Jody L.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jan 17, 2018

0120151351 (E.E.O.C. Jan. 17, 2018)

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

Jody L.,1
Complainant,

v.

Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120151351

Agency No. 413413005

DECISION

On February 24, 2015, 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
February 19, 2015, 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. For the following reasons,
the Commission REVERSES, in part, the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Engineering
Technician (Drafting), GS-0802-05, in the Civil Engineering Technical Services Center
(CETSC), Operations Division, Installations and Mission Support Directorate, National Guard
Bureau (NGB), located in Minot, North Dakota. On May 3, 2013, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the bases of disability
(paralysis) and reprisal (prior EEO activity) when:

(1) on January 29, 2013 and three other occasions, his first-level supervisor (S1) denied
his request to work on a situational work schedule due to inclement weather days or when
the temperature is twenty-below zero or lower, and as a result he was forced to use 30
hours of leave;

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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(2) on or about April 3, 2013, his second-level supervisor (S2) asked S1 to contact
Human Resources Command (HRC) to remove the 109 Voluntary Leave Transfer
Program hours that were donated to Complainant in case of a medical emergency.2

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.
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

In November 2001 Complainant sustained a non-work related spinal cord injury which rendered
him paralyzed from the chest line down. At that time, Complainant applied for, provided
medical documentation to justify, and was accepted in the Volunteer Leave Transfer Program
(VLTP) due to his “medical emergency.” Complainant returned to work sometime in July 2002.
Work-space related accommodations were implemented based upon discussions with
Complainant.

Claim 1 - Situational Telework

On March 14, 2003, Complainant provided the Agency with a letter from his physician stating
that he should be permitted to telework from home several days per week to accommodate his
medical restrictions and challenges. Complainant’s impairment is visually apparent because he
is in a wheelchair. S2 became aware of his impairment in November 2001 and S1 became aware
in June 2012 when he first became Complainant’s supervisor.

Complainant states that he was denied situational telework a total of four times (January 29,
January 31, March 15, and March 18, 2013). He explains that even though situational telework
is specifically not a part of his telework agreement, the Telework Handbook explains that an
employee can work a situational work schedule as a result of inclement weather, doctor’s
appointment, and special work assignments. Therefore, he argues that he should have been
allowed situational telework under those conditions. Complainant asserts that prior to filing his
EEO complaint in April 2012, he was permitted to telework during inclement weather under a
former supervisor (FS). After he filed his complaint, he was not.3

2 We affirm the Agency’s dismissal of an additional claim raised by Complainant (alleging that
S2 consistently blocked ways for him to advance from his temporary position by refusing to
open the Safety position that had been vacant for three years) on the basis that it fails to state a
claim pursuant to 29 C.F.R. § 1614.107(a)(l).
3 Complainant’s prior protected EEO activity occurred in April and June 2012 and on March 13,
2013, and involved a claim of S2 parking in Complainant’s disability parking space.
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S1 and S2 testified that they were aware of Complainant’s prior EEO activity and impairment.
S1 states that he does not recall Complainant requesting telework on January 29, 2013 or January
31, 2013, and states that Complainant had no written telework agreement in place on those dates.
S1 further states that on February 7, 2013, in accordance with NGB policy, he created an official
written telework agreement for Complainant to follow with a regular and recurring telework
schedule. According to S1, Complainant asked about working at home during inclement weather
conditions, to which he stated that he would consider reasonable accommodations based on a
physician’s recommendation.4 S1 does not recall Complainant requesting any modification to
his telework agreement on March 15 or March 18, 2013.

S2 states that the only involvement he had regarding Complainant’s requests to telework on a
situational basis was to discuss the policy with S1. S1 states that he did not deny Complainant’s
request for a situational work schedule but informed him that he needed medical documentation
stating what conditions warranted Complainant working from home. According to S1,
Complainant did not comply with S1’s request and did not bring in any documentation.

Complainant’s non-union employee representative, (Industrial Equipment Mechanic, WG-5301-
11) (W1) testifies that Complainant complained to him about being denied telework during
inclement weather and having to use his annual leave. According to W1, S2 and FS previously
allowed Complainant to take days off based on safety.

