Lisa C.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Nov 16, 2020

2019005689 (E.E.O.C. Nov. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lisa C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2019005689 Agency No. 4G-720-0052-18 DECISION On July 25, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 25, 2019 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Our review is de novo. For the following reasons, the Commission MODIFIES the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Carrier, Q-01/B, at the Agency’s Downtown Station in Fort Smith, Arkansas. On September 7, 2018 (and later amended), Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her and subjected her to hostile work environment on the bases of her race (African-American), sex (female), disability (lupus), and in reprisal for her prior protected EEO activity when: 1. On or around March 1, 2018, and continuing through September 2018, Complainant was denied accommodation when she was not permitted to work; 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. 2019005689 2 2. On or around April 19, 2018, Complainant was taken off her assignment; 3. On October 5, 2018, Complainant was charged Absent Without Leave (AWOL) for her absence; and 4. Complainant has not received a response to her appeal of the denial of her request for reasonable accommodation. 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 EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Complainant reported she was diagnosed with lupus in February 2018 and that it is expected to be a permanent condition. Complainant stated that her physician informed her of the danger posed by direct sunlight and due to this she was restricted from performing any duties outside, including her primary duty of delivering mail. Complainant asserted that she was supposed to avoid direct sunlight, required to wear protective clothing, and wear sunscreen and a hat. Complainant added that in her personal life she is limited by needing to avoid sunlight and not attend outdoor events. The record reveals that medical documentation dated May 5, 2018, from Complainant’s physician indicated that Complainant should be able to continue to work as long as she prevents sun exposure and follows treatment recommendations. With regard to claims (1) and (4), Complainant stated that she learned from management on March 1, 2018, that she was not to go on the street to deliver mail until further notice. Complainant asserted that the Postmasters agreed to allow her to keep her Acting Supervisor duties on Amazon Sundays as well as continue casing her route. Complainant stated in addition to these duties she made a verbal request to work in the office as a Clerk as a form of reasonable accommodation. On March 6, 2018, Complainant submitted a reasonable accommodation request for a position inside the office or anything that does not require her to be exposed to the sun. The record contains a Nomination for Reasonable Accommodation Consideration for Complainant signed by Complainant’s Supervisor and Postmaster 1 dated March 1, 2018. The document described Complainant’s condition, stated she will not be able to perform her duties, and stated her condition is permanent. The record contains an Essential Functions Review Worksheet dated March 13, 2018, and completed by Complainant’s Supervisor, which stated 80 percent of Complainant’s duties include carrying mail and performing the street duties of a City Carrier. On March 30, 2018, Postmaster approved light duty for Complainant for 30 days that would consist of casing only at the station of assignment, authorization to start early as directed by her Supervisor to case down routes and updated medical documentation would be needed at the completion of the 30 days. 2019005689 3 In letters dated May 15 and 17, 2018, the District Reasonable Accommodation Committee (DRAC) denied Complainant’s specific accommodation request and stated that no reasonable accommodation had been identified that would enable Complainant to perform the essential functions of her position. The denial decision stated that no funded positions within Complainant’s restrictions were located, at or below Complainant’s position level, within the commuting area. From March 1, 2018 to April 22, 2018, Complainant had approximately four or fewer work hours per day, with the remainder being mostly sick leave hours. An exception to this was when Complainant worked over eight hours each Sunday during this period. From April 23, 2018 - September 23, 2018, Complainant had less than four work hours per day with the exception of two days, with various types of leave for the remainder of the day and no work hours on Sundays. A document dated July 13, 2018, stated that temporary light duty was authorized through July 26, 2018, and that updated medical documentation would be due at that time. Complainant asserted that on May 22, 2018, she filed an appeal of her reasonable accommodation denial, but she never heard from the Manager, Labor Relations. Complainant’s appeal described her condition, job opportunities that she believed should have been available, and efforts to talk with Postmaster 1. Complainant stated that her physician gave her a clean release on August 7, 2018. A