U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013


 Latarsha A.,1
Complainant,

v.

Norman C. Bay,
Chairman,
Federal Energy Regulatory Commission,
Agency.

Appeal Nos. 0120123215 
              0120131079

Agency Nos. EEO-2010-MAL-001
                   EEO-2011-MAL-001
                   EEO-2011-MAL-002
                   EEO-2011-MAL-003
                   EEO-2011-MAL-005
                   EEO-2012-MAL-002

DECISION

Complainant filed appeals from the Agency's June 25, 2012, and December 7, 2012, final decisions concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.  The Commission deems both appeals timely and accepts them pursuant to 29 C.F.R. § 1614.405(a).  Further, pursuant to 29 C.F.R. § 1614.606, we exercise our discretion to consolidate both appeals into a single decision because they concern similar allegations, findings, and remedies.  For the following reasons, the Commission MODIFIES the Agency's final orders.





ISSUES PRESENTED

The issues presented are whether Complainant proved that she was subjected to unlawful discrimination and harassment on the bases of age, disability, religion, and in reprisal for previous EEO activity, and whether Complainant proved that she was denied various reasonable accommodations for her disabilities. 

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-15 Trial Attorney at the Agency's Office of Administrative Litigation (OAL) in Washington, D.C.   Complainant began working with the Agency in 1990, and previously worked in the Office of the General Counsel (OGC).  In 2005, Complainant was reassigned from OGC to OAL.  In May 2010, the Agency changed Complainant's duty station from its Headquarters building at 888 First Street, Northeast (NE) in Washington, D.C., to 1101 First Street, NE in Washington, D.C.  

The record reflects that Complainant has been diagnosed as having the following physical impairments:  psoriasis, arthritis, gout, degenerative disc disease (stenosis), cardiomyopathy, congestive heart failure, embolic cerebral vascular accident (CVA/stroke), tachycardia, sensitivity to non-incandescent lighting, allergies, migraine headaches, hypersensitivity to sensory stimuli, Irritable Bowel Syndrome (IBS), compromised immune system, infections (cellulitis), hernia, Sjögren's Syndrome,2 Baker's Cyst,3 torn meniscus, fractures, and foot impairments.  Complainant maintains these conditions substantially limit her in the major life activities of walking and sexual activity.

On October 4, 2010, Complainant filed an EEO complaint (EEO-2011-MAL-001) in which Complainant alleged that she was subjected to discrimination on the bases of disability (multiple skin, cardiac, orthopedic conditions), age (born 1948), religion (Jewish), and in reprisal for previous EEO activity.  The complaint originally contained 10 claims, but in an appellate decision dated October 24, 2011, the Commission determined that only four of the allegations stated viable claims that should be investigated.  See EEOC Appeal No. 0120112989 (Oct. 24, 2011).  The four remaining viable claims from that complaint are:

1.	In August 2010, the Agency failed to provide adequate ventilation and/or fan and/or adequate means of controlling smells from the galley [kitchen];

2.	The Agency continued to fail to provide disability access for entering and exiting its third-floor facilities at its Headquarters;

3.	The Agency blocked the disabled entrance and/or impeded access to the disabled entrance of Complainant's duty station at the Agency's Headquarters; and

4.	The Agency failed to grant Complainant's requests for mandatory disability sensitivity training.

On July 2, 2010; February 11, 2011; February 23, 2011; July 15, 2011; and May 8, 2012, Complainant filed additional EEO complaints (EEO-2010-MAL-001; EEO-2011-MAL-002;  EEO-2011-MAL-003; EEO-2011-MAL-005; EEO-2012-MAL-002), all of which had multiple allegations.  The Agency dismissed four of the complaints, and Complainant filed appeals of those dismissals with the Commission.  Following the appellate decisions, the following claims were remanded for investigation in the following complaints.4  

The July 2, 2010, complaint alleged that Complainant was subjected to unlawful discrimination on the bases of disability, age, and in reprisal for prior EEO activity when:

5.	The Agency failed to provide reasonable accommodation during the move of OAL from 888 First Street NE to 1100 First Street NE.  Specifically, the Agency failed to provide Complainant with the following accommodations: new identification/card key (credentials) a day before the move, help with packing, and assistance with transportation to the new location; 

6.	Odors required Complainant to seek medical attention on May 7, 2010, and there was a lack of air circulation and air quality in the new building, which injured Complainant's health.  Also, there was no response to Complainant's request not to have interior windows cleaned to protect air quality and to be advised of chemicals used.  On weekends, and after regular office hours, the Agency turned off the heat, ventilation, and air conditioning (HVAC);

7.	There are safety and health concerns about water, i.e., no water coolers permitted, tap water is filtered through piping in the refrigerator, ice cubes are not sanitary, and there is no hot water from the tap.  These matters cause concern about her compromised immunity system;

8.	There was concern about the quality of food in the refrigerator caused by over 100 people opening refrigerator doors for access to the filtered water spout inside the refrigerator.  There was also inadequate room in the refrigerator to hold all food and beverages by employees; 

9.	There was ongoing loud noise, such as hammering and drilling (OAL was the first occupant of the building) in the building;

10.	 Complainant was prohibited from working in the building beyond 7:00 p.m.;

11.	It is difficult for Complainant to see outside the lobby at night to see the shuttle, and there is no way of communicating with shuttle van driver to advise him employees are waiting inside the lobby;

12.	There is no seating in the lobby;

13.	There were no automatic doors at the garage level where the shuttle van comes, and automatic doors in the lobby were unreliable;

14.	On May 5, 2010, the Agency denied Complainant's request for voice-recognition software on her computer;

15.	There is no adapted latch in the toilet stall designated for individuals with disabilities in the women's restroom.

The February 23, 2011, complaint alleged that Complainant was subjected to discrimination and harassment on the bases of age, disability, and in reprisal for previous EEO activity when:

16.	In October 2010, Complainant received a performance evaluation with a rating of "Fully Successful;" and

17.	On December 7, 2010, the Acting Director told Complainant not to copy the union president on her e-mails to managers and that Complainant should mind and look over her business.

