0720130029
02-12-2015
Lavern B., Complainant v. Julian Castro, Secretary, Department of Housing and Urban Development, Agency.
Lavern B.,
Complainant
v.
Julian Castro,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0720130029
Hearing No. 443-2011-00159X
Agency No. HUD-00114-2010
DECISION
Following its final order, the Agency timely filed an appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of 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 order.
ISSUE PRESENTED
The issue presented is whether substantial evidence supports the AJ's conclusion that the Complainant proved that the Agency failed to provide him with a reasonable accommodation for his disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-13 Financial Analyst in the Public Housing division of the Agency's Minneapolis, Minnesota Field Office. Complainant was hired by the Agency in October 2002. The position description for Financial Analysts states that the position involves reviewing and approving program budgets; obligating funds; scheduling payments; preparing contracts; reviewing and approving financial statements; generating appropriate financial transactions; resolving audit findings related to the financial management of public housing authorities (PHAs); analyzing data and keeping abreast of program compliance and performance operations; serving as a member of any team to assist in developing appropriate solutions to complex issues and problems identified by either remote monitoring or information provided by the Assessment Center; and providing expert advice and guidance on complex issues.
In 1984, Complainant was diagnosed with Ankylosing Spondylitis, a permanent inflammatory disease that that can cause some of the vertebrae in the spine to fuse together, making the spine less flexible and resulting in a hunched-forward posture. Mayo Clinic, Diseases and Conditions: Ankylosing Spondylitis, available online at http://www.mayoclinic.org/diseases-conditions/ankylosing-spondylitis/basics/definition/con-20019766. The condition also affects Complainant by causing inflammation of the eye, kidney issues, and acid reflux.
In June 2009, Complainant's supervisor (S1) expressed concern about the amount of sick leave Complainant had taken. In response, on June 16, 2009, Complainant explained his medical condition to S1 and provided a note from his physician that revealed that he had Ankylosing Spondylitis.
In June 2009, Complainant requested that the Agency grant him a hardship transfer from the Minneapolis office to the Milwaukee, Wisconsin office so that he and his wife could care for his ailing 89-year old father-in-law. At that time, Complainant lived in the Minneapolis area, but his father-in-law lived about 400 miles away in Aurora, Illinois. In January 2010, Complainant moved to Madison, Wisconsin, which is approximately five hours from Minneapolis, one and one-half hours from Aurora, and almost one and one-half hours from Milwaukee.
In February 2010, the Agency denied Complainant's hardship transfer request. After about three months of driving between Madison and Minneapolis for work, Complainant's back pain escalated to a level that he had not previously experienced. Complainant continued this commute for 44 weeks. In late May or early June 2010, Complainant's physician informed him that he had lost 30 percent of his mobility over six months and advised Complainant that he would be permanently crippled and not able to walk if he continued to regularly commute between Madison and Minneapolis. The physician also told Complainant that constant back-to-back jarring in the car had increased inflammation, which caused the fusion of Complainant's vertebrae to accelerate.
In an e-mail to several Agency officials dated June 22, 2010, Complainant requested reasonable accommodation. Specifically, Complainant asked that he be allowed to work at home 100 percent of the time. Complainant also submitted a statement from his physician with his request. The physician's statement said that Complainant had Ankylosing Spondytisis and experienced "exasperation of arthritis and pain and reduced range of motion associated with extended car driving with his job." Report of Investigation (ROI), p. 32. The letter recommended that, in order to prevent the worsening of Complainant's condition, he should work 100 percent from home to prevent any prolonged car driving. On July 5, 2010, Complainant requested to immediately work at home 100 percent as a reasonable accommodation while his accommodation request was pending. On July 6, 2010, the Supervisory Human Resources Specialist and Disability Program Manager (HR Specialist), denied Complainant's request to telework 100 percent of the time while his accommodation request was pending on the basis that "driving/commuting to work is not considered to be a major life activity/function." ROI, p. 161.
On August 27, 2010, the HR Specialist informed Complainant that his accommodation request had been partially approved. The HR Specialist noted that a Reasonable Accommodation Committee (RAC) meeting was convened to review Complainant's request and to render a decision. The HR Specialist stated that Complainant could telework for three 10-hour days per week, but he must report to the Minneapolis office one day per week because not all essential job duties of his position could be performed from a remote location.
