Freddie K.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 12, 2018

0120162401 (E.E.O.C. Sep. 12, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Freddie K.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120162401

Agency No. ATL-15-0539-SSA

DECISION

On July 15, 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 9, 2016, final decision concerning his 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons,
the Commission VACATES the Agency’s final decision and REMANDS this matter to the Agency
to conduct a supplemental investigation.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contact
Representative (TSR) at the Birmingham Teleservice Center, located in Birmingham, Alabama.
On June 3, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment based on his disability (Vertigo,
Multiple Sclerosis (MS); Meniere’s Disease, and Severe Obstructive Defect of the Lung) and age
(48) when: (1) from August 2014 through April 6, 2015, he was subjected to unfair working
conditions, performance reviews, and training; (2) from August 2014 to April 6, 2015, he was
denied reasonable accommodations; and (3) on April 20, 2015, he was terminated from Federal
employment.

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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After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of his 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 him to
discrimination as alleged.

FACTUAL BACKGROUND

The Agency hired Complainant effective May 4, 2014, as a TSR in the Birmingham Teleservice
Center under a Career Conditional Appointment with a probationary term of one year. The TSR
position consists of providing service to members of the public who call the National 800 Number
Network (N8NN) seeking assistance or information regarding Social Security matters.

Complainant attended formal classroom training for the period from May 4, 2014 through August
22, 2014. After his formal classroom training period ended, he was assigned to Unit 6 on August
25, 2014, for on-the-job training and assigned to Unit 4 effective October 1, 2014. After his
classroom training ended, the Agency assigned mentors to assist Complainant in learning the
duties of the TSR position. Complainant asserts that his medical information was provided to the
Deputy Director (his third-line supervisor) (S3) who personally selected him for employment. He
also states that he personally informed the Training Manager (TM) of his physical disabilities
around May 2014, his first Unit Supervisor (S1A) around August 2014 and his second Unit
Supervisor (S1B) around September 2014.

Complainant asserts that his job performance was hindered by: (1) the fact that he had eight
different mentors (each with very different training methods) assigned to him in less than one year
who created a hostile work environment; and (2) the failure of the Agency to provide him with
reasonable accommodations. Complainant states that his disabilities affect his: (a) cognitive long
term memory; (b) concentration; (c) hearing;2 (d) eyesight; and (e) ability to walk. He also asserts
that he suffers from migraine headaches. In addition, he uses a cane to walk and a cooling vest to
reduce the frequency and intensity of various symptoms. He states his ability to focus and retain
information during his training was directly affected by the eight different ways he was told to
perform his job and the inconsistent information provided to him. Complainant also states that on
some occasions his vision was blurry, which presented problems in researching and reading
information, both on and off the computer screen. He further reports that he was very fatigued
from the increased room temperature which was above the Agency’s own requirements to keep
the building temperature no warmer than 68 degrees. Complainant asserts that the temperature
exacerbated his medical conditions, including his ability to walk at times.

2 Complainant states that his hearing was affected when his ears were inflamed due to the
Meniere’s disease.
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Complainant asserts that during the classroom phase of his training, he asked TM to lower the
classroom temperature as an accommodation. Complainant states that he explained to TM that
warm temperatures cause his MS symptoms to act up, causing him difficulty concentrating and
talking. The records show that Complainant wore a cooling vest (visible to his coworkers) every
day to prevent this from happening. Complainant also states that his second-line, third-line, and
fourth-line supervisors (S2, S3, and S4, respectively) were aware of his difficulties with warm
temperatures, yet did nothing to help him.

The Agency asserts that they provided Complainant with a tremendous amount of training but that
he was never able to reach a fully successful performance level prior to the end of his probationary
term. Accordingly, S2 affirmed that she made the decision to terminate Complainant’s
employment in April 2015.

On-the-Job Training (Harassment and Reasonable Accommodation)

