[Redacted], Lenard H., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jun 21, 2021

Appeal No. 2020000732 (E.E.O.C. Jun. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lenard H.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020000732 Hearing No. 430-2016-00310X Agency No. 9B1C15012F19 DECISION Following its November 5, 2019 final order, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. § 1614.403(a). The Agency requests that the Commission affirm its rejection of a decision by an EEOC Administrative Judge (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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Police Officer (Special Operations Captain), GS-0083-11, at the Joint Base Elmendorf-Richardson in Anchorage, Alaska, before being conditionally offered the job of Supervisory Police Officer, GS-0083-12, at the Joint Base Langley-Eustis in Newport News, Virginia. Complainant started working in Alaska 2010 and was converted to the GS pay system around 2011, as a GS-11, Step 10. His wife was a Lieutenant Colonel serving in Alaska. Earlier in 2014, she received orders, effective around August 28, 2014, for a permanent change in station (PCS) to the Joint Base Langley-Eustis in Virginia. Before the effective date of her move, Complainant applied and was accepted into the Department of Defense Spouse Preference Program (PPP-S). 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. 2020000732 2 He was eligible because his spouse was active duty military with PCS orders. Complainant moved with his wife and children to Virginia in August 2014, prior to finding a position in Virginia. Upon arriving, Complainant’s wife was charged with supervising the Langley Air Force Base Hospital intensive care unit, and within weeks became the Squadron Commander in charge of the inpatient squadron there. Using his PPP-S preference, Complainant applied for the GS-12 Supervisory Police Officer position at Joint Base Langley-Eustis, which he was conditionally offered on December 29, 2014. The condition relevant to this case was requiring Complainant to pass a fitness-for-duty examination (FFDE). The Agency made the appointment for Complainant’s FFDE for February 3, 2015, with the Virginia Supervising Occupational Medicine Physician (MRO), who served as Chief, Preventative Medicine over the Army’s Fort Eustis Occupational Health Clinic. After the MRO physically examined Complainant on February 3, 2015, he decided additional medical information was needed that required a physical examination by an orthopedic specialist. In a February 24, 2015 packet for Complainant to give to a doctor, the MRO indicated Complainant had a total knee replacement on July 18, 2013, and a month later fell and disrupted his quadriceps tendon which required a surgical repair on August 21, 2013. In October 2014, he told his medical provider that he had right hip pain and believed it was due to compensating for his left knee and that he lost some mobility. He underwent a course of physical therapy beginning on November 20, 2014, at which time he reported intermittent giving way of his left knee, which continued through his most recent visit on February 2, 2015. Since November 2014, he had been complaining of increasing bilateral hip pain and x-rays have shown bilateral mild osteoarthritis. According to the last physical therapy note, the plan was to begin aggressive hip mobility exercises upon his next visit. Also, Complainant had a L1 burst fracture from a fall in 1994 that was treated with a fusion of his T12 - L2. Imaging taken at the FFDE revealed fractures of the superior pedicle screws with some displacement. In addition, in the packet, the MRO indicated the police job required the ability to apprehend a combative suspect, wear a gun belt, and included various physical function requirements of the job, including kneeling for two hours and asked given this, would performing unrestricted police officer duties accelerate, aggravate, exacerbate, or make permanently worse Complainant’s conditions and, if so, the probabilities. He asked if there a reasonable medical probability that these conditions would lead to sudden incapacitation during the performance of unrestricted police officer duties, as well as any limitations in Complainant’s activities. As it turned out, to get all of the information he believed he needed to make a determination on the FFDE, the MRO ultimately required Complainant to see two additional orthopedic specialists. The first orthopedist was with Langley Air Force Base Hospital in Virginia, and the second and third were with the Naval Medical Center in Portsmouth, Virginia. Complainant was responsible for payment for all three appointments. Eventually in May 2015, the MRO signed off on Complainant’s FFDE, finally allowing him to start in his Virginia position. 