Darleen R., Complainant, v. Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120081003 Agency No. 2007-21050-FAA-01 DECISION Complainant timely filed an appeal from the Agency's November 17, 2007, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision. ISSUE PRESENTED The issue presented in this appeal is whether the Agency violated the Rehabilitation Act when Complainant was denied a reasonable accommodation for her disability. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst, GS-0343-H, at the Agency's Air Certification Office (ACO), Airframe and Propulsion Branch, in Westbury, New York.1 On August 8, 2005, Complainant underwent breast cancer Lumpectomy surgery. Thereafter, Complainant was prescribed Tamoxifen, which is a drug used to prevent the reoccurrence of breast cancer after surgery. Report of Investigation (ROI), at 2. The side effects Complainant experienced from the prescribed use of Tamoxifen include insomnia, hot flashes, nausea, dizziness, fatigue, depression, and the inability to concentrate. Id. Because of these side effects, Complainant began to have trouble working a normal eight-hour day on a repeated basis. Complainant felt there were some days in a given pay period that she could not work a full scheduled day due to her condition. Complainant submitted a doctor's note to her first-level supervisor (S1) dated October 6, 2005, which explained the side effects of Tamoxifen. ROI, Ex. F2, at 1. In an October 27, 2005, memorandum to S1, Complainant requested a more flexible work schedule as a reasonable accommodation for her condition. Id. at 3. Therein, Complainant noted that she could not meet her standard eight-hour a day schedule due to medical treatments, doctor's appointments, and side-effects from prescribed medication. Id. Complainant noted that a Variable Work Week schedule would work the best for her.2 Id. On November 7, 2005, S1 responded in a memorandum approving Complainant's request for a Variable Work Week schedule. Id. at 4. S1 also approved Complainant's request to continue telecommuting on an ad hoc basis. Id. S1 noted that Complainant's new Variable Work Week schedule could remain in effect through pay period 10 of 2006, which ended on April 29, 2006. Id. Thereafter, on April 6, 2006, in a memorandum to S1, Complainant requested to have a Maxiflex 5/4/9 schedule instead of a Variable Work Week schedule as a reasonable accommodation for her condition.3 Id. at 5. In an April 28, 2006, memorandum to Complainant, S1 responded to Complainant's request: While I am not rescinding the reasonable accommodation we have afforded you for the last six months, I do not have any documentation to support an additional and/or change in accommodation. Therefore, based on the information currently available to me, at this time I have decided not to grant your request to work a Maxiflex schedule similar to a 5/4/9, but to extend your current accommodation. Your current accommodation which includes telecommuting on an ad hoc basis and a Variable Week work schedule is extended an additional six months through pay period 23. At the end of pay period 23 we will review the Accommodation. Id. at 7. On June 13, 2006, Complainant responded to S1's April 28, 2006, memorandum, asking for S1 to reconsider her April 6, 2006, request for accommodation. Id. at 9. Therein, Complainant reiterated that she was experiencing side effects from Tamoxifen, including fatigue, nausea, and depression, and asked for an alternative work schedule. Id. Complainant noted that she may be required to take Tamoxifen for at least five years. Id. On August 17, 2006, S1 again replied to Complainant by memorandum, noting that Complainant's request for a Maxiflex schedule could not be granted because it was prohibited by the collective bargaining agreement between the Agency and the National Air Traffic Controllers Association (CBA). Id. at 11. S1 also noted: I have been advised that this prohibition would also apply to the Variable Week that you have already been granted and are currently utilizing. Because I have already committed to this schedule, as previously agreed I will continue to allow you to work a Variable Week schedule until the end of Pay Period 23 (October 28, 2006). Unfortunately, please be advised that after that date a Variable Week schedule will no longer be allowed. Id. In another memorandum to S1 dated September 29, 2006, Complainant requested an adjustment in her arrival and departure times, and again requested that the number of hours in her workday be reduced. Id. at 12. Complainant noted, "I am struggling to meet a standard workday/workweek schedule due to the side effects of the Tamoxifen . . . . There are days I feel I can do at least an eight hour day . . . and others that it is a struggle." Id. Complainant further noted, "I also have required medical supervision and appointments where (sic) I cannot always control having after the workday." Id. In a memorandum dated November 13, 2006, S1 responded: I am granting your request to adjust your arrival and departure times. This is granted with the understanding that your normal workday will consist of eight hours, exclusive of designated meal periods, and your normal workweek will be five consecutive days (Monday through Friday) within the administrative workweek. Your request will be revisited in six months (end of Pay Period 10). Id. at 14. S1 further noted that he was also granting Complainant's request to continue teleworking on an ad hoc basis. Id. However, Complainant was still required to work an eight-hour day, five days per week. Id. On February 22, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when on November 13, 2006, her request to work a Maxiflex schedule was denied, and her Variable Work Week schedule that was previously given to her as a reasonable accommodation for her disability was rescinded.4 