EEOC Appeal No. 0120140147
01-17-2017
Matilde M. v. Soc. Sec. Admin.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Matilde M.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120140147
Hearing No. 541-2013-00006X
Agency No. DEN-12-0109-SSA
DECISION
On September 30, 2013, Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 11, 2013, final decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., 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 AFFIRMS in part and REVERSES in part the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that she was subjected to a hostile work environment and discrimination based on disability, age, religion, and/or reprisal.
BACKGROUND
Factual Background
At the time of events giving rise to this complaint, Complainant worked as a Service Representative at the Agency's Colorado Springs District Office in Colorado Springs, Colorado. Her first-line supervisor (S1) was the Operations Supervisor, her second-line supervisor (S2) was Assistant District Manager, her third-line supervisor (S3) was the District Manager, and her fourth-line supervisor (S4) was the Area Director.
Complainant stated that she has filed several EEO complaints, beginning in 2009. Complainant asserted that she has major depression and anxiety disorder, mental disabilities that she contends began around June of 2010 "as a result of working conditions" at the Agency. Complainant stated that she is out of the office two afternoons a week for therapy.
According to Complainant, her April 2011 mid-year review was good, but her FY 2011 Performance Assessment and Communications System (PACS) review was bad and contained personal attacks. S1 stated that the PACS review for FY 2011 was average but indicated ways for Complainant to improve her performance.
Complainant worked a reduced schedule from November 1, 2011, until February 1, 2012. Complainant averred that S1 did not reduce her workload while she was working a reduced schedule. S1, however, stated that she reduced Complainant's workload by 25 percent while Complainant was working six hours per day, five days per week. Complainant returned to a regular work schedule on February 1, 2012, but she stated that she is still out of the office approximately five hours per week for her therapy appointments. Complainant further stated that her workload has not been reduced, even though she is only in the office 35 hours per week.
Complainant alleged that the Colorado Springs District Office is "a very toxic environment." Complainant stated that her therapists (T1 and T2) wrote at least two recommendations to S4 requesting that she be reassigned to a different office, but S4 has not acted on the recommendations. S4 stated that he received two very generic letters from Complainant's therapists requesting that she be transferred from her job. On November 14, 2011, S4 responded to the therapists, asking specifically what they were requesting and how it would affect Complainant's job, because moving her to another office would require her to perform the same basic job functions. On December 5, 2011, S4 received a response from T1, which stated that Complainant should be given a permanent transfer because she could not get along with management. According to S4, the response did not specify a geographic location or a specific position. S4 stated that he has not received any reasonable accommodation request or any other request from Complainant, and contended that he cannot act on a request from an outside third-party.
According to Complainant, there is a pattern of S1 harassing her and ostracizing her from everyone in the office. Complainant stated that she was deposed on February 28, 2012, regarding a matter in front of the Merit Systems Protection Board (MSPB). According to Complainant, she mentioned during her deposition that she had a box of unprocessed returned mail. Complainant stated that she was never trained on what to do with unprocessed returned mail, so she kept it in a desk drawer. On February 29, 2012, S1 told Complainant to box up her unprocessed returned mail. Complainant alleged that asking her to box up the unprocessed returned mail constituted harassment. According to S2, S3 told her to ask S1 to have Complainant turn over her unprocessed returned mail based on a directive from a MSPB attorney.
On March 23, 2012, S1 told a coworker to stop talking to Complainant because she had work to do. According to S1, Complainant was working in the front lobby, which was busy, so S1 told the coworker that she (S1) could answer the coworker's question for her. On April 12, 2012, S1 told Complainant that she needed to complete systems training immediately, although according to Complainant the training was not due for two weeks. S1 explained that she had sent an email to all Service Representatives asking them to complete the training that morning.
Complainant alleged that someone "ransacked" her desk on April 13, 2012, and that some documents were missing. Complainant asserted that S2 admitted to looking through papers on Complainant's desk. S2 stated that she looked through a stack of papers on Complainant's desk for a document needed to process an aged item and that she did not touch anything else on the desk. Also on April 13, 2012, Complainant's representative sent S2 a request for EEO official time on Complainant's behalf, but S2 replied that Complainant needed to request the time herself. According to S2, she told Complainant that she preferred that the requests come directly from Complainant.
