U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eric Hann, a/k/a, James R.,1 Complainant, v. Scott Pruitt, Administrator, Environmental Protection Agency, Agency. Appeal No. 0120122981 Hearing No. 440-2011-00024X Agency No. 20100047R05 DECISION Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's June 15, 2012, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission REVERSES the Agency's final order and REMANDS the matter to the Agency pursuant to the Order below. ISSUES PRESENTED 1. Whether the AJ correctly found there was no dispute that Complainant was not a qualified individual with a disability because travel by air was an essential function of Complainant's position and, therefore, Complainant's use of alternative means of travel was not a reasonable accommodation; and 2. Whether the AJ correctly found there was no dispute that Complainant's use of alternative means of travel created an undue hardship on the Agency's operations because of the need to travel on short notice. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Criminal Investigator at the Agency's Office of Criminal Enforcement, Forensics, and Training (OCEFT), Criminal Investigations Division (CID), Chicago, Illinois Area Office. On March 25, 2010, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the disability (hypertension) and reprisal for prior protected EEO activity when: 1. On February 3, 2010, his fourth-level supervisor (S4) denied his request for reasonable accommodation; and 2. he was subjected to harassment by his second-level supervisor (S2) because of his disability. After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On April 28, 2011, the Agency filed a Motion for Summary Judgment, and Complainant responded in opposition. The AJ issued a decision without a hearing finding no discrimination. The AJ concluded the following facts were not in dispute: Complainant started working for the Agency in approximately 1990, and has been in his current position since 1993. In 1999, Complainant was traveling on a work-related flight which encountered significant turbulence. Since that time, he has been unable to fly without his blood-pressure rising to dangerous levels. Complainant has undergone both work-sponsored and personally-funded therapeutic programs to cure his fear of flying, without success. Although no formal agreement has been entered into the record, there is no dispute that the Agency excused Complainant from flying during the performance of his duties until the events in question herein. Instead, Complainant drove to out-of-state locations, using annual leave and personal funds for his incurred travel expenses. On July 27, 2009, and at the request of S2, S4 issued a memorandum entitled "Special Agent Travel by Airplane in the Performance of Official Duties." Report of Investigation (ROI) at p. 155, 162. Therein, S4 stated that the Special Agent position required considerable official travel, including long distances on short notice, and that supervisors had the right to direct the work and, in turn, select the most advantageous method of travel. Accordingly, S4 determined that traveling by air was an "essential job function" of the SA position, and that a SA's unwillingness to travel by air posed an "undue hardship" on CID operations and the performance of its mission. On November 4, 2009, Complainant requested as an accommodation that he be excused from traveling by airplane in the performance of his duties, and continue traveling by other means. The request was sent to the Agency's National Reasonable Accommodation Coordinator (Coordinator). In response to the Coordinator's request, Complainant submitted medical documentation which stated that Complainant's hypertension was kept under control with medication, but his "life [is] negatively impacted for days before an approaching flight," and that Complainant "has experienced abnormal blood pressure readings in preparation for a flight reaching as high as 210/70 even while taking his standard regimen." ROI at p. 166. Furthermore, Complainant's physician opined that "if made to fly, there is risk that the panic and anxiety which flying produces and which in turn raises [Complainant's] blood pressure could in turn produce an increased risk for stroke or heart attack while preparing to fly, while flying, or while preparing to return home." ROI at p. 166. On January 19, 2010, the Coordinator issued a letter finding that complainant's hypertension rose to the level of a disability. On February 3, 2010, S4 denied Complainant's reasonable accommodation request because she determined that flying was an essential function of his position, and excusing him from air travel would cause an undue hardship on the Agency's operations. The record reveals S4 raised the possibility of a transfer for Complainant to Headquarters in Washington, D.C. However, Complainant informed the Agency he was not interested because he would not be paid relocation costs, and because his wife had a job in Chicago. The record reveals that in April 2010, Complainant was found "not medically qualified to perform the essential functions of the job." ROI at p. 168. At the time of the investigation, S4 averred that she had not yet issued a Notice of