01a31773
06-03-2005
Ava Marshall, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Ava Marshall v. Department of Agriculture
01A31773
June 3, 2005
.
Ava Marshall,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A31773
Agency No. 010765
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS in part and REVERSES in part the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Special Projects Representative, GS-13, at the agency's Virginia
State Office. Complainant sought EEO counseling and subsequently
filed a formal complaint on August 31, 2001, alleging that she was
discriminated against on the basis of disability (multiple sclerosis)
when the agency did not permit her to work from home (telecommute) as
a reasonable accommodation. Complainant also alleged that two other
employees were permitted to telecommute while she was not.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive an immediate final agency decision (FAD).
The record does not reflect whether complainant requested a FAD or simply
did not reply to the notice. In any event, the agency issued a FAD,
finding no discrimination.
In its FAD, the agency conceded that complainant was disabled for purposes
of its disparate treatment analysis, but then found that complainant
had failed to rebut the agency's proffered explanation. The agency then
found that complainant was not disabled for purposes of its reasonable
accommodation analysis, and further found that complainant had failed to
demonstrate that she had submitted a request for reasonable accommodation,
rather than a request simply to participate in the agency's telecommuting
program, which was open to all employees. Neither party submitted a
brief on appeal.
In order to establish a disability discrimination claim under the
Rehabilitation Act, a complainant must demonstrate that: (1) he or she is
an �individual with a disability�; (2) he or she is �qualified� for the
position held or desired, i.e. can perform the essential functions with
or without accommodation; and (3) he or she was subjected to an adverse
employment action because of his disability. See Swanks v. WMATA,
179 F.3d 929, 934 (D.C.Cir. 1999); Heyman v. Queens Village Committee
for Mental Health for Jamaica Community Adolescent Program, 198 F.3d 68
(2d Cir. 1999).
The record contains an August 4, 2000 letter from complainant's attending
physician to the agency explaining that she has multiple sclerosis.<1>
The physician noted that complainant had used a wheelchair on a previous
visit, but now could �walk somewhat with a cane, but very quickly
becomes fatigued,� and evidenced weakness of her legs with spasticity.
He noted that complainant fatigues very easily, and has difficulty
working continuously. The physician also stated that complainant becomes
fatigued with continuous work and would �not do well in hot weather.� The
physician advised that complainant be allowed to work at home in order
to be able to stagger her work and have control over the temperature of
her environment. Based upon the foregoing, the Commission concludes
that complainant is substantially limited in her ability to walk, and
therefore is an �individual with a disability� within the meaning of
the Rehabilitation Act. See Staib v. Social Security Administration,
EEOC Appeal No. 01A22011 (September 26, 2003), req. for recon. den., EEOC
Request No. 05A40139 (December 16, 2003) (individual found substantially
limited in walking where ability was less than average member of general
population, even with assistive measures); see also Crockett v. United
States Postal Service, EEOC Appeal No. 01971288 (October 30, 2000)
(individual restricted to walking up to 15 minutes at a time to a maximum
of two hours per day found substantially limited in walking).
With regard to whether complainant is able to perform the essential
functions of her position, those functions are not identified within her
position description (PD). The PD provided by the agency describes
complainant's duties in vague terms: �The purpose of this work is to
conduct research, develop procedures, instructions, and guides; advise
and recommend corrective measures, courses of actions, etc. [sic]� with
regard to rural development programs. The PD elsewhere reflects that the
incumbent would be involved in �the planning of program requirements,
operations, and functional problems ... assess and evaluate program
operations and ... recommend policies and prepare procedures designed to
increase program effectiveness.� There is no indication that at the time
of complainant's request for reasonable accommodation she was performing
her duties in anything other than a successful manner. The Commission
therefore concludes that complainant is a �qualified individual with
a disability� entitled to protection under the Rehabilitation Act.
See Nelson v. United States Postal Service, EEOC Appeal No. 01981981
(August 17, 2001).
Turning to the facts of the case, the record reflects that in November
2000 complainant requested that she be allowed to telecommute as a
reasonable accommodation of her condition.<2> Her request was supported
by the previously submitted letter from her physician, referenced above.
The agency took no action on complainant's request until February 2001.
At that time, the agency's Assistant Administrator for Human Resources
(AAHR) at agency headquarters advised complainant's supervisor, State
Director 1, that complainant's request was approved, noting, �[D]uring
the time she is at home she will still be on official duty and you will
need to set up a system that will allow you to verify the quality and
quantity of her work assignments.� This proviso was in accordance with
the agency's requirements for employee telecommuting generally.