Claim 2 – VLTP

Complainant asserts that on or about April 3, 2013, S1 asked him about the hours donated to him
through VLTP. He informed S1 that people had donated the hours to him because his health is
so unpredictable and as a result, he has always been in the VLTP. Complainant further states
that about two months later, S1 sent him an email informing him that he had gotten VLTP hours
removed. S2 was one of the recipients of the email. No explanation was provided as to why his
donated hours had been removed.

S1 states that he did not contact HRC regarding Complainant’s donated leave hours. Rather, S1
asserts that HRC initially sent an email to S2, requesting verification that Complainant’s medical
emergency was still present. S1 also explained that S2 forwarded the email to him because he is
Complainant’s first-level supervisor. He informed Complainant that HRC was auditing the
books and had asked if Complainant’s medical emergency was still valid.

S2 asserts that on April 30, 2013, he received an email from a Human Resources Specialist (HR)
requesting he complete a letter to terminate Complainant’s VLTP. S2 explains that he forwarded
the letter to S1 and asked him to look at Complainant’s folder to see if there was any information
he could find on the program. S2 further explains that S1 filled out the form to terminate
Complainant’s VLTP at the request of HR.

4 It is not clear from S1’s testimony the exact date this occurred.
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HR testifies that the VLTP is a program where leave is donated to an individual that has a
medical emergency and has exhausted their leave. After the emergency has ended, the unused
leave is returned to those that donated the leave. HR further states that Complainant was
removed from the program because he had been in the program since 2001 and had not
submitted any medical documentation stating that he was still in need of the emergency leave.
HR further states that she initially contacted Complainant’s supervisors to complete the
paperwork to remove Complainant from the program.

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”).

Claim 1 – Denial of Accommodation of Situational Telework

Coverage

Under the Commission’s regulations, a federal agency may not discriminate against a qualified
individual with a disability and is required to provide reasonable accommodations to the known
physical and mental limitations of an otherwise qualified individual with a disability unless the
Agency can show that reasonable accommodation would cause an undue hardship. See 29
C.F.R. § 1630.2(o), (p). To establish that he 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 was a “qualified” individual with a disability pursuant to 29 C.F.R.
§ 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Accommodation
Guidance).

The Agency does not dispute that Complainant is an individual with a disability as he is
completely paralyzed from the chest down and requires a wheelchair for mobility. A qualified
individual with a disability is an “individual with a disability who satisfies the requisite skill,
experience, education, and other job-related requirements of the employment positions such
individual holds or desires, and who, with or without reasonable accommodation, can perform
the essential functions of such position.” 29 C.F.R. § 1630.2(m). We also agree with the
Agency that Complainant is a qualified individual with a disability. Complainant states that
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because of his disability, he requires both scheduled and situational telework. He adds that
without it, he would not be able to make it to work on a consistent basis and perform the
essential functions of his job. For years, under his prior supervisor, FS, Complainant teleworked
both on a scheduled and recurring basis and on a situational basis when inclement weather made
his commute to work prohibitively difficult. The record shows that Complainant had performed
his duties in a satisfactory manner for years with these accommodations.