On September 2, 2010, Complainant informed the Agency that its accommodation was not effective because the relevant issue was not the number of days he worked in the office, but the 10-hour roundtrip commute between Madison and Minneapolis that exacerbated his condition. On September 9, 2010, Complainant notified the Agency that he rejected the Agency's offer to partially accommodate him with the accommodation of telecommuting three days per week and working one day in the Minneapolis office, that he was appealing its reasonable accommodation decision, and that he would continue working his normal schedule of telecommuting two days and working two days in the Minneapolis office.
On October 4, 2010, the HR Specialist notified Complainant that, after considering Complainant's appeal, the RAC affirmed its previous reasonable accommodation decision. The HR Specialist noted that the RAC decision was based on its determination that not all of the essential functions of Complainant's job could be performed from a remote location, that Complainant's requested accommodation would require removal of essential job functions, and that commuting to work is not a major life activity.
On November 1, 2010, the Agency assigned Complainant to a detail at the Office of Field Operations (OFO) Energy Center in Milwaukee. The Energy Center is not at a specific physical location but consists of a team of Agency employees working throughout the country. Complainant did not perform Financial Analyst duties while on detail in Milwaukee, and worked a schedule that featured teleworking three times per week and working in the office once a week, with 10-hour workdays. Complainant applied for and was offered a GS-14 position at the Energy Center but rejected the position because it was a two-year term position, not a permanent position. Additionally, Complainant applied for a permanent Energy Center position in June 2011, but was not selected for that position. Complainant's detail with the Energy Center at Milwaukee ended on or about April 1, 2011.
On March 14, 2011, Complainant submitted another reasonable accommodation request to the HR Specialist. Specifically, Complainant requested to telework three days per week for 10 hours a day, and to report to the Milwaukee office on the fourth day instead of the Minneapolis office.
On March 16, 2011, S1 denied Complainant's request on the following bases: 1) Complainant's duty station is in Minneapolis; 2) Complainant is the only Financial Analyst assigned to the Minneapolis Field Office; 3) commuting is not a major life activity; 4) working in the Milwaukee office would affect Complainant's responsibility to work "cooperatively" with other members of the Public Housing staff; 5) the following things cannot be done effectively from a remote location: attending staff meetings, supervisory meetings, training, and work project group meetings; accessing central files and PHA information stored in the Minneapolis Field Office; meeting with troubled PHAs; mentoring staff; conducting onsite monitoring reviews; retrieving incoming mail; and "cross-cutting" high performance goals with other Agency departments; 6) the Milwaukee office is transitioning to a self-operation Field Office; 7) Complainant is required to be a part of the Agency's strategic plan to transition public housing and housing choice vouchers work; and 8) Complainant's detail with the Energy Center expired April 1, 2011.
While Complainant appealed the denial of the requested accommodations, the Agency allowed him to continue to telework three times per week and to report to the Milwaukee office once per week. On April 5, 2011, Complainant's representative clarified that Complainant was requesting the following accommodations: 1) three days of telework per week; 2) one day of working at the Milwaukee office per week; 3) modification of work performance standards so that his case load cycle would not exceed 70 PHAs for audits and projects; 4) use of videoconferencing and teleconferencing to provide him with an additional telework day when Complainant is ill; 5) continued use of the secure financial portal; 6) reimbursement of travel expenses (gas) related to the commute to Milwaukee; and 7) and no onsite work assignments that require travel.
On August 4, 2011, the RAC informed Complainant that it was approving his request to telework three times per week, to continue to use the secure financial portal, and to use videoconferencing and teleconferencing while telecommuting three days per week. The RAC denied Complainant's request to work in Milwaukee, to modify work performance standards, to be reimbursed for commuting expenses, and to have no onsite work assignments that require travel. Additionally, the Agency informed Complainant that he must submit a leave request when he is ill and cannot report to the Minneapolis office on his assigned day in the office (Thursdays). The RAC concluded that not all of the essential functions of Complainant's job could be performed from a remote location, and some of the requested accommodations would require removal of essential job functions. On August 18, 2011, S1 directed Complainant to report to the Minneapolis office on Thursday, September 8, 2011.