letter dated August 8, 2018, from the Occupational Health Nurse Administrator sought clarification concerning the medical directive from Complainant’s physician to avoid sun as much as possible while performing the duties of a City Carrier. In a decision dated September 13, 2018, the Manager of Labor Relations indicated in response to an interactive meeting dated September 12, 2018, Complainant would be accommodated in the following manner: Wear protective clothing long pants, sleeves, wide brim hat; wear sunscreen for protection from ultraviolet sun rays; and maintain adequate hydration to prevent dehydration. Beginning September 14, 2018, Complainant had eight or more work hours per day. For claim (2), Complainant stated that she was an Acting Supervisor from February 11, 2018 to April 22, 2018. According to Complainant, she and her husband needed to attend two orientations after her son was accepted to a new school, so she requested time off for these events. Complainant asserted that on April 23, 2018, Postmaster 2 informed her that she was no longer needed for the detail. With respect to claim (3), Complainant was charged with eight hours of AWOL for October 5, 2018. Complainant stated that her child got sick on October 4, 2018, and she inadvertently requested to be off on October 6, 2018, rather than October 5, 2018. Complainant stated that she provided a doctor’s note but that was not sufficient. As for Complainant’s hostile work environment claim, Complainant contended that Postmaster 1 created a hostile work environment for her by not allowing her to return to full duty when she was initially released by her physician. Complainant claimed that her coworkers passed judgment on her condition and her supervisors told people that she had been offered a position at the processing plant, which was not true. 2019005689 4 In its decision, the Agency determined that in May 2018, Complainant was not a qualified individual with a disability as she was unable to perform the essential duties of her position given she was restricted from delivering mail during sunlight hours. The DRAC determined that no reasonable accommodation was identified in May 2018 that would enable Complainant to perform the essential functions of her position. The Agency noted that Postmaster 1 stated that Complainant wanted to become a clerk but would not go anywhere outside of a certain distance from Fort Smith. The Agency further noted that Postmaster 1 asserted that Complainant was approved for advanced sick leave that she utilized with other leave as needed. After Complainant’s medically-imposed restrictions changed, the DRAC engaged with Complainant in the interactive process. In a decision letter dated September 13, 2018, the DRAC informed Complainant that wearing protective clothing, wearing sunscreen for protection from ultraviolet rays, and maintaining adequate hydration to prevent dehydration was an adequate accommodation that could be implemented effective September 15, 2018. With regard to Complainant’s claims of disparate treatment, assuming arguendo Complainant had established a prima facie case of discrimination and reprisal, the Agency determined that management articulated a legitimate, nondiscriminatory explanation for its actions. With respect to claim (1), the Agency observed that Postmaster 1 stated that Complainant was not permitted to work based on her medical restrictions. According to Postmaster 1, Complainant was able to perform light duty work each day in accordance with her restrictions and she was advanced sick leave which she utilized with other leave as needed. Postmaster 1 stated that Complainant wanted to become a Clerk but would not go anywhere outside of a certain distance from Fort Smith. Postmaster 1 asserted that there was no contractual vehicle that would allow Complainant to transfer crafts within the installation. With respect to claim (2), Postmaster 1 stated that Complainant was working as a 204B Supervisor on Sundays, but it was not a detail assignment. According to Postmaster 2, Complainant was given the opportunity to serve as a 204B on Amazon Sundays. Postmaster 2 stated that Complainant requested annual leave for a few Sundays and a replacement was offered the opportunity. Postmaster 2 asserted that 204B positions are temporary. As for claim (3), Postmaster 1 stated that Complainant was charged with being AWOL after not reporting for duty as scheduled and failing to notify management. Complainant’s Supervisor stated that she consulted with Postmaster 1 about the situation and he said a no call and a no show is AWOL under applicable policies. With respect to claim (4), the Manager of Human Resources asserted as to Complainant’s appeal of the DRAC’s denial of her reasonable accommodation request that she searched her archives and files and did not find anything related to this matter. The Agency determined that Complainant failed to show that management’s reasons for its actions were pretextual. Further, the Agency further determined that the incidents at issue were not severe or pervasive enough to constitute a hostile work environment. 