Karen S. Schauer v. Social Security Administration 01970854 July 17, 2001 . Karen S. Schauer, Complainant, v. Larry G. Massanari, Acting Commissioner, Social Security Administration, Agency. Appeal No. 01970854 Agency No. SSA-657-92 Hearing No. 210-96-6128X DECISION Karen S. Schauer (complainant) filed a timely appeal with this Commission challenging the final agency decision (FAD) of the Social Security Administration (agency) concerning her complaint of discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. and §501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. The issue presented is whether the agency discriminated against complainant on the basis of her disability (Multiple Personality Disorder, “MPD,” or Dissociative Identity Disorder, “DID”) and in retaliation for her participation in prior EEO activity when: (1) complainant was charged with being Absent Without Leave (AWOL) on April 21, 1992 (8 hours) and June 22, 1992 (4 hours); and (2) she received a letter of reprimand on or about June 26, 1992, because of her leave usage. Complainant filed a formal complaint which was accepted and processed by the agency. Thereafter, complainant requested an EEOC administrative hearing with an administrative judge (AJ). A hearing was held and the AJ issued a recommended decision (RD) finding that complainant had not been subjected to reprisal discrimination as alleged. However, the AJ found that complainant had been subjected to discrimination as the agency failed to reasonably accommodate her disability when management officials charged complainant with being AWOL on or about April 21, 1992, and issued her a letter of reprimand on or about June 26, 1992, due to her leave usage. In its FAD, the agency adopted the AJ's finding of no reprisal discrimination; however, the FAD rejected the AJ's finding of failure to provide a reasonable accommodation for complainant's disability. The agency contends that it provided reasonable accommodations for complainant's disability by adjusting her work schedule and allowing her to have time off on Fridays for therapy, and by allowing complainant or any one of her “alter” personalities to call in and request leave from her supervisors. The agency determined that the personnel actions were appropriate disciplinary actions taken as a result of complainant's frequent, unexplained, and unpredictable absences. The agency further concluded that being present for work is an essential aspect of complainant's employment as a Service Representative. Though the agency did not dispute the AJ's determination that complainant had a disability as defined by the Rehabilitation Act, the agency rejected the AJ's finding that complainant was a qualified person with a disability. The agency essentially concluded that since complainant could not maintain consistent, dependable attendance, “a consideration for the standard of an otherwise qualified disabled person,” she could not meet the standard of a qualified person with a disability. On appeal, complainant argues, among other things, that the AJ properly determined that the agency subjected her to discrimination because of its failure to provide her with a reasonable accommodation. She also objects that the AJ erroneously found that she was not entitled to compensatory damages and contends that the agency never made any good faith efforts to accommodate her because by its own admission, it did not know what accommodations were available. ANALYSIS AND CONCLUSIONS All post-hearing factual findings by an administrative judge will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). After a careful review of the record, the Commission is not persuaded by either the agency's or complainant's criticisms of the AJ's RD. We note that the agency did not dispute that complainant was an individual with a disability within the meaning of the Rehabilitation Act.<1> Moreover, a review of the record reveals that complainant's impairment substantially limited, at the very least, her ability to think and concentrate. Doctors testified that complainant's impairment, MPD/DID, involves the manifestation of up to eleven different personalities or “alters” within complainant. These alters assume control over complainant at different times and when a “switch” between two alters occurs, complainant often forgets what she was doing just moments before and has no idea how she arrived at her present location. Such an impairment obviously significantly restricts complainant's ability to think and concentrate as compared to the average person in the general population. See Appendix to Part 1630–Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. § 1630.2(j)(ii); see also EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC Notice No. 915-002 (March 3, 1997) (recognizing thinking, concentrating and interacting with others as major life activities). We also find that the AJ was correct in finding that complainant was a "qualified" individual with a disability. A “qualified individual with a disability” is one who satisfies the requirements for the position she holds or desires and can perform the essential functions of that position with or without reasonable accommodation. 