Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0720120034 Hearing No. 440-2010-00108X Agency No. CHI-09-0679SSA DECISION In conjunction with the issuance of its April 30, 2012 final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Agency also requests that the Commission affirm its rejection of the AJ's finding of liability for compensatory damages. For the following reasons, the Commission MODIFIES the Agency's final order.1 ISSUES PRESENTED The issues presented are: (1) whether substantial evidence in the record supports the AJ's finding of a denial of reasonable accommodation; and (2) whether the AJ properly found that the Agency is liable for compensatory damages in connection with the denial of reasonable accommodation. BACKGROUND Effective July 8, 2007, Complainant was hired under a two-year Federal Career Internship Program (FCIP) appointment as a GS-9 Claims Authorizer (CA) at the Great Lakes Program Service Center in Chicago, Illinois. According to the position description, a CA reviews and authorizes claims and other complex entitlement determinations for benefits under Titles II and XVIII of the Social Security Act. Employees hired under FCIP appointments were required to participate in a training program. The normal length of an FCIP training program was two years. Employees who successfully completed the training program were converted to a career-conditional appointment; employees who did not successfully complete the training program were terminated upon the expiration of the appointment. The Agency's Personnel Policy Manual stated the following regarding extensions of FCIP appointments: OPM has delegated to agencies the authority to extend appointments for up to an additional 120 days to cover rare or unusual circumstances, if criteria for approving such extensions have been established. Requests for extensions of up to 1 additional year beyond the authorized 2 years must be submitted in writing to OPM ... Employing offices should not request extensions solely to give employees an opportunity to demonstrate improvement in performance ... The training program consisted of classroom training and on-the-job training. At the start of on-the-job training, employees were assigned to the training module with management review of 100 percent of their cases. When the employees were able to meet a four-cases-per-day production standard for two consecutive months, they were assigned to a permanent module with management review of 50 percent of their cases. When the employees were able to meet an eight-cases-per-day production standard for two consecutive months, they were taken off of review and considered to have successfully completed the training program. Beginning in February 2008,2 Complainant was assigned to the training module with management review of 100 percent of her cases. In mid-May 2008, Complainant submitted a formal request for reasonable accommodation along with supporting medical documentation from March and May 2008. The medical documentation stated that Complainant was diagnosed with several mental impairments (attention deficit hyperactivity disorders (ADHD), bipolar disorder, depression, and generalized anxiety disorder (GAD)), described how those mental impairments impacted her at work, and recommended accommodations such as longer time allowances to complete tasks compared to her coworkers and adjustments to the volume of work expected within certain time constraints. In late May 2008, the Regional Equal Opportunity Manager (M1) denied Complainant's request. Specifically, M1 stated that the medical documentation did not establish that Complainant was disabled and therefore the Agency was not obligated to provide her with the requested accommodations. In July and August 2008 progress discussions, Complainant's supervisor in the training module (S1) expressed concern that Complainant still had been unable to meet the four-cases-per-day production standard. In a November 2008 progress discussion, S1 stated that Complainant had met the four-cases-per-day production standard for two consecutive months and therefore could move to the next phase of the training program. In addition, S1 stated that Complainant had demonstrated that she had the skills necessary to successfully perform the job. Beginning in December 2008, Complainant was assigned to a permanent module with management review of 50 percent of her cases. In a March 2009 progress discussion, Complainant's supervisor in the permanent module (S2) warned Complainant that her productivity was unsatisfactory and that she would not be converted to a permanent position if she did not improve. Around that time, Complainant requested and received the following accommodations: a cubicle change to a quieter location, an ergonomic keyboard and mouse, and a mentor change. In April 2009, S2 issued Complainant a performance improvement memorandum (PIM) for the April 28, 2009 to June 26, 2009 period. As part of the PIM, Complainant was returned to management review of 100 percent of her cases. Complainant's productivity diminished once she was returned to management review of 100 percent of her cases. Prior to the PIM, for the months of February and March 2009, Complainant processed 7.2 cases per day and 6.3 cases per day. After the PIM, for the months of April to June 2009, Complainant processed 3.0 cases per day, 5.4 cases per day, and 3.2 cases per day. On May 20, 