Selma D.,1 Complainant,v.Arne Duncan, Secretary, Department of Education, Agency.

Equal Employment Opportunity Commission

Apr 22, 2016

0720150015 (E.E.O.C. Apr. 22, 2016)

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

Selma D.,1
Complainant,

v.

Arne Duncan,
Secretary,
Department of Education,
Agency.

Appeal No. 0720150015

Hearing No. 570-2011-00117X

Agency No. ED-2009-05-00

DECISION

Following its December 12, 2014 final order, the Agency filed a timely appeal. On appeal,
the Agency requests that the Commission affirm its rejection of an Equal Employment
Opportunity Commission Administrative Judge's (AJ) finding of discrimination and separate
determination of relief for a violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. On January 12, 2015, Complainant
filed a timely cross appeal requesting that the Commission reverse the AJ’s finding of no
discrimination for a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. § 2000e et seq. and the Rehabilitation Act. The Commission accepts
both appeals pursuant to 29 C.F.R. § 1614.405(a).

BACKGROUND

Claim (1) – Non-Selection

At the time of events giving rise to this complaint, Complainant worked as a Management and
Program Analyst at the Agency’s Office for Civil Rights, Resources Management Group,
Human Resources Team in Washington, D.C. On May 14, 2008, the Agency issued Vacancy
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.

0720150015

2
Announcement OCR 2008-0023 for a Supervisory Management and Program Analyst position.
The Selecting Official (SO) selected a three-person panel to review the applications, perform a
first round of interviews, rank the candidates, and forward the list to him for review. The
panel asked the candidates the same questions and independently ranked the candidates. The
panel then met to combine their individual rankings and notes into a panel ranking. After the
panel collectively ranked the candidates, Complainant was not among the top candidates and
was not recommended for a second interview. SO subsequently interviewed the top four
candidates and selected Selectee 1 who declined the position. The position was re-advertised
eight months later and Selectee 2 was chosen.

Claim (2) – Denial of Reasonable Accommodation

Complainant has worked for the Agency and the Federal Government for over 30 years. In
June 2004, Complainant was moved from an office to a cubicle environment at the Agency’s
facility at the Potomac Center. In 2007, Complainant was moved again to the Agency’s
Headquarters at Maryland Avenue. On December 17, 2007, Complainant’s doctor wrote a
letter stating that Complainant had the diagnosis of Adult Attention Deficit Hyperactivity
Disorder (ADHD). Further, her doctor recommended that Complainant work in a private
office or quiet cubicle and that Complainant work from home or utilize a flexible work
schedule as reasonable accommodation. On December 19, 2007, Complainant wrote a
memorandum requesting reasonable accommodation. Complainant's request enclosed her
doctor’s letter and the appropriate Agency form. Complainant wrote in the form that her
impairment was: “Adult ADHD – cannot concentrate in loud open cubicle environment.”
Complainant requested to work from home, the necessary equipment to work from home, a
private office, and a modified work schedule.

On January 8, 2008, Complainant met with her supervisor (S1) and other Agency officials to
discuss her reasonable accommodation request. On February 7, 2008, Complainant’s doctor
wrote a more detailed letter stating that Complainant’s “symptoms of distractibility, decreased
attention span are currently exacerbated due to the changes in the work environment.”
Complainant’s doctor added that the cubicle location allowed “for too many distractions for her
disability.” Her doctor stated that Complainant needed to work from home and on a modified
or flexible work schedule, Complainant needed to work in the most distraction-free
environment possible (e.g., a private office or quiet cubicle away from noise and/or
distractions), and that she may need other necessary reasonable accommodations.

S1 requested more information and Complainant’s doctor responded on March 7, 2008.
Complainant’s doctor described Complainant as having difficulty wrapping up the final details
of a project, organizing things, evidencing signs of physical and mental restlessness, easily
distracted by noise, talking too much and interrupting people, and trouble waiting her turn,
which Complainant’s doctor described as “classic signs of ADHD.” Complainant’s doctor
added that medication “was not the full answer” and that “ADHD impact[ed] upon one's
ability to care for self, to speak appropriately, to interact with others, to concentrate and to
work effectively.”

