0720070010
10-21-2009
Maurice W. Blount, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Citizenship and Immigration Services), Agency.
Maurice W. Blount,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Citizenship and Immigration Services),
Agency.
Appeal No. 0720070010
Hearing No. 380-2005-00279X
Agency No. HS 05-CIS-000773
Component No. CIS 04-W087
DECISION
Concurrent with its September 19, 2006 final order, the agency filed
a timely 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 Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The agency also requests that the Commission
affirm its rejection of the relief ordered by the AJ. On October 19,
2006, the complainant filed his cross-appeal to the agency's final
order, which was consolidated with the agency's appeal for the sake
of administrative economy. For the following reasons, the Commission
AFFIRMS in part and REVERSES in part the agency's final order.
ISSUE PRESENTED
The issue presented is whether there is substantial evidence in the record
to support the AJ's finding of discrimination based on disability when
complainant was denied a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Immigration Status Verification Officer, GS-7, at the agency's
Seattle District offices in Seattle, Washington. On February 20, 2005,
complainant filed an EEO complaint alleging that he was discriminated
against in violation of Title VII, the Rehabilitation Act, and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. on the bases of race (African American), sex (male),
disability (stroke), age (44), and in reprisal for prior protected EEO
activity arising under Title VII when:
1. in August 2003, he was reprimanded for allegedly being Absent Without
Leave when the agency determined that on one occasion he was not at his
appointed place of duty at the appointed time without providing a valid
excuse for his whereabouts;
2. he was forced to work in a hostile work environment in which he was
routinely called names, had to listen to profanity, and was pressured
to dislike certain other employees;1
3. in November 2004, he became aware that, despite having been placed
in the agency's Voluntary Leave Transfer Program, he was being charged
as Absent Without Leave; and
4. since recovering from a stroke in July 2004, the agency has failed
to act on his request to work at home as a reasonable accommodation for
his medical condition, even though he was aware of other employees who
have had similar requests granted.
The agency issued a letter of partial acceptance and partial dismissal
of his complaint on April 14, 2005, in which it accepted issue 4 for
investigation. Issues 1, 2 and 3 were dismissed as moot, and issues
1 and 2 were additionally dismissed as being untimely raised with the
EEO Counselor. The dismissed issues were to be used as background
information only for the accepted issue. Complainant did not object to
the framing of the accepted issue. 2
At the conclusion of the investigation, complainant was provided 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. The agency submitted a Motion for a Decision Without
a Hearing on October 18, 2005. Complainant objected to the Motion on
November 10, 2005. The AJ denied the agency's Motion on December 7,
2005, and set the case for hearing. In the hearing scheduling order,
the AJ redefined the complainant's claim in the following manner: "since
July 2004, the Agency failed to act on the Complainant's request for a
reasonable accommodation, which cause[d] the Complainant to apply [for]
and take disability retirement (constructive discharge)." In December
2004, complainant had retired from the agency pursuant to a disability
retirement, due to his inability to work. The AJ thus added the issue
of a constructive discharge to complainant's case.
The agency submitted a Motion to Dismiss Hearing for Lack of EEOC
AJ Jurisdiction on December 18, 2005, in which it argued that the AJ
did not have jurisdiction over the matter, claiming that the issue of
constructive discharge rendered the complaint a "mixed-case" which was
proper for appeal to the Merit Systems Protection Board (MSPB), and not
for a hearing before an EEOC AJ. Complainant again opposed the agency's
Motion, and the AJ denied the Motion on January 4, 2006. The agency
attempted to appeal the matter to the Seattle Field Office Director,
who declined to overrule the AJ, and informed the agency that its only
recourse was to appeal the matter to the Commission once a decision had
been issued by the AJ under 29 C.F.R. � 1614.109. A hearing was held
from April 10, 2006 through April 12, 2006. The AJ issued a decision
on August 10, 2006.
In her decision, the AJ found that complainant had been discriminated
against on the bases of his race, disability, and in reprisal for prior
EEO activity when the agency failed to provide a reasonable accommodation.
