Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 0120111921 Hearing No. 570-2010-00424X Agency No. 56-000-0018-09 DECISION JURISDICTION Complainant timely filed an appeal from the Agency's January 13, 2011, final order concerning his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts this appeal, pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order. ISSUES PRESENTED 1. Whether the record was adequately developed for summary judgment when the Agency did not investigate several alleged incidences of national origin and age-based harassment and, with regard to Complainant's denial of a reasonable accommodation claim, the record contains no evidence of the essential functions of the position at issue. 2. Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) erred in finding that there was no genuine issue of material fact in dispute as to whether Complainant adequately substantiated his claim that he was too sick to request sick leave from his supervisors in February 2009. BACKGROUND Complainant worked as an Audit Evaluator Specialist in the Agency's Office of Inspector General, Office of Audit at Agency headquarters in Arlington, Virginia. His first-level supervisor worked in a different location in Carol Stream, Illinois, while his second-level supervisor worked in Arlington, Virginia. In fiscal years 2006 and 2007, Complainant performed well in his job, earning positive performance evaluations. Report of Investigation (ROI), at 146-151. But then, on May 13, 2008, Complainant suffered a seizure during an Agency regional conference, was treated onsite by Emergency Medical Technicians, and was transported to a hospital, where he was accompanied by his second-level supervisor. Afterward, he was diagnosed by a neurologist as having epilepsy. ROI, Complainant's Affidavit, at 3. Over the next year, Complainant continued to suffer numerous seizures, which affected him greatly, not only when they were occurring, but afterwards when he was recovering: [T]he seizures from the epilepsy make it impossible for me to care for myself during the time of the seizure and for an indeterminate amount of time afterward. The seizures have required hospital treatment. These were followed by extended periods of time during which I could not care for myself. . . . I could not walk unassisted for days after each seizure. I needed a cane for several months, and continue to need one on some days. . . . The seizures have been followed by difficulties in thinking that can last for several days. During those days I have had periods of time during which I did not know who I was. Id. at 4. Complainant sought various treatments to help control the seizures, but the treatments usually created unpleasant side effects that took time to adjust to. For example, one anti-convulsive medication initially resulted in Complainant suffering from "profound nausea and severe difficulty in both standing and walking." Id. at 5. Another medication initially caused Complainant to experience "projectile vomiting." ROI, Exhibit 6, at 2. While Complainant was receiving treatment for his seizures, his first-level supervisor "worked with [Complainant] to give him . . . accommodations," such as approving his sick leave requests, approving his requests to work from home, reducing Complainant's travel, and reduced his responsibilities on audits (for a November 2008 audit, the first-level supervisor also gave Complainant the responsibilities of a lower-graded auditor).ROI, First-level supervisor affidavit, at 3-4. Absence without Leave in February 2009 The Agency charged Complainant with being Absent without Leave (AWOL) from February 9 to February 13, 2009, and from February 23 to February 27, 2009, because he did not contact his first-level supervisor about his absence. On March 6, 2009, Complainant's wife wrote a letter to Complainant's second-level supervisor and attached statements from Complainant's neurologist to explain why Complainant was not able to contact his first-level supervisor about his need for sick leave from February 9 to February 13, 2009. In one handwritten note, dated February 19, 2009, Complainant's neurologist wrote that "[Complainant is under my care and has been ill lately as a result of medication related side effects since on or about 2/9/09." Complainant's Affidavit, ROI, at 24. And then in a typed letter, dated March 3, 2009, the neurologist provided additional information: I am writing . . . to clarify certain details of [Complainant's] job attendance during the week 02/09/09 through 02/13/09. [Complainant] is under my care for epilepsy (seizure disorder). Recently, he has been having considerable difficulties both with the underlying neurological problem and also tolerating the medications that he is taking to treat the problem. During the dates in question, [Complainant] was unable to contact you to your satisfaction as a result of severe side effects of his medications, which included lethargy, and to a certain degree confusion. Fortunately, his condition has significantly improved since then." ROI, Exhibit 3. On October 26, 2009, the Agency's Accounting Service Center issued a statement to Complainant, indicating that he owed the Agency $1,853.36 for wages it had mistakenly paid him while he was on AWOL. ROI, at 277. Request to Work from Home for an Additional 90 days On April 26, 2009, Complainant e-mailed his supervisor, requesting to work from home for the next 90 days. Complainant explained that he had experienced a seizure the previous month and began taking new medications. But the new medications were causing him to experience "projectile vomiting," and he needed to be near a sink. ROI, Complainant's Affidavit, at 31. For support, he attached an April 24, 2009 medical note from his neurologist, who wrote: "[Complainant] must continue to work from home for the next 90 days." Id. at 30. The next day, the first-level supervisor denied his request to continue to work from home: "While I am not unsympathetic to your medical condition, we do not have work for you to do at home. You will need to submit leave for the days you will not be reporting for work." Id. at 31. In his affidavit, the first-level supervisor attempted to clarify his rationale. He averred that he denied the accommodation request because he felt Complainant's work performance had become very poor at the end of 2008 and the beginning of 2009. ROI, First-level Supervisor Affidavit, at 