0720150015

3

On March 11, 2008, Complainant wrote a 14-page memorandum to S1 in which she stated that
her ADHD substantially and negatively affected her ability to "see, hear, think, listen, and
concentrate (basically work) in a noisy workplace environment.” Complainant noted that she
was easily distracted to the point she could not concentrate with employees constantly walking
and talking near her cubicle and for that reason she had to wait until other employees left at the
end of the work day in order to complete her work. Complainant stated that she needed to be
accommodated with a modified work schedule, distraction-free environment (e.g. private
office, regularly schedule telework options), and other assistive aids as deemed appropriate.

On March 20, 2008, the Employee Relations Specialist requested that the Federal Occupational
Health Division of the U.S. Public Health Service review the medical documentation related to
Complainant’s accommodation request. Doctor 1 was assigned to review Complainant’s
reasonable accommodation request. Doctor 1 interviewed Complainant’s doctor on March 31,
2008, regarding Complainant’s diagnosis, treatment, and prognosis. Complainant’s doctor
shared with Doctor 1 that Complainant had other conditions including Bipolar Disorder and
Obsessive Compulsive Personality Disorder and paranoid thinking. Complainant’s doctor did
not provide any additional information after Doctor 1 asked a follow-up question and ended the
conversation.

On April 2, 2008, Doctor 1 issued a report regarding Complainant’s reasonable
accommodation request. Doctor 1 determined that the request for reasonable accommodation
was not adequately supported and recommended that the Agency deny it. Additionally, Doctor
1 recommended that the Agency offer Complainant an Independent Medical Examination.

On April 21, 2008, Complainant submitted documentation from her second doctor stating that
he concurred with Complainant’s original doctor’s diagnosis and recommendations, and that
Complainant appeared to “exhibit difficulties focusing and concentrating on given issues for a
sustained period.” In addition, Complainant submitted a list of her medications to S1 noting
that many of them caused drowsiness and that she was concerned about driving after taking
them. In July 2008, Complainant underwent a psychological examination by a third doctor.
The third doctor submitted her report to the Agency on September 17, 2008, confirming the
ADHD diagnosis.

On June 5, 2008, S1 instituted an interim arrangement pending the outcome of the
accommodation request. S1 granted Complainant delayed arrival and departure at work and
continued flexible schedule. In addition, S1 granted Complainant additional quiet time over
the lunch hour and several hours at the end of the day when no other employees were in the
workspace. S1 continued to allow Complainant flexible telework so that Complainant could
perform some work assignments from her residence, with the condition that Complainant
request advance permission and show her work products at the conclusion of the telework
days. S1, however, made no interim accommodation for a private office because those spaces
were reserved for supervisory staff and special project managers. S1 subsequently retired in
Summer 2008.

0720150015

4

On August 29, 2008, the Agency’s Reasonable Accommodation Coordinator (RAC) offered
for the Complainant to undergo a psychological and psychiatric examination to assist the
Agency in deciding upon her reasonable accommodation request. In September 2008,
Complainant’s second-level supervisor (S2) discontinued Complainant’s delayed arrival to
work.

On September 22, 2008, Doctor 1 reviewed Complainant’s third doctor’s evaluation and wrote
a letter to the Federal Occupational Health Doctor. Doctor 1 reviewed all of the available
medical evidence and decided that “the updated information [was] not helpful.” Further,
Doctor 1 noted that Complainant’s third doctor’s evaluation only focused on ADHD and did
not address other mental health diagnoses “that could influence or even account for the
problems reported.” Additionally, Doctor 1 noted that Complainant’s third doctor’s ADHD
evaluation was based only on Complainant’s personal report of her symptoms. As a result,
Doctor 1 concluded that the reasonable accommodation request was not sufficiently supported
and recommended denial. On October 7, 2008, RAC informed Complainant that her
reasonable accommodation request was not supported and denied her request. Complainant
subsequently retired in December 2, 2011.

