Clayton C.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Highway Administration), Agency. Appeal No. 01-2012-0350 Agency No. 201100041NHTSA02 DECISION On October 29, 2011, Complainant filed an appeal from the Agency's September 23, 2011, final decision 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Equal Opportunity Specialist, Office of Civil Rights, at the Agency's Washington, DC facility. Complainant was hired in August 2007 under Schedule A hiring authority. The record reveals that from August 2007-December 2009, the Director of the Office of Civil Rights was Complainant's first level supervisor (S1). From December 2009 until mid July 2010, the Acting Director of the Office of Civil Rights was Complainant's first level supervisor (S2). Then, from July 2010 until Complainant's departure from the Agency in November 2010, a new Director of the Office of Civil Rights was Complainant's first line supervisor (S3). In November 2010, Complainant left the Agency's employ and accepted a job with another Federal Agency. The record reveals Complainant has suffered from juvenile X-linked retinoschisis since birth. He lost sight in his left eye in 1988 and then in his right eye in 1993. He is totally blind and uses a service guide dog. Complainant lives in Baltimore, and commuted to work in Washington DC, which takes him approximately four hours round trip. Complainant averred that the Agency has permitted him to tele-work since he started working in August 2007. He adds that he was routinely allowed to switch his identified tele-work day or take an additional tele-work day during inclement weather. Complainant asserts that he has received outstanding performance ratings throughout his employ for FY 2008-2010. Complainant averred that in the summer of 2009, he was diagnosed with sleep apnea and insomnia due to the effects of his blindness. He states that he provided the documentation related to his sleep apnea to S1. On October 14, 2009, Complainant and S1 had a disagreement about a co-worker's right to tele-work as a reasonable accommodation, and S1 allegedly told Complainant he had "stabbed her in the back." Complainant contends that he was subsequently retaliated against by S1 for engaging in this EEO activity. On October 15, 2009, Complainant averred that S1 cancelled all tele-work arrangements and required Complainant to take sick leave in lieu of tele-work, in preparation for the arrival of the new Director of the Office of Civil Rights. Complainant alleges that at that time S1 told him that "55,000 employees at the DOT find their way into work each day and I should as well." ROI at p. 38. S1 then asked Complainant to bring in medical documentation related to the sleep apnea and accommodation request. Complainant saw his physician who recommended that the accommodation of tele-work should continue "to the fullest extent possible."2 The Agency thereafter sought a second opinion from a Federal Occupational Health Physician.3 On November 30, 2009, S1 informed Complainant via email that a "temporary accommodation" had been granted to allow Complainant to tele-work for 2 days per week, for a period of 3 months "which should allow you to adjust to your medication." Id. Thereafter, the request would be reevaluated. In December 2009, S1 left the Agency and S2 served as Director of the Office of Civil Rights on an Acting basis. In February 2010, Complainant again saw his physician who recommended that the tele-work arrangement continue status quo because the medication was not helping his sleep issues. Complainant asked S2 if she would like a copy of the medical documentation, to which she declined, because the arrangement was working and she saw no reason to change it. The record reveals that S2 also permitted Complainant to tele-work or change his tele-work days due to inclement weather. In essence, Complainant's tele-work arrangement continued on an "ad-hoc" basis. In July 2010, S3 became Complainant's new supervisor and the Director of the Office of Civil Rights. Complainant states that he explained to S3 his need for accommodation. It is undisputed that S3 did not alter the arrangement at that time because it was working. However, in August 2010, S3 discovered that Complainant's tele-work accommodation had been approved for only a three-month trial period, and informed Complainant that he should have been advised about this. On August 19, 2010, Complainant responded that the tele-work schedule had been arranged as a reasonable accommodation, and that S2 should have advised S3 about this upon his arrival. Complainant and S3 thereafter met to discuss the parameters of the tele-work arrangement, the specifics of which are disputed. S3 did not consider the arrangement a reasonable accommodation, "since [Complainant's] reasonable accommodation had expired and he never requested another reasonable accommodation." ROI at p. 52. S3 averred that going forward, he agreed to permit Complainant tele-work two days per week, on Wednesday and Friday only, without changes. According to S3, Complainant could tele-work outside of these limits based on inclement weather only as authorized by the Office of Personnel Management (OPM). Furthermore, S3 averred that Complainant was required to comply with various