The July 15, 2011, complaint alleged that Complainant was subjected to discrimination and harassment on the bases of age, disability, and in reprisal for previous EEO activity when:

18.	On April 28, 2011, the OAL Office Director advised Complainant that she would not be excused from appearing in Agency Headquarters' hearing rooms because attendance was required by her duties, and on May 26, 2011, the EEO Manager/Advisor denied her request to continue to be excused as a reasonable accommodation.

The May 8, 2012, complaint alleged that Complainant was subjected to discrimination and harassment on the bases of age, disability, and in reprisal for prior EEO activity when:

19.	On November 4, 2011, Complainant was directed to use electronic transcripts; and

20.	The Agency gave Complainant a rating of 1.0 or "fully successful" on her 2011 performance evaluation.  

On October 11, 2011, Complainant filed an EEO complaint in which she alleged that the Agency subjected her to discrimination on the bases of age, disability, and in reprisal for previous EEO activity when:

21.	On or about August 25, 2011, FERC/OAL Manager (DA) yelled at Complainant during a conference call.  FERC/OAL Office Director (TG) and other managers told Complainant that she would be disciplined if she complained about (DA); and

22.	The Agency failed to provide Complainant with a reasonable accommodation of teleworking or working in another building during the ten weeks when construction occurred on the floor above OAL.   

At the conclusion of the investigation of the complaints, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).  In accordance with Complainant's request, the Agency issued final decisions pursuant to 29 C.F.R. § 1614.110(b).  

June 25, 2012 Final Agency Decision

The Agency addressed claims 1-4, 21, and 22 in its final decision dated June 25, 2012.  The Agency determined that claims 1-3 and 22 should be analyzed as reasonable accommodation claims, not disparate treatment claims. The Agency analyzed claims 4 and 21 only as disparate treatment claims.  Regarding claims 4 and 21, the Agency found that Complainant failed to establish a prima facie case of disparate treatment on the bases of disability or age because she did not show that similarly-situated individuals outside her protected classes were treated more favorably under similar circumstances.  The Agency also found that Complainant did not show that she was subjected to disparate treatment with respect to these matters because she did not show that the Agency's non-discriminatory explanations were pretextual.

The Agency analyzed claims 2, 3, 5, and 22 as alleging denial of reasonable accommodation for disabilities.  Regarding claim 1, the Agency determined that, although Complainant referenced migraines during the EEO investigation, she did not provide any medical documentation during the relevant time period that established that smells triggered migraines or that ventilation would prevent them, and Complainant's claim that she became unwell because of food odors emanating from the kitchen was not connected to any particular medical condition. The Agency further determined that it checked its ventilation system in Complainant's office and found it to be working properly, and offered Complainant the chance to move to a different office further from the kitchen, which Complainant declined.  The Agency concluded that, because it offered to allow Complainant to move to a different office and provided her with adequate ventilation, the Agency did not fail to accommodate her needs.  

Regarding claim 2, the Agency determined that it stationed a security guard who could open the door for anyone who needed assistance at the office suite, and when the guard left at 5:00 p.m., Complainant could use the call-bell to obtain assistance from coworkers.  Additionally, the Agency stated that Complainant could call the security desk in the lobby for assistance.  The Agency found that these options provided Complainant with a reasonable accommodation for her disabilities, and the issue was rendered moot because automated doors were installed around the time of the EEO investigation.
   
With respect to claim 3, the Agency determined that Complainant did not provide any information about how often the building's door was blocked, the duration of the blocked door, or the degree to which the door was blocked.   However, the Agency determined that at least some of the incidents appeared to pertain to an ordinary garden hose that was on the ground in front of the door, but Complainant did not provide any medical documentation showing that she could not step over a garden hose. The Agency concluded that when Complainant's concerns about the disabled access door were raised with the Agency, it took action by contacting building management to ensure that disruptive maintenance activities were not conducted during normal business hours. Additionally, the Agency concluded that building concierge staff was on hand to assist Complainant if she could not use the accessible door.  The Agency found that Complainant therefore did not prove that she was denied a reasonable accommodation with respect to this matter. 

Regarding claim 4, the Agency found that Complainant did not establish why sensitivity training was necessary, or that the denial of the training was an adverse action driven by discriminatory animus.  Therefore, the Agency found that there was no evidence that the denial of training was motivated by unlawful discrimination.

Regarding claim 21, the Agency determined that the construction was a result of new tenant's moving into the building, and was temporary.  The Agency further determined that it entered into an agreement that provided that the construction would cease by 7:00 a.m., and the Agency took the "extra step" of bringing an HVAC unit into the building to make sure fumes would not affect employees.  The Agency concluded that its decision not to grant Complainant telework or move her to another office was not an adverse action, and the Agency reasonably denied such requests.     

Regarding claim 22, the Agency determined that building managers arranged for the majority of contracting work to be done at night, and employees were instructed that when they heard occasional hammering, they should report the noise so that it could be halted until after normal business hours.  The Agency found that these options were sufficient to provide Complainant with a reasonable accommodation.  