4. During [Complainant's] Performance Review (October/November 2008) I expressed to him my concern with his production. This resulted in a lower Pay for Performance (PPP) evaluation score than the previous year. His work continued to decline until I told him that I would no longer approve his working from home since he was not producing any work. Id. at 5. The first-level supervisor further testified: I felt I would be negligent in my managerial duties if I did not help [Complainant] by giving him more supervision. This could only be done in the office. So, he was not permitted to work from home as often as he requested. . . . If our management sees that I am continually approving working from home for an employee who is clearly not producing any work from home, then I am not doing my job as a manager. . . . [B]ased on the fact that [Complainant] was obviously not producing work while at home, I could not grant this request. Id. at 4. As a result of the first-level supervisor's April 27, 2009 e-mail, Complainant took substantial amounts of sick leave for the next 90 days. In October 2009, Complainant was reassigned to new first- and second-level supervisors. On October 1, 2009, Complainant requested to work from home on October 2, 2009; this request was initially denied by his former first-level supervisor. However, his new supervisor granted his request, writing: "Absolutely . . . no need to ask . . . just put in a [telework] request." ROI, at 139. Formal EEO Complaint On August 10, 2009, Complainant contacted an EEO Counselor and filed a formal EEO complaint on October 10, 2009. In a nine-page attachment to his formal complaint, Complainant alleged that his first- and second-level supervisors discriminated against him and created a hostile work environment on the bases of his disability (physical and mental), age (57) and national origin (Native American). For disability discrimination, Complainant alleged: * In May 2008, the first- and second-level supervisors required Complainant to fly out of Reagan airport, rather than Dulles Airport, to attend the Agency's conference in which Complainant experienced his first seizure and missed his son's college graduation; * the second-level supervisor placed Complainant on AWOL instead of sick leave for two weeks in February 2009, even though his wife sent the second-level supervisor adequate medical documentation, explaining that Complainant was too ill to personally request sick leave during that time period; * On April 27, 2009 and October 1, 2009, the first-level supervisor denied Complainant's requests to work from home as a reasonable accommodation, and instead forced him to use sick leave; * While Complainant was on sick leave after the April 27, 2009 denial of his reasonable accommodation request, the second-level supervisor instructed other auditors not to contact Complainant or inquire about him. For age discrimination, Complainant alleged: * During the November 2008 performance review, the first-level supervisor asked Complainant what his long-range plans were for the future, which Complainant felt was an inquiry about whether he was preparing to retire. For national origin discrimination, Complainant alleged: * During an office restructure, the second-level supervisor offered Complainant three small cubicles to choose from as his workspace, while three African-American females were given either larger cubicles or a private office; * For the two years that Complainant worked under the second-level supervisor, she never once visited Complainant's cubicle, except on the day he moved out. In contrast, she frequently visited African-American auditors in their cubicles. On December 1, 2009, the Agency accepted the following claims for investigation: whether the Agency discriminated against Complainant based on national origin (Native American), age (57), physical disability (seizures), and mental disability (cognitive disability) when, from May 12, 2008, through October 7, 2009, he was subjected to a hostile work environment and denied a reasonable accommodation, including but not limited to: 1. on July 24, 2009, he was informed that he was charged Absence without Leave (AWOL) for the week of February 9, 2009; 2. on or about August 3, 2009, he was made aware that he was charged AWOL for the week of February 23, 2009; 3. on two occasions, including October 1, 2009, his request to work from home was denied; and 4. on October 7, 2009, he received a letter from the payroll office seeking payment of $1,853.36. ROI, at 156. The Agency conducted an investigation; however, the investigator did not question Complainant or any Agency witnesses about the other incidents of possible harassment raised by Complainant in his formal complaint, such as asking about Complainant's long-range plans during the November 2008 performance evaluation, and assigning him to small office cubicles. At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The Agency moved for summary judgment and attached various exhibits to support its motion (these exhibits were not included in the record for this appeal). Complainant opposed the Agency's motion. On January 5, 2011, the AJ issued a decision without a hearing, finding no discrimination. EEOC Administrative Judge's Decision without a Hearing For claims 1 and 2, the AJ determined that management articulated legitimate, nondiscriminatory reasons for its actions. Complainant's supervisors explained that they charged Complainant with AWOL for two weeks in February 2009 because he (1) failed to submit electronic leave slips requesting sick leave for those weeks, and (2) failed to request that his supervisor do it for him. To establish pretext, Complainant argued that he was too sick during those weeks to contact his supervisor, and that his wife supplied valid medical documentation to management to substantiate his medical condition during that time period. The AJ, however, did not find this documentation convincing. The AJ cited the first-level supervisor's testimony, in which he explained that on February 9, 2013, he e-mailed Complainant asking whether he would be on a conference call. Complainant replied that he was having computer trouble, not that he was sick. And according to the first-level supervisor, Complainant spoke to another auditor by telephone and advised him that he was sick, but Complainant did not contact the first-level supervisor directly. The AJ found a similar pattern with the second AWOL charge. For claim 3, the AJ assumed for argument's sake that Complainant was an individual with a disability. The AJ then determined that Complainant was not a "qualified individual with a disability" for the period of time during which he requested to work from home. The AJ found that the evidence showed that Complainant was unproductive and did not complete his work from May 2008 to April 2009, during which time the Agency had previously allowed him to work from home. Based on this past performance, the AJ reasoned that Complainant could not carry out the essential functions of his position, with or without the accommodation of being able to work from home. The AJ determined that, even if Complainant were a "qualified individual with a disability," Complainant's April 26, 2009 request to work from home for an additional 90 days was not "reasonable." The AJ explained that Complainant's previous poor performance while working from home constitutes a valid business reason for the Agency to deny further requests to telework as a reasonable accommodation. The AJ relied on an unpublished case, Robinson v. Bodman, 333 Fed. Appx. 205 (9th Cir. 2009). In Robinson, the Ninth Circuit found that the Department of Energy (the agency) had "valid business reasons" supporting its refusal to allow an employee to continue to telecommute after "she proved she could not effectively perform her work from home." Id. at 208. The court found that requiring the agency to permit the employee to continue working from home was "unreasonable." Here, the AJ noted that the first-level supervisor described Complainant's performance at the end of fiscal year 2008 and the beginning of fiscal year 2009 as becoming "very poor." The Agency continued to allow Complainant to work from home until the point at which it became unreasonable to expect that Complainant could successfully complete his work at home. Therefore, the AJ concluded, the Agency did not err in denying his April 2009 request to work from home for an additional 90 days, given his previous poor work performance. Overall, the AJ found that Complainant did not establish that the Agency subjected him to hostile work environment harassment or denied him a reasonable accommodation. Agency Final Action On January 13, 2011, the Agency issued a final action, implementing the AJ's decision finding no discrimination. Complainant appealed. Neither party submitted briefs in support or opposition to Complainant's appeal. ANALYSIS Standard of Review In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Nov. 9, 1999) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and the Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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"). We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (February 24, 1995). Inadequacy of the Record After a careful review of the record, we find that the record was not adequately developed for the AJ to have issued summary judgment for two reasons. First, the record contains no testimony or documentary evidence about all of the alleged incidents of harassment raised by Complainant in his formal complaint, such as the first-level supervisor asking about his long-range plans during the November 2008 performance evaluation, and the second-level supervisor assigning him to small office cubicles. The Agency only investigated four disability-related incidents; it did not investigate incidents related to his national origin and age-based hostile work environment claims. Without adequately investigating those additional allegations of national origin and age-based harassment, the fact-finder cannot properly determine whether Complainant was subjected to hostile work environment harassment on those two bases. Second, the record is not adequately developed for Claim 3, the denial of reasonable accommodation claim. To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a "disability," as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual, under 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. The term "qualified," with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such 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 a job, that is, the outcomes that must be achieved by someone in that position. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). Whether a particular function is essential is a factual determination that must be made on a case by case basis. Evidence of whether a particular function is essential includes, but is not limited to: * The employer's judgment as to which functions are essential; * Written job descriptions prepared before advertising or interviewing applicants for the job; * The amount of time spent on the job performing the function; * The consequences of not requiring the incumbent to perform the function; * The terms of a collective bargaining agreement; * The work experience of past incumbents in the job; and/or * The current work experience of incumbents in similar jobs. Here, the AJ made no factual determination of what particular functions are essential to the position of Audit Evaluator Specialist, and the record does not contain any evidence to help a fact finder determine what particular functions are essential. The Report of Investigation contains no testimony from Complainant's supervisors about what functions they thought were essential; no written job descriptions for Audit Evaluator Specialists; or the work experience of other Audit Evaluator Specialists, particularly during days in which they worked from home. The only evidence in the record is testimony from Complainant's first-level supervisor, who averred that Complainant performed poorly from the end of 2008 to the beginning of 2009. But there are two reasons why the AJ should not have equated Complainant's poor work performance from November 2008 to April 2009 with an inability to perform the essential functions of the position. The first is conceptual. Essential functions and work performance are not the same thing. Essential functions are the fundamental duties of a job, that is, the outcomes that must be achieved by someone in that position. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). Work performance typically encompasses not just how well an employee performs the fundamental duties of a position, but also marginal duties. Here, the first-level supervisor briefly gave one example in his affidavit testimony about Complainant not producing any documents for a November 2008 audit. But the rest of the first-level supervisor's dissatisfaction with Complainant's work performance concerns his failure to perform marginal tasks: "[Complainant] continued to perform poorly, often not providing me with status reports, failing to submit timesheets, and not discussing with me what he was going to work on. Also, when he did provide work, it was often inaccurate. For example, he turned in a timesheet showing he worked 18 hours on Christmas Day." First-level supervisor's affidavit, ROI, at 4. Second, equating poor work performance with the inability to perform the essential functions of a job would lead to the perverse and unacceptable conclusion that any employee with disability-related poor work performance is "unqualified," and therefore, unable to claim the protections of the Rehabilitation Act. In contrast, the Commission has explicitly warned employers not to withdraw telework arrangements provided as a reasonable accommodation simply because an employee is given an unsatisfactory rating: An employer may not withdraw a reasonable accommodation as punishment for the unsatisfactory performance rating. Simply withdrawing the telework arrangement or a modified schedule is no different than discontinuing an employee's use of a sign language interpreter or assistive technology as reasonable accommodations. Nor should an employer assume that an unsatisfactory rating means that the reasonable accommodation is not working. The employer can proceed with the unsatisfactory rating but may also wish to determine the cause of the performance problem to help evaluate the effectiveness of the reasonable accommodation. If the reasonable accommodation is not assisting the employee in improving his performance as intended, the employer and employee may need to explore whether any changes would make the accommodation effective, whether an additional accommodation is needed, or whether the original accommodation should be withdrawn and another should be substituted. The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, Question 7 (Jan. 20, 2011), available at http://www.eeoc.gov/facts/performance-conduct.html. Therefore, we conclude that the record was not adequately developed for summary disposition on Claim 3, because the record lacks evidence about the essential functions of an Audit Evaluator Specialist.1 Genuine Issue of Material Fact After a careful review of the record, we also find that the AJ erred in concluding that there was no genuine issue of material fact in this case. For example, the AJ appears to have inappropriately weighed the evidence in concluding that Complainant's medical documentation was unconvincing and contradicted by the first-level supervisor's testimony. For claims 1 and 2, Complainant argued that the Agency discriminated against him when his supervisors charged him for being AWOL in February 2009, despite his providing adequate medical documentation from his doctor, showing that he was too sick to notify his supervisors beforehand to request sick leave. In finding no discrimination, the AJ found Complainant's medical documentation to be unconvincing and contradicted by the first-level supervisor's testimony. The first-level supervisor opined that Complainant was well enough during the weeks in question to directly contact the first-level supervisor, but failed to do so. Specifically, the first-level supervisor testified that, on one occasion, Complainant had e-mailed him to say he was having computer problems (but neglected to say he was sick), and on another occasion, Complainant telephoned another auditor that he was sick (but failed to contact the supervisor about this). We note that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-1 (November 9, 1999); see also 29 C.F.R. § 1614.109(e). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995). CONCLUSION After a careful review of the record, the Commission VACATES the Agency's final action and REMANDS the matter to the Agency in accordance with this decision and the Order below. In summary, there are simply too many unresolved issues which require an assessment as to the credibility of the various management officials, co-workers, and Complainant, himself. Therefore, judgment as a matter of law for the Agency should not have been granted. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Washington Field Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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 (November 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: ________________________ Carlton M. Hadden, Director Office of Federal Operations __6/19/15________________ Date 1 Essential-function evidence will also assist the AJ in determining whether the accommodation of working from home is "effective." EEOC's Enforcement Guidance states: A modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of cases;" this means it is "reasonable" if it appears to be "feasible" or "plausible." An accommodation also must be effective in meeting the needs of the individual. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002), available at http://www.eeoc.gov/policy/docs/accommodation.html. Whether [working from home] is effective will depend on whether the essential functions of the position can be performed at home. There are certain jobs in which the essential functions can only be performed at the work site-e.g., food server, cashier in a store. For such jobs, allowing an employee to work at home is not effective because it does not enable an employee to perform his/her essential functions. Certain considerations may be critical in determining whether a job can be effectively performed at home, including (but not limited to) the employer's ability to adequately supervise the employee and the employee's need to work with certain equipment or tools that cannot be replicated at home. In contrast, employees may be able to perform the essential functions of certain types of jobs at home (e.g., telemarketer, proofreader). For these types of jobs, an employer may deny a request to work at home if it can show that another accommodation would be effective or if working at home will cause undue hardship. Id. at Question 34. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120111921 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120111921