2009, Complainant submitted a second formal request for reasonable accommodation along with supporting medical documentation. Complainant requested, among other things, a nine-month extension of time from July 2009 for her to meet the eight-cases-per-day production standard. In support of her request, Complainant submitted the same medical documentation she previously had submitted in May 2008, along with a July 2008 psychological evaluation. Complainant wrote in her request, "I know that I can provide the numbers but it will take time." In mid-June 2009, S2 met with Complainant to discuss her request for reasonable accommodation. At that time, S2 read Complainant a letter from M1 which advised Complainant that the Agency considered her disabled in the major life activity of thinking. S2, however, informed Complainant that her FCIP appointment could not be extended as a reasonable accommodation. During the meeting with S2, Complainant requested time each day to organize her notes. S2 granted this request, stating that Complainant needed only to advise her of the amount of time needed to do this. In late June 2009, S2 informed Complainant that she had not successfully completed the PIM and would not be converted to a career-conditional appointment. Specifically, S2 stated that at no time during the PIM period did Complainant meet the eight-cases-per-day production standard. The next day, S2 issued Complainant an unsuccessful performance appraisal. In early July 2009, S2 notified Complainant that her FCIP appointment would expire effective July 7, 2009, that she would not be converted to a career-conditional appointment, and that her employment with the Agency would end on July 7, 2009. On September 4, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (ADHD, bipolar disorder, depression, GAD) when: (1) it continuously denied her reasonable accommodation during her employment; and (2) effective July 7, 2009, it terminated her instead of converting her to a career-conditional appointment. 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 AJ. Complainant timely requested a hearing. After a hearing on December 16-17, 2010 and February 8, 2011, the AJ issued a decision on March 20, 2012 finding disability discrimination. Initially, the AJ found that Complainant was an individual with a disability under the Rehabilitation Act. Next, the AJ found that the Agency failed to provide Complainant with a reasonable accommodation when it did not extend her FCIP appointment. Specifically, citing hearing testimony from M1, the AJ found that members of M1's staff had recommended that management provide Complainant with an extension of time to meet the eight-cases-per-day production standard, but that management had expressed some concern that it could not be done because she was hired under an FCIP appointment. Although the Agency argued that extending the FCIP appointment was a lowering of the production standard, the AJ found that moving the deadline to provide accommodation or temporarily modifying production progression was not a lowering of the production standard. Moreover, the AJ found that the Agency provided no evidence proving that extending Complainant's FCIP appointment would cause an undue hardship. Specifically, the AJ found that the Agency had the authority to extend Complainant's FCIP appointment for up to an additional 120 days without approval from OPM and for up to an additional year with approval from OPM. Finally, the AJ ordered the Agency to, among other things, pay Complainant compensatory damages.3 CONTENTIONS ON APPEAL On appeal, the Agency challenged the AJ's finding of disability4 discrimination and the AJ's finding that it was liable for compensatory damages.5 First, the Agency argued that Complainant was not "qualified" because she could not perform the CA position unless it lowered production standards and it was not required to lower production standards as a form of reasonable accommodation. Specifically, the Agency asserted that extending the two-year FCIP period for meeting the eight-cases-per-day production standard was in effect temporarily lowering the production standard. Second, the Agency argued that, even if temporarily lowering production standards may be a reasonable accommodation in some situations, it was not reasonable in Complainant's situation. Specifically, the Agency asserted that reducing Complainant's share of the workload for several months would result in an increased workload for other CAs and poor service to Social Security applicants and beneficiaries. In addition, the Agency asserted that the effectiveness of such an accommodation in Complainant's situation was merely speculative. Moreover, the Agency asserted that Agency policy did not permit management to seek extension of an FCIP appointment for the purpose of giving an employee an opportunity to demonstrate improvement in performance. Third, the Agency argued that it should not be held liable for compensatory damages because it engaged in a good faith effort to accommodate Complainant consistent with EEOC policy guidance. Specifically, the Agency asserted that it reasonably concluded that extending the time to meet the production standard amounted to a lowering of the production standard for that period of time. Moreover, the Agency asserted that it provided Complainant with several accommodations such as a cubicle change to a quieter location, an ergonomic keyboard and mouse, and a mentor change. ANALYSIS AND FINDINGS Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ 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. Nat'l Labor Relations Bd., 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). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, § VI.B. (Nov. 9, 1999). Denial of Reasonable Accommodation An agency is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. 29 C.F.R. § 1630.9(a). 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 and, with or without reasonable accommodation, can perform the essential functions of the position. 29 C.F.R. § 1630.2(m). 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." EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance). An accommodation also must be effective in meeting the needs of the individual. Id. An employer is not required to lower production standards - whether qualitative or quantitative - that are applied uniformly to employees with and without disabilities; however, an employer may have to provide reasonable accommodation to enable an employee with a disability to meet the production standard. Id. The term "undue hardship" means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Id. Generalized conclusions will not suffice to support a claim of undue hardship; instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. Id. A determination of undue hardship should be based on several factors, including: (a) the nature and cost of the accommodation needed; (b) the overall financial resources of the facility making the reasonable accommodation, the number of persons employed at this facility, the effect on expenses and resources of the facility; (c) the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); (d) the type of operation of the employer, including the structure and function of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and (e) the impact of the accommodation on the operation of the facility. Upon review, we find that substantial evidence in the record supports the AJ's finding of a denial of reasonable accommodation. First, we find that Complainant was "qualified" because she identified a reasonable accommodation (additional time for on-the-job training beyond the two-year FCIP period) that would allow her to perform the essential functions of the CA position (processing Social Security claims) and to meet the production standard associated with the position's essential functions (processing eight cases per day). Specifically, we find that the requested accommodation seems to be both reasonable and effective because giving Complainant additional time for on-the-job training appears to be a feasible solution to Complainant's problems with processing cases efficiently. In addition, we agree with the AJ that Complainant's requested accommodation was not a lowering of the production standard. The production standard at issue here is processing eight cases per day. See 29 C.F.R. pt. 1630 app. § 1630.2(n) (examples of production standards include typing 75 words per minute and cleaning 16 rooms per day). The Agency was not required to lower the production standard to processing less than eight cases per day. The Agency, however, was required to provide reasonable accommodation - in this case, additional time for on-the-job training - to enable Complainant to meet the eight-cases-per-day production standard. Second, we agree with the AJ that the Agency failed to prove that the reasonable accommodation requested by Complainant would cause an undue hardship. We note that, on appeal, the Agency did not specifically claim undue hardship but instead argued that providing the requested accommodation was unreasonable in Complainant's situation. We find that the Agency's generalized conclusions on appeal regarding the impact of the accommodation on other CAs or Social Security applicants and beneficiaries are insufficient to show that the requested accommodation would cause significant difficulty or expense. Although the Agency questioned the effectiveness of the requested accommodation and asserted that its policies prohibited management from requesting an extension of the FCIP appointment for the purpose of giving Complainant an opportunity to demonstrate improvement in performance, we emphasize that neither of those two assertions show that the requested accommodation would be a significant difficulty or expense for the Agency. Liability for Compensatory Damages Under Section 102 of the Civil Rights Act of 1991, compensatory damages may be awarded for pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. However, this section 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. Schauer v. Soc. Sec. Admin., EEOC Appeal No. 01970854 (July 13, 2001). Upon review, we find that the Agency failed to make a good faith effort to reasonably accommodate Complainant's disability with respect to providing additional time for on-the-job training beyond the two-year FCIP period. Although the Agency argued that its decision not to extend the time period was based on its good faith belief that EEOC policy guidance did not require such an extension, the record reflects that the decision was based on other reasons. Specifically, we note that the AJ credited M1's hearing testimony that management had concerns "that because of the hiring authority that they had hired [Complainant] under that that could not be possible." Management