reporting requirements on his tele-work days. Complainant's version of the purported agreement is different. Complainant averred that he tried to explain that his request was a reasonable accommodation, and not a means to evade the Agency's tele-work policy. Complainant agrees that he was provided tele-work two days a week, but denied that the agreement required OPM to announce that tele-work was available before he could change tele-work days. Complainant also averred that S3 told Complainant the reason he needed to be on a consistent tele-work schedule because the ad hoc arrangement was causing morale and coverage issues, and was against agency policy. There is no documentation of the agreement in the record. On September 29, 2010, while he was at home tele-working, Complainant learned that a "Nor'easter" was forecast for the next day. He averred that he attempted to contact his supervisor at 4:45 pm in order to request to tele-work, but could not reach him. Complainant left a message with a co-worker ("CW") and then left a follow up message on S3's voicemail. On September 30, 2010, S3 sent Complainant an email at 9:44 am advising that since OPM had not issued a weather alert, he would need to take leave for September 30, 2010. Complainant averred that he reminded S3 there was no such OPM limitation on his tele-work arrangement, and that he needed this arrangement as an accommodation. S3 responded that Complainant needed to submit a leave request as required. The next incident occurred in October 2010, when Complainant and CW were planning to attend an accessible technology showcase at a nearby university on October 12, and 13, 2010. Previously, Complainant, CW and S3 discussed that CW and Complainant would attend the meeting, and that the Agency would provide transportation for both days. Complainant and CW both averred that S3 informed Complainant that since October 13th was a tele-work day, Complainant could decide whether to work from home on October 13th or attend the showcase. Complainant was also told to inform the Agency if he did not require the use of the car on October 13, 2010. On October 12, 2010, Complainant and CW attended the conference. Complainant averred that at the end of day, he informed CW that he did not feel well and that since he had attended all relevant presentations, he would be tele-working on October 13, 2010. Complainant states that CW then informed S3 that Complainant did not feel well, and would be tele-working. CW informed Complainant that he would attend the following day. S3 averred that at the end of the day on October 12, 2010, CW provided S3 with some feedback on the training. S3 averred that, "In the process of providing that feedback, I understood [CW] to say he felt a little sick during the training session, and did not know whether he could stay throughout the training the next day, Wednesday, October 13, 2010." S3 further averred that he did not see Complainant on the morning of October 13, 2010 and was told by CW that Complainant was not going to the event. S3 averred that he attempted to contact Complainant on that day but did not reach him. S3 then emailed Complainant asking him what kind of leave he would be taking, since his duty station on both October 12 and 13 was the showcase location. Complainant responded by informing S3 that it was his understanding that he was using October 13, 2010 as a tele-work day and refused to take leave. The next day, S3 came into Complainant's office with a "talking paper" memo, which informed Complainant that his tele-work schedule had been reduced from two days to one day per week, with no changes permitted. During their conversation, S3 denied discussing with CW Complainant's use of tele-work on the night of October 12, 2010, and denied authorizing Complainant to even use tele-work for October 13 when they first discussed the showcase. Complainant states that S3 then starting referring to the showcase as "mandatory training," which Complainant disputed. When S3 criticized Complainant for not sending tele-work reports, Complainant advised that he had been sharing bi-weekly reports. Again, S3 informed Complainant that the tele-work arrangement was not a reasonable accommodation, since it had expired in February 2010, and that his misuse of tele-work was causing morale problems. Ultimately, Complainant took leave under the threat of an AWOL charge. Complainant, a GS-12, also asserts that S3 reassigned the Disability Program Manager duties to CW, who is a GS-9. From August to November 2010, Complainant asserts that S3 told him he should no longer discuss OCR issues without his permission, and that he suffered humiliation at meetings during this time as well. Complainant averred that he was not included as the External Civil Rights Contact in S3's "out of the office" emails, because S3 said he could never provide sufficient coverage in S3's absence. Complainant also maintains that S1 left a file with disparaging comments about him, which S3 used to further retaliate against him. In response, S3 states it was an oversight to leave Complainant off the out of office emails. Further, he asserts that the performance evaluation plans are the same for Complainant and CW, except the GS-9 requires additional supervision. S3 