On November 12, 2008, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of disability and in reprisal for prior protected EEO
activity when2:

1. On July 16, 2008, she was not selected for the position of Supervisory Management
and Program/Analyst under Vacancy Announcement OCR 2008-0023; and

2. On September 22, 2008, she was denied a reasonable accommodation
(telecommuting).

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.
The AJ partially granted the Agency’s motion and issued a summary judgment decision in
December 2012, regarding claim (1). The AJ held a hearing on January 14, 2013, as to claim
(2), and issued a decision on January 30, 2014.

2 This case arose before January 1, 2009, the effective date of the Americans with Disabilities
Act Amendments Act of 2008, which made a number of significant changes to the definition of
disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
Because this matter occurred in 2008, the Commission will use the analytical framework as it
existed before the enactment of the ADA Amendments Act of 2008, to determine whether
Complainant is an individual with a disability.

0720150015

5
In her summary judgment decision for claim (1), the AJ assumed arguendo that Complainant
established a prima facie case of discrimination and reprisal and found that the Agency
articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the position
at issue. Specifically, interview panel members affirmed that Complainant was not referred for
a second interview because she was not among the top four candidates. One panelist stated
that the candidates were judged on how well they articulated their responses to the questions
coupled with how conversant they were of human resources rules and practices, which
extended beyond their actual knowledge of the requirements of the position. Further, a
panelist confirmed that Complainant’s interview demonstrated that she just did not rank among
the top candidates based on the way she presented herself during the interview and her
responses to the questions. The panelist noted that Complainant did not go into a lot of detail
on some questions and she may have felt that the interviewers knew her and her work habits,
which did not help her. As a result, the panel ranked Complainant lower than the top four
candidates and she was not recommended for a second interview with SO.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination or reprisal as to her non-selection for this position.

In her decision following a hearing, the AJ initially found that the record evidence showed that
Complainant was a qualified individual with a disability and the Agency should have engaged
with her in the interactive process to determine how to improve her ability to concentrate on
her work. Complainant’s requests for accommodation included regular telework, a private
office or quiet cubicle, and a modified work schedule.

As to the modified schedule, Complainant testified that after filing her November 2008 EEO
complaint, S2 allowed her to continue the modified work schedule that S1 had previously
allowed (i.e., 10:30 a.m. arrival time), therefore, the AJ determined that that request was
granted except for a period of a few weeks. However, Complainant testified that there were
several empty offices. Complainant testified that her difficulties at work started when she was
moved to a cubicle environment, so going back to an office should have ameliorated many of
her concentration difficulties. The request to regularly work from home on some fixed days,
with the necessary equipment for telework, also seemed to be a request that should have been
explored. If there was concern that Complainant would not complete her assignments while
working from home, the Agency could have monitored her output to ensure that this type of
arrangement was effective. Additionally, the AJ found that there was insufficient evidence that
these types of accommodations would have resulted in undue hardship. Thus, the AJ found that
the Agency was liable for failing to accommodate Complainant beginning on October 7, 2008,
the date she was informed of the denial.

The AJ concluded, however, that Complainant failed to show that the Agency retaliated against
her for her protected EEO activity. The Agency relied on the opinion of a medical advisor
who concluded that the documentation provided by Complainant was insufficient and
recommended that the accommodations request be denied. Complainant’s contention that these

0720150015

6
medical conclusions were manipulated by the Agency was not supported by the preponderance
of the evidence. Further, Complainant’s testimony that her doctor heard from Doctor 1 that he
had been instructed by Agency management to deny the accommodation was not persuasive
nor was Complainant’s argument that it was the Employee Relations Specialist who wanted the
accommodation request denied. Accordingly, the AJ found that Complainant had not been
subjected to reprisal.

The AJ held a damages hearing on July 10 and 11, 2014, and issued a decision on November
3, 2014. In her decision, the AJ found that the preponderance of the evidence showed that the
October 2008 denial of accommodation caused Complainant great emotional distress. She
reported to her then-therapist that she felt devastated by the “push back from work re
accommodation.” Complainant’s subsequent therapist reported that workplace issues had a
negative impact on her including the absence of accommodation, lost promotions, and the
“hostile work environment.” Complainant often stated her frustration and sadness with her
doctor and sister over the accommodation and other work issues. Without the accommodation,
Complainant testified that she encountered difficulties with focus at the workplace causing her
to work late on a regular basis, until 9:00 p.m. or later. While Complainant’s delayed start
time was to accommodate the drowsiness caused by her non-ADHD medications, there was
some evidence that Complainant would at times remain at work later than 9:00 p.m.