December 7, 2012 Final Agency Decision

The Agency addressed claims 5-20 in its December 7, 2012, final decision.  With respect to claims 5-20, the Agency found that none of the alleged actions were the result of discriminatory animus.  Additionally, the Agency determined that only claims 16, 17, and 20 alleged disparate treatment, while the remaining claims were more properly analyzed as alleging denial of reasonable accommodation for disabilities under the Rehabilitation Act.  The Agency determined that Complainant had not established a prima facie case of disparate treatment based on age or disability for her claims because she did not show that similarly-situated employees not within her protected classes were treated more favorably than she was treated under similar circumstances.  Regarding claims 16 and 17, the Agency found that Complainant had not shown that she received ratings different than other similarly-situated employees or that her ratings were based on discriminatory animus.  The Agency further found that management provided non-discriminatory explanations for her performance ratings based on its assessment of her work product, and that Complainant's work product was not the quality expected of a GS-15 attorney on a particular assignment.  Regarding claim 20, the Agency determined that Complainant was advised not to copy the union president on e-mails because doing so would not be helpful.

The Agency further found that, with respect to Complainant's reasonable accommodation claims, Complainant generally failed to provide specific medical documentation that established a nexus between her disabilities and the requested accommodations.  Specifically, for claim 5, the Agency stated that, although Complainant's request for assistance in moving to the new building initially was denied because of liability concerns, the Agency offered to assist all OAL staff, including Complainant, in moving personal items from Headquarters at 888 First Street NE, Washington, D.C., to the new building down the street at 1101 First Street NE.  The Agency maintained that, in doing so, it made shuttle service available to transport employees between the buildings.  The Agency further maintained that all OAL staff were scheduled to pick up and sign for a key at Headquarters on a designated day, and that when Complainant requested to pick up her key ahead of schedule, she did not provide a medical rationale for doing so.  Nevertheless, the Agency maintained that it offered Complainant the opportunity to pick up her key early, yet she declined to do so.  The Agency noted that it operates a shuttle between 888 First Street NE and 1101 First Street NE between 7:00 a.m. and 9:40 a.m. as well as between 4:45 p.m. and 8:45 p.m.  

Regarding claim 6, the Agency determined that it went through the proper protocol prior to the move to eliminate the odors in the building.  The Agency maintained that staff responded appropriately and in a timely manner to any complaints regarding smells by referring complaints to the building engineer, and building management worked with the General Services Administration (GSA) to increase air circulation.  The Agency also maintained that it inquired about an air freshener, but Complainant rejected this offer.  The Agency concluded that any odor associated with the new building had dissipated by the time of the investigation, which rendered this matter moot.

With respect to the allegations about air ventilation and temperature, the Agency determined that OAL staff submitted all requests about ventilation and room temperature to building management, and these requests were addressed accordingly by the building engineer.  The Agency concluded that building management investigated air temperature and circulation in Complainant's office, and that any temperature issues in the building had stabilized, rendering the matter moot.  The Agency maintained that it allowed Complainant to keep an air filter in her office, and there was no indication that harmful substances were used on the windows when they were cleaned once or twice a year. 

Regarding claims 7 and 8, the Agency explained that water from the two refrigerators goes through a double filtration process.  The Agency further noted that the lounge has a water cooler that is available for a fee.  The Agency found that when a concern regarding water temperature was raised, the Agency tested the water and found it acceptable.  Additionally, the Agency determined that the refrigerator matter could not constitute a failure to provide a reasonable accommodation because it is not required to provide employees with a refrigerator.  The Agency concluded that there were no reported problems or illnesses stemming from the water in the refrigerator, and it placed a sign on the refrigerator to remind staff to close the doors and discard remaining items by close of business every Friday.   

Regarding claim 9, the Agency maintained that it responded to Complainant's concerns about temporary construction noise by reaching an agreement with building management that prohibited construction during core work hours.  The Agency found that on the few occasions on which there was loud construction noise, the Agency notified building management, and the noise was immediately stopped.  

Regarding claim 10, the Agency noted that Complainant contended that she was unable to work after 7:00 p.m. because a power-accessible door initially was not installed on OAL's third-floor office suite.  The Agency determined that Complainant did not produce any evidence that she had assignments that required her to work after 7:00 p.m.  The Agency maintained that it provided a call-bell at the door to enable Complainant to ring for assistance from coworkers, and that Complainant had the option to call the security desk in the lobby for assistance. The Agency concluded that these options provided Complainant with a reasonable accommodation until the Agency installed an automatic door, which rendered the matter moot.  

Regarding claim 11, the Agency determined that the record did not indicate that Complainant was precluded from using the shuttle service because of visibility concerns.  The Agency further found that there was no medical evidence establishing that Complainant had a medical condition that prevented her from using the shuttle without an additional accommodation.  The Agency maintained that a large glass window pane in the OAL building allowed employees and the shuttle driver to see each other.  The Agency also maintained that employees can wait inside the building or outside on a bench.  The Agency further maintained that it placed magnetic shields on the sides of the vans in response to concerns that employees could not recognize the shuttle.  

Regarding claim 12, the Agency found that Complainant did not demonstrate a medical need to have seating in the lobby.  The Agency determined that the record did not demonstrate any instance in which Complainant was required to stand in the lobby or wait for a specified duration without access to a seat.  The Agency also determined that it nevertheless requested seating in the lobby, but building management declined to grant the request.  

With respect to claim 13, the Agency determined that Complainant did not allege that she actually utilized the shuttle in the garage or parked her vehicle at the garage level, nor did she indicate that her access to the garage was ever precluded by the lack of automatic doors.  The Agency further determined that Complainant did not provide any medical documentation to support the contention that she was not able to access the garage due to a disability.

The Agency also determined that Complainant did not show how the building's automatic doors were unreliable, the duration of such incidents, or the degree to which access to her work station was limited.  The Agency found that during the couple of instances in which the automatic doors experienced technical issues, the problems were addressed, and staff was available to assist Complainant. 

Regarding claim 14, the Agency found that it did not deny Complainant the reasonable accommodation of voice recognition software because Complainant did not provide medical documentation establishing that she needed to use such software because of a medical condition.  