Complainant stated that, on April 16, 2012, S2 emailed her a question about a document that Complainant said S2 could have looked at the system to answer. S2 stated that the document had not cleared in the system, which is why she emailed Complainant. On May 3, 2012, S1 asked Complainant if she could conduct a desk audit by reviewing the contents of her desk. According to S1, she was auditing all of the Service Representatives' desks, but Complainant told S1 that she would have to go through the Regional Commissioner if she wanted to complete a desk audit because Complainant would not authorize anyone to go through her desk.
Complainant further alleged a dispute regarding a religious symbol, a Crown of Thorns, which she kept in her cubicle. Complainant stated that on May 6, 2012, S3 told her that employees had complained about the Crown of Thorns she had in her cubicle. Complainant alleged that this is unlikely, because the majority of people in Colorado Springs are conservative Christians, other employees have religious symbols at their desks, and employees in the District Office openly pray together or read Psalms. S2 and S3 denied knowledge of any organized prayer or reading Psalms. S1 averred that several employees complained about the Crown of Thorns, which was about six inches in diameter and had one-inch thorns. S1 contended that Complainant told a coworker that the Crown of Thorns "draws blood," and that coworkers told S1 they feared that the Crown of Thorns could be used as a weapon because Complainant was "unstable."
Complainant denied telling anyone that the thorns draw blood. S3 stated that one of the thorns was approximately four inches long, although Complainant observed that all of the thorns were one inch long. S3 stated that she asked Complainant to remove the Crown of Thorns from her cubicle because dangerous weapons, which include blades longer than two and a half inches, were prohibited in the facility.
On May 8, 2012, Complainant met with S1 to go over her PACS performance review. Complainant averred that she got up from the table to make a copy of the document, but S1 told her to give it back. According to S1, Complainant attempted to put the review in the shred bin. Complainant stated that she tried to leave the room, but S1 grabbed her and grabbed her collar. Complainant further stated that she stuffed the performance review down her blouse, but S1 reached for it, leaving two scratch marks on Complainant's chest. S1 stated that her arm may have brushed Complainant's arm. According to S3, she observed slight discoloration on Complainant's chest, which was more consistent with paper marks than fingernail scratches. Complainant contacted the police, who referred her to FPS.
On May 9, 2012, a Federal Protective Service (FPS) searched her bag, S3's bag, and Complainant's bag for weapons. According to S3, this search was related to claims made by Complainant against S1 following a May 8, 2012, incident and had nothing to do with S3's request that Complainant remove the Crown of Thorns from her cubicle.
S1 noted that she has been temporarily working from an Agency cluster office in Canon City, Colorado because Complainant filed a restraining order against her. Complainant's workspace was temporarily moved to the Agency's Office of Disability Adjudication and Review (ODAR) in Colorado Springs, Colorado pending an internal investigation, the results of which are not included in the record.
Complainant also alleged that her managers harassed her in their manner of providing her with work assignments. According to Complainant, Service Representatives have adjudicative/down days when they are not required to sit at the front counter. Complainant stated that S1 sets up the schedule so that her adjudicative days fall on Mondays and Wednesdays, which are the days that she has therapy. According to S1, there are seven Service Representatives and six windows at the front counter, and the Service Representatives rotate through the different windows. The seventh Service Representative has an adjudicative/down day, unless the wait for service is longer than one hour, in which case the seventh Service Representative helps out. Complainant also stated that S1, S2, and S3 frequently give her requests to complete a task by close of business. Complainant alleged that her coworkers do not receive as many of this type of request as she does. S1 stated that she generally sends emails to all of the Service Representatives to let them know the deadline for a particular item, but she will follow up if she does not hear back. Complainant stated that S1, S2, and S3 never clarify which tasks are the highest priorities.