The AJ found that complainant had not shown that he had been discriminated
against based on his sex or age. Among other things, the AJ found the
following facts: on July 7, 2004, complainant suffered a stroke for
which he was hospitalized for two weeks; at some point after his hospital
discharge, he requested permission to work from home while he attended
rehabilitation therapy; the initial request was made telephonically, as
was a follow-up request; the request was summarily denied by his first
level supervisor (RMO-1), his second level supervisor, the Assistant
District Director (RMO-2) and his third level supervisor, the District
Director (RMO-3); and other District Office employees, both male and
female, were given permission to work from home for up to six months
following the birth of children, and were allowed to use informal means
to make their requests such as a one-page memo.
The AJ made specific findings as to the credibility of the agency's
witnesses, finding much of their testimony not to be credible.
Specifically, the AJ found that the testimony of RMO-2 and RMO-3 was
"evasive," and "inconsistent, and illogical." She also found that their
testimony was "unsupported by the facts, directly contradicted by the
facts and/or testimony of other witnesses and/or not worthy of credence
in the context of the undisputed facts." Additionally, the AJ found that
RMO-2's testimony "evidenced a reckless disregard for the civil rights
of the complainant and all of the employees under her supervision." (AJ's
decision at p. 21). The AJ concluded that RMO-3 had a "selective memory"
and that RMO-1 "was not credible in any respect."
Finally, the AJ found that the agency acted in bad faith when it failed to
engage in the interactive process with complainant, and failed to provide
a reasonable accommodation, which culminated in complainant taking a
disability retirement in December 2004. She found that the agency did
not deny that it failed to engage in the interactive process, and did
not deny that it denied complainant's work at home request. The AJ
also affirmed her decision that she had jurisdiction over the claim of
constructive discharge, as the agency had not informed complainant at
any time that a constructive discharge claim was appealable to the MSPB,
the claim was "inextricably intertwined" with the reasonable accommodation
claim, and it would unduly delay the administration of justice to dismiss
the case from the hearings process at that time.
As a remedy for the agency's discriminatory actions, the AJ awarded
complainant compensatory damages in the amount of $200,000.00, back
pay, front pay until complainant reached the age of 65, and the costs
of travel for one of complainant's witnesses. As complainant was not
represented by an attorney, but rather by a non-attorney representative,
he was not awarded attorney's fees or costs. The AJ ordered training
for the three responsible management officials, and for the agency to
consider discipline for the three as well.
The agency subsequently issued a final order rejecting the AJ's finding
that complainant proved that he was subjected to discrimination as
alleged, and rejecting the remedies ordered by the AJ. Complainant filed
a cross-appeal in which he requested that we affirm the AJ's findings
and award of remedies.
CONTENTIONS ON APPEAL
The agency argues on appeal that the AJ erred in several areas. First,
the agency claims that the AJ improperly determined that complainant
had established a constructive discharge claim, and then improperly
retained jurisdiction over the claim instead of remanding the matter
for processing as a mixed-case with appeal rights to the MSPB. Second,
the agency argues that complainant was not a "qualified individual with
a disability." Third, the agency posits that the AJ's analysis of
complainant's disparate treatment claims was faulty in that the other
employees to whom he had compared himself were not similarly situated
for the purposes of establishing his prima facie cases of discrimination.
Alternatively, in the event that the Commission upholds the AJ's decision,
the agency argues that the award of front pay was in error, and that an
award of $200,000.00 in compensatory damages is excessive.
Complainant argues on appeal that the agency did not properly issue
a final order within the 40 days after receipt of the AJ's decision,
and did not properly serve the complainant's representative. He urges
the Commission to uphold the AJ's decision finding discrimination and
to affirm the full award of remedies.
ANALYSIS AND FINDINGS
We first address complainant's claim that the agency did not timely file
an appeal and did not properly serve complainant and his representative
with the final order and notice of appeal. We find that the appeal
was filed with the Commission within 40 days of its receipt of the AJ's
decision, as specified in 29 C.F.R. � 1614.110(a), and therefore timely.
