Ciera B.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionSep 19, 20180120162308 (E.E.O.C. Sep. 19, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ciera B.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120162308 Agency No. DAL-15-0884-SSA DECISION On July 5, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 16, 2016, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission REVERSES the Agency’s final decision. BACKGROUND Complainant worked as a Contact Representative, GS-0962-06, at the Agency’s Teleservice Center in Bellaire, Texas. On September 21, 2015, Complainant filed an EEO complaint in which she alleged that she was discriminated against on the basis of disability when her work-unit supervisor (S1) and her manager (S2) denied her request for reassignment as a reasonable accommodation, made on August 10, 2015. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120162308 2 Since 1987, Complainant has utilized a wheelchair for mobility due to a spinal cord injury. She began working for the Agency on March 23, 2015. Between March and July 2015, she had made several requests for reasonable accommodations, including placement of a printer in her cubicle, lowering her office bins to desk level, being given an excused absence on days with inclement weather, making repairs to elevators, and being granted a handicapped parking space next to a service ramp. Exhibits (Ex) 7d; Ex. 9, p. 4; Ex. 9g. According to the Agency, it provided these accommodations. On July 10, 2015, as Complainant was leaving work, she injured herself on the service ramp, when she lost control of her wheelchair on the steep ramp and went into the brick wall at the bottom. Ex. 7e. According to the FAD, “Complainant also complained from the beginning that the ramp from the parking garage to the office building was too steep. She was particularly concerned about using the ramp in inclement weather. The ramp was oriented in such a manner that she faced a brick wall as she went down the ramp and then had to make ‘a little short turn’ to get into the garage.” The ramp was very steep. Complainant had asked S1 and S2 to verify that the ramp was compliant with the requirements for physical accessibility contained in the Americans with Disabilities Act (ADA). Although S1 and S2 made inquiries of the Property Manager, neither had received an answer or had followed up. Ex. 7, pp. 5, 8; Ex. 7b, p. 2; Ex. 7e, p. 2; Ex. 8, pp. 7-8; Ex. 9, p. 7. When asked about alternatives to using the ramp, and to accessing the building through the garage, S1 and S2 mentioned the availability of curbside parking. Complainant responded that those spaces were normally taken by the time she arrived at work and that if she did get one of those spaces, she would have to exit her van from the driver’s side into the middle of the street. As to using the elevator on the East side of the building, she would have to navigate a sidewalk that was cracked and uneven, and would be exposed to the elements during inclement weather. She noted that she could not hold an umbrella and push her wheelchair at the same time. Another alternative put forward by S1 and S2 was the use of a parking lot across the street. However, the street in question was an eight-lane roadway that would be considered dangerous for a person in a wheelchair. Ex. 7, p. 9; Ex. 7b, p. 2; Ex. 7e, p. 3; Ex. 8, pp. 6-7; Ex. 9, p. 7; Complainant’s appeal brief. Complainant informed the building managers as well as Agency management of her concerns. Consequently, the building’s management assigned two people to assist her in going up and down the ramp. However, both people quit their jobs and the next group of people did not want to assist her. On August 10, 2015, while on extended leave, she submitted a request for reassignment as a reasonable accommodation. Ex. 9b, p. 2. She included the following as reasons for requesting a reassignment: the service ramp was too steep, and was unsafe; there were only two elevators in the building, both of which had broken down at the same time, and did not always come to a stop even with the floor; the parking garage flooded three times since March 2015 and could be wet and slippery, making it unsafe; and the bathroom on the third floor was not wheelchair accessible. Ex. 7a, p. 2; Ex. 9d, p. 7. 0120162308 3 With regard to the ramp, Complainant mentioned that she had already injured herself going down the ramp and had come close to injuring herself on other occasions. Ex, 9b, pp. 2-3. S1 responded to Complainant’s accommodation request in a memorandum dated September 1, 2015. S1 stated that, based on the concerns that Complainant had raised, she was able to provide several accommodations. With regard to the ramp, S1 stated that an alternative to using the ramp is to use the garage elevator located on the opposite side of the building from the ramp. As to the elevators, if they were not functioning properly, she could be allowed to perform her duties on the first floor and management would assign one other person to work with her. Concerning the garage flooding during inclement weather, on days when it was raining hard, Complainant and other employees with disabilities would be excused from having to report if the weather made it unsafe for them to drive to work. Regarding the third-floor restroom being inaccessible, S1 had indicated that she had contacted the property manager and was awaiting a response. Ex. 7b, p. 2. S1 and S2 both averred that the bathrooms on the first and fourth floors were accessible to people with