29 C.F.R. § 1630.2(m). The AJ correctly noted that complainant testified, without rebuttal, that she received an evaluation of “Excellent” for the period April 1992 to June 1992, the period during which she received the AWOL charges and the letter of reprimand. In rejecting the AJ's recommended finding, the agency argued in its FAD that complainant was not qualified for her position because her attendance was unreliable and sporadic, and that she therefore failed to fulfill an essential function of the job. The only question raised as to whether complainant could perform the essential functions of the position in question with or without reasonable accommodation thus pertains to her absences. Commission precedent makes clear that in a case involving excessive absences from work, a complainant may prove that she is a “qualified individual with a disability”–in spite of such absences–by first showing that there is a sufficient nexus between the absences and the purported disability. See Cottrell v. United States Postal Service, EEOC Appeal No. 07A00004 (February 2, 2001); McNeil v. United States Postal Service, EEOC Request No. 05960436 (July 28, 1998); McCullough v. United States Postal Service, EEOC Request No. 05950539 (April 25, 1996). The burden then becomes the agency's to demonstrate that it would pose an “undue hardship” for the agency to tolerate or excuse the complainant's absences. See id. In the case at hand, complainant has alleged that her absence on April 21, 1992 was due to a dissociative episode which not only kept her from attending work, but also prevented her from notifying her supervisors that she would be absent. Complainant's doctor provided the agency with an April 22, 1992 letter confirming this within a day of the absence. Complainant has therefore established that her absence was due to her disability. While we do not find that every unscheduled absence in complainant's history should be excused because of her disability, it is clear that the April 21, 1992 absence at issue was directly caused by complainant's disability. Moreover, the record indicates that complainant's supervisor (S1) was aware, or should have been aware, that complainant's disability might occasionally prevent her from calling in when she was going to be absent. S1 testified that she knew that at times alter personalities controlled complainant's actions and that complainant was often not aware of what she did when under an alter's control.<2> We find that complainant has established a sufficient nexus between her disability and her absence, to establish that she is a “qualified individual with a disability.” Accordingly, the agency now bears the burden of demonstrating that excusing that absence would pose an undue hardship. A review of the record reveals, however, that the agency failed to meet this burden. In claiming that excusing the absence would pose an undue hardship, the agency merely notes that being present is especially important for complainant's position because she is a Service Representative and the first point of contact with the public. EEOC Regulation 29 C.F.R. § 1630.2(p) enumerates some of the factors that should be considered in determining whether an accommodation poses an undue hardship–such things as the impact of the accommodation upon the other employees to perform their duties, the cost of the accommodation, etc. As the AJ noted, the agency provided no probative evidence on these issues. For example, the agency does not discuss whether other Service Representatives could have assumed complainant's duties on days when she was absent or whether complainant could compensate for an absence on subsequent days. We find that the agency therefore failed to demonstrate that excusing the April 21, 1992 unscheduled absence would pose an undue hardship. The AJ determined that because the June 26, 1992 reprimand was partially based on the April 21, 1992 unscheduled absence, the agency subjected complainant to disability-based discrimination when it issued this reprimand. The AJ made this determination after acknowledging that complainant failed to establish that the other AWOL charges cited in the reprimand were caused by her disability. The agency failed to establish that the reprimand would have been issued absent the April 21, 1992 AWOL charge. Therefore, the Commission finds that the record supports the AJ's finding of disability discrimination in this matter. As we discern no legal basis to disturb the AJ's recommended decision, the Commission adopts the AJ's recommended decision that the agency failed in its affirmative duty to accommodate complainant's disability. As a final note, we acknowledge, as did the AJ, that the agency made a good faith effort to provide complainant with reasonable accommodations for her disability. Under Section 102 of the Civil Rights Act of 1991 (CRA), compensatory damages may be awarded for pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. However, Section 102 of the CRA also provides that an agency is not liable for compensatory damages in cases of disability discrimination where it demonstrates that it made a good faith effort to accommodate the complainant's disability. A good faith effort can be demonstrated by proof that the agency, in consultation with the disabled individual, attempted to identify and make a reasonable accommodation. Compare Luellen v. United States Postal Service, EEOC Appeal No. 01951340 (December 23, 1996) (agency demonstrated good faith effort where