Complainant last reported to the Minneapolis office in late October 2011 and thereafter used sick or unscheduled annual on each Thursday that he was scheduled to report to the Minneapolis office. On October 25, 2011, the Agency issued Complainant an official reprimand because Complainant failed to report to the Minneapolis office and failed to return keys to the administrator at the Milwaukee office.
On October 19, 2010, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the basis of disability (Ankylosing Spondylitis) when beginning on August 27, 2010, the Agency denied him a reasonable accommodation for his disability.
The Hearing
At the conclusion of 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). Complainant timely requested a hearing, which the AJ held on February 22, 2012. Five witnesses testified at the hearing, including Complainant.
At the hearing, the parties stipulated that Complainant is an individual with a disability. Complainant testified that, as the Financial Analyst in Minneapolis, he is responsible for the caseload of 144 public housing agencies. He stated that, in his position, he monitors financial submissions, which are filed electronically; responds to audit findings and calculates operating subsidies, which are filed electronically; and engages in financial analysis. Complainant also testified that he is part of a team that monitors PHAs.
Complainant further testified that, as a Financial Analyst, he did not meet with the public, PHAs, or other customers. He stated that he talked with PHAs via telephone and received a "miniscule" amount of physical mail in the office because most mail was transmitted electronically. Hearing Transcript (HT), p. 77. Complainant testified that the only physical mail he received were letters from auditors who were auditing housing authorities and verifying operating subsidies, but that staff members scanned those letters and sent them to him. Complainant also testified that he had "occasional meetings with colleagues," but he participated in Thursday group meetings via telephone. HT, p. 76.
Complainant testified that he could not perform onsite reviews remotely from a computer, but that he has performed only one onsite review since 2005. Complainant also testified that there is only one troubled housing authority within his territory. Complainant further testified that all files that are in the office are first placed on the Agency website and downloaded, which gives him remote access to the same files that are placed in the office. He stated that he did not believe that there were files in the office that were not accessible to him remotely.
Complainant testified that he would have been content working one day per week in the Milwaukee office, and that Milwaukee has videoconferencing capability and desktop sharing with the Minneapolis office. Complainant stated that he was the only Financial Analyst in Minneapolis until October 2011, when the Minneapolis office hired two new Financial Analysts. Complainant further testified that he cannot travel to Minneapolis weekly or travel extensively because of his condition. He testified that, although he cannot drive to Minneapolis, he can ride in a vehicle as a passenger and do onsites so long as he travels there as a passenger and the onsites do not occur on a weekly basis.
S1 testified that some, but not all, of the work of Financial Analysts can be performed remotely. She testified that Financial Analysts must be available to work on special teams in the Field Office and to go onsite to PHAs if needed. S1 further testified that there are financial records that are not electronically accessible, including financial records regarding recovery grants, three years' of documents about how PHAs have operated American Recovery and Reinvestment Act grants, and full audits. S1 stated that not all housing authorities' audits are scanned electronically into the Agency system, and budgets are not required to be submitted to the Agency at all.
S1 further testified that Complainant receives physical mail in the office weekly, and that a Program Assistant scans some mail and e-mails it to Complainant. S1 testified that Complainant received three to four pieces of mail per week. S1 also testified that Thursday is the core day for the Minneapolis office and that no one teleworks on that day. S1 stated that employees participate in three-hour training sessions on Thursdays, and that team meetings cannot be attended remotely in an effective manner.
Regarding onsite reviews, S1 testified that, if a PHA is troubled, the Agency sends triage teams onsite to assess the condition of the PHA and to correct the problem. She stated that the American Recovery and Reinvestment Act provides that troubled PHAs are subject to onsite and remote reviews, and that budgets and requisitions must be reviewed onsite because they are not submitted electronically.
S1 also testified that Financial Analysts must attend local and regional state conferences, seminars, and workshops, and that there are two major conferences at which employees must provide training to attendees. S1 testified that Financial Analysts must also meet housing staff, board members, executive directors, and government authorities, which cannot be done effectively remotely. S1 stated that Complainant must go onsite to inspect timecards, coding bills, and rent collection. S1 further testified that she was unaware of anyone who teleworked 100 percent long-term. S1 also stated that, during the relevant time period, there were no vacant Financial Analyst positions available for Complainant in the Milwaukee office.