Complainant asserts that early in his training he performed well and was told his accuracy rate was
between 80 percent and 90 percent. Complainant states that during this period his mentor and
supervisor supported him more and told him that he was doing a good job. However, he asserts
that his training quickly became hostile and abusive as his assigned mentors changed.
Complainant asserts that his mentors often marked a call as “needs assistance that affected the
outcome of the call” when he had provided the correct answer to all of the caller’s questions.
Complainant also states that many times his mentor falsely indicated that he needed help on simple
calls and often jumped in on his call volunteering information when Complainant did not need any
help. Complainant states that he would be with one mentor who wanted him to do things in a
certain way, and then the next thing he knew, another mentor was assigned and teaching him to do
things in a completely different way. He states that after a while, it became disruptive and
confusing. Complainant further asserts that most of his mentors were hostile with him, frequently
yelling at him and accusing him of lying to them. Complainant notes that there were many times
he would be on a call and one mentor would stand up, point at the screen and yell something to
the effect of, “what are you doing?” According to Complainant, another mentor would accuse him
of lying when he stated that he followed the training protocol. Complainant states that another
mentor would poke at him, demean him, and yell at him. Complainant further asserts that he was
falsely written up as being argumentative, often told he did not know what he was doing and that
he was not addressing the caller’s questions. Complainant states that in the instances when he was
accused of not understanding a caller’s question, he would have the caller repeat their question to
verify his understanding, which turned out to be correct 80 percent of the time. Complainant
further states that his mentors were critical during episodic moments when the MS or Meniere’s
disease would flare up by accusing Complainant of not listening. Complainant states that his
mentors often criticized the length of time he was on a call or exaggerated the length of his calls.
According to Complainant, another mentor would jump up or move quickly, which was distracting
and unsettling for Complainant (a Gulf war veteran).

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Complainant also notes that at times he did have a hard time hearing what the caller was saying
and would often need it repeated. Complainant also asserts that he made verbal requests to get a
new headset, stating he could not clearly hear his callers, nor could he hear whoever was sitting
with him when he was wearing his headset. Complainant asserts that he was finally told to get a
new headset from one of the TSC Systems Specialists. However, Complainant states that the
replacement headset was uncomfortable, would vibrate in his ear, and was no better than the
original headset. Complainant alleges he continued to let management know about his issue with
the headset. Complainant also claims that at times he would suffer with severe migraines which
presented problems in researching and reading the information and seeing the screen. He asserts
that at times his legs would become numb which would distract him for a moment from the duties
he was performing.3 Complainant asserts that he could perform some duties of the TSR position
without accommodations and some with an accommodation. Specifically, he notes that he needed:
(1) a chair with a high back to support his back and spine; (2) the office temperature to be regulated
at or below 65 degrees: (3) a designated parking space; (4) less belligerent mentors; (5) additional
time to become proficient in his job; and (6) time to respond to callers. Complainant claims that
he did not receive any of these accommodations.

Complainant asserts that in late February or early March 2015, S1B asked him directly what
accommodations he needed to fulfill his TSR duties. Complainant states that he told her that he
needed the chair that he requested in November 2014 and a good headset so that he could hear
what his callers said to him. Complainant states that he also told her that he often had to ask his
callers to repeat their questions. He states that never went over well with his mentors and
managers, as they would insist that he just needed to listen to what the callers were saying.
Complainant asserts that S1B told him that management was working on getting him another
headset, as well as the chair. However, Complainant states he was never issued another headset,
and the chair did not come until almost a month later, right before he was terminated.

S2 states that the mentors are taught to provide trainees with maximum assistance when they first
come out of class and are on the floor. After a short period of training, the mentor is to let the
trainee try to complete the call on his or her own prior to receiving mentor assistance. S2 explained
that in Complainant’s case, if the mentor saw he was going astray, he or she would try to assist
him. S2 states that Complainant would always interrupt and say, “I was just about to do that.”
Therefore, S2 explains that the training method was changed to allow Complainant to continue
processing his calls with no intervention. If he was not processing the call correctly, the mentor
was to wait to intervene until right before the call ended and he or she knew Complainant would
not complete the call accurately. S2 further states that the mentor was to assist Complainant at
this point, and then document at what point in the call the assistance occurred.

S1B asserts that Complainant reported to her section in August 2014, and she became aware of his
disabilities in February 2015. According to S1B’s Performance Discussion notes dated December
3 and 12, 2014, Complainant complained that his mentor can be argumentative at times and would
not permit him adequate time to find the information to provide to the caller before the mentor

3 It is unclear whether the chair that Complainant requested would reduce this issue.
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stepped in. Every time this occurred Complainant would be marked as “needed assistance” or
“unable to perform task independently.” S1B also noted that she personally witnessed
Complainant’s mentor having to repeat his instructions to Complainant and that she told him to
listen carefully to the mentor’s instructions. S1B’s Performance Discussion notes dated February
6, 2015 indicate that Complainant asked for help understanding voice tones better.