The AJ then noted that Complainant’s pre-existing conditions included bipolar disorder,
personality disorder, migraines, high blood pressure, being overweight, “stress due to social
alienation/lack of validation; litigation,” and sleeplessness. Complainant further testified to
suffering from depression and high blood pressure prior to the October 2008 accommodation
denial. The pre-existing conditions had not been resolved at the time of the accommodation
denial, but there was evidence that Complainant's high blood pressure and migraines
worsened. Complainant’s doctor reported that she experienced emotional/physical paralysis,
depression, mania, and periods of mood instability; however, the AJ noted that other non-
compensable stressors likely contributed to Complainant’s emotional pain and exacerbation of
pre-existing conditions. For example, Complainant acknowledged that bankruptcy and
mortgage difficulties caused her much stress; that she was distressed over non-promotions; and
that she experienced other physical conditions including problems related to her leg, back, and
urological concerns.

Thus, considering the emotional distress experienced by Complainant for the approximately
three-year period between the accommodation denial and her retirement, but also adjusting for
the numerous other significant factors which contributed to her emotional pain, the AJ awarded
Complainant $40,000 in non-pecuniary compensatory damages. In addition, the AJ awarded
Complainant $2,523 in medical expenses. The AJ determined that there was insufficient
evidence to support Complainant’s request for leave restoration. Likewise, the AJ found that
there was insufficient evidence tying Complainant’s use of ADHD Helpers at her home to the
October 2008 accommodation denial because Complainant has used them since 2002. In
addition, the AJ determined that the preponderance of the evidence did not support a finding

0720150015

7
that the Agency's failure to accommodate Complainant's ADHD condition proximately caused
her 2011 retirement.

Finally, as to attorney’s fees and costs, the AJ approved the requested hourly fee of $360.00.
Based on the level of success, the AJ determined that Complainant was entitled to 60 percent
of the 61.7 hours incurred until December 12, 2012, plus 100 percent of the subsequent 148.6
hours expended through August 22, 2014. As a result, the AJ awarded Complainant $66,823
in attorney’s fees and $272.83 in costs. Additionally, the AJ ordered the Agency to post a
notice.

The Agency subsequently issued a final order rejecting the AJ’s finding that it denied
Complainant reasonable accommodation and the relief ordered therein. The Agency filed the
instant appeal with the Commission followed by a cross appeal by Complainant.

CONTENTIONS ON APPEAL

On appeal, the Agency argues that the AJ’s finding that Complainant is a qualified individual
with a disability was not substantially supported by the record or Commission case law. The
Agency contends that substantial evidence did not show that Complainant’s impairment, as
opposed to some other factor, was responsible for her difficulties in concentration. Further,
the Agency argues that even if Complainant is a qualified individual with a disability, it
provided reasonable accommodation consistent with her requests. The Agency claims that the
AJ ignored the measures it took to address Complainant’s health concerns including granting
her requests for a delayed arrival schedule and flexible four-day work week, regular telework,
allowing her to move cubicles and to temporarily work in unoccupied offices, and prioritizing
her assignments in writing. Finally, the Agency argues in the alternative that if the
Commission finds that it failed to accommodate Complainant, the Commission should overturn
the AJ’s award of relief based on the Agency’s good faith response to her reasonable
accommodation request.

On cross appeal, Complainant first argues that the AJ erred in granting summary judgment in
favor of the Agency as to claim (1). Complainant argues that she proved that the Agency’s
proffered reasons for not selecting her were false and pretext for discrimination. Complainant
claims that she was better qualified for the position than the other four candidates and that the
ranking process was subjective and littered with impropriety. Complainant contends that the
overwhelming conclusion to be drawn after review of the totality of the circumstances proves
that the Agency’s reasons for not promoting her were false and pretextual. Accordingly,
Complainant requests that the Commission reverse the AJ’s summary judgment decision for
claim (1) and the final order implementing it.