The agency received the AJ's August 10, 2006 decision on August 17,
2006, and filed its appeal on September 19, 2006. The certificate of
service lists complainant's and his representative's addresses of record
at the time of the issuance of the AJ's decision. Although complainant's
representative updated her address with the agency prior to its issuance
of the final order, the final order went to her previous address. We note
that complainant's cross appeal was filed in a timely manner, thereby
indicating that complainant suffered no irreparable harm by any delay in
service. However, we do remind the agency that proper service of a notice
of appeal to complainant and his or her representative at the time of
its filing with the Commission is required under 29 C.F.R. � 1614.605(d).
We decline to sanction the agency for its behavior at this time, as urged
by complainant on appeal, but caution the agency that its adherence to
the requirements found at 29 C.F.R. Part 1614 is not optional.
Jurisdiction / The constructive discharge claim
We turn now to the agency's argument that the AJ did not properly have
jurisdiction to hold a hearing on the complaint. The AJ determined
that complainant's claim was that the agency's denial of a reasonable
accommodation forced him to take a disability retirement, and was thus
a claim of constructive discharge. She also determined that the case
should not be remanded for processing by the MSPB as a mixed case and
she retained jurisdiction over the complaint. The agency objected at
the hearing and renews its objection on appeal.
We find that in complainant's formal complaint, he articulated his claim
to be that he was discriminated against when: "I suffered a stroke and
was not accommodated - meaning no attempt to allow me to work from home
while I recovered; yet every Caucasian employee who has requested such
accommodation has been so allowed." The agency defined the issue in its
acceptance letter as: "since recovering from a stroke in July 2004, the
agency has failed to act on his request to work at home as a reasonable
accommodation for his medical condition, even though he was aware of
other employees who have had similar requests granted." The AJ then
more expansively read the complaint, in conjunction with the information
developed during the investigation, to be that complainant claimed that:
"since July 2004, the Agency failed to act on the Complainant's request
for a reasonable accommodation, which cause[d] the Complainant to apply
[for] and take disability retirement (constructive discharge)."
We find that the AJ correctly determined that the constructive discharge
claim is inextricably intertwined in the EEO process, and that it was
appropriate for the AJ to retain jurisdiction over this matter rather than
remanding it to the MSPB. Notwithstanding this determination, however,
we find that, as more fully explained below, the more appropriate
characterization of this issue is whether complainant was denied a
reasonable accommodation which resulted in his inability to work.
Review of the AJ's decision/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 110, Chapter 9, � VI.B. (November 9, 1999).
Complainant's reasonable accommodation claim
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. 29 C.F.R. �� 1630.2(o) and
(p). As a threshold matter, complainant must establish that he is an
"individual with a disability." The AJ found that complainant was an
individual with a disability after reviewing the evidence of record.
On appeal, the agency does not contest this determination by the AJ;
therefore, we will not address this issue in this decision.
The agency's second argument on appeal, however, does contest whether
complainant meets the requirement that he be a "qualified individual
with a disability." The agency argues that complainant had not provided,
at the time of his request, sufficient documentation that his condition
warranted a reasonable accommodation. The agency's argument relies
heavily on the testimony of complainant's supervisors as support for
its assertions.
After having established that he is an individual with a disability,
a complainant must still show that he is "qualified" within the meaning
of 29 C.F.R. � 1630.2(m). A "qualified" individual with a disability is
one who satisfies the requisite skill, experience, education and other job
related requirements of the employment position such individual holds or
desires, and who, with or without reasonable accommodation, can perform
the essential functions of the position. See 29 C.F.R. � 1630.2(m).
A reasonable accommodation may consist of modifications or adjustments
to the work environment or to the manner or circumstances under which
the position held is customarily performed that enables a qualified
individual with a disability to perform the essential functions of
that position. 29 C.F.R. � 1630.2(o)(ii). Complainant may use "plain
English" and need not mention the Rehabilitation Act or use the phrase
"reasonable accommodation" when requesting a reasonable accommodation.
See EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, No. 915.002, Question
1 (as revised October 17, 2002) ("Reasonable Accommodation Guidance").
Here, we find that the record supports the AJ's determination that
complainant had requested the reasonable accommodation of working at
home, on at least a part time basis, while undergoing rehabilitation.
