.O.C. Feb. 24, 2004)

07A30060

02-24-2004

Anna W. Matthews, Complainant, v. Cari M. Dominguez, Chair, Equal Employment Opportunity Commission, Agency.


Anna W. Matthews v. Equal Employment Opportunity Commission

07A30060

February 24, 2004

.

Anna W. Matthews,

Complainant,

v.

Cari M. Dominguez,

Chair,

Equal Employment Opportunity Commission,<1>

Agency.

Appeal No. 07A30060

Agency No. 0-0000017-SD

Hearing No. 0-0000017-SD

DECISION

INTRODUCTION

Following its July 29, 2002 final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.

On appeal, the agency requests that the Commission affirm its rejection of

an independent Administrative Judge's (AJ) finding that the agency failed

to provide complainant with reasonable accommodations in violation of

the 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 AJ's order to provide complainant

with sick leave earned from April 1, 2000 through November 8, 2001;

back pay for the same period less any Office of Workers Compensation

Program (OWCP) payments; and attorneys fees in the amount of $23,137.68.

Complainant also appealed the AJ's decision solely on the matter of

remedies.

ISSUE PRESENTED

The issue presented herein is whether the AJ's factual findings are

supported by substantial evidence in the record and the AJ's conclusions

of law are correct.

BACKGROUND

Complainant was an Investigator employed at the agency's San Diego

Area Office facility. In November 1998, complainant filed a worker's

compensation claim due to an injury to her right upper extremity caused by

repetitive stress from writing and typing. Specifically, complainant was

diagnosed with tendinitis in her right rotator cuff, epicondylitis in her

right elbow, and carpal tunnel in her right hand. Due to her conditions,

she was limited in lifting over five pounds, typing or writing for more

than five minutes at a time for a total of fifteen minutes an hour,

and no pushing or pulling. Based on her physician's recommendation,

complainant went out on leave from March 15, 1999 through April 19, 1999.

She subsequently sustained an injury due to repetitive stress on her

left arm and was diagnosed with epicondylitis in her left elbow.

While complainant was out on leave, she contacted the agency's Disability

Coordinator (DC) seeking assistance in obtaining reasonable accommodations

that would enable her to perform her position. During the same time,

complainant believed that the director of the area office (Area

Director) made some disparaging comments about her. Complainant was

told that the Area Manager told a trial attorney within the office that

complainant did not have to work because her husband had a good job.

Complainant felt that the Area Manager was attempting to sully her good

name and reputation.

On May 7, 1999, complainant submitted a memorandum making her request for

reasonable accommodations. Specifically, she requested Dragon "Naturally

Speaking" computer program recommended by the DC (Software), an ergonomic

study of her work station, paraffin treatment machine as suggested

by the DC, and a notetaker. On May 26, 1999, the agency's Director

of the Office of Human Resources (HR Director) informed complainant,

the Area Director, and the Director of the Los Angeles District Office

(District Director), that the request for the Software was approved.

The Software and additional memory for complainant's computer in order

to run the Software were received on July 27, 1999. The agency also

paid for training for eight hours for complainant on the Software and

additional equipment such as a digital recorder with built in speaker and

microphone and a premium microphone headset. The DC provided complainant

with names of other agency co-workers who use the same Software and have

been successful with the system.

Despite the installation of the equipment and the Software, the training,

and practice so that the Software recognizes her speech, complainant

indicated that the Software was not working. The Software failed to

recognize any of her words and produced only letters on the screen that

were unrelated to the words complainant spoke. The trainer suggested that

the Software that was purchased was not what she needed and suggested

another version of it. The DC rejected the trainer's suggestion noting

that the Software was ordered based on a conversation with the computer

company, prior purchases of the Software for other employees, and was

the latest version at the time of the purchase. The DC informed the

Computer Specialist at the Los Angeles District Office of the problems

complainant was having with the Software. The Computer Specialist went

to the Area Office in order to look into the problems. The DC also

tried to set up a phone call between complainant and the Director of

Assistive Technology at the Columbia Lighthouse for the Blind to try to

figure out why complainant was having difficulties with the Software.

The DC attempted three times to set up a meeting. Following the third

attempt, the DC was informed that complainant was not in the office.