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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency found that Complainant did not establish that she was an individual with a disability covered under the Rehabilitation Act. The Agency noted that Complainant's breast cancer was a condition of temporary duration. The Agency noted that Complainant no longer suffered from the breast cancer when she returned to work after surgery and requested reasonable accommodation. The Agency noted that Complainant has been able to work full time without any record of excessive tardiness or absence. The Agency noted that Complainant failed to establish that she had a record of an impairment that substantially limited a major life activity. The Agency therefore found that Complainant was not disabled within the meaning of the Rehabilitation Act. The Agency also noted that it articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to establish were pretext for discrimination. CONTENTIONS ON APPEAL On appeal, Complainant contends that her condition is clearly a disability covered under the Rehabilitation Act. Complainant also contends that the Agency improperly rescinded her previously approved Variable Work Week schedule which was given to her as a reasonable accommodation. Complainant further contends that her requested Variable Work Week schedule did not violate the terms of the CBA. The Agency did not file a brief or statement in response to Complainant's appeal. 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 Chap. 9, § VI.A. (Nov. 9, 1999) (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"). Individual with a Disability This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2007, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability. Under the pre-ADA Amendments Act framework, Complainant, as a threshold matter, must establish that she is a person who has, has a record of, or is regarded as having a physical or mental impairment which substantially limits one or more of his major life activities, i.e., caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. § 1630.2(j). An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner, or duration under which an individual can perform a major life activity. 29 C.F.R. § 1630.2(j). Contrary to the finding of the Agency, we find that Complainant has established that she was an individual with a disability under the Rehabilitation Act. We note that impairments do not have to be permanent to rise to the level of a disability. Temporary impairments that take significantly longer than normal to heal, long-term impairments, or potentially long-term impairments of indefinite duration may be disabilities if they are severe. See Abeijon v. Dep't of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012) (citing Executive Summary: Compliance Manual Section 902, Definition of the Term "Disability"). In the instant case, there is no dispute that Complainant underwent breast cancer treatment, which resulted in side effects from the drug Tamoxifen. We note that Complainant's condition requires ongoing treatment and future monitoring. Complainant's condition required doctor's appointments and treatment after surgery from 2005 through 2006, as well as for a prolonged period of time. We further note that the Agency, in its November 17, 2007, decision noted that Complainant's breast cancer clearly fell within the definition of "impairment" under the Rehabilitation Act, but that Complainant no longer suffered from breast cancer when she asked for the accommodation. However, there is no dispute that Complainant had been prescribed Tamoxifen at the time she requested accommodation. Tamoxifen is a drug used to prevent the reoccurrence of breast cancer after surgery. Complainant noted that she may be required to take Tamoxifen for a period of at least five years. Complainant experienced side effects from Tamoxifen, including insomnia, hot flashes, nausea, dizziness, fatigue, depression, and the inability to concentrate. The record contains documentation from Complainant's doctor, noting that Complainant "is receiving Tamoxifen. Tamoxifen is causing sleep disturbance due to hot flashes." ROI, at 2. Complainant's doctor noted that Complainant was experiencing fatigue, and indicated that Complainant would be treated with Tamoxifen for five years. Id. We note that Complainant's condition required constant monitoring due to the risk that the cancer might reoccur. Taking into account the effects of the Tamoxifen, we find that Complainant's disabling condition was ongoing at the time she requested accommodation. Therefore, we determine that Complainant has established that she is an individual with a disability. Qualified Individual with a Disability To be entitled to protection under the Rehabilitation Act, Complainant must also show that she was a "qualified individual with a disability." A "qualified individual with a disability" is an individual with a disability who satisfies the requisite skill, experience, education, and other job related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of the position. 