0720170014
04-24-2017
Kevin B.,1 Complainant, v. Thomas E. Price, MD., Secretary, Department of Health and Human Services, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kevin B.,1
Complainant,
v.
Thomas E. Price, MD.,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0720170014
Hearing No. 570-2014-00549X
Agency No. HHS-OS-0032-2013
DECISION
Following its October 28, 2016 final order, the Agency filed a timely appeal pursuant to 29 C.F.R. � 1614.403(a). On appeal, the Agency requests that the Equal Employment Opportunity Commission (EEOC or Commission) affirm its implementation of an EEOC Administrative Judge's (AJ's) 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. However, the Agency requests that the Commission affirm its rejection of the relief ordered by the AJ. Complainant also filed an appeal asking that the Commission modify the AJ's award of relief.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resource Specialist at the Agency's Data and Analytics Reporting Team, Office of Human Resources, Office of the Assistant Secretary for Administration facility in Washington, D.C.
On February 20, 2013, Complainant indicated that he wanted to file an EEO complaint and asked about information regarding the Agency's Alternative Dispute Resolution program. Complainant alleged that the Agency discriminated against him on the bases of race (African American), color (Brown), age (54), disability (bilateral wrist injury) when, claim (1) the Agency failed to act on his September 21, 2012, request for reasonable accommodation.
On March 19, 2013, Complainant asked the Agency for its case number. On March 20, 2013, the Agency's EEO office provided Complainant with an EEO complaint number. Complainant and the Agency attempted to resolve another EEO complaint which was not resolved. On April 2, 2013, Complainant requested to amend his complaint. Complainant asked that the complaint be amended to include claim (2), alleging on the basis of reprisal when he received a four-level as opposed to a five-level rating on his 2012 performance appraisal he received on February 15, 2013.
The Agency took no action on any of Complainant's requests. As such, on September 27, 2013, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant also filed a motion for summary judgment on September 27, 2013, as well.
The Agency did not respond to Complainant's request for a hearing or his motion for summary judgment. On December 1, 2014, the EEOC AJ issued the Agency an Order to Produce the complaint file no later than December 16, 2014. When the Agency failed to respond, Complainant filed a Motion for Sanctions on January 21, 2015, noting that the Agency had not investigated his complaint. On March 27, 2015, the Agency responded to the AJ's Order to produce. The Agency argued that Complainant had never filed a formal EEO complaint. As such, it had not conducted an investigation.
On April 5, 2015, Complainant contacted the Agency's EEO Office about amending his complaint. He was instructed to raise the amendment with the AJ. On May 12, 2015, the AJ scheduled a status conference for May 27, 2015, to discuss Complainant's motion for summary judgment, his motion for sanctions and the Agency's response to the Order to Produce. By letter dated May 26, 2015, Complainant asked that the matter be amended to include in claim (2) his 2014 performance appraisal which he received on February 2, 2015. Complainant noted that he had raised this claim with the Agency on April 9, 2015 but was told to raise this amendment with the AJ. The Agency did not respond to the motion to amend.
At the status conference, the AJ issued an Order providing the parties with specific actions and dates for compliance. Complainant was instructed to provide the Agency with his exhibits for the motion for summary judgment by May 29, 2015. The Agency was instructed to respond to Complainant's motion by June 8, 2015. Complainant was instructed to provide a response to the Agency's response by June 12, 2015. The parties complied with the AJ's orders.