2019005689 5 As a result, the Agency found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that she identified a specific posting for a Clerk position that was posted from May 12-21, 2018. Complainant states that a supervisory position was also available, but she was not given an opportunity to apply for it. Complainant acknowledges that she received several temporary light duty assignments in 2018. Complainant argues that pretext is evident based on her not being offered an available Clerk position. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS Denial of Reasonable Accommodation The Commission notes that an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). The agency may choose among reasonable accommodations as long as the chosen accommodation is effective. An “effective” accommodation either removes a workplace barrier, thereby providing an individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment. See Enforcement Guidance on Reasonable Accommodation. To establish that she was denied 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 her with a reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation. An individual with a disability is “qualified” if she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental duties of the employment position that the individual holds or desires. 29 C.F.R. § 1630.2(n). A request for a modification or change at work because of a medical condition is a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Q. 1. After receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. pt. 1614 app. § 1630.9. 2019005689 6 Thus, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability… [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. pt. 1630 app. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Q. 5. Reasonable accommodation includes such modifications or adjustments as job restructuring, the acquisition or modification of equipment or devices and reassignment to a vacant position. 29 C.F.R. § 1630.2(o)(2)(ii). In general, reassignment is the reasonable accommodation of last resort and should be considered only when: (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her position; or (2) accommodating the employee in the current position would cause an undue hardship. 29 C.F.R. pt. 1630 app. § 1630.2(n); Enforcement Guidance on Reasonable Accommodation, “Reassignment.” An agency should reassign the employee to a vacant position that is equivalent in terms of pay, status and other related factors; if there are no vacant equivalent positions, then the agency should reassign the employee to a lower-level position that is closest to the current position. Id. The agency, however, may not use reassignment “to limit, segregate, or otherwise discriminate against employees with disabilities by forcing reassignments to undesirable positions or to designated offices or facilities.” 29 C.F.R. pt. 1630 app. § 1630.2(n); see also EEOC Enforcement Guidance: Workers, Compensation and the ADA, EEOC Notice No. 915.002 (Sept. 1996), at Q. 21 (employer may not unilaterally reassign an employee with a disability-related occupational injury to a different position without first assessing whether the employee can perform the essential functions of his or her current position with or without reasonable accommodation). An agency is in the best position to know which jobs are vacant or will become vacant within a reasonable time and, as part of the interactive process, should ask the employee about his qualifications and interests. Bill A. v. Dep’t of the Army, EEOC Appeal No. 0120131989 (October 26, 2016). Because it possesses the relevant information, an agency is obligated to inform an inform an employee about vacant positions for which the employee may be eligible as a reassignment. Woodman v. Runyon, 132 F.3d 1330, 1344 (10th Cir. 1997) (federal employers are far better placed than employees to investigate in good faith the availability of vacant positions); see also Enforcement Guidance on Reasonable Accommodation at Q. 28. The employee should assist the agency in identifying vacancies to the extent that the employee has information about them. Further, if the agency is unsure whether the employee is qualified for a particular position, the agency can discuss with the employee his or her qualifications. Mengine v. Runyon, 114 F.3d 415, 419-20 (3d. Cir. 1997) (once an employer has identified possible vacancies, an employee has a duty to identify which one he is capable of performing); see also Enforcement Guidance on Reasonable Accommodation at Q. 28. We emphasize that a federal agency’s obligation under the Rehabilitation Act to offer reassignment is not limited to vacancies within a particular department, facility, or geographical area. Instead, the extent of the agency’s search for a vacant position is an issue of undue hardship. Enforcement Guidance on Reasonable Accommodation at Q. 27. 