The Regional Public Housing Director (Director) testified that Financial Analysts monitor and provide oversight of housing authorities to ensure financial solvency and, in furtherance of this goal, they must conduct onsite reviews, remote reviews, review data within Agency systems, communicate with team members and housing authority staff, attend meetings with boards of commissioners, train at conferences and industry meetings, and review documents. The Director also testified that, for a while, employees did not travel because of the budget, but now the region has a large travel budget to do onsite reviews of troubled housing authorities. The Director testified that there are two troubled housing authorities within the Minneapolis office's jurisdiction.
The Director further testified that Financial Analysts must go onsite to examine housing authority budgets, which are not required to be submitted to the Agency. The Director also stated that staff have to audit and review housing authorities onsite so that they can "follow the money." HT, p. 223. He also testified that Financial Analysts must determine the "true story" by examining checks, requisition documents, and contracts onsite at housing authorities. HT, p. 233. The Director testified that Financial Analysts are not able to remotely assess working relationships with executive directors, housing authority staff, and financial staff and must go onsite to observe the management of property and meet with housing and government officials.
The Director testified that attending team meetings and dialoguing with co-workers are essential functions of Financial Analyst positions that can only be performed in the office. He stated that, although these functions could be done via videoconference or telephone, Financial Analysts need to be in the office to form teams, build relationships with employees, and bolster morale. The Director further testified that there are some documents that are kept in the office that are not accessible remotely, including tenant information documents, historical information, declarations of trust, and general deposit documents. The Director further testified that Complainant was not transferred to Milwaukee because he was the only Financial Analyst in Minneapolis, and there were no vacant positions for a Financial Analyst in Milwaukee during the relevant time period.
The HR Specialist testified that Complainant's reasonable accommodation request was only partially approved because some essential functions of his job cannot be performed at home, his request would remove some essential functions of his job, and commuting to work is not a major life activity that the Agency has a duty to accommodate. The HR Specialist testified that some essential functions could not be done through teleworking because there were some financial documents that were only available in the office, and that Financial Analysts must conduct onsite reviews. Nevertheless, the HR Specialist stated that Complainant is a qualified individual with a disability.
AJ's Decision
The AJ issued a decision on May 1, 2013. In her decision, the AJ first noted that the parties stipulated that Complainant is an individual with a disability. The AJ found that Complainant is a qualified individual because he has successfully worked for the Agency for many years, and there was no evidence he could not continue to do so. The AJ noted that Complainant's performance reviews for the last several years indicated that he has been meeting expectations for his position. Regarding Complainant's reasonable accommodation request, the AJ noted that the Agency contended that commuting to work is not a major life activity that requires accommodation. However, the AJ determined that Commission precedent has established that a request for a shorter commuting time because of a disability triggers the Agency's responsibility to provide a reasonable accommodation.
The AJ further concluded that the Agency's partial accommodation of allowing Complainant to telework three days a week and report to the Minneapolis once per week was ineffective because requiring Complainant to report to Minneapolis required him to drive a long distance each week, which caused additional damage to his spine. The AJ also found that, after the Agency determined that Complainant's requested accommodations would not work, the Agency failed to consider reassigning him. The AJ reasoned that, after the Agency determined that it could not grant requested accommodations because they would eliminate essential job functions, the Agency should have continued the interactive process to discuss other available options such as reassignment, but this did not occur. "In short, the Agency did not continue to engage in the interactive process when it was required to do so, cutting against its defense that it did everything possible to accommodate Complainant," the AJ concluded. AJ's Decision, p. 21.
The AJ also found that, contrary to the Agency's assertion, the accommodations requested by Complainant would not have eliminated essential functions of his job. The AJ determined that, although the Agency maintained that in-person access to mail and documents in the office and face-to-face meetings with colleagues are essential functions of Complainant's job, they are better characterized as skills or abilities that are useful in performing the essential functions of the position of Financial Analyst. The AJ reasoned that, while working collaboratively with colleagues on projects, training and mentoring other employees, and attending meetings may be essential functions of the job, doing so in-person is not an essential function. The AJ noted that meetings can be attended by telephone, videoconferencing, or desktop sharing.
Regarding Complainant's attendance at training conferences, the AJ determined that Complainant's restrictions did not prohibit all travel, only repetitive back-to-back driving. With respect to document delivery and mail, the AJ determined that mail review and document delivery could be achieved by scanning the documents/mail and sending them to Complainant electronically on the secured network. The AJ noted that Complainant testified that he received three to four hard copy pieces of mail per week that would have to be scanned, which would not be enough to demonstrate undue hardship.