On December 10, 2015, the AJ issued a decision entering default judgment against the Agency. The AJ noted that Complainant filed a motion for sanctions on January 15, 2015, and the Agency failed to oppose. The AJ noted that the Agency failed to timely complete the investigation and to produce a Report of Investigation in the instant matter. Based on the record provided to the AJ, she determined that Default Judgment against the Agency for its failure to process Complainant's complaint was warranted. The AJ noted that Complainant contacted the EEO in order to file his formal complaint in February 2013. Complainant followed up with the EEO Office in March 2013, to determine the Agency number for the complaint. The Agency provided Complainant with an EEO complaint number filed in February 2013. During this time, Complainant had another EEO matter pending before another AJ and sought a global agreement to address all the open EEO complaints. When the matter could not be resolved, the Agency's EEO Office was informed of the unsuccessful efforts on March 28, 2013. In April 2013, Complainant contacted the EEO Office again to amend this complaint. The AJ held that the Agency took no action and did not respond to Complainant's request to amend the complaint. Complainant filed a hearing request in September 2013, and provided the Agency's EEO Office a copy of his request. He also submitted his motion for summary judgment. The AJ noted that the Agency took no action based on Complainant's hearing request or motion for summary judgment. The AJ also indicated that the Commission attempted to contact the Agency to obtain the Report of Investigation on September 8, 2014, but the Agency did not respond. The AJ then issued an Order to Produce on December 1, 2014, ordering the Agency to provide the record no later than December 14, 2014. The Agency still did not respond in a timely manner. In response, on January 21, 2015, Complainant filed a Motion for Sanctions. Complainant also submitted a settlement demand letter to the Agency in February 2015. Only on March 27, 2015, did the Commission receive any response to the Order to Produce.
The AJ held that based on the record before her, the Agency clearly failed to comply with the requirements to process Complainant's complaint. The AJ noted that the Agency was in clear violation of 29 C.F.R. � 1614.108(b), (e), (f), and has not shown any good cause for the delay. The AJ indicated that the Agency had been made aware and reminded of Complainant's formal complaint on several occasions by Complainant. Moreover, the Agency took no action in response to the hearing request nor the AJ's Order to Produce.
Further, in response to the Agency's argument that Complainant failed to file a formal complaint, the AJ was not persuaded. The AJ noted that Complainant contacted the EEO Office in February 2013. He made inquiries into the formal complaint number in March 2013. In addition, in April 2013, Complainant sought to amend his complaint which was sent to the Agency's EEO Office. The Agency acknowledged Complainant's inquiries and actions. In addition, the Agency noted that inaction occurred based on the Agency's EEO Office was experiencing staff turnover. The AJ found that the Agency offered no good cause for its unreasonable inaction. Beyond the Agency's failure to process the complaint, the AJ noted that the Agency also responded to the AJ's orders in an untimely manner. Based on the totality of the record, the AJ concluded that sanctions are warranted.
The AJ then ordered Complainant to submit a preliminary statement of relief within 30 days of receipt of the decision but no later than January 11, 2016. The Agency was provided 30 days to respond, but no later than February 10, 2016.
Complainant responded with his statement on January 7, 2016. Complainant indicated that the Agency denied his request for reasonable accommodation which exacerbated his injuries in his wrist and forearm resulting in excruciating pain on a daily basis. In addition, he argued that due to the denial of the reasonable accommodation, his job performance was not at optimum level and engendered emotional distress. As for his performance appraisal ratings for 2012, 2013, and 2014, Complainant indicated that he missed the Level 5 (Outstanding) by 3 points. Complainant argued that had he been granted the reasonable accommodation, he would have been able to fulfill his position and that the denial of the reasonable accommodation was a "significant factor" that prevented him from achieving the outstanding rating. In addition, he had amended his complaint to include a claim to include the 2012 - 2014 performance ratings. As such, Complainant argued that he should have received an Outstanding for each year and the corresponding quality step increase based on the "Outstanding" rating.
Complainant asked for $ 300,000.00 in non-pecuniary damages noting the additional significant damage to his wrist and forearms. Complainant provided medical documentation showing that he had been warned of additional injury if the reasonable accommodation was not granted. Further, his physician forecasted in 2012 that he would suffered additional damage to his wrist and arm based on the denial. He provided medical documentation from his new hand specialist who confirmed the diagnosis from his previous physicians. Further, he noted that beyond the initial diagnosis of nerve lesion, Complainant was found to have mild carpal tunnel syndrome in both wrists which is a worsening of his condition since his original diagnosis and denial of reasonable accommodation. Complainant also provide a list of additional issues he has experienced including disruption of his sleep patterns; curtailing of use of hand tools to use for gardening or holding his granddaughter in his arms; quitting photography; holding hands with people like in Church during circle prayer; grasping the steering wheel; embarrassment from having to explain his shaking; anxiety disorder; mental stress; and interruption of his tranquility and enjoyment of vacations and spending time with family. Therefore, Complainant asked for the maximum amount available.