Request for Reasonable Accommodation

A federal agency must “make reasonable accommodation for the known physical or mental
limitations” of qualified disabled applicants or employees unless the agency can demonstrate that
the accommodation would impose an undue hardship on the operation of its program. 29 C.F.R.
§ 1614.203(c). Reasonable accommodation may include making facilities accessible, job
restructuring, modified work schedules, and other similar actions. 29 C.F.R. § 1614.203(c)(2).
An agency further has an affirmative obligation to make an individualized assessment of each
employee’s disability, qualifications, and possible accommodations before taking a significant
adverse action. See School Board of Nassau County v. Arline, 480 U.S. 273, 287-89 (1987);
Bowers v. U.S. Postal Serv., EEOC Appeal No. 01933155 (September 7, 1994).
A reasonable accommodation is a modification or adjustment to the work environment or to the
manner or circumstances under which a position held or desired is customarily performed, that
enables a qualified individual with a disability to perform the essential functions of that position.
See Accommodation Guidance. An accommodation must be effective in meeting the needs of
the individual. Id. In the context of job performance, this means that a reasonable
accommodation enables the individual to perform the essential functions of the position. Id. An
agency must consider each request for reasonable accommodation and determine: (1) whether
the accommodation is needed; (2) if needed, whether the accommodation would be effective; and
(3) if effective, whether providing the accommodation would impose an undue hardship. Id. at
Question 32.
Complainant states that he requested situational telework because it is too dangerous during
extremely cold temperatures to be out because his wheelchair lift freezes and he often cannot get
into his vehicle. He also explains that it is very difficult and exhausting for him to transfer from
wheelchair to vehicle, then drive 50 miles, transfer from vehicle to wheelchair, push through the
snow or severe cold to get into the building, and then repeat this process to go home. In addition,
it is prohibitively dangerous to commute in extreme cold weather because he could develop
frostbite without knowing it as he cannot feel anything below his chest.

W1 and an information technology representative (IT) corroborate Complainant’s claim that his
previous supervisor permitted him to work from home on inclement weather days. In addition,
Complainant testified that he told S1 how the inclement weather made it prohibitively difficult to
commute to work. According to Complainant, S1, nevertheless, denied his request and forced
him to take accrued leave instead. Complainant also asserts that S1 never requested
documentation to support his request to telework on a situational basis.

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S1 became Complainant’s first-level supervisor on June 18, 2012. S1 declared that he did not
recall Complainant “officially” asking to telework on January 29 and 31, 2013. In addition, S1
asserts that on January 29, 2013, he called Complainant at home because Complainant had not
reported to work, and Complainant stated that he was not coming in. S1 notes that there was no
“written” telework agreement in place for Complainant at that time; however, S1 understood that
Complainant’s previous first-level supervisor had allowed him to work from home if he called
in, so S1 prepared a formal telework agreement that he and Complainant signed on February 7,
2013.

S1 asserts that Complainant asked about working at home during inclement weather conditions,
and S1 responded that he would consider reasonable accommodations based on a physician’s
recommendations, but the only documentation he had at that time was the medical letter dated
March 14, 2003. S1 states that he did not recall Complainant specifically asking to modify his
telework agreement on March 15 or 18, 2013, and asserts that no “formal request” for situational
telework was made prior to March 27, 2013.

S2 also asserts that Complainant never “officially” requested to telework on a situational basis.
According to S2, there were several informal discussions and e-mails between S1 and
Complainant but not an “actual” request to work a situational work schedule. S2 further testified
that:

I believe that [S1] did not deny [Complainant’s] request for a different telework
schedule, but informed [Complainant] that he needed medical documentation
stating what weather conditions warranted [Complainant] working from home. I
also believe that [S1] wanted to establish some tangible bad weather conditions
that the doctor said would make it hard for [Complainant] to come to work
because of his physical disabilities, not because of the condition of
[Complainant’s] equipment. I believe [S1] relayed this to [Complainant] in late
2012/early 2013. [Complainant] did not comply with his request and did not
bring in any documentation from the doctor that described what actual weather
conditions would make it difficult for [Complainant] to come to work because of
his physical disabilities.

When an individual decides to request accommodation, the individual or his/her representative
must let the employer know that s/he needs an adjustment or change at work for a reason related
to a medical condition. To request accommodation, an individual may use ‘plain English’ and
need not mention the ADA or use the phrase “reasonable accommodation.” See Accommodation
Guidance, Question 1. Complainant did not need to “officially” request an accommodation, it
was enough that he asked for a modification to his usual schedule due to the hazardous
conditions and the risk to his health.