The AJ further determined that the Agency did not demonstrate that, if Complainant needed to review the documents contained exclusively in the office, it would be an undue hardship to have them scanned and sent to Complainant on the secured network. The AJ noted that Complainant testified that he never used any of the records contained in the office that could not be sent electronically and that most of the records he needed were available remotely. The AJ concluded that, in the event that Complainant occasionally needed records that were kept exclusively in the office, they could be sent to him, and the Agency had not provided any evidence that the records in the office were used so frequently that to send them to Complainant when they were needed would impose an undue burden.
The AJ also concluded that the record demonstrated that Complainant was able to perform his job duties without reporting to the Minneapolis office, as reflected by his "fully successful" rating for the period November 1, 2010, through September 30, 2011. Regarding onsite reviews, the AJ determined that the record indicated that onsite reviews were not commonly conducted by Complainant, who had only conducted one onsite review in eight years. The AJ concluded that, in the vast majority of cases, public housing authority records are available online, and circumstances when an onsite visit is necessary are rare because there are only one or two troubled PHAs in Complainant's jurisdiction.
The AJ further found that, even assuming that onsite reviews are essential functions of Complainant's position in limited circumstances, Complainant's restrictions would not prohibit him from conducting onsite reviews as needed because that would only involve occasional travel. The AJ noted that Complainant's physician reported that Complainant was able to come to the office occasionally and should be able to attend important meetings or training. The AJ further noted that perhaps Complainant would have to be accommodated with a mode of travel to occasional onsite reviews to ensure that he did not drive long distances, but there were many options available such as plane, train, and bus travel that the Agency never explored. Thus, the AJ found that the Agency failed to provide Complainant with a reasonable accommodation for his disability.
With regard to remedies, the AJ ordered the Agency to provide Complainant with a reasonable accommodation of teleworking 100 percent, or teleworking three days per week and working one day per week at the Milwaukee office, assuming Complainant's medical condition has not substantially changed. The AJ found that Complainant had not shown that he was entitled to pecuniary compensatory damages but ordered the Agency to pay Complainant proven non-pecuniary compensatory damages because the Agency did not engage in good faith efforts to provide Complainant with a reasonable accommodation.
The AJ ordered the Agency to pay Complainant $15,000 in non-pecuniary compensatory damages. The AJ further ordered the Agency to restore all leave Complainant took on Thursdays to avoid driving to Minneapolis, beginning on September 8, 2011, until such time as the Agency provided Complainant with an effective accommodation that eliminates the need to take leave to avoid driving to the Minneapolis office. Additionally, the AJ ordered the Agency to provide all managerial and supervisory employees at its Minneapolis office with mandatory EEO training on the Rehabilitation Act. Further, the AJ ordered the Agency to remove Complainant's October 25, 2011, reprimand from all personnel files and records, to post a notice of the discrimination finding at its Minneapolis office, and to pay Complainant's attorney's fees and costs.
The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged. The Agency simultaneously appealed the AJ's findings to the Commission.
CONTENTIONS ON APPEAL
On appeal, the Agency contends that the AJ erred in finding that it failed to provide Complainant with a reasonable accommodation. Specifically, the Agency argues that commuting to work is not a major life activity that requires accommodation because employees are not entitled to accommodations that remove barriers outside of the work situation. The Agency further argues that the AJ did not properly analyze whether Complainant was a qualified individual. The Agency maintains that traveling and conducting onsite reviews of public housing authorities are essential functions of Complainant's job, and that his inability to perform these actions makes him unqualified for the position of Financial Analyst. Additionally, the Agency contends that the AJ ignored testimony that showed that the requested accommodations would constitute an undue hardship on the Agency. The Agency notes that Agency officials testified that Complainant was the only Financial Analyst for 144 housing authorities in Minnesota; videoconferencing has its limits; and there was not enough staff to assist in performing Complainant's onsite and in-office duties. Complainant does not raise any arguments on appeal.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110(, Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Reasonable Accommodation
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).
As an initial matter, we note that the events in this case arose after January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. We further note that the parties stipulated that Complainant is an individual with a disability; therefore, we will not review whether Complainant is disabled under the Rehabilitation Act.