wheelchairs. Ex. 8, p. 10; Ex. 9, p. 9. Complainant responded to S1’s memorandum via email on September 1, 2015. In that email, Complainant informed S1 that she would be communicating with her further on the alternate accommodations that she suggested. Ex, 8b, p. 2. S1 averred, however, that Complainant had not returned to work since July 10, 2015, had resigned from her position on January 10, 2016, and had not communicated with her, S1, between those two dates. Ex. 8, p. 12; Ex. 8a, p. 2. S2 averred that the Agency had previously hired an individual who utilized a wheelchair, and that this employee had never reported any accessibility issues. Ex. 9, p. 12. In her statement in support of her appeal, Complainant argued that no one from the Agency ever indicated to her that there was a possibility that she could be assigned to a more accessible workplace, that she just knew that her request for a reassignment had been denied, and that she felt that for her own safety she had no choice but to resign, stating “I couldn’t risk getting hurt again.” She stated, “I loved my job and I worked very well with my co-workers. I never wanted to focus on my disabilities; I only wanted to focus on my ABILITIES to get the job done.” ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 0120162308 4 Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result in an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). S1 and S2 both acknowledged that Complainant could perform all of the duties of her Contact Representative position and that, by virtue of utilizing a wheelchair for mobility since 1987, Complainant was a qualified individual with a disability. Ex. 9c, pp. 2-8. As such, Complainant would be entitled to an effective accommodation, but not necessarily the accommodation of her choice. Kristie D. v. U.S. Postal Service, EEOC Appeal No. 0120160236 (Feb. 6, 2018). Complainant formally requested that she be reassigned to a different facility as a reasonable accommodation. In general, reassignment is the reasonable accommodation of last resort, and should be considered only after it has been determined that there are no effective accommodations that would enable the employee to perform the essential functions of her current position or accommodating the employee in the current position would cause an undue hardship. Donna S. v. Dept. of Defense – Defense Security Service, EEOC Appeal No. 0120160652 (May 16, 2018); Melodee M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120142484 (April 8, 2016). The burden to prove that the accommodations offered by the Agency were not effective rests with Complainant. See e.g. Victor M. v. National Security Agency, EEOC Appeal No. 0120152103 (Dec. 22, 2017) (Complainant failed to prove that the provision of his classmates’ notes was not an effective accommodation); Wimbush v. U.S. Postal Service, EEOC Appeal No. 0120090109 (Feb. 13, 2009) (despite Complainant’s claim that he was not provided with his choice of accommodation, he failed to prove that the accommodation offered by the Agency was not effective). In her request for a reasonable accommodation dated August 10, 2015, Complainant identified four reasons why she believed reassignment was the only viable option: (1) the elevators within the building did not always work and sometimes did not stop level with the floor; (2) the parking garage flooded three times and retained water; (3) the third-floor bathroom was not wheelchair accessible; and (4) the entrance to the west side of the building had a very steep service ramp. In her September 1, 2015 response to Complainant’s accommodation request, S1 stated that she was able to provide effective accommodations that addressed each one of these concerns. As to the office elevators, S1 pointed out that both office elevators failed on one occasion when Complainant was scheduled to work, and the office appropriately accommodated Complainant by setting up a place for her to work on the first floor. In addition, another employee was assigned to work with Complainant so that she would not be alone. Furthermore, the cables in both elevators were replaced after S2 discussed the issue with the General Services Administration (GSA) and the building management, and no further problems with the elevators were reported at the time of the EEO investigation. 0120162308 5 With respect to the garage flooding, S1 averred that flooding did occur on two occasions and Complainant was excused from work on both of those days pursuant to a policy that had been promulgated on April 8, 2015, granting disabled employees excused absences if they could not report to work because of inclement weather. Complainant had been given telephone numbers for each member of the office’s management team, including S2’s personal cell phone number. On other occasions when the garage was slippery due to wet conditions, Complainant had various individuals who were available to assist her, including building security personnel, an administrative aide, and any member of the management team. Regarding Complainant’s concern about the accessibility of the third-floor restroom, S1 averred that the building was privately owned and that the GSA had leased only part of the building for the Agency’s use. After Complainant identified this issue in her request for reassignment, S1 informed Complainant that she raised this issue with building management and was awaiting a response, and that it was reasonable for management to need additional time to explore this issue with GSA and the owner of the