Procedural Background
On February 29, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (mental), age (50), and reprisal for prior protected EEO activity when:
1. On October 28, 2011, she received a level "3" rating in all elements of her PACS appraisal;
2. Starting in July 2011 to the present, management failed to honor medical documentation that limited her hours of work to six hours a day, five days a week. Even though she was working 30 hours a week, management continued to give her assignments as if she was working a full-time schedule and expected her to complete the work given; and
3. The Area Office has not approved her doctor's July 2011 recommendation for her to be reassigned due to stress.
Complainant subsequently requested to amend the EEO complaint to allege that the Agency discriminated against her on the bases of religion (Christian), disability (mental), age (51), and reprisal for prior protected EEO activity when:
4. On February 29, 2012, management confiscated unprocessed returned mail from her cubicle, which she felt was in retaliation for her participating in an EEO matter on February 28, 2012. Her request for a receipt for the box full of unprocessed returned mail was not granted. She felt that management's retaliatory act is to justify a potential suspension or termination. Further, she claimed that management did not confiscate unprocessed returned mail from any other employee;
5. On March 23, 2012, S1 interrupted a work-related conversation between Complainant and a coworker. S1 advised the coworker not to talk to Complainant and that any questions she may have should come through S1. Complainant cited the following additional incidents of harassment:
a. On April 12, 2012, S1 interrupted a work-related conversation between Complainant and a coworker, and Complainant was ordered to complete the training on systems violations right then even though she had until the close of business to do so. S1 denied Complainant's request to allow her time to complete the work she was currently working on. She claims that she cannot talk to anyone in the office without S1 questioning what the conversation is in regards to, or telling her to get back to work;
b. On April 13, 2012, she arrived at work to find that someone had ransacked her desk and left it in total disarray;
c. On April 13, 2012, S2 sent an email to Complainant advising her that her representative could not send emails requesting EEO official time on Complainant's behalf and that all requests needed to come from Complainant;
d. On April 16, 2012, S2 sent Complainant an email requesting the status of a 721 (Death Alert) even though she previously provided S2 with the status on April 12, 2012; and
e. On May 3, 2012, S1 subjected her to an unauthorized desk audit shortly before her mid-year PACS review.
6. On May 6, 2012, S3 asked her to take home a Crown of Thorns, a symbol of Jesus' suffering that was on her desk, because it upset the other employees. Complainant claims that no other employees were asked to remove religious items from their desks. Subsequently, on May 9, 2012, Complainant's bag was searched for a potential weapon due to S3's interpretation of the Crown of Thorns being a potential weapon;
7. On May 8, 2012, she was advised during her mid-year PACS review that an Opportunity to Perform Successfully plan would be initiated if there was no sign of improvement. A physical altercation ensued between Complainant and S1 after the discussion. The incident resulted in Complainant sustaining scratch marks on her chest; and
8. Starting on May 10, 2012, management constantly "bombarded" her with requests to work certain workloads without informing her of their priority. Management was aware that Mondays and Wednesdays are Complainant's adjudicative/down days and that she is out of the office for at least two hours and 15 minutes to attend therapy sessions, which cuts into her time to work her lists, while other employees have time on their down days to complete their work.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). Therein, the Agency concluded that Complainant failed to prove that it had subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant disputes the findings of fact and conclusions of law in the FAD. Complainant goes through her claims one by one and generically states that "management's asserted reasons were a pretext for discrimination and harassment."
In response to Complainant's appeal, the Agency contends that Complainant inappropriately attempts to introduce new evidence on appeal that was available to her during the investigative and hearing processes. According to the Agency, Complainant cannot establish that she was subjected to harassment and/or disparate treatment and has not rebutted any of the Agency's legitimate, nondiscriminatory reasons for its actions.
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 Chap. 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").
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Complainant alleged that she was subjected to disparate treatment when she was issued her PACS review on October 28, 2011. The Agency has provided a legitimate, nondiscriminatory explanation for Complainant's October 28, 2011, PACS review, which is that there was room for improvement with her FY 2011 performance. Although Complainant generally asserts that this reason is pretextual, the preponderance of the evidence in the record does not establish that this reason is pretext for discrimination.