Complainant went out on extended sick leave as of March 17, 2000, and

did not return to work. During complainant's leave, the Software on

her computer was upgraded and the DC planned on providing complainant

with additional training.

Complainant also requested an ergonomic study of her work station,

paraffin treatment machine, and a notetaker. Complainant's physician did

not think that the paraffin treatment machine would help her. As for

notetakers, the agency provided a stay-in-school student and other new

investigators, as part of training, as assistants to complainant in taking

notes, typing, writing, and making copies. During the relevant time, the

agency modified complainant's assignments. For example, complainant was

on an intake rotation. When it was time for her to do intake, if she did

not feel well, they would just go to the next person on the list. Also,

the Area Director averred that he made others available to her in order

to perform her assignments such as the student and new investigators.

The agency authorized the ergonomic study of complainant's work station in

May 1999. Due to an administrative error, the money for the study was not

available for complainant. The funds were transferred from the agency's

headquarters to the local office but were not recognized as funds for

complainant's study. Despite complainant's inquiries into the matter,

the error was not corrected. Complainant contacted the DC in November

1999, seeking assistance again in having the study conducted. At that

point, the funds were resent to the LA District Office and complainant

was allowed to select an ergonomic consultant and to schedule the study.

The study was conducted on January 18, 2000. The study report recommended

a different ergonomic chair than the one she had, a split keyboard, a

wrist rest for her mouse, a document holder, and a footrest. Complainant

faxed the report to the DC on February 22, 2000. On or about April 6,

2000, complainant sent the DC a memorandum regarding implementation of

the study's recommendations. As a result of the report, the DC procured

a split keyboard and a wrist rest for complainant. The office space

already had a footrest and an ergonomic chair. The DC began working

with complainant in order to find a new ergonomic chair more in line

with the study's recommendation.

On August 25, 1999, complainant asked the Area Director to provide her

with a new desk with drawers that were easier to open. At the time, the

Area Office had received several new desks for its Alternative Dispute

Resolution Division which had just been put into place. The Area Director

had a conference call with the DC and the Union Representative to make

sure that if complainant was provided with one of the new desks, there

would be no violation of the Memorandum of Understanding (MOU) between

the agency and the union. Complainant received the new desk on October

20, 1999.

Due to her condition, complainant went out on leave from March 7-20,

2000, and again on or about April 18, 2000. During this time, complainant

requested and received advanced sick leave. Complainant did not return

from leave and did not see any of the changes made to her work station

in response to the ergonomic study.

Believing she was subjected to unlawful discrimination, complainant

filed a formal EEO complaint with the agency on February 15, 2000,

alleging that the agency had discriminated against her on the bases of

sex (female), disability (tendinitis, epicondylitis; and neuropathy of

upper extremities), and reprisal for prior EEO activity and requesting

reasonable accommodation. In the narrative provided along with her

formal complaint, complainant contends that the agency failed to

provide her with reasonable accommodations and that the Area Director

made disparaging comments in order to ruin her name and reputation.

Complainant submitted an amendment to her complaint stating that the

agency failed to provide her with the specific accommodations listed

within the ergonomic study and working Software.

At the conclusion of the investigation, complainant was provided a copy

of the investigative report and requested a hearing before an AJ. The AJ

issued summary judgment as to complainant's claims of discrimination

based on sex and reprisal. Following a hearing solely on the reasonable

accommodation issue, the AJ found that complainant established that she

was a qualified individual with a disability. In particular, the AJ

concluded that complainant was substantially limited in the major life

activity of manual tasks. Further, the AJ noted that complainant could

perform the essential functions of taking in charges, investigating,

analyzing charges, and issuing findings. The AJ determined that writing

and typing were not essential functions.

The particular accommodations in this dispute were Dragon Naturally

Speaking software (hereinafter "Software"), a new desk, conducting and

implementation of an ergonomic workstation study, advanced sick leave, an

assistant to take notes, and a telephone headset. As for the Software,

the agency provided complainant with the program along with training

but it never worked. Complainant indicated that the Software did not

recognize her voice and would produce letters unrelated to what was

spoken. The trainer provided by the agency indicated that the Software

needed an upgraded program. The AJ noted that the agency's disability

coordinator disagreed with the trainer based on her experience with others

who have used the Software. The AJ found that the agency's dismissal

of the trainer's suggestion was inadequate. The AJ concluded that the

agency should have investigated the problem further and engaged in the

interactive process.