According to complainant, State Director 1 instructed the local Programs
Director and Human Resources (HR) Manager to make arrangements for
her to telecommute, but they never did so. According to the Programs
Director, however, she advised State Director 1 that he was responsible
for establishing a viable work plan for complainant because he was her
supervisor, but he never did so, and that it was for this reason that
a necessary telephone line was never installed at complainant's home.
The HR Manager confirmed that because of complainant's �generic work
description,� State Director 1 needed to develop a work plan for
complainant.
State Director 1, however, stated that he had advised the Programs
Director and the HR Manager that complainant would continue performing
the job established by her PD, with the additional requirement that
she check in with him on a daily basis. He stated that he explicitly
instructed the Programs Director and the HR Manager to arrange for a
second telephone line at complainant's home and to provide the necessary
computer specifications. He further stated that the Programs Director
and the HR Manager advised him that Information Technology staff reported
that it could not implement his request because of cost issues.
No further action was taken on complainant's request. Effective June
25, 2001, State Director 1 was replaced by State Director 2. On July
30, 2001, State Director 2 requested complainant to provide him with a
summary of her past work, a list of her current projects, and a list
of her anticipated projects so that he could develop a work plan for
her. State Director 2 stated that complainant subsequently<3> provided
him with a binder containing e-mails, manuals, and internet documents,
numerous examples of which were projects complainant was involved with
minimally or not at all. He asserted that complainant was trying
to take credit for other employees' work and was inflating her past
accomplishments. He stated that he advised complainant that much of
what she did appeared to be �busy work� and that he did not believe the
office needed a Special Projects Representative.
State Director 2 stated that he was still willing to implement a
telecommuting plan for complainant, but that she did not provide him
with a list of current and future projects to work from. He further
stated that for about six weeks thereafter, complainant instead discussed
transferring to another position within the agency. Complainant stated
that State Director 2 cancelled her ongoing projects, which led her
to explore other work with the agency, but that she did not give up
her request to telecommute. Commencing November 6, 2001, however,
complainant came under investigation for absence without leave (AWOL),
resulting in a Notice of Proposed Removal. No further efforts were
undertaken with regard to telecommuting.<4>
An agency must make reasonable accommodation for the known physical
or mental limitations of a qualified disabled employee, unless the
agency can demonstrate that accommodation would work an undue hardship
on its operations. 29 C.F.R. � 1630.9(a); Ernesto Abordo, et al.,
and the Estate of James Yell v. United States Postal Service, EEOC
Appeal No. 07A20066 (November 6, 2003). EEOC's Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, supra at note 2, allows an agency to choose among
possible reasonable accommodations so long as the chosen accommodation
is effective; while the preference of the individual with a disability
should be given primary consideration, the agency has the ultimate
discretion to choose among effective accommodations. See Enforcement
Guidance at Q. 9; see also 29 C.F.R. Part 1630, appendix to 1630.9.
The agency argues that it was not obliged to allow complainant to
telecommute; that is, to allow her to have the accommodation of her
choice. However, it does not appear that the agency was offering
complainant any accommodation in the alternative. Complainant first
requested reasonable accommodation in the form of telecommuting in
November 2000. It took approximately three months for the agency's
headquarters to approve her request, notwithstanding that the agency
already had existing procedures for telecommuting. State Director
1 attempted to make arrangements for complainant to telecommute,
but was stymied in his attempts by the local Programs Director and
Human Resources Manager. These individuals disputed the adequacy of
complainant's position description to serve as a work plan, and advised
State Director 1 that the Information Technology staff stated that his
request to assist complainant in telecommuting could not be implemented
because of cost issues, although there is no evidence that the agency
ever undertook an analysis to establish that the cost would pose an
undue hardship.
This state of affairs only worsened after June 25, 2001, when State
Director 1 was replaced by State Director 2, who almost immediately began
to question for the first time whether complainant's position was even
necessary to the office. According to complainant, she began to seek
other work at the agency because State Director 2 cancelled her on-going
projects, but that she did not give up her request to telecommute.
Based upon the foregoing, the Commission concludes that the agency failed
to provide complainant with reasonable accommodation.
Complainant also alleged disparate treatment with regard to the agency's
denial of her request to telecommute. In this regard, assuming that
complainant has established a prima facie case, the agency articulated
a legitimate, non-discriminatory explanation for its actions by noting
that, unlike complainant, the two employees who were granted permission
to telecommute had proposed to do so for a limited period of time; one
to avoid environmental hazards of construction in the office, and the
other while awaiting an organ transplant.<5> Complainant, by contrast,
had requested to telecommute indefinitely. However, the fact that the
evidence of record may not be sufficient to establish complainant's
claim of disparate treatment has no impact on the Commission's finding
of discrimination by failure to accommodate.