In addition to non-pecuniary damages, Complainant indicated that he was forced to take a considerable amount of leave because of the inflammation and pain brought on from the denial of reasonable accommodation. Complainant provided his leave usage from 2012 to 2015. Complainant noted that he incurred medical expenses in the amount of $ 1,616.00 for a touchpad, mouth guard, occupational therapy, psychiatric evaluation, and therapy sessions. Complainant then asked for future pecuniary damages.
Further, Complainant requested that the AJ award him an alternative work schedule to allow him time for a daily therapeutic regime to reduce the inflammation due to the denial of reasonable accommodation. He also asked to move his official duty station from Washington, D.C. to Baltimore, Maryland for it would be an easier commute.
The Agency responded to Complainant's request for relief on February 5, 2016. The Agency argued that Complainant's request for $ 300,000.00 was monstrously excessive. The Agency noted that it provided Complainant with software to mitigate the request and Complainant was able to perform the duties of his position. The Agency noted that it provided an affidavit from Complainant's supervisor showing that Complainant failed to inform them that the accommodation provided did not meet his needs. As such, the Agency asserted it provided him with an accommodation after a year. In addition, the Agency argued that Complainant should be entitled to a lower amount of compensatory damages in the range of $ 15,000 to $ 30,000 in non-pecuniary damages. The Agency also argued that increasing his performance appraisal was not related to the denial of reasonable accommodation. As such, the Agency requested that the AJ deny Complainant's request for a change in his performance appraisals for 2012 - 2014. The Agency also noted that the AJ should not provide for Complainant pertaining to his alleged amendment to the complaint. Finally, the Agency argued that Complainant should not receive his new 2015 request for reasonable accommodation; that Complainant's pecuniary damages should be limited to after the denial of reasonable accommodation in September 2012; and that Complainant should not be granted restored sick and annual leave.
The AJ assigned to the case issued a decision on liability and relief on September 21, 2016. The AJ noted that Complainant alleged 2 claims of discrimination: (1) a claim of denial of reasonable accommodation and (2) a claim of retaliation when he was not given an "Outstanding" rating for his performance appraisals for 2012 and 2014. The AJ included Complainant's amendment adding the 2014 appraisal noting that Complainant filed his amendment and the Agency did not respond to it.
The AJ then turned to Complainant's right to relief. As to claim (1), the AJ found that Complainant provided the Agency medical documentation to support his need for assistive technology or speech recognition software to reduce his risk of recurring tendonitis from working on his computer. The Agency found the documentation to be sufficient but wanted additional information from Complainant regarding the specific program he requested. Complainant provided the documentation but the Agency took no action to resolve Complainant's request. Complainant worked without an accommodation for a year. The AJ determine that the Agency provided no explanation for the delay in responding to Complainant's request. As such, the AJ concluded that the Agency failed to provide Complainant with a reasonable accommodation from September 21, 2012 to October 25, 2013.
The AJ then turned to Complainant's second claim of unlawful retaliation pertaining to his performance appraisals for years 2012 and 2013. The AJ found that Complainant established a prima facie case of retaliation with respect to the 2012 appraisal he received on February 15, 2013. The AJ noted that Complainant engaged in protected activity in requesting a reasonable accommodation; the Supervisor was aware of the protected activity; Complainant received a lower than expected appraisal; and Complainant established a temporal connection between his protected activity and the performance appraisal. The AJ noted that the Agency challenged whether Complainant would have received a higher rating. The AJ cited to the Supervisor's affidavit which stated that Complainant was not consistently superior and needed development in customer service initiative and collaborations with others. However, the AJ pointed to the Supervisor's narrative from the 2012 appraisal noting Complainant was "very responsive to customer needs and made numerous efforts to respond to all customers within a one-day timeframe." It also noted Complainant's work in providing technical support to staff. Based on the record, the AJ concluded that Complainant established a prima facie case of unlawful retaliation with respect to the 2012 appraisal. As for the 2014 appraisal, the AJ noted the Supervisor failed to provide any specific measures and noted summarily that Complainant was "not consistently superior throughout the year. Therefore, the AJ similarly concluded that Complainant established a prima facie case for his 2014 appraisal. As such, the AJ held that Complainant was entitled to relief for the denial of reasonable accommodation as well as the performance appraisals received for appraisal years 2012 and 2013.