building in an attempt to address Complainant’s concern. S2 also pointed out that Complainant had access to an accessible restroom on the first and fourth floors. S2 stated that if Complainant had returned to work, he would have contacted GSA to negotiate for an accessible third floor restroom since the Agency’s lease was up for renewal. Although Complainant indicates that her needs for an accessible restroom were such that one on the same floor where she worked would have been more suitable, we find that the Agency was attempting in good faith to find a workable solution for Complainant. With respect to the foregoing efforts to provide reasonable accommodation, which addressed Complainant’s needs once inside the building and concerning garage flooding, we find that the Agency has met its obligations under the Rehabilitation Act. Where the Agency fell short, however, was in its efforts to accommodate Complainant with regard to accessing the workplace. Regarding the ramp itself, Complainant had made repeated requests to S1 and S2 that they verify whether the ramp conformed to ADA standards. Although they made initial inquiries to the Property Manager, there are no indications in the record that they ever received an answer, or had made an effort to follow up. The Agency has failed to present enough evidence to show that the ramp was ADA compliant. As to the two alternatives to using the ramp, parking in the street or in the lot across the street, neither of those options were viable as well. Parking in the street would have required Complainant to exit her van on the street side and navigate a cracked and uneven sidewalk to access the East side elevator. Parking in the lot across the street would have required Complainant to cross an eight-lane road in a wheelchair, which could be potentially hazardous. Both of those alternatives could have exposed her to the elements during inclement weather. When asked by the EEO investigator whether it was possible to reassign Complainant, S1 replied that she and S2 could not work on a reassignment as long as Complainant was unable to work, and that they were waiting for her to return to discuss a transfer. Ex. 8, p. 12. We disagree. Complainant was clearly able to perform all of the duties of her position, and there was no reason why S1 or S2 could not discuss possible reassignments while Complainant on leave following her 0120162308 6 August 2015 request for reasonable accommodation. Had they done so, Complainant might well have been able to return to work. We therefore find that in not ensuring that the workplace was physically accessible to Complainant, and in not granting Complainant her request for reassignment, the Agency failed to provide her with a reasonable accommodation for accessing her workplace. As Complainant felt forced to resign from employment rather than risk further injury, the Agency shall be ordered to reinstate Complainant to her position, and to provide necessary and effective accommodations to allow her to access the workplace. See Blount v. Dept. of Homeland Security, EEOC Appeal No. 0720070010 (Oct. 21, 2009). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we REVERSE the Agency’s final decision and REMAND the matter for further processing in accordance with our order below. ORDER Within sixty (60) calendar days of the date that this decision is issued, the Agency is ordered to take the following remedial action: A. The Agency shall offer to reinstate Complainant to her former position of Contact Representative, GS-0962-06, at an accessible facility. Consideration of accessible facilities may include the Teleservice Center in Bellaire, Texas, on condition that the access ramp is determined to be ADA-compliant and any other problems pertaining to Complainant’s ability to access the workplace have been resolved. Complainant has fifteen (15) days to accept or decline the Agency’s offer of reinstatement. Upon acceptance, the Agency shall engage in the interactive process with Complainant to determine what accommodations may be necessary and effective. If Complainant should decline the Agency’s offer of reinstatement, the date of her declination shall be the end date for any back pay due complainant. B. Pursuant to 29 C.F.R. § 1614.501, the Agency shall determine the appropriate amount of back pay with interest, leave, and other benefits due the Complainant for such benefits lost between August 10, 2015, the day she submitted her request for a reasonable accommodation, and the date of her reinstatement or her declination of the offer of reinstatement. Complainant shall cooperate in the Agency’s efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission's Decision.” 0120162308 7 C. The Agency shall provide eight (8) hours of in-person or interactive EEO training to the individuals identified as S1 and S2, if these individuals are still employed by the Agency. Such training shall cover the Agency’s responsibilities regarding the provision of reasonable accommodations under the Rehabilitation Act. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Teleservice Center in Bellaire, Texas, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. 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 (K0618) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). 0120162308 8 The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 Agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120162308 9 The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 19, 2018 Date Copy with citationCopy as parenthetical citation