Next, Complainant argues that the AJ’s damages decision was deficient in three areas.
Complainant contends that the AJ erred in failing to award any restoration of leave
Complainant took from October 7, 2008 through December 2, 2011. Next, Complainant
argues that the AJ erred in failing to award any relief for expenses related to ADHD helpers.

0720150015

8
Finally, Complainant claims that the AJ erred by failing to award the equitable relief she
sought, including reinstatement and backpay and benefits. Accordingly, Complainant requests
that the Commission reverse the AJ’s damages decision denying the above-mentioned damages.

ANALYSIS AND FINDINGS

The AJ’s Partial Summary Judgment Decision (Claim (1) - Non-Selection)

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

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). Complainant must initially 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. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that assuming arguendo
that she established a prima facie case of discrimination and reprisal, Complainant failed to
present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for not selecting
Complainant for the position at issue. Specifically, the record reveals that the three-person
panel interviewed the candidates and rated the candidates based on their interview responses.
ROI, at 134. Each panel member independently analyzed the candidates and the panel then
made a group recommendation of the top four applicants to SO for further consideration. Id.
at 140. Complainant was found qualified, but was not referred for SO’s consideration as one
of the top four candidates. Id. at 134. One panel member stated that Complainant simply did
not present herself as well as the top candidates and failed to provide sufficient detailed
responses during her interview. Id. at 140-41. The candidates were judged by how well they
demonstrated their skills, abilities, and talents based on the requirements of the position and
how knowledgeable they were of human resources rules and practices. Id. at 142. The panel

0720150015

9
did not find that Complainant was one of the top candidates based on her interview. As a
result, Complainant was not recommended for a second interview with SO.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's disability or prior protected activity was a factor in any of the
Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate
by a preponderance of the evidence that the Agency's reasons were not the real reasons and
that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed
to carry this burden. As a result, the Commission finds no basis to disturb the AJ's summary
judgment decision finding that Complainant was not subjected to discrimination or reprisal
when she was not selected for the Supervisory Management and Program Analyst position as
alleged.

The AJ’s Decision After a Hearing (Claim (2) - Denial of Reasonable Accommodation)

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. Nat’l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

Denial of Reasonable Accommodation

The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630. In order to establish that the Agency denied Complainant a reasonable
accommodation, Complainant must show that: (1) she is an individual with a disability, as
defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to
29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation.
See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement
Guidance”). Under the Commission's regulations, an agency is required to make reasonable
accommodation to the known physical and mental limitations of a qualified individual with a
disability unless the agency can show that accommodation would cause an undue hardship. See
29 C.F.R. §§ 1630.2(o) and (p).

0720150015

10
The Commission finds that substantial record evidence supports the AJ’s determination that
Complainant was substantially limited in her ability to concentrate as a result of her ADHD
condition. In addition, Complainant’s other conditions (bipolar disorder and obsessive
compulsive disorder) were known by the Agency and affected her ability to concentrate.
Further, substantial record evidence shows that Complainant suffered from the side effects of
multiple medications which negatively affected her ability to concentrate. Accordingly, the
Commission finds that substantial record evidence supports the AJ’s finding that Complainant
is a qualified individual with a disability as defined by the Rehabilitation Act.

In December 2007, Complainant requested to work from home, a private office, and a
modified work schedule as reasonable accommodation. The Agency provided temporary
accommodations including attempting to move Complainant to another cubicle, delayed arrival
time (which S2 discontinued in September 2008), and occasional “as needed flexiplace.”
Subsequently, in October 2008, the Agency denied Complainant’s reasonable accommodation
request of regular telework, a private office or cubicle, and a modified work schedule after
determining that it was unsupported. The AJ noted that Complainant testified that she was
allowed to continue her modified work schedule in November 2008. The Agency, however,
failed to present sufficient evidence that granting Complainant’s request to regularly work from
home and/or allowing Complainant to work from one of the empty offices Complainant
testified were available would have been an undue hardship. Accordingly, the Commission
finds that substantial record evidence supports the AJ’s finding that the Agency failed to
accommodate Complainant in violation of the Rehabilitation Act.