29 C.F.R. § 1630.2(m). The record clearly reflects that Complainant could perform the essential functions of her position with or without an accommodation. . A memorandum dated August 17, 2007, noted that Complainant received several awards for work performed for the last two years. ROI, Ex. F4, at 1. Complainant also received a Superior Contribution Increase-1, an annual salary bonus given to the top performers for the year. Id. Accordingly, we find that Complainant was a qualified individual with a disability within the meaning of the Rehabilitation Act. Failure to Provide Reasonable Accommodation Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p). A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). "[T]he word 'accommodation' . . . conveys the need for effectiveness" Id. "An ineffective 'modification' or 'adjustment' will not accommodate a disabled individual's limitations." Id. We note that the Agency's final decision erroneously analyzed Complainant's claim as one of disparate treatment rather than denial of reasonable accommodation, summarily concluding that it articulated legitimate, nondiscriminatory reasons for its actions. With regard to reasonable accommodation, we note that from November 7, 2005, to October 28, 2006, S1 granted Complainant's request to work a Variable Work Week schedule as an accommodation for her condition. ROI, Ex. F2, at 4. However, by memorandum dated August 17, 2006, S1 noted that Complainant's Variable Work Week schedule would be rescinded on October 28, 2006, due to a provision in the CBA. Id. at 11. Complainant responded that she was "struggling to meet a standard workday/workweek schedule due to the side effects of the Tamoxifen." Id. at 12. Complainant further noted, "There are days I feel I can do at least an eight hour day . . . and others that it is a struggle." Id. Although S1 allowed Complainant to adjust her arrival and departure times, he still required her to meet the standard eight-hour day, five days per week schedule even though she was having trouble meeting that schedule due to her condition. Complainant also noted that she only telecommuted once a month because she did not have enough work that could be performed at home. ROI, Ex. F1, at 4. As such, we find that the Agency's accommodations after rescinding Complainant's Variable Work week schedule were not effective. See Lamb v. Soc. Sec. Admin., EEOC Appeal No. 0120103232 (Mar. 21, 2012). In Lamb, the Commission concluded that the Agency violated the Rehabilitation Act when it rescinded the complainant's schedule, which was given to her as a reasonable accommodation for her disability. The complainant in Lamb requested flexibility in the workplace to allow her to begin her schedule at 10:00 a.m. as a reasonable accommodation. The Commission determined that the agency's attempt to provide complainant with a different schedule was not an effective accommodation for her condition. Similarly, in the instant case, the Agency rescinded Complainant's schedule that was provided to her as a reasonable accommodation for her disability, and the Agency's subsequent attempts to provide her with accommodations were not effective. In its decision, the Agency noted that S1 rescinded Complainant's Variable Work Week schedule because it violated the terms and conditions of the CBA. However, we note that the Agency has presented no evidence establishing that Complainant's Variable Work Week schedule conflicted with the terms of the CBA. In particular, the Agency has not submitted the CBA or any relevant provision of the CBA. Moreover, the Agency has presented no evidence or argument that the proposed accommodation would pose an undue hardship for any other reason. Thus, we find that the Agency has failed to carry its burden of undue hardship. Accordingly, we find that the Agency violated the Rehabilitation Act when, on October 28, 2006, it rescinded Complainant's Variable Work Week Schedule, which was given to her as a reasonable accommodation for her disability. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter in accordance with the ORDER below. ORDER The Agency is ORDERD to take the following remedial action within sixty (60) calendar days, unless otherwise stated: 1. The Agency shall conduct a supplemental investigation to determine whether, and what, reasonable accommodation Complainant currently requires. The Agency shall solicit updated medical information from Complainant as may be needed for an informed determination. Complainant shall cooperate in this matter. 2. The Agency shall restore any leave used by Complainant due to the Agency's failure to provide her with a reasonable accommodation. 3. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. § 1614.110. 4. Within ninety (90) days of the date this decision becomes final, the Agency shall provide training to the supervisor identified as S1 regarding his responsibilities with respect to eliminating discrimination in the federal workplace. The training must emphasize the Agency's obligations under Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and in particular, its duties regarding reasonable accommodation. 5. The Agency shall consider taking appropriate disciplinary action against the supervisor identified as S1. 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 any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 6. The Agency 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 of the Agency's calculation of leave due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its New York Air Certification Office (ACO), Airframe and Propulsion Branch, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Bernadette B. Wilson Acting Executive Officer Executive Secretariat May 9, 2014 Date 1 The Agency noted in its decision that Complainant worked at its New York TRACON facility. However, on appeal Complainant notes that she instead worked at the Agency's New York Air Certification Office (ACO). 2 A Variable Work week schedule allows an employee to work fewer than 8 hours per day so long as that employee works up to 80 hours per pay period. ROI, Ex. F1, at 3. 3 A Maxiflex 5/4/9 schedule allows an employee to work fewer than 10 days per pay period. ROI, Ex. G3, at 1-2. 4 After she filed her EEO complaint, in a memorandum dated March 30, 2007, to S1, Complainant again requested an adjustment in the number of hours in her workday. ROI, Ex. F2, at 16. However, in a memorandum dated April 27, 2007, S1 again denied Complainant's request. Id. at 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120081003 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 2 0120081003