it consulted with complainant and her physicians in attempting to identify a reasonable accommodation, despite the fact that these efforts were not sufficient to afford complainant a reasonable accommodation) with Morris v. Department of Defense, EEOC Appeal No. 01962984 (October 1, 1998) (agency did not make a good faith effort to identify and provide a reasonable accommodation for complainant where it did not make any attempt to find an available office position for complainant in spite of his repeated requests.) In the case at hand, the agency consulted with complainant and designed various accommodations such as work schedule changes and allowing any one of her alter personalities to call in to request annual leave. We find that the agency's efforts, although not sufficient to afford a reasonable accommodation, demonstrate that the agency made a good faith effort to accommodate complainant. Consequently, complainant is not entitled to receive compensatory damages. In accordance with these findings, it is the decision of the Equal Employment Opportunity Commission to AFFIRM in part, and REVERSE in part, the FAD's ultimate finding of no discrimination. The agency shall comply with the order below. ORDER The agency is ORDERED to take the following remedial actions: 1. Within thirty (30) days of the date of receipt of this decision the agency shall change the eight hours of AWOL charged on April 21, 1992 to paid leave and expunge the AWOL charge from complainant's official personnel records. Complainant shall also be awarded all benefits she would have received had she not been charged with AWOL, including but not limited to accrual of sick leave, back pay and interest on back pay. 2. The agency shall remove the June 26, 1992, reprimand from complainant's personnel records. 3. The agency shall provide a reasonable accommodation for complainant's attendance problem which results from disability. This means that the agency shall formalize a procedure to permit complainant, or someone on her behalf, to call her supervisor to request leave, either before or after complainant fails to appear for work. The agency may request that complainant provide a doctor's note to establish that the absences were caused by complainant's disability. The agency's obligation to provide an accommodation pursuant to this order may be relieved if, under the particular circumstances involved, the agency establishes that to do so will impose an undue hardship on its operations, as defined in 29 C.F.R. § 1630.2(p). 4. The agency shall post copies of the attached notice at the Social Security Administration, Chicago, Illinois Office. 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. 5. 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 compensatory damages due complainant, including evidence that the corrective action has been implemented. ATTORNEY'S FEES (H0900) If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/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 (K0501) 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 19848, Washington, D.C. 20036. 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 (M0900) 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), 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 19848, Washington, D.C. 20036. 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 (T0900) 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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: ______________________________ Frances M. Hart Executive Officer Executive Secretariat July 17, 2001 Date NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government This Notice is posted pursuant to an Order by the United States Equal Employment Opportunity Commission dated which found that a violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., has occurred at this facility. Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The Social Security Administration, Chicago, Illinois office supports and will comply with such federal law and will not take action against individuals because they have exercised their rights under law. The Social Security Administration, Chicago, Illinois office, was found to have discriminated against an employee on the basis of disability. The agency has been ordered to reimburse leave and to purge disciplinary action from her personnel records or references to it. The agency has also been ordered to award the employee all benefits she would have received had she not been subjected to discrimination, such as back pay. Social Security Administration, Chicago, Illinois office will ensure that officials responsible for personnel decisions and terms and conditions of employment will abide by the requirements of all federal equal employment opportunity laws. The facility will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, federal equal employment opportunity law. Date Posted: Posting Expires: 29 C.F.R. Part 1614 1The Rehabilitation Act was amended in 1992 to apply the standards in the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment. 2 While not testifying outright that she was aware that complainant did not know what her alters may have done when in control, S1 did note that at times she talked to one of complainant's alter personalities when complainant indicated that she did not know what had happened on a certain day.