With respect to claim 15, the Agency found that this issue was moot because the Agency responded to Complainant's request for restroom latches by submitting a work order and thereafter installing an adaptive latch.   

Regarding claim 18, the Agency determined that OAL attorneys are required to appear in hearing rooms, albeit infrequently, and that Complainant was advised to provide supporting medical documentation regarding how fluorescent lighting in the hearing rooms impacted her medical condition.  The Agency maintained that after Complainant submitted documentation, it notified her in a letter dated May 26, 2012, that the medical documentation did not establish that a major life activity was affected by her alleged condition or that the condition was "substantially limiting." The Agency found that it attempted to address Complainant's concerns about hearing room fluorescent lighting by permitting her to wear sunglasses while in the hearing rooms, contacting the Chief OAL Judge to request that the lights be turned down, opening windows for more natural lighting, and permitting Complainant to sit in any particular location in the room to mitigate exposure to lighting.

With respect to claim 19, the Agency determined that Complainant was not required to use or review electronic transcripts as part of her assignments; instead, she was instructed to observe a live hearing through a video link and provide a summary of her observations.  The Agency further determined that instead of watching the hearings on the video link as instructed, Complainant reviewed the transcripts on her own initiative after the fact.  The Agency also maintained that Complainant could have printed the transcripts.  The Agency further found that Complainant did not provide any medical documentation establishing that she had a medical condition that precluded her from using electronic transcripts.  

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency erred when it found that she did not prove that she was subjected to unlawful discrimination or denied a reasonable accommodation for her disabilities.  Complainant essentially reiterates allegations she raised in her complaint and during the investigation.  For example, for claim 1, Complainant maintains that the Agency incorrectly determined that it provided adequate ventilation and offered to move her to a different office, and that the food odors from the galley permeated Complainant's office suite.  Complainant further maintains that she sought the reasonable accommodations such as a fan or more ventilation that would control or preclude smells from the galley kitchen from entering her work area, but she became unwell in August 2011 because of the food odors from the galley.  Complainant contends that in 2005 and 2006, she submitted documentation to the Agency about how food odors precipitated migraines and allergies.  

With regard to claim 2, Complainant contends that the security guard stationed at the door could only provide assistance if on site, but the guard's work hours were not consistent with Complainant's work hours.  Additionally, Complainant contends that her coworkers often were not available or willing to assist her with the door.   Regarding claim 4, Complainant maintains that the Agency's failure to grant her request for disability sensitivity training is a valid claim, and the Agency's finding that it was within its rights not to schedule such training is incorrect.  Regarding claim 21, Complainant maintains that at a meeting on October 27, 2011, OAL managers (LL and RK) told her to "stop it, stop it" and that there would be consequences if she did not stop complaining about disability accommodation. 

With respect to claims 5-20, Complainant again mainly reiterates allegations raised in her complaint and during the investigation.  For example, Complainant contends that she was susceptible to odors because of her medical condition, and in 2010 was harmed by the smell of paint, glue, fumes, furnishings, and food smells.  Complainant also maintains that Agency refrigerators and ice are a problem because the location of the water spout inside the refrigerator results in multiple employees coming in contact with food items, which is a hazard to food safety and health.  Complainant further maintains that there are concerns about the quality of the ice cubes in the refrigerator, water filters, and the presence of rodents.  Complainant also contends that the refrigerator does not properly regulate the temperature of food.  Complainant further maintains that the Agency has not installed vents/ventilation, air cleaners, air purifiers, or repaired HVAC issues at Complainant's duty station.   

Complainant contends that she requested a reasonable accommodation for her disabilities because of construction noise beginning about August 3, 2011.   Complainant also explains that by failing from 2010 until 2012 to install an automatic door to provide access to and from Complainant's duty station, the Agency limited her ability to work at her duty station after 7:00 p.m.   Complainant also contends that she needs seating in the lobby because her mobility impairments make it necessary for her to stop as she traverses the lobby and waits for transportation.  

Complainant further contends that she did not receive a performance evaluation lower than "highly effective" before she first engaged in EEO activity in 2003 but thereafter received only "fully successful" or "1.0" ratings.  Complainant further contends that the Agency's hearing rooms at Headquarters have strong fluorescent lighting, and she was assigned to work in these hearing rooms although she provided medical documentation to the Agency about her need to avoid fluorescent light both before and after her office was moved to 1100 First Street NE.  Complainant maintains that the Agency previously accommodated her by limiting her exposure to fluorescent light, but this accommodation was withdrawn when she was directed to appear in hearing rooms at 888 First Street NE with fluorescent lighting in 2011.  Complainant further maintains that hearings may extend over periods of days, weeks, or months, subjecting attorneys to the fluorescent lighting for potentially extended periods. 

Additionally, Complainant contests several determinations by the Agency.  For example, Complainant maintains that the Agency did not assist her with packing and moving to the new OAL office building; the Agency was on notice about odors at Complainant's new duty station before it required her to move to the new office; construction noise did not cease during work hours; and the lights in the hearing room cannot be turned down.  Complainant also contends that for each requested accommodation, she provided medical documentation that established a nexus between her medical conditions and the requested accommodations. Finally, Complainant argues that the actions of the Agency were severe or pervasive enough to subject her to a hostile work environment.  

STANDARD OF REVIEW

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 Chap. 9, § VI.A. (Aug. 5, 2015) (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

Claims 10, 16, 17, 20, and 21:  Disparate Treatment and Hostile Work Environment
 
Upon review, we find that only claims 10, 16, 17, 20, and 21 should be analyzed under a disparate treatment analysis.  In so finding, we determine that claim 4 is not an independent claim of disparate treatment but is more properly viewed as a remedy that could be granted if Complainant prevails on her complaint.  Additionally, we note that Complainant's complaint can also be analyzed as alleging that Complainant was subjected to ongoing harassment.  