Another supervisor in his office, who was not in his supervisory chain
(MAN-1), attempted to aid complainant in his pursuit of a reasonable
accommodation, but was told that it was "not his business" by RMO-2,
and was rebuffed by RMO-3, who stated that there was "no work for
the complainant." MAN-1 also testified that there were many tasks that
complainant could have performed at home which would have aided in the
mission of the agency, and that it was possible for complainant to access
the agency's computer databases from home. The AJ specifically found
MAN-1 to be a very credible witness, in contrast to the credibility of
RMO-2 and RMO-3. As noted above, the AJ found the testimony of RMO-2
and RMO-3 not to be credible in many respects.
Although the agency asserted that complainant's primary work functions
needed to be performed on a computer linked to a secure network
as complainant was reviewing the immigration status of individuals,
complainant himself testified that he would have been able to link into
the agency's computer server from home and perform some work functions.3
The AJ found that the agency made no attempt to reasonably accommodate
complainant following his numerous requests. She further found that
the agency acted in bad faith, making no attempt to determine what
complainant's limitations were, which of his essential job functions
could be modified, and made no attempt to explore the possibility of any
other potential accommodations other than what complainant himself had
suggested.4 Instead, his requests were summarily denied and the AJ found
that complainant was encouraged by RMO-1 (at the very least) to consider
taking a disability retirement. The AJ made note of the cavalier attitude
of RMO-2 towards her responsibilities under the Rehabilitation Act, which
supported the AJ's credibility finding regarding RMO-2's testimony.
The AJ also found that complainant's requests for accommodation were
summarily denied by the agency before it had even requested any medical
documentation, and that when it did request documentation, the request was
overly burdensome, and that the agency asserted that the accommodation
requests were required to be in writing. Additionally, she found that
the agency officials testified that they were "either unaware or untrained
or both as to their responsibilities" under the Rehabilitation Act.
Although the AJ characterized complainant's claim as one of constructive
discharge, as stated above, we find that this claim is more properly
classified as a denial of reasonable accommodation resulting in the
inability to work. As such, the proper remedy following a finding that
complainant was not reasonably accommodated is to order the agency to
provide a reasonable accommodation to complainant and to reinstate him
to the position in question, or to a substantially equivalent position.
We also find that the agency failed to make a good faith effort
to accommodate complainant. Failing to make a good faith effort to
accommodate a complainant exposes an agency to liability for compensatory
damages. See Reasonable Accommodation Guidance at 11, footnote 24,
(October 17, 2002). ("[I]n situations where an employer fails to
provide a reasonable accommodation (and undue hardship would not be a
valid defense), evidence that the employer engaged in an interactive
process can demonstrate an "effort which can protect an employer from
having to pay punitive and certain compensatory damages."); Teshima
v. United States Postal Service, EEOC Appeal No. 01961997 (May 5, 1998)
(noting that where an agency makes a "good faith" effort to reasonably
accommodate the complainant, it may be insulated from an obligation to
pay compensatory damages).5
Award of remedies
Back pay
The purpose of a back pay award is to restore complainant to the position
he would have occupied, but for the discrimination. Albemarle Paper
Co. v. Moody, 442 U.S. 405, 418-19 (1975). Here, complainant was
essentially forced off the job due to the agency's inaction and failure
to accommodate. Eventually, in December 2004, complainant applied for
disability retirement, which was effective in April 2005. We find that
an award of back pay is appropriate in these circumstances. See Payne
v. Department of Veterans Affairs, EEOC Appeal No. 01A42405 (August 24,
2005) (back pay ordered for failure to accommodate when agency failed to
establish that complainant would have gone out on disability retirement
absent the discrimination); Morrison v. United States Postal Service, EEOC
Appeal No, 07A50003 (April 18, 2006)(back pay ordered when complainant's
decision to leave work causally connected to hostile work environment).
Accordingly, we find complainant is entitled to back pay due to the
agency's failure to accommodate, from the date of the discrimination up
until the date complainant is reinstated to his position, in accordance
with our finding above, or until such date as he declines the position
offered to him by the agency. The agency shall calculate back pay with
appropriate offsets to account for disability retirement payments and
any interim earnings, in accordance with our order below.