denied there being any file with disparaging comments. Believing he was subjected to discrimination Complainant contacted an EEO Counselor and on February 4, 2011, he filed an EEO complaint alleging that: 1) He was subjected to discrimination and a hostile work environment on the bases of race (Caucasian), disability (blindness and sleep apnea), and reprisal for prior protected EEO activity when: a) on September 20, 2010, he was denied his request to switch his tele-work day for inclement weather conditions and was forced to lake leave; b) on October 14, 2010, his Director read a "talking paper" memo to him informing him that he failed to attend mandatory training on October 13, 2010, he violated his tele-work agreement, he was causing poor morale in the office, he did not have a valid tele-work accommodation in place and his tele-work schedule was being changed to only one day per week; c) the Director reassigned some of his duties to a lower graded employee; d) his Performance Evaluation Plan did not accurately reflect his duties, particularly his disability program manager duties; and, e) he was excluded as a contact on the Director's "out of office assistance" messages. 2) He was discriminated against based on his race (White), physical disabilities (blindness; sleep apnea) and reprisal (prior EEO activity) when, on October 2010, he was denied his requested reasonable accommodation of tele-working two days per week, with the option to switch tele-work days for inclement weather conditions. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency found Complainant failed to establish a prima facie case of disability discrimination. The Agency found that Complainant was an individual with a disability with respect to his blindness, but not with respect to his sleeping impairment since there was no medical documentation in the record. The Agency also found Complainant failed to present evidence of a similarly situated individual who was permitted to tele-work two days per week with the option to switch days. Indeed, the Agency noted that Complainant was the only person in the office of five that tele-worked. The Agency further found no evidence that Complainant made a "formal request" for a reasonable accommodation for his blindness or initiated the interactive process. The Agency also found Complainant failed to establish a prima facie case of race discrimination. Furthermore, finding no evidence that Complainant engaged in prior EEO activity, the Agency also found Complainant did not establish a prima facie case of reprisal. The Agency then examined whether it had articulated legitimate nondiscriminatory reasons for its actions. Specifically, the Agency found Complainant's tele-work was altered because he did not comply with the parameters of the agreement. Complainant was given the option to tele-work one day per week until his departure from the Agency. The Agency found no evidence of pretext. As for the hostile work environment claim, the Agency found Complainant failed to establish he was subjected to a hostile work environment because the conduct was neither severe nor pervasive, and entirely work related. The Agency did not analyze whether Complainant was denied an accommodation. It states that there was some doubt as to whether Complainant required two flexible tele-work days because of his disability. As evidence, it cited one incident when complainant requested to tele-work a half a day when he had an afternoon job interview in Baltimore. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. Neither party submitted any contentions on appeal. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Contrary to the Agency's position, we find that Complainant did request an accommodation. Consequently, in its decision, the Agency should have also analyzed the formal complaint in terms of whether there was a denial of reasonable accommodation. Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Throughout the record in this matter, including his formal complaint, Complainant clearly contends that the Agency was aware of his conditions, he requested an accommodation, and the Agency failed to provide one. The Agency erred when it failed to address this claim in its decision. Coverage As an initial matter, we note that the events in this case arose after January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Management officials do not dispute that Complainant is an individual with a disability as he is totally blind and uses the services of a guide dog. Complainant averred that he was told his sleep apnea and insomnia was caused by his blindness because he is unable to perceive light. ROI at p. 36. Because the Agency does not dispute that Complainant is an individual with a disability, we will not review whether Complainant is disabled under the Rehabilitation Act. A qualified individual with a disability is an "individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment positions such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. §1630.2(m). Complainant states that because of his sleep apnea and insomnia, he requires tele-work. He adds that without it, he would not be able to fully concentrate and focus enough to perform the essential functions of his job. Under