EEOC: @StateDept Liable For Compensatory Damages “because it has not shown it acted in good faith”

 

Via EEOC: Jona R. v. Dep’t of State, EEOC Appeal No. 0120182063 (Jan. 23, 2020).
Denial of Reasonable Accommodation Found.
Complainant filed an EEO complaint alleging that she was discriminated against on the basis of disability when she was not provided with a reasonable accommodation of situational telework as her medical circumstances required.  Complainant had been teleworking for several years, but her telework agreement expired.  According to the record, Agency managers repeatedly asked Complainant to resubmit her request or provide additional information over a period of several months.  Approximately six months after Complainant requested accommodation, the Agency informed Complainant that she could telework on Mondays, Wednesdays, and Fridays and would have a one-hour window to report her duty station to her supervisor on those days.  The Commission found that the Agency discriminated against Complainant when it did not approve her request for situational telework.  The Agency acknowledged that Complainant was a qualified individual with a disability.  Complainant demonstrated that she needed to be able to telework when she experienced symptoms related to her condition, and these symptoms occurred without notice and were not limited to the three days specified.  Therefore, the Agency’s offer, which was essentially the same telework schedule Complainant had before she requested reasonable accommodation, was not an effective accommodation.
The Commission found that the Agency failed to prove it would have been an undue hardship to allow Complainant to telework when her medical conditions warranted.  The Agency was ordered, among other things, to provide Complainant with the ability to situationally telework, restore any lost leave or pay, and investigate her claim for compensatory damages.

More details:

At the time of events giving rise to this complaint, Complainant worked as a GS12 Administrative Assistant within the Agency’s Bureau of Diplomatic Security, Secretary’s Protective Detail, in Washington, D.C. In this position, Complainant primarily provides operational planning and coordination for the Secretary’s Protective Detail and administrative, logistical, procurement, and financial support for the Detail. On September 13, 2013, a new manager became Complainant’s direct supervisor (S1) .

Complainant has been diagnosed with Type I Diabetes, Neuropathy, Anxiety, Depression, and Autonomic Neuropathy. Because of these conditions, Complainant sometimes experiences dizziness, fainting, low blood pressure, abnormal perspiration, a lack of bladder/bowel control, vomiting, nausea, and pain in her hands and feet.
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Complainant has teleworked since 2009 and last signed a telework agreement on June 28, 2012 that expired on June 29, 2013. The June 2012 to June 2013 agreement allowed Complainant to telework on Mondays, Wednesdays, and Fridays.
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Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency found that Complainant was a qualified individual with a disability. Nevertheless, the Agency concluded that Complainant did not prove she was denied a reasonable  accommodation for her disability. Specifically, the Agency determined that Complainant did not submit any documentation to support her October 29, 2013 request for situational telework. Regarding Complainant’s January 2, 2014 request for fulltime telework, the Agency determined  that it provided Complainant with an effective reasonable accommodation by offering her the ability to telework three times per week.

The Agency concluded that Complainant’s medical documentation did not support her request for fulltime telework, and she would have been best accommodated through a combination of telework and sick leave. Additionally, the Agency concluded that fulltime telework would have imposed an undue hardship on the Agency because: her position required training and periodic meetings in the office; trip planners were not able to follow all information given via telephone calls; Complainant’s workload had increased by 135 percent; and Complainant had demonstrated an  inability to follow proper procedures for reporting her duty station and work status while teleworking.
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The Agency concluded that it provided Complainant with an effective reasonable accommodation when it offered her telework three times per week. However, as Complainant points out, the Agency only offered to allow Complainant to telework on Mondays, Wednesdays, and Fridays,  which is essentially the same telework schedule Complainant had before she requested reasonable accommodation. However, Complainant disclosed she needed to telework when she experienced symptoms related to her condition that impacted her ability to commute and work in the office. These symptoms often occurred without significant notice and were not restricted to Mondays, Wednesdays, and Fridays. Therefore, if Complainant experienced symptoms that impacted her ability to commute or work in the office on Tuesdays or Thursdays, the telework agreement would not have provided her with a reasonable accommodation for her medical conditions. The Agency’s offer of telework on Mondays, Wednesdays, and Fridays was not an effective accommodation because it did not meet Complainant’s need for flexible, situational telework as needed.
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Hence, we find that the Agency failed to provide Complainant with a reasonable accommodation for her disability when it did not approve her for situational telework. See Jody L. v. Dep’t of the Air Force, EEOC Appeal No. 0120151351 (Jan. 17, 2018) (agency violated the Rehabilitation Act when it denied Complainant with Paralysis the option of working from home on days when the temperature is below negative twenty degrees.). In so finding, we remind the Agency that the federal government is charged with the goal of being a “model employer” of individuals with disabilities, which may require it to consider innovation, fresh approaches, and technology as effective methods of providing reasonable accommodations. Rowlette v. Social Security Administration, EEOC Appeal No. 01A10816 (Aug. 1, 2003); 29 C.F.R. §1614.203(a). We believe that providing Complainant with this reasonable accommodation furthers this goal.

An agency is not liable for compensatory damages under the Rehabilitation Act where it has consulted with complainant and engaged in good faith efforts to provide a reasonable accommodation but has fallen short of what is legally required. See Teshima v. U.S. Postal Serv., EEOC Appeal No. 01961997 (May 5, 1998). In this case, the Agency was aware that Complainant needed situational telework because of her medical conditions, and the Agency did not show providing Complainant with telework as needed would have imposed an undue hardship. Moreover, Complainant made the Agency aware that its offer of telework on an inflexible, rigid basis did not meet her medical needs. Consequently, we find that the Agency is liable for Complainant’s compensatory damages because it has not shown it acted in good faith in accommodating Complainant.

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