The evidence in the record supports the finding that Complainant, in fact, requested an
accommodation to telework on a situational basis during inclement weather (which he had
defined as any temperature below -20 degrees). We find S1 and S2’s explanations for not
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granting Complainant’s request lack credibility. First, we find it unlikely that after years of
teleworking during inclement weather that Complainant would not have raised it with his new
supervisor when he called him on that first below-twenty-degree day in January 2013 when
Complainant stayed at home. Based upon the evidence in the record, it seems likely that this
discussion was the reason S1 felt the need to create a written telework agreement shortly
thereafter. The record shows that on February 7, 2013, shortly after January 29, 2013 (i.e. the
first event/denial at issue), a written telework agreement was created and executed by both S1
and Complainant officially permitting Complainant to work at home on Tuesdays and Thursdays
on a recurring basis. However, the telework agreement did not address the issue of situational
telecommuting options, and Complainant objected to this omission in an email to S1 on February
13, 2013.

S1’s testimony is unclear as to when he asserts that Complainant requested a situational telework
arrangement. However, based upon the totality of the evidence, it is not credible that
Complainant failed to request an accommodation in late January 2013 or early February 2013.
In addition, assuming S2’s testimony is accurate that S1 requested a clearer definition of the type
of inclement weather that would trigger the option to work from home, we find that Complainant
provided a workable definition. Complainant consistently affirmed that he requested flexibility
when the temperatures were below negative 20 degrees. In addition, the documentary evidence
shows that S1 acknowledged the weather conditions in which Complainant was seeking more
flexibility as being “below -20 degrees.5” Based on this evidence and various inconsistencies in
S1’s testimony,6 we find that it is unlikely that S1 required additional medical documentation to
support Complainant’s need for the requested accommodation.

As part of the interactive process, an employer may ask an individual for reasonable
documentation about that person’s disability and functional limitations when the disability or
need for accommodation is not obvious. Accommodation Guidance pp. 12-13 (October 17,
2002). While the record is devoid of documentary evidence that S1, in fact, requested medical
documentation, such a request would have been improper as the need for the accommodation in
this case was obvious. See Iliana S. v. Dep’t of Justice, EEOC Appeal No. 0120081848 (Oct. 13,
2015) (finding that the complainant’s need to use the elevator during a fire drill was obvious
since her disability made it difficult to walk). We find that the 2003 letter from Complainant’s
physician establishes that Complainant faced difficult challenges in commuting because of his
disability and was the basis for establishing the need to telecommute on a regular basis. Since
the record supports the fact that Complainant’s disability causes significant difficulty in
commuting during the best of circumstances, it is certainly obvious that extreme weather would
increase the level of difficulty in Complainant’s commute, which Complainant explained to S1.
Specifically, the record supports the finding that Complainant explained to S1 that the lift on his

5 S1 noted this fact in a Memorandum for the Record dated March 27, 2013.
6 S1’s testimony appears intentionally vague as to when Complainant requested to telework
during inclement weather. Also, the fact that neither S1 or S2 possess any written
correspondence with Complainant regarding their efforts to address his accommodation requests
raises serious questions regarding the credibility that such discussions took place.
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motor vehicle freezes in temperatures below -20 degrees. When this occurs, Complainant is
unable to get into his vehicle. Complainant also explained to S1 that there is a substantial risk of
frostbite in having to commute in such extreme cold temperatures, since he is unable to detect
the warning signs of frostbite (e.g., extreme cold, prickling, and/or numbness in extremities).

The Commission recognizes that disability accommodations related to commuting can be
required under the Rehabilitation Act in appropriate circumstances. See Hackney v. U.S. Postal
Serv., EEOC Appeal No. 01984048 (Aug. 23, 2001); Hupka v. Dep’t of Defense, EEOC Appeal
No. 02960003 (Aug. 15, 1997) (agency violated the Rehabilitation Act when it refused to allow
complainant with a disability that was exacerbated by his long commute to work at home or at a
local alternative work site, but did not prove that doing so would be an undue hardship); see also,
Saner v. U.S. Postal Serv., EEOC Appeal No. 01A13291, footnote 1 (Oct. 11, 2002) (noting that
agencies may be responsible for accommodating employees with disabilities with respect to their
daily commute to work such as by modifying a work schedule, applying a work-at-home policy
where it would be an effective accommodation and would not be an undue hardship); Lavern B.
v. Dep’t of Housing and Urban Dev., EEOC Appeal No. 0720130029 (Feb. 12, 2015) (agency
denied complainant reasonable accommodation when it, among other things, did not grant his
request to telecommute 100 percent of the time); Harvey G. v. Dep’t of the Interior, EEOC
Appeal No. 0120132052 (Feb. 4, 2016); Jones v. Dep't of Agriculture, EEOC Appeal No.
0120080833 (July 18, 2012).