In order to prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination.  Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).  Proof of a prima facie case will vary depending on the facts of the particular case.  McDonnell Douglas, 411 U.S. at 802 n. 13.  The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions.  Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).  To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual.  Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).

In order to establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an environment, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer.  See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Upon review, we determine that Complainant has not shown that she was treated less favorably than anyone outside her protected classes under similar circumstances, nor has she provided any evidence from which an inference of disparate treatment on the bases of age, disability, or religion could be raised.  Consequently, we find that Complainant has not established a prima facie case of disparate treatment on the bases of age, disability, or religion.  

With respect to reprisal, assuming that Complainant established a prima facie case, we find that the Agency provided legitimate, non-discriminatory reasons for its actions.  For example, with respect to claim 10, management stated that it was not aware of anyone prohibiting Complainant or any other employee from working beyond 7:00 p.m., although Complainant complained that the security guard on the third floor left work before 7:00 p.m.  For claim 16, the Agency stated that Complainant was rated "fully successful" in 2010 because she needed improvement in caseload management, her work product fell short of meeting the expectations of the OAL Director because a key precedent was not addressed in a case, Complainant needed to allow other employees to express their views without interrupting them, Complainant needed to show more respect for other points of view, and Complainant needed to lend more support to team decisions.  Regarding claim 17, management explained that Complainant was told that copying the union president was not helpful, but she was not instructed not to copy the union president on her e-mails to managers.  

With respect to claim 20, TG, the OAL Office Director, stated that all of the attorneys in OAL work on different cases, and therefore, have different case supervisors during the year.  TG stated that he gave Complainant an assignment preparing a memorandum that provided the legal framework within which OAL could work with other Agency staff.  He further stated that he also requested that Complainant prepare a short advocacy memorandum that he could share with other senior staff with regard to what OAL could do to help other offices.  He stated that Complainant submitted a memorandum that was not organized, lacked a theme, included lengthy footnotes, and was not an example of the orderly legal research and crisp and clear writing he expected. TG further stated that the shorter advocacy piece prepared by Complainant did not present any persuasive arguments, so he set it aside and did his own research.  TG stated that he evaluated Complainant's memorandum as an "unsuccessful project," and not of the quality expected of an experienced GS-15 attorney. 

Regarding claim 21, DA, an OAL Manager, stated that he possibly raised his voice at Complainant so he could be heard over her screaming, but he did not yell.  TG stated that he told Complainant and DA to keep their conversations to work topics only and that DA should have a third party present when Complainant and DA communicated with each other.  

Upon review, we find that Complainant did not show that these explanations were pretext for unlawful discrimination.  Consequently, we find that the Agency properly found that Complainant did not prove that she was subjected to disparate treatment because of her protected classes.  With respect to Complainant's harassment claims, we find that that these incidents were not so objectively offensive as to alter the conditions of her employment.  Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).  Further, we find that Complainant did not prove that the alleged actions occurred because of her protected bases. Thus, we also find that the Agency properly found that Complainant was not subjected to harassment based on her claimed protected bases of age, disability, religion, and reprisal.  

Reasonable Accommodation

Claims 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, and 22 allege that the Agency denied Complainant reasonable accommodations for her disabilities.  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. As a threshold matter in a case of disability discrimination under a failure to accommodate theory, the complainant must demonstrate that she is an "individual with a disability." 

Qualified Individual with a Disability

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 (ADAAA), which expanded the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.  Under EEOC regulations implementing the ADAAA, 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 record of such an impairment; or (3) is regarded as having such an impairment.  See 29 C.F.R. § 1630.2(g)(1)-(3).  A physical or mental impairment is defined as: (1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or (2) any mental or psychological disorder, such as an intellectual disability (formerly termed 'mental retardation'), organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 C.F.R. § 1630.2(h) (2011).

The impairment must substantially limit complainant, or significantly restrict her as to the condition, manner, or duration under which he performs a particular major life activity as compared with the performance of the average person in the general population. See 29 C.F.R. § 1630.2(j)(1)(ii).  Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i)(1)(i).  Major life activities also include the operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. 29 C.F.R. § 1630.2(i)(1)(ii).  

Upon review, we note that it is undisputed that Complainant has been diagnosed with and experiences several long-term or permanent medical conditions, including arthritis, orthopedic impairments (fractures, Baker's Cyst, torn meniscus, conditions of the feet), degenerative disc disease (including stenosis), cardiomyopathy, congestive heart failure, embolic cerebral vascular accident (CVA/stroke).  Many or most of these conditions substantially limit or impact the operation of major bodily functions or systems, including Complainant's cardiovascular and circulatory/vascular (cardiomyopathy, congestive heart failure, CVA/stroke, stenosis), skin (psoriasis), and musculoskeletal (degenerative disc disease, orthopedic impairments) systems.  Additionally, we determine that Complainant is substantially limited in the major life activity of walking, as reflected in the fact that she often uses a cane to walk.  See Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. Part 1630 (Interpretive Guidance), 1630.2(i) (walking is a major life activity) and 1630.2(j) (an individual is substantially limited if she is significantly restricted in her ability to perform a major life activity as compared to the average person in the general population); see also Lee v. Dep't of Veterans Affairs, EEOC Appeal No. 07A00007 (July 13, 2000) (complainant who provided evidence that her "ability to ambulate" was limited was found to be substantially limited in the major life activity of walking and therefore an individual with a disability within the meaning of the Rehabilitation Act).  Consequently, we find that Complainant is an individual with a disability.  Further, the record reflects that Complainant has successfully performed the essential functions of her position, as reflected by her "fully successful" performance evaluations during the relevant time period.  Thus, we also find that she is also considered a qualified individual with a disability. 