Termination Claim

On April 6, 2015, the Agency advised Complainant of its decision to terminate his employment
effective April 20, 2016, during his probationary term. Specifically, the Agency notified
Complainant as to the following: (1) he has difficulty addressing N8NN callers’ concerns and
issues; (2) he has difficulty applying interviewing skills to the N8NN call; (3) he has difficulty
asking appropriate questions to fully address callers’ issues and concerns; (4) he has difficulty
navigating through the CHIP; (5) he has difficulty applying the information in the CHIP; (6) he
fails to provide callers with all of the pertinent information in the CHIP path; (7) he fails to analyze
and evaluate information, documentation, and material to process calls successfully; (8) he does
not utilize CHIP, Agency systems queries, and other resources efficiently; (9) his mentor, technical
assistant or other management official frequently has to help him with processing his call; (10) he
does not use sound logic in deciding what queries to access and what information to relay to the
beneficiaries; (11) he has difficulty locating, interpreting, and using all appropriate procedural
references and other available resources to process calls; (12) he has not demonstrated an
understanding of the procedures for processing calls, and because of this, he furnishes incorrect
information to callers.

The Agency asserts that Complainant progressed at a below average rate during his classroom
training. At the end of the class, Complainant’s overall test average was 54 percent compared to
a class average of 82.3 percent. The Agency further asserts that at various times during class
training, Complainant demonstrated a need for improvement in following instructions, locating
procedural references, and the ability to assimilate and correlate information.

Complainant contends he was unjustly terminated from the TSR position without proper
consideration of his work performance or being provided accommodations for his disabilities.
Contrary to S2’s assertion in the termination letter, Complainant argues that he was able to
satisfactorily meet the minimum standards in the various job elements. Specifically, he states that
he consistently received ratings from management in the 90 to 100 percentiles. Complainant
asserts that he was targeted for termination due to his disability and claims he was hired simply so
management could meet a quota.

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 (MD-110), at
Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that
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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”).

Initially, we note that the events in this case arose after January 1, 2009, the effective date of the
American with Disability Act (ADA) Amendment Act of 2008, which made significant changes
to the definition of disability under the ADA and the Rehabilitation Act. Pursuant to the ADA
Amendments Act, “disability” under the ADA is defined as: (1) a physical or mental impairment
that substantially limits one or more of the major life activity of such individual; or (2) a record of
such an impairment; or (3) being regarded as having such an impairment as described in paragraph
(1) of this section. This means that the individual has been subjected to an action prohibited by
the ADA as amended because of an actual or perceived impairment that is not both “transitory and
minor.” See 29 C.F.R. § 1630.2(g).

The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See
29 C.F.R. § 1630. In order to establish that Complainant was denied a reasonable accommodation,
Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R.
§ 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m);
and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance:
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,
EEOC No. 915.002 (Oct. 17, 2002). Under the Commission’s regulations, an Agency is required
to make reasonable accommodation to the known physical and mental limitations of a qualified
individual with a disability unless the Agency can show that accommodation would cause an undue
hardship. See 29 C.F.R. § 1630.2(o) and (p).

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. Villanueva v. Dep’t of Homeland
Security, EEOC No. 01A34968 (Aug. 10, 2006).
To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily
protected class; (2) that he was subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on his
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
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an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Upon review, the Commission finds that the investigative record is inadequate. Therefore, the
Commission cannot make a reasoned determination on the merits of the complaint. EEOC
Regulation 29 C.F.R. § 1614.108(b) and MD-110, Ch. 6 § I require agencies to develop an
impartial and complete factual record. An appropriate factual record is one that allows a
reasonable factfinder to draw conclusions as to whether discrimination occurred. Id. An
investigator must be thorough. “This means identifying and obtaining all relevant evidence from
all sources regardless of how it may affect the outcome.” Id. at § V.D. “To ensure a balanced
record, it is necessary only to exhaust those sources likely to support the complainant and the
respondent. An investigation conducted in this manner might reveal that there is ample evidence
to support the complainant’s claims and no evidence to support the agency’s version of the facts,
or vice versa. The best type of investigation allows for complainant to provide rebuttal evidence
with sufficient time for the investigator to address any issues raised within the regulatory time
frames.” Id. Terrie M. v. Dep’t of State, EEOC Appeal No. 0120160555 (May 23, 2018).
Reasonable Accommodation
The investigative record does not contain important testimonial and documentary evidence
pertaining to Complainant’s claim that he was denied a reasonable accommodation. Complainant
alleges that he advised TM and S1A (his first two supervisors) very early on in his training that he
needed accommodations, yet the record contains no statement from either supervisor or an
explanation by the EEO investigator for the absence of this relevant testimony. Complainant also
asserts that he continued to request modifications to his work to accommodate his medical
conditions. The record suggests that Complainant’s mentors and/or supervisors at the time, at the
very least, should have suspected that he needed an adjustment or change at work for a reason
related to his medical conditions.4 Yet, there is not one statement from any of Complainant’s eight
mentors in the record or an explanation by the EEO investigator for the absence of their testimony.
The absence of such relevant information is a critical flaw in the record.
In addition, we do not find the record sufficiently developed with respect to the two requests for
accommodation that the Agency acknowledges took place. The Agency concedes that in early
November 2014, Complainant requested a reasonable accommodation for a special needs chair. It
does not appear that every document pertaining to Complainant’s accommodation request for a
special needs chair was provided by the Agency. The record contains the following with respect
to the chair request: (1) a form entitled “Request for Special Needs Chair” signed by an acting