2019005689 7 Accordingly, absent undue hardship, the agency must conduct an agency-wide search for vacant, funded positions that the employee can perform with or without reasonable accommodation. See Julius C. v. Dep’t of the Air Force, EEOC Appeal No. 0120151295 (June 16, 2017). In the instant case, Complainant stated that her physician informed her of the danger posed by direct sunlight and due to this she was restricted from performing any duties outside, including her primary duty of delivering mail. Complainant asserted that she is supposed to avoid direct sunlight, required to wear protective clothing, and wear sunscreen and a hat. On March 1, 2018, Complainant’s Supervisor nominated Complainant for reasonable accommodation consideration and noted that Complainant will not be able to perform her duties as a City Carrier. On March 6, 2018, Complainant submitted a reasonable accommodation request for a position inside the office or anything that does not require her to be exposed to the sun. On May 15 and 17, 2018, the DRAC denied Complainant’s specific accommodation request and stated that no reasonable accommodation had been identified that would enable Complainant to perform the essential functions of her position. The DRAC stated that no funded positions within Complainant’s restrictions were located, at or below Complainant’s position level, within the commuting area. The record reflects that because of her restrictions, Complainant was not qualified to perform her Carrier duties. We find that there were no effective means available to accommodate Complainant in the position she held, which raises the issue of reassignment. See Reita M. v. U.S. Postal Service, EEOC Appeal No. 0120150260 (July 19, 2017). We therefore turn to whether the Agency met its obligations under the Rehabilitation Act. The DRAC determined that Complainant could not be accommodated in her Carrier position. As Complainant could not be accommodated in her Carrier position, we find that the Agency, absent undue hardship, was obligated to consider reassigning her to a different position, consistent with the Commission’s regulations noted above. Complainant provided evidence that a specific posting for a funded Clerk position at a Fort Smith facility was posted from May 12-21, 2018. Therefore, a funded position was available prior to the DRAC’s denial of reasonable accommodation. The Agency was obligated to consider reassigning Complainant to this Clerk position. There is no evidence that the Agency did so. The burden now shifts to the Agency to provide case-specific evidence proving that providing reasonable accommodation would cause an undue hardship in the particular circumstances. A determination of undue hardship should be based on several factors, including: (1) the nature and cost of the accommodation needed; (2) the overall resources of the facility making the reasonable accommodation, the number of persons employed at this facility, the effect on expenses and resources of the facility; (3) the overall financial resources, size, number of employees, and type and location of facilities of the employer; (4) the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and (5) the impact of the accommodation on the operation of the facility. See Julius C. v. Dep’t of the Air Force, EEOC Appeal No. 0120151295 (June 16, 2017); Enforcement Guidance on Reasonable Accommodation. 2019005689 8 Here, the Agency did not present any persuasive argument that reassigning Complainant to the available Clerk position would have resulted in an undue hardship on its operations. While the Agency claimed that there was no contractual vehicle that would allow Complainant to transfer crafts within the installation, Complainant would be entitled to reassignment to a vacant funded position outside of her craft, regardless of the dictates of the Collective Bargaining Agreement (CBA) if she was a qualified individual with a disability. Anibal L. v. USPS, EEOC Appeal No. 0120151142 (December 15, 2016). Therefore, based on the record, we find with respect to claim (1) that Complainant has established that she was denied reasonable accommodation from May 15, 2018 - September 13, 2018, in violation of the Rehabilitation Act. Disparate Treatment To prevail in a disparate treatment claim, 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. Tex. 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, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We shall assume arguendo that Complainant set forth a prima facie case of reprisal discrimination with regard to each of the claims at issue. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions in each of these claims. For claim (2), the Agency asserted that Complainant was serving temporary light duty assignments after her diagnosis. The Agency explained that Complainant’s assignment as a 204B on Amazon Sundays was temporary and that when Complainant requested annual leave for a few Sundays a replacement was offered the opportunity to serve in the 204B acting capacity. We find that this constitutes a legitimate, nondiscriminatory reason for replacing Complainant in that assignment. Upon review of the arguments Complainant presents to establish pretext, we do not find them persuasive and thus find that Complainant has not established that discrimination occurred as to claim (2). With respect to claim (3), the Agency stated that Complainant was charged with being AWOL after not reporting for duty as scheduled and failing to notify management. Complainant stated that she inadvertently asked for leave for the wrong day. Complainant argues that the AWOL was imposed because management was upset with her for filing an EEO complaint and management regarded her as a liability due to her disability. Although it is unfortunate that Complainant and management could not have resolved matters once Complainant explained her mistake, the Agency was within its discretion to charge Complainant with being AWOL when she did not report for work and failed to notify management. We find that Complainant has not established that the Agency’s stated reason for the AWOL was pretext intended to hide discriminatory motivation. 