Qualified Individual
As such, the threshold issue in this case is whether Complainant is a qualified individual. 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). The Agency contends that Complainant is not qualified for his Financial Analyst position because he could not perform all the essential functions of his position with or without a reasonable accommodation. The Agency asserts that Complainant's inability to commute to the Minneapolis office made him unable to perform essential functions such as conducting onsite reviews, interacting with colleagues, or retrieving and responding to traditional mail.
Essential functions are the duties of a job, that is, the outcomes that must be achieved by someone in that position. See Petitioner v. Dep't of Homeland Security, EEOC Petition No. 0230110053 (July 10, 2014); Ta v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). In this case, the record reveals that Complainant's Financial Analyst position required him to review documents to ensure housing authority compliance with Agency regulations, respond to audit findings, calculate operating subsidies, communicate and work with co-workers about public housing authorities, conduct training, and communicate with housing authorities and officials about PHAs. We determine that these are the outcomes or essential functions that must be achieved by Financial Analysts, and whether these outcomes can be achieved in person or remotely is a question of the method for achieving these outcomes.
Moreover, substantial evidence supports the AJ's finding that the Agency has not shown that Complainant's inability to commute to the Minneapolis office has resulted in any significant or consequential deficiencies in his job performance with respect to monitoring housing authority compliance, working with colleagues, responding to audits, or communicating with housing authorities and officials. In fact, the Agency rated him at least "fully successful" throughout the relevant time period when he was unable to report to Minneapolis. The evidence supports the AJ's conclusion that Complainant has performed the essential functions of his position without regularly reporting to the Minneapolis office. Consequently, we find that the record supports the AJ's finding that Complainant was qualified for his Financial Analyst position.
Telecommuting/Commuting as a Reasonable Accommodation
The Agency also contends that the AJ erred as a matter of law because she concluded that the Agency was legally required to reasonably accommodate Complainant's inability to commute to work. In support of its argument, the Agency cites several federal district and circuit court cases that have held that an employer is not required to make reasonable accommodations to eliminate barriers outside the workplace, such as commuting distance, that make it more difficult for disabled employees to get from work. See Robinson v. Bodman, 333 Fed. Appx. 205, 207 (9th Cir. 2009); Regan v. Faurecia Automotive Seating, Inc., 679 F.3d 465, 480 (6th Cir. 2012); Salmon v. Dade County School Board, 4 F. Supp. 2d 1157, 1163 (S.D. Fla. 1998); Bull v. Coyner, 2000 WL 224807 (N.D. Ill 2000).
However, in the federal sector, federal district and circuit court decisions may be persuasive or instructive, but are not binding on the Commission. Montemorra v. Dep't of the Treasury, 01A41536 (Aug. 2, 2005). Moreover, Commission precedent clearly has established that a request for telecommuting or a shorter commuting time because of a disability triggers an Agency's responsibility under the Rehabilitation Act. See Jones v. Dep't of Agriculture, EEOC Appeal No. 0120080833 (July 18, 2012) (agency denied complainant a reasonable accommodation when it did not grant his request to telecommute because of condition); Southerland v. U.S. Postal Serv., EEOC Appeal No. 0120091983 (June 15, 2010) (if a complainant requests a shorter commute as a reasonable accommodation, an agency must examine whether his or her impairment substantially limits a major life activity and how the requested accommodation would enable the employee to "get" to work); Kubik v. Dep't of Transportation, EEOC Appeal 01973801 (July 9, 2001) (request for a shorter commuting time due to a disability triggers agency's responsibility under the Rehabilitation Act); Galo v. U.S. Postal Serv., EEOC Appeal No. 01973267 (Aug. 5, 1999) (Commission emphasized that the only way the agency could show that it was not obligated to provide a reasonable accommodation to complainant was by proving that the specific accommodation needed by complainant, a reduction of commuting time, constituted an undue hardship); Hupka v. Dep't of Defense, EEOC Appeal No. 02960003 (August 13, 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).