As for past-pecuniary damages, the AJ found that Complainant was entitled to only those losses that were incurred after he was denied the reasonable accommodation. Therefore, the AJ limited Complainant's award to $ 350.00. As for non-pecuniary, the AJ found that Complainant's claim for $ 300,000 was excessive. Instead, the AJ determined that an award of $ 60,000 was more in line with Commission case precedent and to the harm he suffered from emotional distress, frustration, loss of sleep, depression, and physical pain.
The AJ then held that Complainant failed to establish that he is entitled to restoration of annual leave for 2012 and 2013. However, the AJ held that Complainant was entitled to 27 hours of sick leave restored for 2012 and 60 hours of sick leave restored for 2013. The AJ also found that, based on her decision finding unlawful retaliation, Complainant was entitled to his performance appraisal for years 2012 and 2013 should reflect an "Outstanding" rating and any award or quality step increase associated with such an appraisal rating. The AJ noted that Complainant's request for a modification in work location and alternative work schedule were outside of the scope of the complaint. As such, the AJ denied his requests for these items as relief. Finally, the AJ ordered the Agency to provide eight hours of training to management and human resources personnel regarding their requirements under the Rehabilitation Act and to post an order regarding the instant finding of discrimination.
The Agency subsequently issued a final order accepting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged. However, the Agency asserted that the AJ's award of relief was not appropriate.
CONTENTIONS ON APPEAL
The Agency implemented the AJ's finding of default judgment. The Agency appealed the AJ's relief ordered. Specifically, the Agency requested that the Commission reduce the AJ's award of compensatory damages to $ 25,000.00 in non-pecuniary damages; reduce the award to $350.00 in past pecuniary damages; and deny the increase of Complainant's performance appraisals for 2012 and 2013, from the level 3 to level 4.
Complainant responded asking that the Commission affirm the AJ's decision finding discrimination. However, Complainant argued that the AJ's award of non-pecuniary damages is not sufficient. Also, Complainant asserted that the AJ erred in not providing him with an "Outstanding" rating for his appraisal for 2014 as well as restoration of all annual and sick leave used from 2012 to 2015. Finally, he asked that the Commission modify the AJ's order to provide payment for all past and future medical fees and to allow him to telework noting that he works for a new Agency.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
AJ's Sanction
The Commission's regulations afford broad authority to AJs for the conduct of hearings. See 29 C.F.R. � 1614.109 et seq.; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 7-10 (Aug. 5, 2015). An AJ has inherent powers to conduct a hearing and to issue appropriate sanctions, including a default judgment. See id.; Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (April 21, 2005); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001).
Specifically, our regulations provide that where a party, inter alia, fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. � 1614.109(f)(3), i.e., an AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party, (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party (emphasis added); or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying party. Id. Before taking any of the actions authorized by the Commission's regulations, an AJ must first issue a Notice to Show Cause to the non-complying party. MD-110, Ch. 7, Sec. III(D), fn. 7; see DaCosta v. Dep't of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000).
We note that the Agency does not challenge the AJ's sanction or the AJ's decision finding default judgment against the Agency. Therefore, we turn to the issue of remedies.
Remedy Following Default Judgment
As we have determined that the sanction issued by the AJ was appropriate, and Complainant has prevailed in his complaint, we turn to whether the remedy ordered by the AJ was appropriate.