In addition, the Commission finds that the AJ’s finding that Complainant failed to show that
she was subjected to reprisal is supported by substantial evidence. The record supports the
Agency’s legitimate, non-retaliatory reason for denying Complainant’s accommodation request
in that they relied upon the opinion of its medical advisor who deemed Complainant’s
documentation insufficient. Complainant failed to show that this reason was mere pretext for
unlawful retaliation. Accordingly, the Commission finds that substantial record evidence
supports the AJ’s finding that Complainant was not subjected to reprisal as alleged.3 The
Commission will now turn to the AJ’s order of relief.

REMEDIES

Non-pecuniary Compensatory Damages

When discrimination is found, the Agency must provide Complainant with a remedy that
constitutes full, make-whole relief to restore her as nearly as possible to the position she would
have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S.
747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v.
U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of
3 Additionally, the AJ noted in her damages decision that there was insufficient evidence that
the Agency’s actions resulted in Complainant’s retirement in December 2011.

0720150015

11
the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination
under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §
2000e et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. may receive compensatory damages for past and future
pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and
suffering, mental anguish) as part of this “make whole” relief. 42 U.S.C. § 1981a(b)(3). In
West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the
Commission the authority to award compensatory damages in the administrative process. For
an employer with more than 500 employees, such as the Agency, the limit of liability for
future pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. § 1981a(b)(3).

Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional
pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional
standing, injury to character and reputation, injury to credit standing, and loss of health. See
EEOC Notice No. 915.302 at 10 (July 14, 1992). There is no precise formula for determining
the amount of damages for non-pecuniary losses except that the award should reflect the nature
and severity of the harm and the duration or expected duration of the harm. See Loving v.
Dep’t of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes
that non-pecuniary compensatory damages are designed to remedy the harm caused by the
discriminatory event rather than punish the Agency for the discriminatory action.
Furthermore, compensatory damages should not be motivated by passion or prejudice or
“monstrously excessive” standing alone but should be consistent with the amounts awarded in
similar cases. See Ward-Jenkins v. Dep’t of the Interior, EEOC Appeal No. 01961483 (Mar.
4, 1999).

Based upon the evidence provided by Complainant, the AJ found that $40,000.00 was the
appropriate award for Complainant’s non-pecuniary compensatory damages. The Agency has
argued that it operated in good faith; therefore, the AJ’s compensatory damages award should
be set aside. The Commission is unpersuaded by the Agency’s appellate arguments and finds
the AJ’s award to be insufficient. The Commission notes that record evidence confirmed that
Complainant experienced an exacerbation of certain pre-existing conditions (e.g. depression
and high blood pressure) for which she sought treatment caused by the stress created by the
Agency's discriminatory actions. The Commission finds that an award of $60,000.00 is
reasonable under the circumstances. See Complainant v. Dep’t of Transp., EEOC Appeal No.
0720140022 (Sept. 16, 2015) (Complainant awarded $60,000.00 where Agency’s failure to
accommodate resulted in depression, anxiety, sleeplessness, and exacerbation of existing
symptoms); Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0720130013 (Aug. 14,
2014) (Complainant awarded $60,000.00 where Agency’s failure to accommodate resulted in
exacerbation of post-traumatic stress disorder, depression, stress, and elevated blood pressure);
Henery v. Dep't of the Navy, EEOC Appeal No. 07A50034 (Sept. 22, 2005) ($65,000.00
awarded where Complainant suffered from frustration, negativity, and loss of sleep for a four-
year period, as well as physical pain associated with the resulting excessive walking. The
discrimination caused significant increase in Complainant’s need for medical treatment, as well
as an increase in physical and emotional harm).

0720150015

12

The Commission finds that this amount takes into account the severity of the harm suffered,
and is consistent with prior Commission precedent. Finally, the Commission finds this award
is not “monstrously excessive” standing alone, is not the product of passion or prejudice, and
is consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv.,
EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d
827, 848 (7th Cir. 1989)).

