Ciera B.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 19, 2018

0120162308 (E.E.O.C. Sep. 19, 2018)

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.
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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.
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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”).

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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.

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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
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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.”
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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).
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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.
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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