As for the desk, the AJ found that it was not a necessary accommodation.

The AJ noted that it was not on complainant's initial list of

accommodations presented to the Disability Coordinator and complainant

did not consider it until she saw the new desks. The AJ determined

that the agency unreasonably delayed the ergonomic study. Clearly the

record indicated that it was an oversight, however, the AJ was concerned

that no steps were taken to uncover the problem. As for the notetakers,

the AJ noted that the agency officials should have been more aggressive

in ensuring that complainant could use notetakers more often. The AJ

determined that the agency acted appropriately in providing complainant

with advanced sick leave. Finally, the AJ found that the telephone

headset was unnecessary in that she had a speakerphone.

Accordingly, the AJ concluded that the agency failed to provide

complainant with the reasonable accommodations of the Software and the

ergonomic study. The AJ also noted that complainant suffered no damage

in that she left as a result of a worsening of her condition that could

not be accommodated. The AJ provided complainant with the opportunity

to show that this conclusion is incorrect.

The AJ then issued her decision regarding remedies available to

complainant. The AJ noted that in her previous decision, she found

that the agency's actions were in good faith. Accordingly, the AJ

concluded that complainant was not entitled to compensatory damages.

The AJ also determined that due to the failure to accommodate complainant

earlier, she was forced to take sick leave. Therefore, the AJ found

that complainant could have delayed using sick leave thereby earning

more in salary. Hence, the AJ awarded complainant back pay from April

2000 until November 8, 2001, less OWCP payments. The AJ also awarded

complainant sick leave she would have earned from April 1, 2000 until

November 8, 2001. The AJ determined that back pay and sick leave would

cease on November 8, 2001, the date of the hearing when the complainant's

attorney stated that complainant was unable to return to work. As such,

the AJ also noted that complainant cannot be reinstated to her position.

Further, complainant was not entitled to front pay. Finally, on June 19,

2002, the AJ issued her amended order setting forth the remedies awarded

complainant along with an award of $23,137.68 for attorney's fees.

The agency's final order rejected the AJ's decision. On appeal, the

agency argues that the AJ erred in finding that the agency violated

the Rehabilitation Act. In particular, the agency contends that it is

not liable for the delay in the ergonomic study and the failure in the

Software. The agency notes that the delay itself was not a violation

in that the agency had provided extensive accommodations to address

complainant's condition during the delay thereby negating any effect

of the delay. Further, the agency argues that it is not obligated to

provide each of complainant's requested accommodations. During the time

of the delay, the agency provided other effective accommodations rather

than those requested by complainant. Accordingly, the agency requests

that the Commission reject the AJ's conclusion that the agency violated

the Rehabilitation Act.

Complainant submitted a response to the agency's appeal. Through her

attorney, complainant argues that the delays in the ergonomic study

and correction of problems with the Software were violations of the

Rehabilitation Act. Complainant contends that the delays adversely

affected her. Complainant asserts that the AJ properly awarded her relief

in the form of restoration of sick leave, back pay, and attorney's fees.

Complainant did not contest the issuance of summary judgment on the

claims of discrimination based on sex and reprisal nor the AJ's findings

as to the desk request, the use of advance sick leave, and a headset.

Accordingly, complainant asks that the Commission affirm the AJ's finding

of liability.

Complainant also appealed the AJ's award of relief. She claims that

she is entitled to compensatory damages due to the agency's failure

to demonstrate good faith when it did not engage in the interactive

process and delayed in conducting the ergonomic study. Complainant argues

specifically that she should be awarded past and future pecuniary damages,

non-pecuniary damages, and front pay. Finally, complainant states that

the AJ should not have reduced the award of attorney's fees by forty

percent for "merit-less claims." The agency rejects complainant's

appeal. The agency contends that its actions were in good faith and

that complainant has not shown an entitlement to front pay.