Proposed Removal because Complainant had enrolled in a desensitization program to deal with his flying issue. ROI at p. 170. Complainant's current status with the Agency is not apparent from the record. Complainant also alleged in his complaint that he was subjected to harassment because of his disability. He asserts that when he brought in medical documentation to support his request, S2 told him he "threw [the documentation] away," and also referred to his travel as a "boondoggle" of a trip. Complainant claims that S2 refused to identify one of Complainant's cases as a "high impact" case, and also claims that he was on a list of people slated for removal. In his analysis, the AJ relied on the Agency's finding that Complainant's disability is his hypertension, which is exacerbated by flying. The AJ also noted that Complainant suffers from a phobia of flying. The AJ found that when required to fly, Complainant is unable to perform the essential functions of his job. Moreover, the AJ noted that the Agency determined that flying long distances was an essential function of the Special Agent position, and that Complainant's unwillingness or inability to travel by air caused an undue hardship. Furthermore, the AJ noted that the Agency offered Complainant a position in Washington D.C., but Complainant declined it because it was inconvenient for his family. With respect to Complainant's harassment claims, the AJ found that the matters did not rise to the level of harassment because they were neither severe nor pervasive. The AJ also found no specific act of reprisal which occurred after the filing of the instant complaint. The Agency's final action implemented the AJ's decision. CONTENTIONS ON APPEAL Complainant did not raise any contentions on appeal. The Agency asserts that Complainant is not entitled to an accommodation because he has not shown that he requires any reasonable accommodation which is a result, or a consequence of, his hypertension disability. The Agency explains that Complainant's fear of flying is not a limitation resulting from his hypertension, but rather an unrelated phobia, which he has not established is a disability. The Agency also argues that Complainant is not a qualified individual with a disability because he cannot fly, which the undisputed evidence reveals is an essential function of the job. Assuming he is a qualified individual, however, the Agency maintains that his accommodation would pose an undue hardship on its operations. Moreover, the Agency states that it offered him a transfer to Washington, D.C. as an accommodation, but Complainant declined. Finally, the Agency states Complainant failed to establish a prima facie case of harassment. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS As a preliminary matter, we note that the record in this case was missing complete depositions, excerpts of which were cited in both the Agency's Motion for Summary Judgment and Complainant's Opposition to the Agency's Motion for Summary Judgment. The Agency is required to send a complete complaint file to the Commission within thirty days from the notice of the appeal. See 29 C.F.R. § 1614.403(e). In this case, the Agency submitted only excerpts from the depositions, which were unclear. Therefore, pursuant to 29 C.F.R. § 1614.404(a), the Commission requested the complete depositions from the Agency, which were provided and used in the resolution of this appeal. Summary Judgment We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (February 24, 1995). After a review of the record, we find that, while summary judgment in this case was appropriate, the AJ erred in issuing a Summary Judgment decision in the Agency's favor. Rather, the undisputed evidence of record establishes that Complainant was subjected to discrimination based on his disability. Nexus of Disability with Accommodation An "individual with a disability" is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such impairment. 29 C.F.R. § 1630.2(g). An Agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. § 1630.9. "Reasonable accommodation" is defined in part by our regulations as "'[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position." 29 C.F.R. § 1630.2(o)(ii). The Agency argues that Complainant is not entitled to an accommodation because he is not substantially limited in a major life activity that is related to his inability to fly. Specifically, the Agency contends that his only functional limitation, the inability to fly, is the result of an undiagnosed anxiety or "simple phobia" which should not be accommodated because it is not a disability. The Agency notes that the Commission has never found that flying on an airplane is a major life activity. At the same time, however, the Agency concedes that Complainant's disability is his hypertension, which it agrees substantially limits his cardiovascular system. (Agency's Motion for Summary Judgment at p. 13). The record further reveals Complainant cannot travel by air because it aggravates his hypertension and places him at risk of stroke or heart attack. Although the Agency denies that it is obligated to accommodate Complainant, "reasonable accommodation extends to all limitations resulting from a