Further, Commission guidance states that an employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, as long as this accommodation would be effective and would not cause an undue hardship. Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Reasonable Accommodation Guidance), EEOC Notice No. 915.002 (as revised, Oct. 17, 2002). At its core, the Rehabilitation Act seeks to enable individuals with disabilities "to enjoy equal benefits and privileges of employment as are enjoyed by ...employees without disabilities." 29 C.F.R. � 1630.2(o)(1)(iii). Additionally, we note that providing disabled employees with the reasonable accommodations of telecommuting or reassignment to a closer office is consistent with the Rehabilitation Act's goal of assuring "equality of opportunity, full participation, independent living, and economic self-sufficiency" for individuals with disabilities. 42 U.S.C. � 12101(a)(7). In this case, because Complainant is a qualified individual with a disability, the Agency had a duty to engage in the interactive process to determine if there was an effective reasonable accommodation for his disability
Undue Hardship
Complainant requested that the Agency allow him to telecommute 100 percent of the time, or in the alternative, to report to its Milwaukee office one day per week and telework three days per week. Complainant supported his request with medical documentation that revealed that his medical condition rendered him unable to commute the very long distance from his home to Minneapolis on a regular basis. The Agency contends that the AJ ignored testimony that showed that the requested accommodations would constitute an undue hardship on the Agency, including testimony that Complainant was the only Financial Analyst for 144 housing authorities in Minnesota; that videoconferencing has its limits; and that there was not enough staff to assist in performing Complainant's onsite and in-office duties.
The AJ found that the Agency had not demonstrated that Complainant's requested accommodations would constitute an undue hardship on the Agency. Specifically, the AJ found that onsite trips to housing authorities were few and far between because there were only one or two troubled PHAs in Complainant's territory; mail could be scanned and sent to Complainant electronically on the secured network; Complainant only needed to attend an occasional training or conference in-person; Complainant was able to participate in meetings and trainings via videoconference and telephone; and there was no evidence that the amount of documents kept exclusively in the Minneapolis office that had to be scanned or sent to Complainant electronically was excessive. In so finding, the AJ noted that the record revealed that Complainant had only conducted one onsite review in the eight years he had been in his position. The AJ further noted that, although Complainant's physician's restrictions prohibited him from regularly driving between Minneapolis and Madison, the physician permitted him to "come to the office occasionally" to attend important meetings or necessary training. ROI, p. 30.
Under these specific circumstances, we find that substantial evidence supports the AJ's conclusion that Complainant's requested accommodations would not constitute an undue hardship on the Agency and, therefore, the Agency denied him a reasonable accommodation for his disability. In so finding, we note that the fact that Complainant received a "fully successful" annual evaluation while telecommuting 100 percent of the time greatly undermines the Agency's contention that his inability to report to the Minneapolis office creates an undue burden on 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.
Remedies
Additionally, with respect to the remedies ordered by the AJ, we note that neither party addresses or challenges the remedies ordered by the AJ in this case. Thus, upon review, we also affirm the AJ's decision with respect to the ordered remedies.
CONCLUSION
Accordingly, the Commission 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.
ORDER (E0610)
The Agency is ordered to undertake the following remedial relief which, unless otherwise specified, shall be provided within one hundred twenty (120) days of the date on which this decision becomes final:
1. The Agency shall provide Complainant with a reasonable accommodation by undertaking at least one of the following actions: 1) allow Complainant to telework four days per week, with 10-hour workdays; or 2) allow Complainant to telework three hours per week and report to the Milwaukee office one day per week, with 10-hour workdays. The parties shall immediately engage in the interactive process to determine which reasonable accommodation is best for Complainant to perform the essential functions of his Financial Analyst position.
2. Expunge all documentation pertaining to Complainant's October 2011 reprimand from all Agency files.
3. The Agency shall pay Complainant $15,000 in non-pecuniary compensatory damages.
4. The Agency shall provide a minimum of eight (8) hours in-person EEO training to all supervisors and management in its Minneapolis and Milwaukee offices, 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. The Agency shall restore any leave (including unpaid leave) taken on Thursdays by Complainant because he was unable to drive to the Minneapolis office, beginning on September 8, 2011, until the date Complainant is provided with the ordered effective accommodation.
6. The Agency shall pay Complainant proven attorney's fees and costs in accordance with the Order below.
7. The Agency shall post a notice of this finding of discrimination in accordance with the Order below.
The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Minneapolis, Minnesota and Milwaukee, Wisconsin 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 (H0610)
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 this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 12, 2015
Date
2
0720130029
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720130029