ANALYSIS AND FINDINGS

Summary Judgment

Neither party contests the AJ's issuance of summary judgment on the bases

of sex and reprisal. Therefore, after a careful review of the record, we

discern no basis to disturb the AJ's decision without a hearing finding no

discrimination as to the bases of sex and reprisal. Accordingly, we shall

only address complainant's claim of denial of reasonable accommodations.

Findings Following the Hearing

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.

Under the Commission's regulations, an agency is required to make

reasonable accommodation to the known physical and mental limitations of

an otherwise qualified individual with a disability unless the agency

can show that accommodation would cause an undue hardship. 29 C.F.R. �

1630.9. As a threshold matter in a case of disability discrimination

under a failure to accommodate theory, the complainant must demonstrate

that she is an "individual with a disability." EEOC Regulation 29

C.F.R. � 1630.2(g) defines an individual with a disability as one who

has a physical or mental impairment that substantially limits one or

more of that person's major life activities or has a record of such

impairment. EEOC Regulation 29 C.F.R. � 1630.2(h)(2)(i) defines "major

life activities" as including the functions of caring for one's self,

performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. The record indicates that complainant has

tendinitis, epicondylitis; and neuropathy of upper extremities. Due to

her conditions, she is unable to lift over five pounds. The AJ found

complainant to be limited in the major life activity of manual tasks.

Upon review, we find that there is insufficient evidence regarding

how complainant's impairments affect her outside of work to determine

that she is limited in manual tasks. However, it is clear from the

record that complainant is substantially limited in the major life

activity of lifting. Accordingly, we conclude that is covered under

the Rehabilitation Act in that she is an individual with a disability.

Complainant also must show that she is a "qualified" individual with

a disability within the meaning of 29 C.F.R. � 1630.2(m). The term

�qualified individual with a disability,� with respect to employment,

is defined as a disabled person who, with or without a reasonable

accommodation, can perform the essential functions of the position

held or desired. 29 C.F.R. � 1630.2(m). Both parties agreed that the

essential functions of complainant's position included taking in charges,

investigating, analyzing charges, and issuing findings. The record

indicates that complainant could not write or type, however, the parties

stipulated that these were not essential functions. Accordingly, the AJ

properly concluded that complainant has shown that she was a qualified

individual with a disability.

Therefore, absent a showing of undue hardship, the agency is obligated

to provide complainant with effective accommodation. Complainant argues

that the agency failed in furnishing her with a functioning version of the

Software and an ergonomic study. Further, the AJ found that the agency

was not aggressive in making notetakers available to complainant. Neither

party contests the AJ's findings of no violation as to the requests for

a new desk, advance sick leave, and a headset. Accordingly, we shall

limit our review to the Software, the ergonomic study, and the notetakers.

The Software

The AJ found, with respect to the Software, that the agency failed to

engage in the interactive process. Based on this finding, she concluded

that the agency violated the Rehabilitation Act. Determining an

appropriate reasonable accommodation for an employee with a disability

should be an interactive process involving both the employee and

the employer. 29 C.F.R. 1630.9; see also EEOC Enforcement Guidance

on Reasonable Accommodation under the Americans with Disabilities

Act, No. 915.002 (rev. Oct. 17, 2002) at Question 5. However, the

Commission has recognized that an agency's failure to engage in the

interactive process does not, in itself, constitute a violation of the

Rehabilitation Act. Doe v. Social Security Administration, Appeal No.

01A14791 (February 21, 2003). Liability depends on a finding that,

had a good faith interactive process occurred, the parties could have

found a reasonable accommodation. Id. Therefore, we find that the AJ's

conclusion that failure to engage in the interactive process constitutes

a violation of the Rehabilitation Act to be incorrect. Further analysis

is required to determine whether or not a violation occurred.

The agency purchased the Software for complainant's computer which would

have allowed her to speak into the computer so that she does not have

to type. The Software was loaded on to the computer however, in spite of

the training she was given and the amount of time she spent practicing,

the Software failed to recognize what she spoke into the computer.

Complainant informed the agency of the problems. Complainant asserted

that the agency delayed in providing her with functioning software that

would have effectively accommodated her condition.

Upon review of the record, we find that complainant failed to show that

the agency violated the Rehabilitation Act regarding the Software.