disability." EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, EEOC Notice No. 915.002 at q. 39 (October 17, 2002). The accommodation here relates to Complainant's disability, hypertension, which provides the nexus. Complainant has the threshold burden of establishing that he is a qualified individual with a disability, and that there is a nexus between his disability and his need for accommodation in order to be entitled to a reasonable accommodation under the Rehabilitation Act. See Nelson v. United States Postal Service, EEOC Appeal No. 01981981 (Aug. 17, 2001); Ricco v. U.S. Postal Serv., EEOC Appeal No. 07A10007 (Feb. 15, 2002); Struthers v. Dept. of the Navy, 07A40043 (June 29, 2006). Complainant has shown that travel by air aggravates his hypertension, which is a disabling condition, and must be accommodated absent undue hardship. 2 Essential Functions The inquiry into whether a particular function is essential initially focuses on whether the employer actually requires the employees in the position to perform the functions that the employer asserts are essential. 29 C.F.R. § 1630, App. Essential functions are the fundamental duties of a job, i.e., the outcomes that must be achieved by someone in that position. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). The function may be essential because the reason the position exists is to perform that function. 29 C.F.R. § 1630(2)(n). Whether a particular function is essential is a factual determination that must be made on a case by case basis. Evidence of whether a particular function is essential includes, but is not limited to: • The employer's judgment as to which functions are essential; • Written job descriptions prepared before advertising or interviewing applicants for the job; • The amount of time spent on the job performing the function; • The consequences of not requiring the incumbent to perform the function • The terms of a collective bargaining agreement; • The work experience of past incumbents in the job; and/or • The current work experience of incumbents in similar jobs. See 29 C.F.R. § 1630(n)(3)(i- vii). The Agency contends that Complainant is not a qualified individual with disability because he cannot perform the essential functions of the job. The term "qualified," with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. §1630.2(m). In this regard, the Agency asserts that travel by air is an essential function of the job because Special Agents like Complainant are needed to travel on short notice to execute search warrants, interview witnesses, and conduct investigations. In its Brief, the Agency also maintains that part of Complainant's job involves responding with the Department of Homeland Security in the event of a national emergency. S4 averred that it was not unusual for investigators to be assigned to investigations which originated in other regions of the country. S2 adds that Complainant's use of alternative means of travel, such as driving, was not always practical or effective in unpredictable situations. He further averred that Complainant's limitations were difficult to manage because of the limited pool of available officers. Upon review of the record, we find that the AJ erred when he found that, because the need for travel was not predictable or scheduled far in advance, travel by air was an essential function of the position. By doing so, the AJ improperly deferred to the Agency's position without considering Complainant's evidence. We find that travel by air is not an essential function of the job; rather, it represents a method of performing an essential function. See Lavern B. v. Dept. of Housing and Urban Development, EEOC Appeal No. 0720130029 (Feb. 12, 2015) (finding that working remotely could be a method of achieving the outcomes of a Financial Analyst position). Accordingly, Complainant's inability to travel by air does not defeat his prima facie case. Our inquiry begins with a review of Complainant's Position Description. According to Complainant's 1992 Position Description, which was in effect at the time of the events in question, Special Agents are responsible for planning and conducting investigations or suspected criminal violations of environmental statutes. Furthermore, "assignments involve investigations of organizations that are very complex ... investigations are of major dimension and are nationwide in origin or coverage..." Agency Motion for Summary Judgment at Exhibit 1. Although the Position Description describes investigations with "nationwide" coverage, the position description alone is not determinative as to whether in practice it was an essential function. The actual functions performed in practice are highly relevant. See 29 C.F.R. § 1630 App.; Farkas v. U.S. Postal Serv., EEOC Appeal No. 0120112686 (Oct. 24, 2011); Pierce v. U.S. Postal Serv., EEOC Appeal No. 01945275 (June 29, 1995) (finding position description alone was insufficient to make this determination and remanding complaint for a supplemental investigation for a determination on the essential functions of a position). The record reveals a Special Agent was required to efficiently investigate possible criminal violations, secure search warrants, coordinate complex investigations, testify in court, and assist other investigators and enforcement staff. These are the outcomes or essential functions of the Special Agent job. Complainant performs these essential functions by using alternative modes of transportation such as car and rail because he usually has had sufficient notice to travel. After a review of the testimony in the record, we find that the need to travel by air with short notice to conduct investigations, serve search warrants, or perform other duties immediately is not essential to the performance of a Criminal Investigator's position. Complainant asserts that most of his work took him to the areas of his primary responsibility, including Wisconsin, Indiana, and Illinois. If he was needed to secure a search warrant, Complainant averred that he routinely had a week's notice.3 Management officials' own testimony provides some support for this. In a deposition, S4 described the process of securing a search warrant and conceded it would take some time on most occasions, as the process involved several steps. To secure a warrant, one would have to write an affidavit, then have Regional Criminal Enforcement Counsel review the affidavit, have the prosecutors review the affidavit, have the prosecutor go before a Magistrate Judge to issue the warrant, and finally, serve the warrant. S4 Deposition at p. 72-3. Complainant recalled that, normally, Headquarters required a written operations plan to be approved a week before any warrant and arrest. ROI at p. 58-5. S4 testified that, under most circumstances, Complainant's recollection in this regard was accurate, but there were times when the work was not as predictable. S4 Deposition at p. 75. Although S2 testified that the office secured and served 12 to 15 warrants per year, the Agency did not submit evidence that established SAs were routinely needed on short notice. Over the course of his time at the Agency, S2 could recall only a few times that Complainant was needed to travel on short notice but was unable to do so because of his inability to fly. Further, at the time of his March 29, 2011, deposition, S2 recalled that the most recent time Complainant needed to fly was in February 2010. He noted there were no pending matters that would require Complainant to fly in the near future. The record also reveals that, when faced with long-distance travel, the Agency had a practice of using local resources instead of incurring traveling expenses for its own agents. For example, if an agent from Complainant's office needed to conduct an interview or issue a warrant in New York, the Chicago Office would utilize its New York local agents in lieu of incurring the travel expenses. S2 Deposition at p. 55. While S4 testified that often it was easier for the Chicago Office to use its own agents and travel because they were most familiar with the case, the Agency did not present evidence as to how often this occurred. S4 Deposition at p. 71. Testimony revealed that Special Agents often needed to travel to support Joint Operations with other offices, as some operations required more Agents than were available in a single regional area. Both S4 and S2 averred that, because Complainant could not fly, this limited the number of agents available for these assignments. In a declaration, S4 remarked that up to 10 to 30 agents might be needed at one time, and the assignment could require travel anywhere in the country. Accordingly, the quickest travel would be by air. See Agency's Motion for Summary Judgment at Exhibit 5. Although there is no dispute that such Joint Operations were part of Complainant's job, there is limited information in the record as to how often Joint Operations occurred, and whether Agents were needed on short notice on those occasions, making Complainant's method of travel impossible. Indeed, S4 concurred with Complainant's testimony that, normally in these situations, the office would have more than one or two weeks' notice, providing Complainant with the time to travel at his own expense. S4 Deposition at p. 74-5. Considering this testimony, we find Complainant established by a preponderance of the evidence that travel by air was not an essential function of his position. Importantly, the record reveals that Complainant performed his duties successfully for ten years without traveling by air. Complainant was not alone in this regard. At least one other special agent did not fly and was not required to fly until the July 2009 directive was issued. Complainant's performance appraisals from 2006 through 2009 reveal "fully successful" or "exceeds successful" ratings without comment as to what, if any, effect his inability to fly had on his performance. The Agency's accommodation of this practice for at least ten years is relevant evidence supporting Complainant's claim that travel was not an essential function of the job. See Lavern B., EEOC Appeal No. 0720130029. Undue Hardship In his decision, the AJ found that Complainant's unwillingness or inability to fly caused an undue hardship on the Agency's operations. The AJ made these findings without regard to Complainant's conflicting evidence. In his response motion, Complainant states that he had been permitted to use alternate modes of travel since 1999, and that there was no evidence in the record indicating that his inability to fly created a burden for the office. An employer does not have to provide a reasonable accommodation that would cause an "undue hardship" to the employer. 