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.
[…]
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.
[…]

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.
[…]
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.
[…]
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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FSGB 2020-008: Voluntarily Curtail Under Threat of Involuntary Curtailment or a Bad EER

 

Via FSGB 2020-008
Grievant is a tenured FP-02 Diplomatic Security Special Agent assigned as the Regional Security Officer (“RSO”) at U.S. Embassy [REDACTED] from June 2, 2017 until her involuntary curtailment on May 30, 2019. On July 3, 2019 she filed a complaint with the Department’s Office of Civil Rights (“S/OCR”) alleging sex, disability and age discrimination and reprisal for prior protected activity. In her S/OCR complaint dated July 3, 2019, she alleged 10 separate incidents of discrimination or reprisal by her rater, the Deputy Chief of Mission (“DCM”). She also alleged that at a May 8, 2019 meeting with the Ambassador (her reviewer), the rater and other senior officials, the Ambassador asked her to voluntarily curtail. When she refused, her rater informed her that her Employee Evaluation Report (“EER”) from April 16, 2018 to April 15, 2019 would contain a negative review statement. She ultimately declined to voluntarily curtail.
[…]
Grievant’s recitation of the facts – the underlying transactions – are contained in her agency filing as she has not yet filed her supplemental submission where she would have an opportunity to refine further her claims and remedies. In that filing, she provides extensive background chronicling allegations of sex and other forms of discrimination by her rater, the DCM. She also describes in detail four instances in which she invoked the displeasure of the Ambassador, her reviewer, for raising concerns that his actions or proposed actions constituted security risks. She then describes the removal of laudatory language in the draft rater’s statement and the circumstances surrounding her involuntary curtailment where she claims the DCM threatened to insert a negative reviewer’s statement into her previously drafted EER. She attributes both of these actions to retaliation for informing the DCM that she was initiating S/OCR proceedings.
From footnote, p.9:
“In stating I was going to seek EEO counsel and AFSA guidance related to discrimination I faced from the DCM, as I believe there were reprisal protections in place, I never envisioned I would face retaliation in the form of an involuntarily curtailment. It was only after I stated I was going to seek EEO counseling and AFSA guidance related to the DCM’s changes to the rater statement and then my refusal to voluntarily curtail under threat of involuntarily curtailment that a review statement which contained alleged performance issues materialized in retaliation for not acquiescing to the Front Office’s discrimination and reprisal.”
The FSGB Board issued the following order:
“… the Department’s Motion to Dismiss is denied in its entirety. Since the Department did not consider grievant’s claims on the merits, the Board remands the case to the Department for a decision on the merits. The Department should advise the Board of its decision not later than 45 days from the date of this order. Pending that decision, the Board retains jurisdiction of the case. Once the Department’s amended decision has been issued, grievant will have 60 days to amend her grievance appeal to the Board. In the meantime, the proceedings before the Board are stayed. The timeline for discovery will start anew when grievant files her amended appeal or advises the Board that no such amended appeal will be forthcoming.”
The FSGB files are not readable online; the files have to be downloaded first. Click here and locate FSGB 2020-008 from “Decision and Orders 2020” to read the full Motion to Dismiss order.

@StateDept Dismisses EEO Complaint For Following Wabbit Into a Hole, EEOC Reverses

Posted: 1:45 am ET
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Here is an EEO case with a reminder that the Commission has previously held that an agency may not dismiss a complaint based on a complainant’s untimeliness, if that untimeliness is caused by the agency’s action in misleading or misinforming complainant.

Quick summary of case via eeoc.gov:

At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist at the Agency’s Department of State facility in Washington, DC. Complainant contacted an EEO Counselor alleging that she was subjected to discrimination and a hostile work environment. When the matter was not resolved informally, the EEO Counselor emailed Complainant a Notice of Right to File (“NRF”), which Complainant received and signed on January 25, 2017. However, in that same email, the EEO Counselor conflated the EEO filing requirements, misinforming Complaisant that she had to file her signed NRF, rather than her formal complaint, within 15 days. On that same date, Complainant attempted to file her signed NRF with her EEO Counselor, who informed Complainant that the signed NRF had to be filed with the Agency’s Office of Civil Rights, and that filing the signed NRF with that office would initiate the formal EEO complaint process.

Complainant filed her signed NRF, rather than a formal complaint, to the Office of Civil Rights on January 25, 2017, and the Office of Civil Rights confirmed its receipt on January 27, 2017. Complainant therefore filed her signed NRF within the 15-day period that she was supposed to file her formal complaint. However, it was not until February 21, 2017, which was beyond the 15-day filing period, when the Office of Civil Rights informed Complainant that she had submitted the wrong form to initiate the formal EEO process, and that Complainant needed to file a formal complaint rather than her signed NRF.

On March 6, 2017, which was within 15 days of being informed that she had filed the wrong form, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex, disability, and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:

1. On 10/11/2016, she was denied the ability to telework;
2. On 11/10/2016, she was subjected to an environment of uncertainty and arbitrary decision making regarding her accommodation requests; and
3. She was subjected to a hostile working environment characterized by repeated acts of disparate treatment, unpleasant social interactions with management, and retracted support for locally negotiated reasonable accommodations.

The Agency dismissed Complainant’s complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for failing to file her formal complaint within 15 days of receiving her Notice of Right to File.

On appeal, Complainant contends that the Agency’s dismissal of her complaint should be reversed because her EEO Counselor mistakenly advised her to file her signed NRF, rather than a formal complaint, within 15 days of receiving her NRF, causing her to miss the filing period for her formal complaint.

The decision notes the following:

EEOC Regulation 29 C.F.R. §1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a complaint required by 29 C.F.R. §1614.105(d), (e) or (f).

On June 28, 2017, the EEOC reversed the State Department’s decision to dismiss the complaint and remanded the case to the agency for further processing in accordance with its order as follows:

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request.

Compliance with the Commission’s corrective action is mandatory. Read the full decision here.

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