4 For example, documentary evidence in the record (i.e., “Record of [Counseling] Interview” dated
January 22, 2015) indicates that on or about January 22, 2015, Complainant notified S1B of his
difficulty hearing the mentor’s instructions at times due to his medical condition. However, S1B
did not consider Complainant’s statements as a request for a reasonable accommodation. The
record shows that it was not until February 6, 2015 that S1B treated Complainant’s statements
about his medical condition as a request for a reasonable accommodation.

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supervisor on November 6, 2014 and signed by Complainant’s physician on November 7, 2014;
(2) a sheet with general information on requesting a special needs chair; and (3) brief emails in
late February and early March 2015 regarding status updates on the shipment of the chair.5
However, there are no documents in the record directly from the Reasonable Accommodation
Coordinator (RAC). Additionally, there is nothing in the record to indicate whether an interactive
process took place between the Agency and Complainant to determine an effective reasonable
accommodation.6 The Agency also concedes that Complainant requested an accommodation for
his inability to hear and/or understand his mentors and the callers at times due to his Meniere’s
disease.7 However, there is nothing in the record pertaining to the processing of this request from
RAC or S2. We note that RAC did not provide testimony pertaining to either accommodation
request.
We also find Complainant’s questionnaire not sufficiently detailed to elicit the relevant facts
necessary to determine: (1) the details of any accommodations available that would have enabled
Complainant to perform the essential function of the TSR position at a satisfactory level; and (2)
details about each instance where he may have asked any management official or mentor for an
accommodation.8

We also note that Complainant was never asked to produce relevant medical records or sign a
release of such records. The Agency notes in its decision that the record contains a “Schedule A”

5 The record indicates that Complainant was terminated before or shortly after the special needs
chair arrived.
6 The record indicates that Complainant received the wrong chair initially.
7 S1B states that during a weekly discussion about Complainant’s work performance, in early
February 2015, Complainant told her his inner ear becomes inflamed when he has flare-ups with
the Meniere’s disease and he could not take calls because he could not stay focused on what the
person was saying to him and it was hard for him to hear. S1B also states that Complainant told
her he had MS during a weekly performance discussion held on February 24, 2015, and the Agency
should do something to help him. S1B viewed Complainant’s comments during the two
performance discussions to be an implied request for reasonable accommodations so she held a
Reasonable Accommodations Interactive Discussion interview with him on March 4, 2015. S1B
also states that Complainant asked for a special metal ear piece to reduce static and vibration in
his phone to assist with his hearing but allegedly said there was nothing the Agency could do to
accommodate him with his MS flare-ups. S1B also states that she sent the information to S2, for
research, approval, and purchase. According to S1B, Complainant’s employment ended before
the item could be approved or obtained.
8 Under the Rehabilitation Act, an employee is not required to use the “magic” words “reasonable
accommodation” when making a request. See Enforcement Guidance on Reasonable
Accommodation, Question 1. Instead, the employee or the employee’s representative need only
inform the agency that he or she needs an adjustment or change at work for a reason related to a
medical condition. See Triplett-Graham v. U.S Postal Serv., EEOC Appeal No. 01A44720 (Feb.
24, 2006), req. for recon denied, EEOC Request No. 05A60859 (Sep. 19, 2006); see also Geraldine
B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120090181 (Oct. 13, 2015).
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Letter/Certification from the Alabama Department of Rehabilitation Services, dated January 15,
2014, acknowledging that Complainant may be considered an individual with a severe disability
that qualifies him for employment consideration under 5 C.F.R. § 213.3102(u), a hiring authority
for individuals with disabilities known as Schedule A hiring authority. In addition, the Agency
notes that Complainant provided medical documentation to his supervisor indicating that he suffers
from hearing loss and Meniere’s Disease. However, the record is devoid of medical
documentation that addresses: (1) each of Complainant’s identified medical conditions; (2) the
extent of Complainant’s physical and/or mental limitations; and (3) a list of potential
accommodations along with an explanation as to how such accommodations could help
Complainant perform the essential functions of the TSR position.