Performance Appraisals
A review of the record indicates that there was an error in the AJ's decision which must be clarified. Complainant alleged on appeal that the AJ erred in her finding of unlawful retaliation as to the performance appraisals in that she failed to provide him with an "Outstanding" rating for his 2014 appraisal.
As to the performance appraisal, a review of the record indicates that Complainant first amended his complaint to allege unlawful retaliation when on February 15, 2013, he was issued his 2012 performance appraisal. Further, on May 26, 2015, Complainant filed an amendment with the AJ alleging an additional claim of unlawful relation. As such, the AJ had before her only two performance appraisals, namely the 2012 performance appraisal and the 2014 performance appraisal. The AJ clearly stated in her findings that Complainant established his prima facie case of retaliation with respect to both his 2012 and 2014 performance appraisals. However, the AJ, in her summary of corrective action, stated that the Agency shall adjust Complainant's performance ratings for 2012 and 2013. We find that this is inconsistent with the AJ's decision. As such, we clarify the AJ's decision and order the Agency to correct Complainant's performance ratings for 2012 which was received on February 15, 2013 and for 2014 which was received on February 2, 2015.
On appeal, the Agency challenged Complainant's entitlement to the "Outstanding" rating. The Agency argued that had Complainant been provided with the reasonable accommodation, he would not have achieved the "Outstanding" rating. We remind the Agency that it adopted the AJ's decision finding default judgment which determined that the Agency subjected Complainant to unlawful retaliation when he was issued the 2012 and 2014 performance appraisals. The AJ concluded that Complainant established a prima facie case of unlawful retaliation with respect to the performance appraisals raised by Complainant in his complaint. As such, the appropriate remedy would be for the appraisals to reflect an "Outstanding" rating. In addition, the AJ correctly indicated that Complainant is entitled to any awards or quality step increases that were associated with the "Outstanding" rating for performance appraisals for years 2012 and 2014.
Compensatory Damages
The Agency argued that the award of damages was not supported by fact or law. Complainant argued that the award was insufficient. Both parties agreed that Complainant is entitled to some amount of compensatory damages.
Non-Pecuniary Damages
When discrimination is found, the respondent Agency must provide the employee with a remedy that constitutes full, make-whole relief to restore the employee as nearly as possible to the position he or she would have occupied absent 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). The Commission is authorized to award compensatory damages as part of the "make whole" relief for intentional discrimination. Compensatory damages, however, are limited to the amount necessary to compensate an injured party for actual harm caused by the Agency's discriminatory action, even if the harm is intangible. Damiano v. U.S. Postal Serv., EEOC Request No. 05980311 (Feb. 26, 1999). Compensatory damages should consider the extent, nature and severity of the harm and the length of time the injured party endured the harm. Id.; Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991 (EEOC Damages Guidance), EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. The Commission notes that a proper award of non-pecuniary compensatory damages, the amount of the award should not be "'monstrously excessive" standing alone, the product of passion or prejudice, and consistent with the amount awarded in similar cases. See Ward-Jenkins v. Dept. of Interior, EEOC Appeal No. 01961433 (Mar. 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Or. 1939).
The Agency argued that the AJ's award was excessive and that an award of $ 25,000.00 would be more appropriate. Complainant asked that the Commission increase the amount awarded to $ 270,000.00. We find that Complainant's request is monstrously excessive. However, we find that the Agency's reduction is not warranted. The record indicated that Complainant had been diagnosed with bilateral flexor tendinitis in 2012 for which he required a reasonable accommodation. Following the denial of the reasonable accommodation in September 2012, Complainant indicated that his medical condition worsened and he developed carpal tunnel syndrome in both writs by November 2014. Complainant also noted that following the denial of reasonable accommodation, he experienced sleeping problems as well as anxiety, pain and suffering. Based on Complainant's statement and a review of the record, we conclude that an award of $ 60,000.00 in non-pecuniary damages more appropriately compensates Complainant for the harm caused by the Agency. We find this amount is more consistent with the amount awarded in similar cases. See Lula N. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113346 (March 21, 2014) ($65,000 where complainant acknowledged that she experienced health problems prior to the discrimination, but provided documentation indicating that her health worsened due to discrimination. Complainant experienced anxiousness, depression, crying, headaches, insomnia, and high blood pressure); Nia G. v. Dep't of Justice, EEOC Appeal No. 0120123467 (April 3, 2015) ($50,000 in non-pecuniary damages for disability discrimination and retaliation, including the failure to provide reasonable accommodation, where Complainant testified that she suffered stress, shock and humiliation, which manifested itself in absences from work, headaches, rashes, weight fluctuations, depression, anxiety, insomnia, and nightmares). As such, we affirm the AJ's decision regarding non-pecuniary damages.