2020000732 3 On October 8, 2015, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him based on his actual or perceived disabilities (history of left knee osteoarthritis and left knee replacement, multilevel degenerative disc disease with history of L1 disc burst fracture and spinal fusion of T12 to L2) when the Agency delayed his onboarding in Virginia from December 29, 2014 through May 16, 2015, because of an unreasonably long FFDE process. Following the Agency investigation of his EEO complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). After a hearing, the AJ found that Complainant was discriminated against based on disability when the Agency made passing an FFDE a pre-condition to onboarding in Virginia. The AJ found that the Americans with Disabilities Act of 1990 (ADA), at 42 USC § 12112,2 distinguishes permissible medical examinations and inquiries for applicants versus employees. Specifically, after choosing an applicant, the employer may condition a job offer on the results of a medical examination so long as all entering employees are subjected to such an examination. Id., at § 12112(d)(2)(B) & .(d)(3)(A). But for an employee, an employer may not require a medical examination unless it is job-related and consistent with business necessity. Id., at .(d)(4)(A). The AJ went on to find that EEOC’s Enforcement Guidance on Disability - Related Inquiries and Medical Examinations of Employees under the ADA, EEOC Notice No. 915.002 (July 27, 2000) (hereinafter referred to as “Guidance on Disability”), instructs that an individual is not an applicant where he is “noncompetitively [emphasis in original] entitled to another position with the same employer….” Therefore, the AJ concluded that for the purposes of the Virginia job, Complainant was an employee, not an applicant. Specifically, his Alaska management carried him on leave without pay (LWOP) until he onboarded in Virginia. He was never separated from the Agency. The AJ reasoned that via the PPP-S program, Complainant “non-competitively” got the job in Virginia - without an interview or any of the other trappings of a competitive application process he was matched to the Virginia position via the PPP’s “automated mandatory placement program used to match eligible well-qualified registrants.” AJ Decision at 19 - 20 citing AFMAN36-203, Chap. 2, ¶ 2.16.1. As such, the AJ determined that because Complainant was always an employee, the Agency was required to show conducting the FFDE was job-related and consistent with business necessity. Because it did not meet this standard, the AJ concluded requiring the FFDE examination on February 3, 2015, was not permissible under the Rehabilitation Act. Moreover, the AJ found that even if requiring Complainant to undergo the initial FFDE exam on February 3, 2015, did not violate the Rehabilitation Act, the MRO requiring Complainant to undergo further examinations by the orthopedists did. 2 The standards used to determine whether the Section 501 of the Rehabilitation Act has been violated are the same standards as the Americans with Disabilities Act (ADA). See 29 C.F.R. § 1614.203(b). 2020000732 4 In doing so, the AJ found that when an agency creates medical standards and conducts FFDEs to ensure individuals meet them, it must comply with OPM regulation 5 C.F.R. Part 339 on Medical Qualification Determinations. The regulation at 339.303(b) requires an agency to “offer the applicant or employee an opportunity to submit medical documentation… for consideration…. The agency must review and consider all such documentation supplied….” The AJ found Complainant credibly and persuasively testified that he brought his “whole medical history” in hard copy to his physical examination by the MRO on February 3, 2015. Accordingly, the AJ reasoned, the MRO’s statement in his EEO investigative declaration that Complainant did not submit any medical documentation means he did not review it. Citing 5 C.F.R. § 339.303(b), the AJ found that because the MRO did not review the medical documentation Complainant brought in, there was nothing he could find in that documentation that raised questions or was contradictory, so the MRO did not have the option to send him to a specialist. Moreover, the AJ found that, in his testimony, the MRO never stated there was contradictory medical documentation, and in fact all the medical records in the report of investigation and hearing record indicated Complainant had no medical limitations. The AJ also found that the Agency violated 339.203(a) because the physical requirements against which the MRO evaluated Complainant (especially the kneeling requirement) were not “supported by the actual duties of the position.” In addition, the AJ found the regulation at 339.304(a) requires that an agency must pay for all medical… examinations required or offered by the agency under this subpart…” The AJ found that the MRO violated this regulation by avoiding paying for the three orthopedic examinations he required. Moreover, the AJ found that, under Commission caselaw, the Agency’s failure to pay the costs associated with its mandated medical examinations violated the Rehabilitation Act. See, e.g., Fazekas-Spencer v. Homeland Security, EEOC Appeal No. 0120091544 (Mar. 13, 2013). Applying a disparate treatment analysis, the AJ also found that the Agency’s articulated legitimate nondiscriminatory reason for requiring Complainant