Harassment

Complainant also asserts that his training was conducted in a manner that exacerbated his physical
limitations and created a hostile environment and ultimately hindered his ability to develop the
skills necessary to perform the essential functions of the TSR position.9 Yet none of the
management officials and mentors, who worked with Complainant daily, provided testimony or
documents with respect to their first-hand knowledge. The record shows that Complainant’s first,
second and third-line supervisors had little direct involvement in the day-to-day training. Most of
the Performance Progress Notes were written by S1B who (for the most part) based her report on
information received from Complainant’s mentors, rather than first-hand knowledge.10

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed or referenced herein, we VACATE and REMAND this matter for
a supplemental investigation, consistent with our decision and the Order below.11

9 According to the Performance Progress Notes dated December 12, 2014, Complainant had shown
improvement after a change in his mentors and that Complainant attributed his improvement to
the new mentors. The progress notes also indicate that Complainant had not always received
guidance and feedback from his mentors in a positive manner.
10 We also find that much of the missing evidence (noted herein above) is essential to resolving
Complainant’s termination claim.
11 Having decided to remand this matter for a supplemental investigation with respect to
Complainant’s disability claims, we will not consider the claims pertaining to age discrimination,
to avoid addressing the complaint in a piecemeal manner.

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ORDER TO SUPPLEMENT RECORD (B0617)

Within one hundred twenty (120) calendar days of receipt of this Order, the Agency shall conduct
and complete a supplemental investigation consistent with the requirements of 29 C.F.R.
§ 1614.108(b), in MD-110, Chapter 6 and consistent with this decision. The supplemental
investigation shall include, but is not limited to:

(1) statements from the following individuals:12 (a) TM; (b) S1A; and (c) each mentor assigned to
Complainant. Such statements should include, but are not limited to the following: (i) any
knowledge of Complainant having a physical or mental impairment; (ii) any communications with
anyone, including Complainant, regarding his physical or mental impairments; (iii) any
communications with anyone, including Complainant, regarding accommodation requests and
efforts to accommodate Complainant; (iv) any communications with anyone, including
Complainant, regarding Complainant struggling to perform his duties because of a physical or
mental impairment; (v) information pertaining to Complainant’s progress during his classroom
and on-the-job training; (vi) information pertaining to the classroom or on-the-job training,
including the a description of training process, the identity of all management officials involved,
any communication between management officials pertaining to Complainant; (vii) comparative
information between Complainant and similarly situated co-workers without disabilities; (viii) any
information pertaining to the assignment of any mentor to Complainant, including the mentor
training process with respect to Complainant and his similarly situated co-workers; (ix) a
description of the essential functions of the TSR position; and (x) the level of proficiency necessary
to meet the minimal expectations of the essential job functions.

(2) a statement from RAC that describes each step taken in processing Complainant’s
accommodation requests, engaging in an interactive process, and any other relevant information
that is available to her as the Reasonable Accommodation Coordinator;

(3) a supplemental statement from Complainant providing details pertaining to: (a) each instance
where he may have asked any management official or mentor for an accommodation;13 (b) the
extent of his physical or mental limitations related to each impairment alleged;14 and (c) all
potential accommodations that could help Complainant perform the essential functions of the TSR
position;15

(4) medical documentation that identifies: (i) each physical or mental impairment/medical
condition; (ii) the extent of Complainant’s physical and/or mental limitations; and (iii) a
description and explanation of any potential accommodation;

12 If any witness is no longer with the Agency, the Agency document this fact in the supplemental
investigative file.
13 See supra fn 8.
14 Complainant should include limitations that occur at work, in addition to his personal time.
15 Complainant should also explain how each accommodation could assist him in performing the
essential functions of the TSR position.
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(5) all documents and emails generated by RA that relate in any way to Complainant’s request for
an accommodation; and

(6) rebuttal statement from Complainant after having thirty (30) calendar days to review the
completed supplemental investigation.

The Agency shall issue to Complainant a copy of the supplemental investigative file and shall
notify Complainant in writing of his right to request a hearing before a Commission AJ or the
issuance of an Agency decision, unless the matter is otherwise resolved. If Complainant requests
an Agency decision without a hearing, the Agency shall issue its decision within sixty (60) days
of receipt of Complainant’s request.
In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this
remanded case to comply with the time frames contained in this Order. The Office of Federal
Operations will issue sanctions against agencies when it determines that agencies are not making
reasonable efforts to comply with a Commission order to investigate a complaint.
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 evidence that the directed action has been taken.
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). 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).
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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. 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.
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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 12, 2018
Date