Front pay
Front pay is a form of equitable relief that compensates an individual
when reinstatement is not possible in certain limited circumstances. The
Commission has identified three circumstances where front pay may
be awarded in lieu of reinstatement, i.e., (1) where no position is
available; (2) where a subsequent working relationship between the
parties would be antagonistic; or (3) where the employer has a record
of long-term resistance to anti-discrimination efforts. See Tyler
v. U.S. Postal Service, EEOC Request No. 05970340 (February 1, 1998).
Awards of front pay imply that the complainant is able to work but cannot
do so because of circumstances external to the complainant. See Goetze
v. Department of the Navy, EEOC Appeal No. 01991530 (August 22, 2001).
The AJ awarded front pay from the date of complainant's disability
retirement until such time as complainant reaches the age of 65, when
he presumably would have retired, a period of nearly 21 years from the
date of the discriminatory act. The agency opposed the award of front
pay as inappropriate, arguing that the more proper remedy would be
to order complainant's reinstatement to the position, with or without
any needed accommodation, and that complainant was capable of locating
work elsewhere.
We find that an award of front pay for 21 years was in error.
Complainant has not established that the workplace was so intolerable
that he could not return, and in light of our order below that the agency
must reasonably accommodate him in his reinstated position, we find that
the requirements for an award of front pay have not been met.
Compensatory damages
On appeal, the agency contends that the AJ's award of $200,000.00
for non-pecuniary compensatory damages is not supported by substantial
evidence, and that there was insufficient causation between the agency's
actions and complainant's resulting depression. Furthermore, the
agency contends that the AJ's award is not supported by prior Commission
precedent.
We find that an award of $200,000.00 is not excessive in this case.
The agency failed to accommodate complainant, resulting in his inability
to work, and in his loss of income. Complainant testified that he had
suffered from severe depression, for which he had taken medication,
and that due to the loss of his job, his ex-wife had sued in state
court for custody of their child. The loss of his employment due to
the refusal to reasonably accommodate him also hindered his ability to
satisfy his child/spousal support obligations, triggering state legal
action against him. Although the agency tries to place the blame for
complainant's post-stroke depression on the inadequate medical care
provided by complainant's doctors at the Veterans Administration, the
AJ specifically found that the discriminatory actions of the responsible
management officials "undermined complainant's confidence, sense of self
worth and brought him to the brink of financial ruin." We find that
the record supports the AJ's determination that the agency's inaction
on complainant's request for a reasonable accommodation, and the failure
to engage in any interactive process which resulted in his inability to
work was the more proximate cause of complainant's damages.
Prior Commission precedent supports such an award. There is no evidence
that the amount is "monstrous" or the result of passion or prejudice.
The Commission has awarded comparable amounts in other cases where the
discrimination caused depression and other adverse psychological and
physical conditions. See Tyner v. Department of Veterans Affairs, EEOC
Appeal No. 0720060032 (October 23, 2007) ($150,000.00 in non-pecuniary
damages where complainant suffered from major depressive disorder and
post-traumatic stress disorder, with symptoms that included problems
sleeping, problems with appetite, feeling sad and tearful, and problems
with self-esteem); Furch v. Department of Agriculture, EEOC Appeal
No. 07A40094 (August 5. 2005) ($150,000.00 in non-pecuniary damages
where complainant suffered from depression, loss of enjoyment of life,
interference with family relationships, permanent diminishment in quality
of life, and physical symptoms.); Glockner v Department of Veterans
Affairs, EEOC Appeal No. 07A30105 (September 23, 2004) ($200,000.00 in
non-pecuniary damages where complainant suffered migraines, irritable
bowel syndrome, depression, and stress which caused her to bite her
cheeks so badly that surgery was required).
Witness costs
The AJ awarded the costs of travel for one complainant witness at the
hearing, complainant's mother. She testified as to the effects of the
agency's discrimination on complainant. Total costs for her travel to
the hearing were $466.00. We affirm the award of these costs.