Medical Evidence submitted to the Agency

The record reveals that Complainant has submitted to the Agency several letters and other documentation from her physicians regarding her medical conditions.  For example, on April 5, 2010, Complainant's primary care physician informed the Agency that Complainant's work-related accommodations needed to be continued because Complainant has "seizure-like episodes induced from fluorescent lights." The primary care physician further stated that Complainant should avoid fluorescent lighting at work and be allowed to use a personal fan. Additionally, the physician also stated that Complainant should be allowed to use an air filter to decrease allergens and irritants in the air that negatively impact her allergies, psoriasis, and breathing.  The physician further stated that Complainant should be assigned to an office space that is not in close proximity to a source of strong smells (food) or loud sounds because the smell of foods and loud sounds precipitate migraines and allergies.  

In a letter to the Agency dated May 27, 2011, the primary care physician stated that Complainant has been diagnosed with severe psoriasis, arthritis, degenerative disc disease, cardiomyopathy, sensitivity to lights, migraine headaches, allergies, and IBS.  The letter further stated that Complainant has a compromised immune system that results in frequent infections, is prone to excessive bleeding, and is limited in her range of motion and ability to ambulate because of arthritis and degenerative conditions.  The letter also stated that Complainant needed to avoid going into the hearing rooms because the rooms' bright and fluorescent lighting induces headaches and seizure-like episodes.  Additionally, the physician's letter stated that Complainant is at an increased risk of falling because of her walking impairment and should not be required to walk between buildings.   

Further, in a letter dated March 15, 2010, a rheumatologist informed the Agency that Complainant had psoriatic arthritis and several other medical conditions, including some which are orthopedic in nature.  The rheumatologist further stated that Complainant was impaired in her ability to walk to such an extent that she was restricted from lifting, stooping, crawling, and climbing. The rheumatologist also stated that because of her medical conditions, Complainant needed to receive the following accommodations: assistance in packing, transporting, and unpacking; assistance in transport to/from the Metrorail, to/from Agency Headquarters, and to/from her duty station; automatic door access to elevators and women's lavatory; audio assistance device (voice recognition software) for hands-free computer use; a disability assistance plan in the event of evacuations/shelter-in-place; continued accommodation regarding duty times already in place along with recognition of increased time needed to be transported to the new building; continued use of a personal printer; continued use of a desk chair to support Complainant's neck/spine; and continued use of a foot stool.  Additionally, in a letter dated March 27, 2010, Complainant's primary care physician stated that Complainant needed to work at home as needed because of arthritis, psoriasis, cardiomyopathy.  

We further note that the Chief of Administration and Operations Staff (TJ) stated that she and other Agency officials frequently received requests from Complainant concerning assistance with the move, the early issuance of new credentials, problems with fluorescent lighting, problems with bathroom latches in the new building, problems with accessing the office suite, problems with noise in her office, problems with air circulation in her office, problems with construction noises, and other issues.  TJ further stated that requests for reasonable accommodations can either be submitted through administrative staff or with the EEO office.     

Claims 1, 6, 7, 8 

Complainant maintained that she was denied reasonable accommodations that alleviated her exposure to smells from the galley kitchen and provided her with adequate ventilation.  Complainant contended that she was also denied a reasonable accommodation beginning on May 7, 2010, because of the compromised air quality at 1100 First Street NE.  Complainant further contended that window cleaning created air quality problems because of chemicals used in this task.  Additionally, Complainant contended that the Agency cut off heating, air conditioning/HVAC, and ventilation after regular hours and on weekends when she worked.  

Complainant also maintained that she was denied reasonable accommodations because tap water is filtered through the refrigerator, which contained bacteria, and the ice cubes are not sanitary.  Further, Complainant maintained that she was denied a reasonable accommodation when the water cooler was moved to the office's East side, which is far from her West side office.  Complainant further maintained that when she returned to the office from medical leave in January 2012, she could not readily access or transport water from the water cooler because it was too far from her office.  

The Director of the Division of Logistics (GP) stated that Complainant complained of general unpleasant smells when she first moved to the new building, and he believed that these were smells from the new building that derived from glue, paint, or something similar.  GP stated that building engineers investigated the reported smells, and after a while, the smells dissipated, and there were no further complaints.  GP stated that the new building went through the typical "off-gassing" process prior to the move, all of the new furniture was LEED-certified, drawers and doors were left open, air was circulated for a period of time, the GSA worked with the landlord to increase air circulation in the evenings and weekends, and the building passed inspection.  GP further stated that he was not familiar with any complaints about interior window cleaning, and that the landlord managed that particular task.  He also stated that he did not know if Complainant requested a change in the window cleaning schedule, but the Agency notified employees of the window cleaning schedule so that they could clear the work area of obstacles.  

The Chief of Administrations Operations Staff (TJ) stated that Complainant often complained that food odors from the galley kitchen made her sick, and TJ responded that the office could not control what people ate during the day.  TJ stated that the odors seemed to be sporadic, and she suggested that Complainant use air fresheners, but Complainant said the scent of air fresheners made her sick.  TJ further stated that when Complainant felt too hot or cold, building engineers promptly adjusted the temperature for her.   

GP responded that the water from the refrigerators went through a double filtration process, but some employees still do not trust the water filtration system and belong to a "water club" wherein they make monetary contributions to have access to water from a cooler.  GP further stated that there were two refrigerators in the building that were cleaned out every Friday, and he was not aware of any problems with the food in the refrigerator.  