The undisputed record shows that the situational telework accommodation was an effective
accommodation and that such an accommodation did not present an undue burden on the Agency
as the record shows that Complainant had been provided this accommodation for years prior to
the time-frame at issue herein and Complainant had been performing the duties of his position in
a satisfactory manner throughout his tenure with the Agency. Finally, we remind the Agency
that the federal government is charged with the goal of being a “model employer” of individuals
with disabilities, which may require it to consider innovation, fresh approaches, and technology
as effective methods of providing reasonable accommodations. Rowlette v. Social Security
Administration, EEOC Appeal No. 01A10816 (Aug. 1, 2003); 29 C.F.R. §1614.203(a). We
believe that providing Complainant with this reasonable accommodation furthers this goal.

In addition to the assertion that Complainant failed to provide medical documentation, the
Agency argues that it accommodated Complainant by permitting him the use of his accrued leave
on the dates at issue. While an employer may choose between effective accommodation, forcing
an employee to take leave when another accommodation would permit an employee to continue
working is not an effective accommodation. See Denese v. Dep’t of the Treasury, EEOC Appeal
No. 0120141118 (Dec. 29, 2016) citing, Mamola v. Group Mfg. Serv., Inc., 2010 WL 1433491
(D. Ariz., Apr. 9, 2010) (unpaid leave may not be a reasonable accommodation when an
employee specifically requests another accommodation that would allow him or her to perform
the essential functions of the position without missing work); and Woodson v. Int’l Bus.
Machines, Inc., 2007 WL 4170560 at 5 (N.D. Cal., Nov. 19, 2007) (leave is sufficient as a
reasonable accommodation only if other accommodations in a job would be ineffective). In this
case, the Agency failed to provide Complainant with the effective accommodation that would
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have allowed him to continue working. Accordingly, we agree that permitting Complainant the
option of using accumulated leave instead of the option of teleworking during inclement weather
was not an effective accommodation.

Accordingly, based upon the record, we find that the Agency violated the Rehabilitation Act
when it denied Complainant the option of working from home on days when the temperature is
below negative twenty degrees.7 We also note that where a finding of discrimination involves a
failure to provide reasonable accommodation to a disability, damages are awarded if the Agency
fails to demonstrate it made a good faith effort to provide the complainant with a reasonable
accommodation. See Accommodation Guidance at 11, footnote 24, (Oct. 17, 2002).
Complainant v. Dep’t of Justice, EEOC Appeal No. 0120122924 (Sept. 11, 2015). We find the
record devoid of evidence that the Agency engaged in the interactive process. Aside from S1
and S2’s statements indicating that S1 requested medical documentation, there is no
documentary evidence to support this fact or that they otherwise engaged in the interactive
process. In addition, there is a lack of good faith established by the fact that Complainant’s new
supervisor essentially removed the effective accommodation that FS and S2 had previously
provided to him. Faustino M. v. U.S. Postal Serv., EEOC Appeal No. 0120160319 (Feb. 25,
2016). Accordingly, we find that compensatory damages are available to the extent that
Complainant can prove such damages.
Claim 2 – Removal of VLTP Hours

With respect to Claim 2, the preponderance of the evidence (based upon testimonial and
documentary evidence) supports the conclusion that HRC initiated the query into the legitimacy
of Complainant retaining the unused VLTP hours assigned to him several years prior because the
donated leave should only be retained on an emergency basis. However, even assuming the truth
of Complainant’s assertion that S1 approached him about the VLTP program on April 3, 2013
(weeks prior to HRC’s initial inquiry), the record does not support the conclusion that
management was motivated by discriminatory or retaliatory animus in the effort to remove the
VLTP hours.