prior supervisors, Complainant tele-worked two days per week, with changes in that schedule if inclement weather made his commute to work with his guide dog prohibitively difficult. We note the record reveals Complainant received "Outstanding" ratings on his performance appraisals throughout his tenure at the Agency, and also received several awards for his performance. We find no dispute that Complainant is a qualified individual with a disability, in that he was able to perform the essential functions of his job with an accommodation. Request for Reasonable Accommodation Throughout his time with the Agency, Complainant has maintained that he needed tele-work as an accommodation for his disability. When S3 arrived at the Agency, the preponderance of the evidence in the record suggests that S3 accepted the existing arrangement as it was presented with him. It was only after S3 suspected that Complainant was not being forthcoming with information that his accommodation had "expired" that he began to have problems with Complainant's request.4 However, we cannot agree with the Agency's finding that Complainant's reasonable accommodation "expired." We find no evidence that Complainant's need for an accommodation, which was obvious, was eliminated. Furthermore, S3 and the Agency assert that Complainant did not request an accommodation once the accommodation "expired" so it considered his tele-work request in light of the agency's tele-work policy. We find persuasive evidence that Complainant repeatedly explained that his request was made as a request for reasonable accommodation. When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use 'plain English' and need not mention the ADA or use the phrase 'reasonable accommodation.'" See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act EEOC Notice No. 915.002, Question 1 (rev. October 17, 2002). In response, S3 simply ignored Complainant's subsequent requests while applying Agency tele-work principles as he would from any other employee. To the extent that S3 did not understand why Complainant required tele-work as an accommodation, we find the proper course of action would have been to request medical documentation from Complainant. However, S3 failed to do so. In this case, because Complainant is a qualified individual with a disability, the Agency had a duty to engage in the interactive process to determine if there was an effective reasonable accommodation for his disability. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. See EEOC Enforcement Guidance. Commission guidance further states that an employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, as long as this accommodation would be effective and would not cause an undue hardship. Id. When S3 initially started at the Office of Civil Rights, he approved two days of tele-work for Complainant. However, when Complainant requested a change in tele-work days due to inclement weather, S3 denied the request. Furthermore, on October 13, 2010, he was denied an accommodation. S3 asserts that Complainant was never permitted to use tele-work on October 13, 2010, however, the testimony of both CW and Complainant dispute this. Then, when S3 eventually limited Complainant to only one day of tele-work, he further denied Complainant's request for a reasonable accommodation.5 Complainant averred that his physician provided medical documentation which recommended that Complainant tele-work "to the fullest extent possible." We note there is no supporting medical documentation in the record. However, we find this is of no consequence because the Agency failed in its obligation to develop an adequate record. Specifically, we find the Agency's investigator failed to ask Complainant to submit medical documentation supporting his accommodation request for the investigation. Further, we find the Agency had access to medical documentation, but did not provide any during the investigation. Specifically, in his affidavit, we note Complainant averred that he submitted documentation to the Agency in September 2009 and November 2009. Indeed, the record reveals the Agency's investigator asked S3 to provide any medical documentation that Complainant had submitted, but he did not comply with that request. ROI at 189. Finally, we note that in February and July 2010, both S2 and S3 declined medical documentation to support the accommodation request, which had been offered by Complainant. ROI at p. 84. We note that Agencies are required to develop an impartial and appropriate factual record. See 29 C.F.R. § 1614.108(b). An appropriate factual record "is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred." Id. Here we find the absence of medical documentation in the record should not prejudice Complainant when: (1) Complainant's actual need for an accommodation was not disputed. Rather the Agency only contends that the requested accommodation caused morale and coverage problems; (2) the undisputed evidence reveals Complainant offered the Agency medical documentation and it was declined; (3) the Agency was asked by the investigator to provide the medical documentation it had and did not respond to this request. Undue Hardship Once the Complainant shows that the requested accommodation is plausible, the burden