Past Pecuniary Damages
Pecuniary losses are out-of-pocket expenses incurred as a result of the Agency's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary settlement." EEO MD-110 at 11-23 (Aug. 5, 2015) (internal citations omitted).
"In a claim for pecuniary compensatory damages, Complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result of the Agency's discriminatory action. Objective evidence in support of a claim for pecuniary damages includes documentation showing actual out-of-pocket expenses with an explanation of the expenditure. The Agency is only responsible for those damages that are clearly shown to be caused by the Agency's discriminatory conduct. To recover damages, the Complainant must prove that the employer's discriminatory actions were the cause of the pecuniary loss." Id. (internal citations omitted).
The Agency adopted the AJ's decision regarding past pecuniary damages. Complainant asked that the Commission award him additional money to cover his touch pad and mouthguard which were denied by the AJ. We note that these expenses arose in January - March 2012, which predated the discriminatory actions. Further, Complainant sought money for occupational therapy sessions including the amount that was paid for by insurance. We note that Complainant only paid the co-pay, as such those were the actual out-of-costs incurred. See Sartini v. Dep't. of Veterans Affairs, EEOC Appeal No. 0120112305 (Sept. 19, 2012) (awarding Complainant pecuniary damages to cover out-of-pocket expenses for medical treatment). Based on the record, we find that the AJ properly awarded Complainant $ 350.00 in pecuniary damages.
Future Pecuniary Damages
Future pecuniary damages are losses likely to occur after the resolution of the complaint. MD-110 at 11-23 (citing EEOC Damages Guidance). Complainant requested future pecuniary damages but failed to provide any support for his request. As such, we find that the AJ correctly determined that has not shown that he is entitled to future pecuniary damages.
Other Requested Remedies
The Agency adopted the AJ's decision pertaining to restoration of leave. Complainant had also asked the Commission to modify the AJ's decision to provide him with additional restoration of leave. Complainant provided no additional documentation to support his claim that his use of annual leave for 2012 and 2013 were related to his medical condition, or any of his leave for 2014 or 2015 were related to the Agency's denial of reasonable accommodation. As such, we find no basis to modify the AJ's award of restoration of sick leave.
Further, we note that Complainant's request for alternative work schedules and telework are outside of the scope of the finding of discrimination. As such, we hold that Complainant has not shown that he is entitled to such relief.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final action and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (C0610)
The Agency is ordered to:
1. Pay Complainant $60,000.00 in non-pecuniary damages;
2. Pay Complainant $350.00 in pecuniary damages;
3. Adjust Complainant's performance appraises for 2012 and 2014 to reflect a rating of "Outstanding". In addition, the Agency shall determine any other awards or quality step increases that would have accompanied the "Outstanding" rating for these two performance appraisals.
4. Restore Complainant's leave balance to provide for 27 hours of sick leave for 2012 and 60 hours of sick leave for 2013.
5. Provide EEO training to the Supervisor and the Human Resources Officials involved in this matter. The Agency shall address these employees' responsibilities with respect to reasonable accommodation requests and retaliation.
6. Consider discipline against the Supervisor involved in this matter. The Agency shall report its decision. 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
7. Post a notice in accordance with the paragraph below.
8. Provide the remedies ordered above with 120 calendar days of the date this decision becomes final.
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 (G1016)
The Agency is ordered to post at its Office of Human Resources, Office of the Assistant Secretary for Administration in Washington, D.C. facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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 24, 2017
_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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0720170014
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0720170014