Training /Consider discipline
As noted above, we have previously found that RMO-2 and RMO-3 have engaged
in intentional discrimination in the past. We strongly urge the agency
to consider discipline of these individuals based on their flagrant
disregard for their responsibilities under the statutes enforced by
the Commission. We also affirm the AJ's order that all responsible
management officials undergo training as to their responsibilities under
the EEO laws enforced by the Commission.
Attorney's fees and costs
Complainant was not represented by an attorney, and so we find that he
is not entitled to attorney's fees and costs as provided to prevailing
litigants under the regulations.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
rejection of the AJ's decision as it pertains to front pay, but otherwise
reverse the agency and find that the AJ's decision correctly found that
complainant had been discriminated against on the bases of disability
when he was not allowed to work at home as a reasonable accommodation.
ORDER
Within sixty (60) days of the date this decision becomes final:
1. The agency shall offer complainant reinstatement to his
position at the agency, or to a substantially equivalent position.
Complainant has fifteen (15) days to accept or decline the agency's
offer of reinstatement. Upon acceptance, the agency shall engage in the
interactive process with complainant to determine what accommodations may
be necessary and effective, if complainant should require a reasonable
accommodation. If complainant should decline the agency's offer of
reinstatement, the date of his declination shall be the end date for
any back pay due complainant.
2. The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due complainant since July 2004,
pursuant to 29 C.F.R. �1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. The agency shall pay complainant $200,000.00 in non-pecuniary
compensatory damages.
4. The agency shall provide training to the management officials at the
Seattle District office regarding their responsibilities under EEO laws,
with a special emphasis on the Rehabilitation Act.
5. The agency shall consider taking appropriate disciplinary action
against all responsible management officials still employed by the agency.
The Commission does not consider training to be disciplinary action.
The agency shall report its decision to the Compliance Officer. 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. If any
of the responsible management officials have left the agency's employ,
the agency shall furnish documentation of their departure date(s).
6. The agency shall reimburse complainant the sum of $466.00 in witness
costs.
7. The agency shall post a notice in accordance with the paragraph 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 (G0900)
The agency is ordered to post at its Seattle District office copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (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 ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of 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 (K1208)
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 (M1208)
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), 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 (R0408)
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 (Z1008)
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
____10/21/09______________
Date
1 Although complainant untimely raised this claim of hostile work
environment in his complaint, we note that one of the employees
he was allegedly pressured to dislike had also filed a complaint of
discrimination, which has been adjudicated on appeal by the Commission.
In that decision, we found that the Assistant District Director (RMO-2)
and the District Director (RMO-3) had engaged in discrimination by
subjecting an individual to harassment on the basis of her race.
See Richardson v. Department of Homeland Security, EEOC Appeal
No. 0120070003 (May 22, 2008), request for reconsideration denied, EEOC
Request No. 0520080622 (July 22, 2008). In that case, we ordered that
the agency reassign RMO-2 and RMO-3 from the complainant's workplace
and "ensure that they never again directly or indirectly supervise
complainant."
2 On appeal, complainant did not argue that the agency's procedural
dismissal was incorrect. Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (MD-110), Ch. 9, Sec. IV(A) at p. 9-10 (November
9, 1999) provides that the Commission has the discretion to only review
those issues specifically raised on appeal. Accordingly, we will not
address the agency's dismissal of these issues in the decision herein.
3 An agency is not required to reallocate essential functions as an
accommodation. Reasonable Accommodation Guidance at 27.
4 An agency's failure to engage in the interactive process does not,
by itself, demand a finding that a complainant was denied a reasonable
accommodation. Broussard v. United States Postal Service, EEOC Appeal
No. 01997106 (September 13, 2002). Rather, to establish a denial of
reasonable accommodation, a complainant must show, as the complainant
in this case did, that the failure to engage in the interactive process
resulted in the agency's failure to provide a reasonable accommodation.
Id.
5 Because of our determination that the agency denied complainant a
reasonable accommodation when it denied his request to work at home,
we do not find it necessary to discuss the AJ's findings of disparate
treatment on the basis of race, disability, and reprisal, as it will
not substantially change the remedy awarded.
??
??
??
??
2
0720070010
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
14
0720070010