to undergo the orthopedic physical examinations was to ensure he was medically qualified for the Virginia position. However, the AJ found that a legitimate medical qualification process must comply with OPM regulation Part 339, but the MRO violated it in multiple ways, so the Agency did not articulate a legitimate, nondiscriminatory reason for requiring the orthopedic examinations. The AJ also found that a legitimate, nondiscriminatory medical qualification process focuses on medical information on whether the individual can safely perform the essential functions of the position at issue. The AJ found that instead, the MRO was primarily concerned with managing the Agency’s risk of potential future workers’ compensation or other claims. In sum, the AJ found that that Complainant proved he was discriminated against based on his disability regarding the orthopedic examinations by making out a prima facie case of discrimination which the Agency did not successfully rebut. As relief, the AJ awarded Complainant back pay with benefits and interest from the first workday of the first pay period after he accepted the Virginia offer and was available to begin working (January 11, 2015) until he started working on May 17, 2015. 2020000732 5 At the hearing, the AJ took testimony on compensatory damages. The AJ awarded Complainant $90,000 in nonpecuniary damages, $42,234.50 in attorney fees and $3,305.67 in costs. The instant appeal from the Agency followed. ANALYSIS AND FINDINGS 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, at § VI.B. (REV. Aug. 5, 2015). As an initial matter, the parties stipulated that the MRO perceived Complainant to have a disability. Based on this and the record, the AJ correctly found Complainant was an individual with a disability within the meaning of the Rehabilitation Act. It is also uncontested that the Agency ultimately determined Complainant was a qualified individual with a disability, and the AJ so found. On appeal, the Agency does not dispute these findings. Initial Requirement of a Post-Offer FFDE EEOC’s Guidance on Disability at Question 4 discusses the issue of requiring medical examinations of an employee who applies for a new job with the same employer: An employer should treat an employee who applies for a new job as an applicant for the new job . . . After the employer extends an offer for the new position, it may ask the individual disability-related questions or require a medical examination as long as it does so for all entering employees in the same job category. If an employer withdraws the offer based on medical information (i.e., screens him/her out because of a disability), it must show that the reason for doing so was job-related and consistent with business necessity. An individual is not an applicant where s/he is noncompetitively entitled to another position with the same employer (e.g., because of seniority or satisfactory performance in his/her current position). An individual who is temporarily assigned to another position and then returns to his/her regular job also is not an applicant. These individuals are employees and, therefore, the employer only may 2020000732 6 make a disability-related inquiry or require a medical examination that is job- related and consistent with business necessity. Here, the AJ found that Complainant should not have been considered an “applicant” for the purpose of requiring the FFDE because his participation in the PPP-S meant that he was “noncompetitively entitled to another position with the same employer.” Based on his determination that Complainant was an employee throughout this process rather than an applicant, the AJ found the requiring the post-offer FFDE violated the Rehabilitation Act because the Agency failed to prove that the examination was job-related and consistent with business necessity. On appeal, Agency counsel argues that the AJ misinterpreted the PPP-S regulations when he found Complainant was noncompetitively entitled to the GS-12 position in Virginia. In response, Complainant argues that the Alaska and Virginia jobs were the “same exact position,” in essence making this a non-competitive reassignment. Here, we disagree with the AJ that Complainant’s PPP-S preference entitled him to a “noncompetitive” assignment, as that term is applied to permissible medical inquiries and examinations in the ADA/Rehabilitation Act. First, the PPP Handbook states that spousal preference does not apply to positions filled through noncompetitive procedures. PPP Handbook (July 2011), at Chap. 14-2, ¶ 2.i. More significantly, the evidence does not establish, as argued by Complainant, that the Alaska job and the Virginia job were the exact same position. Complainant’s Alaska job was a GS-11 with no non-competitive career-ladder potential. The Virginia job on the other hand, was a GS-12 position, resulting in a promotion for Complainant. This type of a promotion does not comport with the Guidance on Disability’s explanation of when an individual should be treated as an employee (because of seniority or satisfactory performance) rather than an applicant with the