Additionally, the Agency generally challenges the AJ's award of pecuniary damages ($2,523).
The Commission finds no reason to alter the pecuniary award.

Attorney’s Fees

The Commission's regulations authorize the award of reasonable attorney's fees and costs to a
prevailing complainant. 29 C.F.R. § 1614.501(e); see also EEOC's Management Directive
110 (MD-110) (Nov. 9, 1999) Chapter 11. Fee awards are typically calculated by multiplying
the number of hours reasonably expended times a reasonable hourly rate, an amount also
known as a lodestar. See 29 C.F.R. § 1614.501(e)(2)(ii)(B); Hensley v. Eckerhart, 461 U.S.
424 (1983).

The degree of success is an important factor in calculating an award of attorney's fees. Farrar
v. Hobby, 506 U.S. 103 (1992). In determining the degree of success, the Commission will
consider all relief obtained in light of a complainant's goals, and, if a complainant achieved
only limited success, he should recover fees that are reasonable in relation to the results
obtained. Hensley, 461 U.S. at 43.

The AJ awarded Complainant 60 percent of the 61.7 hours incurred until December 12, 2012,
and 100 percent of the 148.6 hours expended through August 22, 2014, for a total of $66,823
in attorney’s fees and $272.83 in costs. The Agency generally challenges the amount awarded
arguing that the Commission should not award attorney’s fees or costs if it overturns the
compensatory damages award. Complainant requests that the Commission uphold the AJ’s
award of attorney’s fees and costs. The Commission finds no basis to disturb the AJ’s award
of attorney’s fees and costs.

Equitable and Other Relief

In her cross appeal, Complainant contends that the AJ erred in denying her request for
additional relief including leave restoration, reimbursement for ADHD helpers, reinstatement,
and back pay. Complainant claimed that she proved a causal nexus between the Agency’s
denial of her accommodation request and the leave used and leave without pay she was charged
from October 7, 2008 through December 2, 2011. The AJ noted that record evidence showed
that Complainant suffered from numerous other medical issues and conditions during this time
period which likely caused many of the absences. Further, Complainant attributed her need
for leave to the Agency’s alleged retaliation since 1999. As such, the Commission finds that

0720150015

13
substantial record evidence supports the AJ’s finding that Complainant presented insufficient
evidence to support awarding her restoration of leave. Likewise, substantial record evidence
supports the AJ’s finding that Complainant was not entitled to relief related to her use of
ADHD helpers as testimony revealed that she had previously utilized these assistants and
others prior to 2008. Finally, the Commission notes that the AJ found that there was
insufficient evidence that the Agency’s actions resulted in Complainant’s retirement. The
Commission finds that Complainant is not entitled to any additional relief.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, the Commission
REVERSES the final order and directs the Agency to comply with the Order below.

ORDER

Within 120 days of the date this decision becomes final, the Agency shall take the following
actions:

1. The Agency shall pay Complainant $60,000.00 in non-pecuniary compensatory
damages.

2. The Agency shall pay Complainant $2,523.00 in pecuniary compensatory damages

3. The Agency shall pay Complainant $66,823.00 in attorney’s fees and $272.83 in costs.

4. The Agency shall provide eight hours of training to the responsible management
officials regarding their obligations in provided reasonable accommodation under the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. 791 et seq.

5. The Agency shall consider taking appropriate disciplinary action against the responsible
management officials. 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 immediately 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.

0720150015

14
POSTING ORDER (G0914)

The Agency is ordered to post at the Office for Civil Rights in Washington, D.C. 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)), 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 (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.

0720150015

15

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
The request or opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. If you file a civil action, you must name as the defendant in the
complaint the person who is the official Agency head or department head, identifying that
person by his or her full name and official title. Failure to do so may result in the dismissal of
your case in court. “Agency” or “department” means the national organization, and not the
local office, facility or department in which you work. Filing a civil action will terminate the
administrative processing of your complaint.

0720150015

16

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

April 22, 2016
Date