Reasonable Accommodation
Complainant alleged that she was denied a reasonable accommodation when her workload was not reduced while she was working a reduced schedule and when her reassignment request was denied. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002) (Enforcement Guidance).
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. 29 C.F.R. �� 1630.2(c) and (p). "The term "qualified," with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. � 1630.2(m). In the FAD, the Agency determined that Complainant was a qualified individual with a disability.
Complainant requested a reasonable accommodation that amounted to a request for a new supervisor. Our guidance indicates that a request for reassignment to a new supervisor generally does not constitute a request for reasonable accommodation. See Enforcement Guidance at Question 33 (employer not required to provide employee with new supervisor as reasonable accommodation); Hilton v. Dep't of Veterans Affairs, Appeal No. 0120080691 (Mar. 25, 2010).
Notwithstanding the foregoing guidance, we note that agencies nonetheless are required to undertake an individualized assessment as part of the reasonable accommodation process, even when the accommodation requested amounts to a request for a different supervisor. See Holly v. Dep't of Homeland Security, EEOC Appeal No. 0120121041 (July 11, 2012) (in most circumstances, employer need not change employee's supervisor as form of reasonable accommodation); cf. Cangemi v. Dep't of the Navy, EEOC Appeal No. 01A42450 (Apr. 7, 2006) (employer not prohibited from changing employee's supervisor as form of reasonable accommodation); see also Cardenas-Meade v. Pfizer, 510 Fed.Appx. 367, 371 (6th Cir. 2013) (reasonableness of request for new supervisor appropriately to be considered on case-by-case basis).
Here, the Agency accommodated Complainant by reducing her schedule to six hours per day, five days per week. The Agency has provided evidence that it also accommodated Complainant by reducing her workload while she was working a reduced schedule. While Complainant is entitled to an effective accommodation, she is not entitled to the accommodation of her choice. See Lynette B. v. Dep't. of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). Complainant has not presented any evidence that the accommodation already provided was ineffective. Moreover, the record indicates that Complainant was rated as "Satisfactory" in all elements of her PACS reviews, indicating that the accommodations were effective, as they enabled Complainant to perform her job duties in a satisfactory manner. Consequently, Complainant was not entitled to a transfer to a different supervisor as a reasonable accommodation under the circumstances of this case. We therefore find that the Agency fulfilled its obligation to provide Complainant with a reasonable accommodation when it reduced her schedule and reduced her workload.2
Harassment
Complainant also alleged that she was subjected to a hostile work environment. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her 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 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). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id.
Upon a review of the record, we find the evidence is insufficient to support a finding that S1's and S2's actions were motivated by Complainant's disability, religion, age, or prior protected activity. Complainant did not exercise her right to have a hearing; as a result, there are no credibility determinations available from a neutral fact-finder who observed witness testimony. Complainant bears the burden of proving, by a preponderance of the evidence, that the harassment was because of her protected status. When the evidence is at best in equipoise, she has not met that burden. Brand v. Dep't of Agriculture, EEOC Appeal No. 012012187 (Aug. 23, 2012). Moreover, we note that the majority of the alleged harassment, such as Complainant's allegations that her unprocessed returned mail was confiscated, that S1 interrupted her, that S1 directed her to complete training, that S2 retrieved a document from her desk, that S2 requested the status of a Death Alert, that S1 conducted a desk audit, and that management made requests that she complete work, consist of either routine managerial oversight or the sort of trivial slights and petty annoyances that do not rise to the level of severe or pervasive conduct. See Lassiter v. Dep't of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012). Further, with respect to the alleged May 8, 2012, altercation, we find that the Agency appropriately separated Complainant and S1 pending the results of an internal investigation.