then shifts to the Agency to show whether the accommodation, even if plausible, would nonetheless impose an undue hardship (i.e. a significant difficulty or expense) on the operations of the Agency. See Harge v. Dep't of Veteran's Affairs, EEOC Appeal No. 0120111521 (Dec. 4, 2014). The Agency did not analyze Complainant's claim that he was denied an accommodation. Likewise, it did not put forth sufficient evidence in its decision to prove the granting the request would create an undue hardship. Complainant averred that S3 told him that his requested arrangement was causing coverage and morale problems in the office. In his "talking paper" S3 likewise remarked that the tele-work arrangement had an "adverse impact on [office wide] operation and morale." ROI at p. 145. EEOC's Guidance on Reasonable Accommodation and Undue Hardship makes it clear that an employer cannot claim undue hardship based on the fact that the provision of a reasonable accommodation "might have a negative impact on the morale of other employees." EEOC Enforcement Guidance at 55. In fact, we note Complainant was the only person in the office to take advantage of tele-work, raising questions as to how coverage was an issue. We find no credible evidence that Complainant's request to tele-work two days per week, with the option for occasional changes, would cause an undue hardship on the Agency. With respect to Complainant's remaining claims, we find Complainant failed to establish a prima facie case of retaliation. Although Complainant engaged in a myriad of EEO activity, we find insufficient nexus between his EEO activity, and the denial of accommodation. Complainant failed to prove, more likely than not that the Agency's reasons for the remaining actions was a pretext for retaliation or discrimination on the bases of race or disability. We likewise find no evidence of a file that existed containing disparaging comments about complainant. Finally, we will address Complainant's claim that he was subjected to a hostile work environment. We have already found that the Director of the Agency's Office of Civil Rights subjected Complainant's to disability discrimination. Complainant's work place, which should have been more of a "model employer", was not a hospitable place for individuals with disabilities to work. Nonetheless, we do not find that these few instances rose to the level of a hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND this matter in accordance with the ORDER below. ORDER (D0610) The Agency is ordered to take the following remedial action within 120 days from the date this decision becomes final: I. The Agency shall undertake a supplemental investigation to determine Complainant's entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993) and request objective evidence from Complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below. II. The Agency is directed to provide a minimum of eight (16) hours EEO training to the manager identified as S3 within ninety (90) days of the date this decision becomes final. The training shall address responsibilities with respect to eliminating discrimination in the workplace, with an emphasis on the provision of reasonable accommodation to individuals with disabilities. III. The Agency shall consider taking disciplinary action against S3. The Agency shall report its decision within thirty (30) calendar days. If the Agency decides to take disciplinary action, it shall identify the actions taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. The Commission does not consider training to constitute disciplinary action. IV. The Agency shall post a notice of the finding of discrimination, as detailed below. 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 backpay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Washington, DC facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 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)), he 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations 11-17-2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 No medical documentation from Complainant's physician is in the record. 3 The medical report from the FOH physician is not in the record. 4 Complainant had always maintained that the agency's classification of his accommodation as "temporary" was erroneous. 5 Commission precedent clearly has established that a request for telecommuting or a shorter commuting time because of a disability triggers an Agency's responsibility under the Rehabilitation Act. Complainant v. Dept. of Housing and Urban Development, Appeal No. 0720130029 (February 12, 2015); See also Jones v. Dep't of Agriculture, EEOC Appeal No. 0120080833 (July 18, 2012) (Agency denied Complainant a reasonable accommodation when it did not grant his request to telecommute because of condition); Southerland v. U.S. Postal Serv., EEOC Appeal No. 0120091983 (June 15, 2010) (if a Complainant requests a shorter commute as a reasonable accommodation, an Agency must examine whether his or her impairment substantially limits a major life activity and how the requested accommodation would enable the employee to "get" to work). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2012-0350 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 01-2012-0350