did not seek an extension even though the Personnel Policy Manual stated that extensions of FCIP appointments were possible. We note that the Agency provided Complainant with other accommodations (a cubicle change to a quieter location, an ergonomic keyboard and mouse, and a mentor change) during her two-year employment. We emphasize, however, that an agency's duty to provide reasonable accommodation is ongoing and that certain individuals require only one reasonable accommodation, while others may need more than one. See Reasonable Accommodation Guidance, Question 32. Accordingly, we find that the Agency is liable for compensatory damages in connection with its failure to provide Complainant with a reasonable accommodation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the portion of the Agency's final order which rejected the AJ's finding of disability discrimination, and AFFIRM the AJ's finding of disability discrimination. In addition, we AFFIRM the AJ's finding that the Agency is liable for compensatory damages. We REMAND this matter to the Agency for further processing in accordance with this decision and the Order below. ORDER The Agency is ordered to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision becomes final: 1. The Agency shall offer to place Complainant in the FCIP as a CA at the GS-9 level or equivalent pay band, with the understanding that such pay grade or band is at least equal to the pay level she had attained prior to her termination, with any necessary reasonable accommodations. Complainant shall be given a minimum of fifteen (15) calendar days from receipt of the placement offer within which to accept or decline the offer. Failure to accept the offer within the time period set by the Agency will be considered a rejection of the offer, unless Complainant can show that circumstances beyond her control prevented a response within the time limit. Complainant shall be reinstated with back pay, allowances, and differentials she would have received had she not been terminated, except that any salary, wages, unemployment compensation and other income she received shall be deducted from the award of back pay. Further, Complainant is not entitled to any incremental increases in salary, Agency Thrift Savings Plan (TSP) contributions with interest, health and life insurance benefits and other benefits associated with employment with the Agency occurring after her termination, it being determined that Complainant should be placed in a position as close as possible to where she was immediately prior to her termination. To provide Complainant with additional remuneration without being able to ascertain if she would have been able to meet production standards would be unjust enrichment. However, if Complainant is ultimately converted to a fulltime employee position, the Agency shall be required to make mandatory contributions, based on Complainant's salary at the time of her 2009 termination, to the TSP with applicable interest for the period of the 2009 termination until she was placed in the FCIP as a CA pursuant to this decision. Additionally, if Complainant is ultimately converted to a fulltime employee, the Agency shall add the period from Complainant's 2009 termination until she was placed in the FCIP pursuant to this decision, to her eligible service date for leave and retirement purposes. 2. The Agency shall pay Complainant pecuniary compensatory damages for the following items: (a) the increase in principal for her student loan; and (2) the difference paid for health and life insurance; 3. The Agency shall pay Complainant non-pecuniary compensatory damages in the amount of $50,000; 4. The Agency shall pay Complainant's attorney reasonable attorney's fees ($62,500) and costs ($3,250); 5. The Agency shall provide eight (8) hours of EEO training to the responsible management officials regarding their responsibilities under EEO laws, particularly the Rehabilitation Act; 6. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. 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 the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates. 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 documentation indicating that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Great Lakes Program Service Center in Chicago, Illinois 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 (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 ___11/26/14_______________ Date 1 The Agency's final order affirmed the AJ's finding of no discrimination on the bases of national origin and age. 2 Complainant was in classroom training from July 2007 to February 2008. 3 The AJ also ordered the Agency to reinstate Complainant to her CA position in the FCIP and pay her the following: (1) pecuniary compensatory damages related to the increase in principal of her student loan and the difference paid in health and life insurance; (2) $50,000 in non-pecuniary compensatory damages; (3) $62,500 in attorney's fees; and (4) $3,250 in costs. 4 The Agency did not dispute the AJ's finding that Complainant was an individual with a disability under the Rehabilitation Act. 5 The Agency did not dispute the amount of the compensatory damages awarded by the AJ, other than to assert that it was not liable for any compensatory damages. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720120034 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720120034