The record clearly shows that the agency made great efforts to try to

fix the problems. The DC provided complainant with training, gave her

names of others within the agency that used the Software, had a computer

specialist from the Los Angeles Office check the program, and purchased

an upgrade on the Software when that became available. Therefore,

based upon our review of the record, we find that complainant failed to

show that the agency took no action to correct her computer problems.

However, despite the agency's and complainant's efforts, the Software

did not work properly. The record does not show that the Software was

ever an effective accommodation for complainant.

During the time the agency and complainant were trying to get the

Software to function properly, the agency also provided alternative

accommodations. The agency had a stay-in-school student as well as

other investigators and employees available to help complainant with

typing and copying. Therefore, although the Software was not effective

due to the problems complainant was having, the agency was providing

other effective accommodations, i.e. notetakers, to assist complainant.

Accordingly, we find that the AJ erred in finding that the agency violated

the Rehabilitation Act as to the Software.

Notetakers

The AJ noted that the agency officials should have been more aggressive in

ensuring that complainant used the notetakers. The Commission finds that

the AJ incorrectly determined that the agency violated the Rehabilitation

Act. The record shows that the agency informed certain employees that

they were to make themselves available to complainant for notetaking

purposes. Complainant would determine when such assistance was necessary

for her. Upon review, complainant has not shown how making the notetakers

available was ineffective. Accordingly, we conclude that complainant

has not demonstrated that the agency violated the Rehabilitation Act.

Ergonomic Study

The AJ found that the agency unduly delayed providing complainant with

the funds so that an ergonomic study could have been conducted and changes

implemented. Complainant requested an ergonomic study to be performed on

her workstation in May 1999. The agency initially authorized that study

the same month. The record is unclear what exactly happened, however, it

is certain that money set aside for the ergonomic study became lost due to

an administrative mix up. The record shows that the DC secured a second

money transfer in November 1999. At that time, complainant could make an

appointment with an ergonomic consultant and the study could be conducted.

While the AJ found that the administrative error was understandable,

she found that it was unclear as to why no agency officials took steps

to uncover the problem earlier considering complainant's condition.

An employer should respond expeditiously to a request for reasonable

accommodation. EEOC Enforcement Guidance on Reasonable Accommodation

and Undue Hardship Under the Americans with Disabilities Act (revised

October 17, 2002) at 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

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. at n. 38.

Based on these factors, it is clear that the agency delayed in providing

complainant with the funds necessary to conduct an ergonomic study.

The only reason for the delay was an administrative error on the agency's

part. The delay was for over eight months. The delay in providing

such a simple request is completely attributed to the agency. However,

the analysis does not stop there. During the delay, as noted above,

the agency provided other accommodations that would allow complainant

to perform her position. The agency made available notetakers and other

assistance. During the relevant time, the agency modified complainant's

intake assignment. When it was complainant's turn to do intake, if she

did not feel well, the agency would skip her name and just go to the next

person on the list. The agency also provided complainant with advanced

sick leave and the desk she requested. Therefore, although there was an

unwarranted delay in conducting the ergonomic study, the agency worked

with complainant in order to provide other reasonable accommodations.

Accordingly, we conclude that the AJ erred in concluding that the delay

amounted to a violation of the Rehabilitation Act.

Complainant's Appeal

Complainant filed an appeal with the Commission contesting the remedies

awarded by the AJ. Due to our finding that the agency has not violated

the Rehabilitation Act, complainant is not entitled to any remedy.

Accordingly, we shall not address complainant's appeal regarding remedies.

CONCLUSION

Therefore, after a careful review of the record, including arguments

and evidence not specifically discussed in this decision, the Commission

affirms the agency's final order rejecting the AJ's decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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 (S0900)

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. 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 (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

February 24, 2004

__________________

Date

1In the instant matter, the Equal Employment Opportunity Commission

is both the respondent agency and the adjudicatory authority. The

Commission's adjudicatory function is separate and independent from

those offices charged with the in-house processing and resolution of

discrimination complaints. For purposes of this decision, the term

"Commission" or "EEOC� is used when referring to the adjudicatory

authority and the term "agency" is used when referring to the respondent

party in this action. The Chair has recused herself from participation

in this decision.