2019005689 9 In terms of claim (4), the Agency does not appear to know why Complainant’s appeal of the DRAC denial of accommodation was not addressed. Upon review of the chronology, there is not sufficient indication that this was attributable to discriminatory animus. The appeal was filed on May 22, 2018. Complainant received on July 13, 2018, a temporary light duty assignment that was authorized through July 26, 2018. Upon Complainant providing medical documentation in August 2018 indicating she could perform her job duties, the Occupational Health Nurse Administrator promptly sought clarification concerning the medical directive to avoid sun as much as possible while performing the duties of a City Carrier. Pursuant to an interactive meeting dated September 12, 2018, the Agency decided the following day that Complainant would be accommodated in the following manner: Wear protective clothing long pants, sleeves, wide brim hat; wear sunscreen for protection from ultraviolet sun rays; and maintain adequate hydration to prevent dehydration. We find that while there may have been a delay in the Agency addressing this matter, in light of the Agency’s responsiveness from July 2018 through September 2018, the delay was most likely attributable to inadvertent oversight rather than discriminatory or retaliatory motivation. Hostile Work Environment To establish a hostile work environment claim, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. We find that Complainant has failed to establish that she was subjected to a hostile work environment. The incidents at issue were not sufficiently severe or pervasive to constitute a hostile work environment. As we have discussed, the Agency failed to reasonably accommodate Complainant’s disability in May 2018 to September 2018. However, as previously discussed, we do not discern sufficient evidence that the actions or lack of action taken by Agency officials regarding Complainant’s reasonable accommodation requests were based on discriminatory or retaliatory animus. Accordingly, the Commission finds that Complainant was not subjected to a discriminatory or retaliatory hostile work environment. 2019005689 10 CONCLUSION The Agency’s determination of no discrimination is AFFIRMED as to Complainant’s claim of harassment and claims (2-4). The Agency’s determination of no discrimination with regard to a denial of reasonable accommodation is REVERSED as to claim (1) and this matter is REMANDED in accordance with the ORDER below. ORDER The Agency is ordered to take the following remedial action: 1. Within 60 days of the date this decision is issued, the Agency shall restore or compensate Complainant for any annual leave or sick leave and reimburse for any leave without pay that Complainant has been forced to use due to the Agency’s failure to reasonably accommodate her from May 15, 2018 - September 13, 2018. 2. Within 90 days of the date this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant’s entitlement to compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issue of compensatory damages no later than 30 days after the completion of the investigation. 3. Within 90 days of the date this decision is issued, the Agency shall provide a minimum of eight hours of training to the Occupational Health Nurse Administrator and Manager of Labor Relations who were involved in the denial of reasonable accommodation to Complainant regarding their responsibilities under the Rehabilitation Act, placing a special emphasis on the Agency’s obligation to consider reassignment as a form of reasonable accommodation for employees’ disabilities. 4. Within 60 days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against the Occupational Health Nurse Administrator and Manager of Labor Relations who were involved in the denial of reasonable accommodation to Complainant. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If either of the individuals involved in the denial of reasonable accommodation to Complainant have left the Agency’s employ, the Agency shall furnish documentation of their departure dates. 2019005689 11 The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Fort Smith, Arkansas 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 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 (H1016) 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 the date this decision was issued. 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. 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). 2019005689 12 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 (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. In the absence of a legible postmark, 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). 2019005689 13 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. 2019005689 14 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 November 16, 2020 Date