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. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, EEOC Notice No. 915.002 (Oct. 17, 2002). 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; c) the number of persons employed at this facility; d) the effect on expenses and resources of the facility; e) 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); f) the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; g) the impact of the accommodation on the operation of the facility. See 29 C.F.R. § 1630(p); Id. After reviewing the record, we find the Agency failed to carry its burden of proof as to whether Complainant's inability to fly created an undue hardship on the Agency's operations. S2's own testimony revealed that, over the course of ten years, there were only a few times when Complainant's inability to fly created a disruption for the office. S2 Deposition at p. 28. The most recent incident he could recall occurred in or about February 2010, when Complainant wanted to drive to Washington, D.C. related to a Coast Guard case. Previously, Complainant wanted to drive to Miami regarding the same case. However, S2 did not permit Complainant to drive to either of these locations to review a file; he did not think the trips were reasonable as they involved two-day trips, notwithstanding that Complainant had volunteered to use his leave time. ROI at p. 164. On the other occasion, S2 recalled that, on a Friday, he learned that he needed an agent assigned in New Jersey to execute a search warrant the following Monday, but he could not use Complainant because Complainant was scheduled to work in Detroit. ROI at 165; S2 Deposition at p. 44. However, after further questioning, S2 acknowledged that the agent he ultimately assigned to the New Jersey search warrant also was working in Detroit at the time. This was so even though Complainant could have travelled over the weekend at his own expense in order to arrive in New Jersey by Monday. 4 On both occasions, S2 objected to Complainant's travel because he found it "unreasonable" for Complainant to make the trip. That may be so, but Complainant was willing to travel, at his own expense, because flying would create a hazardous condition for him. Whether S2 subjectively believed the trip was unreasonable is not determinative in the "undue hardship" analysis. Such generalized conclusions will not suffice and an individualized analysis should be made based on the factors set out above. S2 also averred that, at times, he has had to rearrange work assignments because of Complainant's issue with flying, stating that this was "not fair" to other Special Agents who had to assume those duties because of Complainant's refusal to fly. ROI at Exhibit F2. Our Enforcement Guidance on Reasonable Accommodation makes clear that an employer cannot claim undue hardship "based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees." EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice 915.002 at Q. 32 (Oct. 17, 2002). There is also evidence in the record establishing that management saw Complainant's refusal to fly as an attitude problem, rather than based on his hypertension, which we find is evidence of both discriminatory and retaliatory animus connected to his disability status and request for reasonable accommodation. S2 admitted that he believed Complainant was less than forthcoming about his inability to fly. S2 Deposition at p. 73. S2 clearly did not approve of Complainant driving long distances, even if Complainant were willing to do so. In contrast, Complainant's supervisors positively discussed other co-workers who previously had been unwilling to fly, but were willing to do so following the July 2009 directive. Complainant contends that his situation, which created a medical hazard, was distinguishable from that of his co-workers, who simply preferred not to fly. Although S2 concurred that Complainant's situation was different, he was unable to reconcile his disapproval of Complainant's travel with a purported concern for Complainant's health. S2 Deposition at p. 67. The AJ erred in summarily concluding that Complainant's accommodation request posed an undue hardship without requiring the Agency to satisfy its burden of proof, which it did not. Reassignment The Agency further argues that it offered Complainant another reasonable accommodation, but he declined. Specifically, the Agency asserts that it offered Complainant a position in Washington, D.C. that did not require travel. Complainant states that S4 informed him that she might have a position in Washington, D.C., but it would require him to relocate his family, take a job at lower pay, and move without a moving allowance. We have held that a reassignment is the accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his current position; or (2) all other reasonable accommodations would impose an undue hardship. Enforcement Guidance on Reasonable Accommodation, at Q. 24. Because we have found that the Agency could have