Crown of Thorns
We now turn to whether the Agency discriminated against Complainant when it asked her to remove the Crown of Thorns (Crown) from her cubicle. As evidence of discrimination, Complainant noted that other employees are permitted to keep religious symbols such as a Bible or a crucifix at their desks, which the Agency does not dispute. Here, S3 asked Complainant to remove the Crown from her cubicle because of complaints from her coworkers, and the perception that Complainant was "unstable" and that the Crown could be used as a dangerous weapon. However, the Agency did not present any statements from Complainant's coworkers to corroborate its contention that employees complained that Complainant was "unstable" or that the Crown could be used as a dangerous weapon. Therefore, there is no support in the record for the assertion that Complainant's coworkers complained. The Agency should have provided one or more witness statements to support its position that it directed Complainant to remove the Crown because other employees complained that they feared that Complainant would use it as a weapon.
Further, we find based on the record before us that S3 had no more reason to believe that Complainant would become violent than any other employee would. Rather, S3's decision appears grounded in stereotypes about people with mental illnesses. We note that the Rehabilitation Act is designed to protect against unsupported myths, fears, stereotypes, and other attitudinal barriers about disability, which include, but are not limited to, concerns about productivity, safety, insurance, liability, attendance, cost of accommodation and accessibility, and acceptance by coworkers and customers. See Bonenberger v. Dep't of Justice, EEOC Appeal No. 0120111259 (Aug. 13, 2013). Here, the Agency conceded that it directed Complainant to remove the Crown based on alleged perceptions by coworkers which directly related to Complainant's disability.
In the instant case, the record does not support a finding that the Agency's instruction that Complainant remove the Crown resulted from any factor other than the Agency's wholly unsubstantiated perception that Complainant might use the Crown as a weapon.3
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency discriminated against Complainant on the basis of disability when it instructed her to remove the Crown of Thorns from her cubicle; further, that Complainant did not establish that the Agency discriminated against her with regard to her remaining claims. Accordingly, we AFFIRM the Agency's final decision as regards Complainant's disparate treatment, harassment, and reasonable accommodation claims, but REVERSE the Agency's final decision as regards the removal of the Crown of Thorns. That claim is REMANDED for further processing consistent with this decision and the Order of the Commission, below.
ORDER
The Agency is hereby ORDERED to take the following actions within 120 days of the date of this decision, unless otherwise specified:
1. The Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to this complaint. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission. A copy of the final decision must be submitted to the Compliance Officer as referenced below.
2. The Agency shall immediately take steps to ensure that all disability discrimination ceases and desists in the facility. If Complainant is still employed at the facility, the Agency will immediately permit her to display the Crown of Thorns in her workspace. The Agency will ensure that it takes steps to immediately address any reports of discrimination brought to its attention.
3. The Agency shall provide specialized, in person, eight-hour training to all Agency management officials at the Agency's Colorado Springs, Colorado facility regarding employees' rights and managements' responsibilities with respect to EEO laws, with special emphasis on disability discrimination.
4. The Agency shall consider taking disciplinary action against the responsible management officials who asked Complainant to remove the Crown of Thorns from her cubicle. Note that the Commission does not consider training to constitute disciplinary action. The Agency shall report its decision within 120 calendar days of the date of this decision. If the Agency decides to take disciplinary action, it shall identify the actions taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the responsible management official(s) is no longer employed by the Agency, the Agency shall furnish proof of the date of separation.
5. The Agency shall post the attached Notice of Discrimination, as described 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 Colorado Springs, Colorado facility 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 (M0416)
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 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. The requests 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 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 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
1-17-17
__________________
Date
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.
2 We note that S4 stated that he could only act on reasonable accommodation requests that he received directly from Complainant herself. This statement is patently incorrect. Our guidance establishes that a request for a reasonable accommodation may come from a third-party such as a medical provider. See Enforcement Guidance at Question 2 (reasonable accommodation may be requested on behalf of individual with disability by family member, friend, healthcare professional, or other representative). There are no 'magic words" needed to request a reasonable accommodation. See Enforcement Guidance at Question 1 (individual requesting accommodation may use "plain English" and need not mention "reasonable accommodation").
3 Because we find that the Agency discriminated against Complainant based on disability, we need not consider whether the Agency discriminated against Complainant based on religion when it asked her to remove her Crown of Thorns; a finding on that basis would afford Complainant no additional relief.
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