CONCLUSION

Accordingly, the Commission AFFIRMS the Agency’s finding of no discrimination regarding
VLTP hours, and REVERSES the Agency’s finding that Complainant was not denied a
reasonable accommodation for his disability and REMANDS this matter to the Agency to take
corrective action in accordance with this decision and the ORDER below.

7 We find insufficient evidence in the record to support the conclusion that S1 was motivated by
Complainant’s EEO activity in denying Complainant’s request for an accommodation. The
record is devoid of evidence that Complainant had requested this accommodation from S1 prior
to January 29, 2013, or that S1 denied any such requests within a short period after Complainant
engaged in protected EEO activity. In addition, the record is devoid of evidence that S1 or S2
held animus toward Complainant because of his participation in protected EEO activity.
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ORDER
The Agency is ordered to take the following remedial action:
1. Within sixty (60) days from the date this decision is issued, the Agency shall restore any
leave (including unpaid leave) that Complainant used because he was denied the
accommodation of situational inclement weather telework8 beginning on January 29,
2013, until the date Complainant is provided with the ordered effective accommodation;

2. Within ninety (90) calendar days from the date that this decision is issued, the Agency
shall complete a supplemental investigation in order to determine Complainant’s
entitlement to compensatory damages. The Agency shall afford Complainant the
opportunity to submit evidence in support of his claim for damages within the 90-day
time frame, and Complainant shall cooperate with any additional evidentiary requests
made by the Agency. Within thirty (30) calendar days of the date that the Agency
determines the amount of compensatory damages owed Complainant, the Agency shall
pay that amount;
3. Effective immediately, the Agency shall permit Complainant to telework on days where
the temperatures are below negative twenty degrees, or when other extreme and
hazardous commuting conditions exist, as a reasonable accommodation for his disability;
4. Within ninety (90) days from the date this decision is issued, the Agency shall provide a
minimum of eight (8) hours in-person or interactive EEO training to S1 and S2, with an
emphasis on the Agency’s responsibility to provide employees with a reasonable
accommodation for disabilities as well as its general obligations under the Rehabilitation
Act. The training shall also emphasize management’s obligations to prevent retaliation
under EEO regulations;
5. Within sixty (60) days from the date this decision is issued, the Agency shall consider
taking disciplinary action against the S1 and/or S2. The Agency shall report its decision.
If the Agency decides to take disciplinary action, it shall identify the action taken. If the
Agency decides not to take disciplinary action, it shall set forth the reason(s) for its
decision not to impose discipline.
The Agency is further directed to submit a report of compliance 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 corrective action has been implemented.

8 Inclement weather is defined as any temperatures below twenty degrees.
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POSTING ORDER (G0914)

The Agency is ordered to post at its Minot, North Dakota facilities 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 becomes final, 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 at the address
cited in the paragraph entitled “Implementation of the Commission’s Decision,” within 10
calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he 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 (K0617)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report
must contain supporting documentation, and the Agency must send a copy of all submissions to
the Complainant. If the Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The
Complainant also has the right to file a civil action to enforce compliance with the Commission’s
order prior to or following an administrative petition for enforcement. See 29 C.F.R.
§§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the
right to file a civil action on the underlying complaint in accordance with the paragraph below
entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42
U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the
administrative processing of the complaint, including any petition for enforcement, will be
terminated. See 29 C.F.R. § 1614.409.
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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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. You have the right to
file a civil action in an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. If you file a civil action, you must name as the defendant in the complaint the
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person who is the official Agency head or department head, identifying that person by his or her
full name and official title. Failure to do so may result in the dismissal of your case in court.
“Agency” or “department” means the national organization, and not the local office, facility or
department in which you work. If you file a request to reconsider and also file a civil action,
filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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

January 17, 2018
Date