Upon review of claims 1, 6, 7, and 8, we find that the Agency did not deny Complainant reasonable accommodations with respect to these particular matters.  By asking that the Agency entirely insulate her from sporadic imperfect air quality, imperfect office temperatures, crowded refrigerators, bad food quality, food odors, and window cleaning, Complainant was essentially asking the Agency to provide her with the perfect work atmosphere at every moment.  This is simply unreasonable. 

Further, we determine that there is no evidence that the water or ice cubes at Complainant's office posed a threat to Complainant's health because of her disabilities.  Complainant has only articulated theoretical, unsubstantiated allegations about the safety of the water and ice cubes.  For example, there is no evidence that tests have found that the Agency's water or ice cubes expose her to bacteria or other hazards related to her disabilities.  Likewise, there is no documentation from medical officials that Complainant is restricted from consuming water or ice from the type of normal, ordinary water and ice sources which the Agency provided.  Instead, the record reflects that the water from the refrigerators goes through a double filtration process to ensure its safety for consumption.  

Regarding air quality, the record reflects that the new office building went through a standard "off-gassing" process prior to the move in which new furniture was certified as environmentally sound and drawers and doors were left open to minimize odors and maximize air quality.  We note that some employees complained about air quality for a short period of time after they moved into the building, but the record indicates that building engineers promptly resolved the matter.  Complainant asserts that the Agency should have provided better mechanisms for air filtering and circulation, but there is no objective or persuasive evidence that reflects that the air quality was deficient in Complainant's office.  Further, we note that the Agency allowed Complainant to use fans and air filters in her office to address her concerns.  As such, there is no persuasive evidence that the Agency's actions were not effective or insufficient to address Complainant's concerns about air quality.  

We note that Complainant submitted constant and numerous requests about these specific matters; nonetheless, the Agency made good faith efforts to provide Complainant with accommodations that adequately addressed these concerns, as detailed above.  With respect to the water cooler, there is no evidence in the record that Complainant informed management about her problems accessing the water cooler because of her medical condition.  Moreover, the water cooler is sponsored and maintained by a voluntary collective of employees.  Consequently, we find that Complainant did not prove that she was denied reasonable accommodations with respect to claims 1, 6, 7, and 8.

Claims 2 and 13

Complainant informed the Agency of her need for automatic doors in her work area/suite and at the garage area.  Complainant stated that her duty hours are 9:00 a.m. to 5:30 p.m., but she tried to arrive early so that she could leave before the security guard left work at 5:00 p.m.  Complainant stated that although the Agency assured her that there would a security guard on duty that would open the door for her after 5:00 p.m., sometimes a security guard was not available or on duty at OAL's reception area to assist her in entering or exiting the building.  Complainant stated that she thereafter could not work beyond 5:00 p.m. unless she ensured that someone was available to facilitate her entry and exit from the facility. Complainant further stated that she was insulted and ridiculed when she sought assistance from others, and that there were times when she was left stranded inside or outside the office suite.  Complainant stated that this situation also precluded her from working on weekends.  She stated that she informed the Agency about this lack of accommodation from 2010 until 2012, but the Agency did not install automatic doors at the office suite until March 22, 2012, well after Complainant notified the Agency of her need for an automatic door.  Complainant also stated that there were no automatic doors at the garage level where the shuttle arrives to pick up employees.  

Upon review, we first note that Complainant's considerable difficulty in walking and her mobility impairments make it difficult for her to open the doors in her workplace.  We find that requiring Complainant to seek assistance in opening doors from security guards and coworkers did not provide her with an effective accommodation for her disabilities with regard to this matter.  In fact, the record reflects there were numerous times from 2010 until 2012 when Complainant could not get assistance from security guards or coworkers to open the doors at her suite, and this effectively stranded Complainant until someone could aid her.  As such, Complainant was at the mercy of her coworkers and security guards to provide her with access to her workplace, which is unacceptable.  

The Agency did not install automatic doors at Complainant's suite until March 2012, almost two years after Complainant's duty station was transferred to the building at 1100 First Street NE, and Complainant had notified the Agency of her difficulty in using the non-automatic doors.  We find that the Agency's failure to promptly install an automatic door denied Complainant of a reasonable accommodation for her disabilities.  See Villanueva v. Dep't Security, EEOC Appeal No. 01A34968 (Aug. 10, 2006) (failure to respond to a request for accommodation in a timely manner constitutes a denial of reasonable accommodation). 

Further, the fact that the Agency eventually installed the automatic doors at the office suite reflects that this accommodation was not an undue hardship on the Agency.  See Birchfield v. Dep't of the Air Force, EEOC Appeal No. 0120102071 (Feb. 11, 2011) (given the size and annual budget of the Agency, any claim that providing automatic doors for complainant would result in an undue hardship was without merit).  Additionally, the record reflects that the Agency shuttle started picking up and dropping off employees at the garage level,5 but there is no evidence that the Agency has installed an automatic door at that entrance.  The Agency attempts to shift blame for its tardiness and inaction to the building owner and the GSA, but the Agency has its own duty to ensure that its employees are provided with reasonable accommodations, and its leases and relationships with third parties should incorporate this duty.  Thus, we find that Complainant proved that she was denied a reasonable accommodation with respect to claims 2 and 13.

Additionally, Section 504 of the Rehabilitation Act of 1973, as amended, prohibits disability discrimination in programs and activities conducted by Federal Executive agencies, including a requirement that facilities are physically accessible to individuals with disabilities.  See 29 U.S.C. § 794.  The federal government is also covered by the Architectural Barriers Act (ABA), which requires that the design, construction, and alteration of Federal buildings be done in an accessible manner.  See 42 U.S.C. §§ 4151 et seq.   The architectural standards under the ADA, the Rehabilitation Act, and the ABA are generally consistent with one another, although enforced by different agencies.6  We note that the Agency facility at 1100 First Street NE is all new construction.  Certainly the Agency and the GSA are on notice that Federal government physical facilities must comport with the applicable physical accessibility standards. Cf., Gondos v. Dep't of Health and Human Services, EEOC Request No. 0520120589 (Feb. 25, 2015) (agency failure to insure that newly-constructed facility was accessible to complainant on move-in date stated a claim of failure to reasonably accommodate).