same employer. Accordingly, we find support for a finding that the Agency properly required Complainant to, at least initially, undergo a post- offer FFDE like all other applicants. Moreover, the record indicates that the Agency conducted post-offer FFDEs for all applicants. Based on the above, we find that the AJ erred in concluding Complainant was discriminated against when the Agency required that Complainant undergo the initial February 3, 2015 physical exam, and the Agency’s final order rejecting this finding of discrimination is affirmed. Requiring Subsequent Examinations by Orthopedic Specialists On appeal, the Agency argues that the AJ misinterpreted 5 C.F.R. § 339.303(b) because the regulation did not prohibit the MRO from gathering additional medical information when otherwise needed to make a determination on the FFDE. However, the issue to be determined is whether or not requiring the additional orthopedic examinations, under these circumstances, violated the Rehabilitation Act. 2020000732 7 Under the Rehabilitation Act, after an applicant is given a conditional job offer, but before he starts work, an employer may require medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category. 29 C.F.R. §1630.14(b); Guidance on Disability. EEOC’s Guidance on Disability discusses when an employer may require medical examination, including gathering information and opinions from medical specialists to determine the effects of the applicant’s medical condition on the individual’s ability to perform in the job: 12. May an employer require that an employee, who it reasonably believes will pose a direct threat, be examined by an appropriate health care professional of the employer's choice? Yes. The determination that an employee poses a direct threat must be based on an individualized assessment of the employee's present ability to safely perform the essential functions of the job. This assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or best objective evidence. To meet this burden, an employer may want to have the employee examined by a health care professional of its choice who has expertise in the employee's specific condition and can provide medical information that allows the employer to determine the effects of the condition on the employee's ability to perform his/her job. Any medical examination, however, must be limited to determining whether the employee can perform his/her job without posing a direct threat, with or without reasonable accommodation. An employer also must pay all costs associated with the employee's visit(s) to its health care professional. An employer should be cautious about relying solely on the opinion of its own health care professional that an employee poses a direct threat where that opinion is contradicted by documentation from the employee's own treating physician, who is knowledgeable about the employee's medical condition and job functions, and/or other objective evidence. In evaluating conflicting medical information, the employer may find it helpful to consider: (1) the area of expertise of each medical professional who has provided information; (2) the kind of information each person providing documentation has about the job's essential functions and the work environment in which they are performed; (3) whether a particular opinion is based on speculation or on current, objectively verifiable information about the risks associated with a particular condition; and, (4) whether the medical opinion is contradicted by information known to or observed by the employer (e.g., information about the employee's actual experience in the job in question or in previous similar jobs). The AJ focused on the requirements of 5 C.F.R. § 339.303(b) and determined this regulation did not permit the subsequent orthopedic examinations under these circumstances. 2020000732 8 However, we conclude that this regulation is an Office of Personnel Management (OPM) regulation made pursuant to its authority over medical qualification standards in the competitive federal service. It is not a regulation implemented by the EEOC interpreting the requirements of the Rehabilitation Act. Therefore, we determine that the AJ exceeded his authority in attempting to interpret and enforce an OPM regulation. While consideration of such a regulation may, under certain circumstances, be relevant in considering whether or not the Agency’s proffered reasons for a disputed action were pretext for discrimination, here we do not find such circumstances. The focus of the AJ’s analysis should have been whether the MRO’s requirement of additional examinations by orthopedic specialists violated the Rehabilitation Act. After careful examination of the evidence of record, we conclude they were a legitimate part of the MRO’s individualized assessment to determine whether Complainant’s disabilities would allow him to safely perform in the position in question and did not exceed the bounds set by the Guidance on Disability so as to amount to a violation of the Rehabilitation Act. Specifically, on March 4, 2015, the first orthopedist Complainant went to - an orthopedic surgeon opined regarding his knee and hips that there was no reason he could not perform the Virginia job requirements, but he did not have the expertise to assess Complainant’s back and referred him to a spine specialist. The MRO had Complainant go through seeing on the orthopedic spine specialist on March 31, 2015, as referred by the orthopedic surgeon, to answer the back questions. The orthopedic spine specialist cleared Complainant regarding his back, and the MRO accepted this. The also MRO followed up with the first orthopedist because he did not address certain knee and hips probabilities questions. On April 10, 2015, the first orthopedist indicated that he was uncomfortable responding because he was not a fellowship trained joint specialist. ROI, Exh. F.n., Bates No. 209. To get his knee and hips probability questions answered, the MRO created a packet for a third orthopedic joint specialist on April 17, 2015, and got Complainant in for an appointment on April 27, 2015, who answered the knee and hips probability questions and cleared Complainant regarding these body parts. As all three orthopedists worked in DoD facilities, the MRO had online access to their findings. After reviewing the third orthopedist’s examination findings, the MRO passed Complainant on his FFDE. The AJ also found that the functional job requirement of kneeling for two hours that the MRO included in his packets for the first and third orthopedists was not supported by the actual duties of the position. However, even if true that kneeling was not part of the actual duties of the position, this factor alone did not cause additional orthopedic examinations because it was among many other functional requirements that the MRO asked the orthopedic specialist to address. There is no argument that at least some of those other functional requirements were related to actual duties of the position. We note that the ultimate conclusion made by the MRO following his receipt of the specialist information was that Complainant could perform safely in the Virginia position and he was placed in it. 2020000732 9 In sum, we conclude that the AJ erred in concluding the Rehabilitation Act was violated when the MRO required additional information or opinions from orthopedic specialists before concluding Complainant could safely perform the duties of the position in question. Assessment of Costs for Those Exams Here, Complainant was not disputing a finding by the MRO that he was not fit-for-duty. Rather, after physically examining Complainant on February 3, 2015, the MRO decided he needed more information to make a determination on the FFDE, and ultimately required him to be examined by several orthopedists to get the information he believed he needed to make a determination on the FFDE. For the first and second orthopedic examinations, the MRO left it to Complainant to identify a provider and set up an appointment. For the third, the MRO referred Complainant to an orthopedic joint specialist. HT 253, Deposition of Virginia MRO, at 91 (Jun. 8, 2017). Given these facts, we agree with the AJ that the Agency was responsible to pay for the orthopedic examinations. See Guidance on Disabilities, at Question 12 On appeal, the Agency argues that Complainant did not have to pay for the orthopedic examinations because he was covered under his wife’s Army’s Fort Eustis Occupational Health Clinic TRICARE health insurance, which costs him no money to use. It adds that ironically, because TRICARE is a DoD healthcare program, the Agency did in fact pay for all of his examination costs. We disagree that Complainant having health insurance relieves the Agency of its payment obligation. Cf., Wallis v. Postal Service, EEOC Appeal No. 01950510 (Nov. 13, 1995) (approvingly citing Davis v. Odeco, Inc., 18 F.3d 1237 (5th Cir. 1994) describing it as follows. Davis held whether a source of compensation is “collateral” to the employer which may not be used to offset damages depends on if it is in the nature of a “fringe benefit”. In Davis, the employer paid 95% of the employee’s health insurance premium, which was ruled to be a collateral source).3 As found by the AJ, when an agency makes an offer of employment conditional on passing a medical examination, it must pay for the examination under the Rehabilitation Act. Fazekas- Spencer v. Homeland Security, EEOC Appeal No. 0120091544 (Mar. 13, 2013). On appeal, the Agency does not discuss this. We find that the Agency violated the Rehabilitation regarding this matter for the same reason found by the AJ. Remedies As we are not affirming the finding of discrimination regarding the initial requirement for a FFDE or the subsequent requirement for examinations by specialists, we also reverse the AJ’s award of back pay, as well as payment for tax consequences. 3 We take administrative notice that when a TRICARE insured goes to a military hospital or clinic, this medical provider files the claim with TRICARE for the insured and does not charge the insured a fee for most services. 