accommodated Complainant in his position, and that the Agency failed to prove that such an accommodation constituted an undue hardship, we need not determine whether this proposed out-of-state reassignment constituted a reasonable accommodation. Harassment and Reprisal After a review of the record, we find Complainant's claim of harassment does not rise to the level of a hostile work environment. However, we do note that the evidence in support of Complainant's harassment claim supports the finding that the Agency did not engage in good faith efforts to provide a reasonable accommodation. An Agency is not liable for compensatory damages under the Rehabilitation Act where it has consulted with Complainant and engaged in good faith efforts to provide a reasonable accommodation, but has fallen short of what is legally required. See Teshima v. United States Postal Serv., EEOC Appeal No. 01961997 (May 5, 1998). Here, we find Complainant's harassment allegations provide ample evidence that the Agency was not engaging in good faith efforts to provide a reasonable accommodation. CONCLUSION Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, including arguments and evidence not specifically discussed in this decision, the Commission REVERSES the Agency's final action and REMANDS the matter to the Agency in accordance with this decision and the ORDER below. ORDER 1) Within one hundred and twenty (120) days from the date this decision is issued, the Agency shall provide Complainant with a reasonable accommodation which allows him to travel by means other than air, including driving by car, in the performance of his job duties; 2) Within one hundred and twenty (120) days from the date this decision is issued, the Agency shall restore any leave used by Complainant due to the Agency's failure to provide him with a reasonable accommodation; 3) Within one hundred and twenty (120) days from the date this decision is issued, the Agency shall conduct a supplemental investigation into Complainant's entitlement to compensatory damages and determine the amount of compensatory damages to which Complainant is entitled. The Agency shall issue a final decision, with appeal rights to the Commission, as to the amount of compensatory damages within 30 calendar days of the date of the determination. 4) Within one hundred and twenty (120) days from the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive training to S2 and S4, with a particular emphasis on the Agency's obligations under Section 501 the Rehabilitation Act. 5) Within one hundred and twenty (120) days from the date this decision is issued, the Agency shall consider disciplining S2 and S4. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 6) Within 30 calendar days of the date this decision is issued, the Agency shall post a notice in accordance with the paragraph entitled, "Posting Order." 7) 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 verifying that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Chicago Area Office 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 was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) 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 the date this decision was issued. 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 Agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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's signature Carlton M. Hadden, Director Office of Federal Operations 4-4-18 __________________ 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 We are not persuaded by the Agency's argument that Felix, et al. v. New York City Transit Authority, 324 F.3d 102 (2003), supports its position that Complainant's accommodation request relates to some other condition other than his hypertension and that accommodating this lesser condition would have negative policy considerations. The Commission has already addressed this argument in its Brief as Amicus Curiae filed in support of Rehearing En Banc, when it noted that the accommodation must relate to the disability, and that all limitations flowing from that disability must be accommodated absent undue hardship. See Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of Rehearing En Banc, 6-15, Felix, et al. v. New York Transit Authority, 324 F.3d 102 (2nd Cir. 2003), rehearing en banc den., Docket No. 01-7967 (July 31, 2003). Here, Complainant's accommodation request directly relates to the limitations resulting from his disability. 3 Complainant concedes that there are subgroups which need to mobilize on limited notice, such as the National Criminal Enforcement Response Team (NCERT) team, but he states he is not part of that group. 4 In December 2008, the Chicago Office was asked to provide Special Agents to support a trial. Travel to Missoula, Montana was needed and Complainant volunteered for the assignment. When Complainant informed S2 that he would drive to Montana, S2 told him it was unreasonable for him to do so, and excused Complainant from the assignment. However, this was not an instance where Complainant was needed with limited notice and was unable to perform the assignment because of his method of travel. S2 Deposition at p. 57. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------