It is noted that complainant's request for reasonable accommodation
was overtaken by a combination of events, including an investigation
for time and attendance irregularities, an on-the-job injury, and the
further deterioration of her condition. Complainant stopped working
in or around November 2001, at roughly the same time that the agency
proposed her removal on charges related to absence without leave.
The investigation of complainant's time and attendance and proposed
removal are not before the Commission on this appeal. Further, an
employer is not required to withhold discipline as a form of reasonable
accommodation. See Enforcement Guidance at Q. 35.
In any event, complainant's eventual inability to work even with
reasonable accommodation is relevant only insofar as it truncates the
agency's liability for its failure to accommodate her at the time when
accommodation was possible. In this regard, the record reflects that
complainant found it necessary to use leave intermittently while her
request to telecommute was pending. It does not however, appear that
complainant sustained any loss of pay prior to when she stopped work in
or around November 2001. Accordingly, she is not entitled to back pay
for the period during which she was denied reasonable accommodation.
However, complainant may be entitled to compensatory damages for
injury sustained, if any, on account of the agency's failure to provide
reasonable accommodation. The Commission will therefore order the agency
to determine complainant's entitlement to compensatory damages.
Therefore, after a careful review of the record, it is the decision of
the Commission to AFFIRM in part and REVERSE in part the agency's final
decision and remand this case to the agency to take remedial actions in
accordance with this decision and the Order below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
Within thirty (30) days after receipt of this decision, complainant
is to provide the agency with evidence in support of her claim as
outlined in Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993). Within sixty (60) days of receipt of complainant's
evidence, the agency shall notify complainant of the amount, if any,
of compensatory damages it has determined is due. If there is a dispute
regarding the exact amount of damages, the agency shall issue a check to
complainant for the undisputed amount within sixty (60) days of the date
the agency determines the amount it believes to be due. Complainant may
petition for clarification or enforcement of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
�Implementation of the Commission's Decision.�
Within forty-five (45) days of the date on which this decision becomes
final, the agency shall determine the amount of leave used by complainant
on account of its failure to provide her with reasonable accommodation
prior to when she stopped work in or around November 2001. The agency
shall adjust complainant's leave balances as may be necessary, or if
complainant is no longer employed by the agency, shall tender the cash
value of such leave, if any.
Within ninety (90) days of the date on which this decision becomes final,
the agency shall provide EEO training on the subject of disability
discrimination to the agency employees involved in the failure to
provide complainant with reasonable accommodation.
The agency shall consider taking disciplinary action against the
employees involved in the failure to provide complainant with reasonable
accommodation. The agency shall report its decision. If the agency
decides to take disciplinary action, it shall identify the action taken.
If the agency decides not to take disciplinary action, it shall set
forth the reason(s) for its decision not to impose discipline.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Virginia State Office copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (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 ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
June 3, 2005
__________________
Date
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Department of Agriculture, Virginia State Office, supports and
will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The Department of Agriculture, Virginia State Office, has been found to
have discriminated against the individual affected by the Commission's
finding. The Department of Agriculture, Virginia State Office, shall
pay the affected individual's proven compensatory damages and reasonable
attorney's fees and costs. The Department of Agriculture, Virginia State
Office, will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The Department of Agriculture, Virginia State Office, will not in any
manner restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings pursuant to, Federal equal employment
opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1The record elsewhere reflects that complainant first was diagnosed with
this condition in 1993.
2Although the agency disputes whether complainant's request to telecommute
constituted a request for reasonable accommodation (as well as a request
to participate in the general telecommuting program), the record reflects
that complainant advised the agency that she desired to telecommute �due
to my Multiple Sclerosis.� A request for reasonable accommodation need
not take a particular form. Enforcement Guidance: Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act (October 17,
2002), Q.1. Complainant plainly was requesting a change in her working
conditions on account of her medical condition. The agency's assertion
that such was not a request for accommodation is disingenuous at best.
3The exact date on which the binder was provided is not apparent. State
Director 2 indicated that it was some time in August or September 2001.
4It appears that some time around the proposal to remove complainant,
she sustained an injury and stopped working. There is no indication in
the record that she has returned to work since.
5This employee transferred to another office while his request was
pending.