2020000732 10 Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and non-pecuniary losses that are directly or proximately caused by the agency’s discriminatory conduct. EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, OLC Control No. EEOC-CVG-1992-3 (Jul. 14, 1992). Non-pecuniary losses are losses that are not subject to precise quantification including emotional pain and injury to character, professional standing, and reputation. Compensatory damages are awarded to compensate for losses or suffering inflicted due to discrimination. Damages for past pecuniary damages will not normally be sought without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals of actual losses and expenses. Id. Pecuniary damages As previously found, under the Rehabilitation Act the Agency must pay for Complainant’s medical examinations by orthopedic specialists required by the MRO for the FFDE, even if Complainant chose them. Regarding pecuniary damages, under the collateral source rule the Agency may not off-set payment made by Complainant’s health insurance for these charges if he seeks full reimbursement. In discovery, the Agency asked Complainant to produce all documents related to his claim of compensatory damages. He did not submit any documentation on charges by the orthopedic specialists for the FFDE like billing records. Further, Complainant does not seek any pecuniary damages before or now. Accordingly, we do not award pecuniary damages. Non-pecuniary damages The AJ awarded $90,000 in nonpecuniary damages for the emotional pain caused by the FFDE process. The AJ found that both Complainant and his spouse credibly testified he was anxious with a depressed mood, had serious sleep disturbances, embarrassment, self-image problems, withdrew from his wife, had temper issues with family members, and extreme financial hardship of having to go without income for four months. The AJ recounted the spouse’s testimony that Complainant used to make her laugh and put her at ease when she got home, but then changed and was not a happy anymore - snapping at the kids, yelling at the dog, totally blaming himself for not getting a job, and she worried for a while for their marriage. We find that Complainant’s testimony indicated that by the time he got the job offer, he and his family used up most or all of their savings, and the delay in his onboarding caused by the FFDE process made their financial problems worse. He testified that the length of the FFDE process made him worry he would not get a job and have to return to Alaska - if that option was luckily still open. Complainant testified that he had not received a paycheck in nine months, and indicated it was getting difficult to make the rent and pay his daughter’s college expenses, and they had to dip into their sons’ college funds to pay bills. Complainant’s spouse testified that after the physical exam by the MRO, Complainant was stressed out about the FFDE process not being complete, and it seemed like each new step took weeks. They were at each other’s throats and did not have enough money to get by and started selling things. 2020000732 11 After they moved from Alaska to Virginia Complainant was stressed out trying to get hired, there was a lot of tension and they did not have a relationship. After he onboarded, he felt better and was happy. She testified that while they had stress from the time they moved from Alaska to Virginia, the real stress started when after he had his physical exam with the MRO on February 3, 2015, he was not cleared. Because we have now found the Agency solely violated the Rehabilitation Act by not paying for the FFDE examinations it required, Complainant is only entitled to damages related to that. Complainant and his spouse did not testify that Agency not paying for the additional FFDE exams in and of itself caused Complainant emotional harm, and there is no evidence of this. The MRO testified that with very few exceptions, his practice is not to refer people for medical examination to a specific specialist - a particular person - because this obligates the Agency to pay for the visit. HT, 211.4 We find this practice elongated the FFDE process in this case. Typically, under TRICARE, when a patient needs to see a specialist, he first goes to his Primary Care Manager (PCM) - a primary healthcare provider - for referral to the specialist, a process that can take up to 30 days. HT 361 (Spouse testimony). The MRO testified that he expected Complainant would start with his PCM, who after reviewing the packet his office gave Complainant would refer him to an orthopedist who could answer his FFDE questions. After being notified on March 2, 2015, by the Occupational Health Center that there was a (medical inquiry) packet waiting for him, Complainant immediately picked it up and, in a panic, asked his spouse the same day for help quickly getting an appointment. His spouse, who was a Squadron Commander at the Langley Air Force Base Hospital, asked for a favor and secured Complainant an appointment there in just two days with an orthopedic surgeon. As recounted above, on March 4, 2015, the orthopedic surgeon responded to the FFDE knee and hip questions, and referred Complainant to an orthopedic spine specialist, who he saw on March 31, 2015, to answer the FFDE back questions. The MRO followed up with the orthopedic surgeon because he did not address his FFDE knee and hips probabilities questions, and on April 10, 2015, the orthopedic surgeon indicated he did not have the expertise to answer them. To get these questions answered, the MRO got Complainant an appointment with an orthopedic joint specialist on April 27, 2015. Had the MRO not been trying to avoid the Agency paying for an examination by an orthopedic provider he could have given Complainant more guidance on doctors who could answer all his questions, such as a list. Measuring from March 2, 2015, when Complainant got the FFDE packet to provide to the examining physician, we find the process the MRO took to try to avoid the Agency paying for an orthopedic exam more likely than not caused a four-week delay in the FFDE process. 4 We agree with the AJ that doing this but still making the FFDE examinee responsible for payment for FFDE exams the Agency requires does not relieve the Agency of the payment requirements under the Rehabilitation Act. 2020000732 12 While Complainant is not entitled to non-pecuniary damages for emotional pain and suffering caused by being required to see the MRO and orthopedic specialists, he is entitled to them for the pain and suffering described above by the FFDE process being prolonged for four weeks. Given this short period with no lasting psychic or physical effects, we find that Complainant sustained $10,000 in non-pecuniary damages. See Cleo S. v. USPS, EEOC Appeal No. 2019003273 (Aug. 18, 2020) (the agency gave the Complainant, a full-time employee, an ineffective accommodation of less than eight hours of work a day from April 4, 2016 - May 6, 2016 which forced him to take leave to cover his absences, and since May 2016, did not provide him a written decision on his request for reasonable accommodation. Awarded $10,000 in non- pecuniary damages because this caused the complainant migraine headaches, depression, and anxiety); Ralph B. v. Homeland Security, EEOC Appeal No. 0120161451 (Apr. 25, 2018) (in retaliation for EEO activity, the agency initiated an investigation claiming the Complainant exhibited a lack of candor and denied him a detail assignment. Awarded $10,000 in nonpecuniary compensatory damages where the complainant submitted his own statement that this caused him stress, anxiety, headaches, stomach distress, insomnia, weight gain, to withdraw from his wife, family and friends, and to fear he may lose his job. Some of this was corroborated by statements of family and coworkers). Attorney’s fees and costs The AJ awarded Complainant $42,234.50 in attorney fees and $3,305.67 in costs, all that was requested. On appeal, the Agency does not contest this award. We affirm this award, with some small adjustments. The law firm attorney who represented Complainant at the EEOC hearing billed 15.7 hours at his full hourly rate of $185 for a sum of $2,904.50, which was out of town for the attorney. Under Commission precedent, a counsel’s travel time is not compensable at his full hourly rate, but instead 50% thereof. Charles E. v. Justice, EEOC Appeal No. 0720180006 (July 19, 2018). Accordingly, we reduce attorney fees by 50% of $2,904.50, i.e., $1,452.25. We award total attorney fees of $40,782.25 ($42,234.50 less $1,452.25). Complainant’s law firm asks for $238.09 in costs for charges by Westlaw and Lexis. Under Commission precedent, online legal research expenses are characterized as “overhead” already captured in the attorney’s reasonable hourly rate. Mohar v. USPS, EEOC Request No. 0520120027 (Mar. 29, 2012). Accordingly, we reduce costs by $238.09, and award a total of $3,067.58 in costs ($3,305.67 less $238.09). CONCLUSION The Agency’s final order is AFFIRMED in part and REVERSED in part. 2020000732 13 ORDER The Agency is ordered to take the following remedial actions: 1. Pay Complainant $10,000 in non-pecuniary damages within 60 calendar days of the date of this decision. 2. Pay $40,782.25 in attorney fees and $3,067.58 in costs within 60 calendar days of the date of this decision. POSTING ORDER The Agency is ordered to post outside the Fort Eustis Occupational Health Clinic in Newport News, Virginia, and in the Clinic’s examination rooms copies of the attached notice, as well as in any other conspicuous places at the Joint Base Langley-Eustis where civilian applicants and employees who are required to undergo an FFDE are likely to see them. 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 was issued, and shall remain posted for 60 consecutive days. 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/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 receipt of this decision. 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 (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 2020000732 14 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2020000732 15 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020000732 16 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 June 21, 2021 Date