Complainant is advised that, while the Commission cannot enforce the accessibility standards contained in the ABA, she may wish to separately pursue filing a complaint with the U.S. Access Board for the failure of the Agency to ensure its compliance with these standards.  See www.access-board.gov for more information in this regard.       
 
Claim 3

Complainant maintains that the building manager blocked the disabled access door at the lobby level with maintenance equipment, including a garden hose, scaffolding, and cleaning equipment, and that she brought this matter to the Agency's attention in 2010.  In response, the Agency stated that it was aware of Complainant's complaints about the blocked disability access, and informed the building manager of the situation.  The Agency further stated that building management is now required to inform tenants of any work done in the building that would be disruptive to employees and must perform disruptive work outside core operating hours.  

Upon review, although the Agency maintained that it eventually rectified the situation by ensuring that building management does not perform disruptive work to employees during core business hours, Complainant maintains that the accessible entrance continues to be blocked on an ongoing basis.  The Agency makes light of Complainant's claim that garden hoses and other equipment impact Complainant's ability to use the accessible entrance, but we are persuaded that it presents a significant hazard or impediment to Complainant because of her walking impairments.  Also, we note that the Agency's assurance that building management would henceforth avoid "disruptive work" is rather generalized and does not specifically address the problem of blocked accessible entrances.  Further, we do not find that the Agency has proven that keeping the accessible entrances clear is an undue hardship on the Agency.  Consequently, we find that the obstruction of the accessible entrance constituted a denial of a reasonable accommodation for Complainant.

Claim 5

Complainant stated that the Agency did not grant her request to provide reasonable accommodations during the move by providing her with the Kastle Systems access card the evening before the scheduled move; instead, the Agency required her to go 888 First Street NE first to receive a Kastle Systems access card on the scheduled day of the move to 1100 First Street NE.  Complainant also stated that the Agency did not help her with packing or assist her with transportation to the new location.  

The Director of the Division of Logistics Management (GK) stated that when Complainant was issued her key card for the new building, she did not want to sign for the card and signed "under duress."  He stated that he was not familiar with the details of the situation, but he understood that the matter was resolved.   GK further stated that he recalled that Complainant requested assistance with relocating her personal items, but initially this request was denied because of liability concerns.  GK stated that by the end of the move, it was discovered that space would be available on the moving trucks, and the Agency made a general offer to employees to move personal items such as plants and lamps.  GK further stated that he did not know if Complainant availed herself of this offer, but she was not treated any differently than anyone else.  GK also stated that the Agency ran a shuttle between its two offices from 7:00 a.m. until 9:40 a.m. and between the offices and Union Station from 4:45 p.m. to 8:45 p.m., but he was not familiar with Complainant's shuttle needs or requests.   

TJ stated that Complainant's request for assistance with the move was denied in part because she did not provide updated medical documentation, the Agency's logistics contractors were not permitted to touch or move anyone's personal property, and transportation to and from work was each employee's responsibility.  TJ further stated that, during the move, the Division of Logistics Management (DLM) made special arrangements to accommodate requests to have personal items moved to the new building by making the shuttle available to transport employees with personal items, but Complainant said that these arrangements were problematic for her.  

Upon review, we first find that Complainant did not establish a nexus between her request to receive an access card the day before the move and her disabilities.  Therefore, we find that Complainant did not prove that the Agency denied her a reasonable accommodation with respect to this particular matter. However, in a letter dated March 15, 2010, Complainant's rheumatologist informed the Agency that Complainant was impaired in her ability to walk to such an extent that she was restricted from lifting, stooping, crawling, climbing and needed assistance in packing.  As such, the Agency was on notice that Complainant needed assistance with packing and moving.  The Agency maintains that it eventually offered all employees assistance with moving personal items such as plants and lamps, but Complainant's disability required overall assistance with packing as well as transporting her belongings to the new office.  The Agency has not shown that providing Complainant with this assistance would have been an undue hardship, nor that it made it good faith effort to provide her with a reasonable accommodation for her disabilities with respect to moving.  Therefore, we find that Complainant proved that she was denied reasonable accommodations with respect to claim 5. 

Claims 9 and 22

Regarding claims 9 and 22, Complainant stated that she was subjected to hammering and drilling noise when construction occurred on the floor above the OAL offices.  Complainant maintains that she should have been allowed to telework or work in another building during the construction as a reasonable accommodation. 

GP stated that OAL was the first occupant in the new building and, consequently, continued construction was necessary after the Agency moved into the building.  GP further stated that it was agreed that heavy, noisy construction would be completed after core duty hours and on weekends, but there were a couple of occasions on which this did not happen, and the landlord reacted immediately to stop the noise.  GP stated that the Agency instructed employees to notify management immediately if they had a problem with noise, but sometimes employees did not notify the Administrative Officer or management immediately when they were bothered by noise.  

The record reflects that the Agency had notice that Complainant's physician restricted her from exposure to loud sounds because such sounds precipitated migraines.  The record also reflects that the Agency was promptly notified by Complainant when she was impacted by construction noise.  Although the Agency maintained that it arranged for construction to be rescheduled to times when Complainant would not be at work, the record reflects that Complainant was sometimes exposed to loud construction sounds that impacted her medical condition.  The record also reflects that the Agency has allowed Complainant to telework during other periods of time, but did not do so during the relevant time period.  Allowing Complainant to telework during the approximately ten-week period of construction would have allowed Complainant to avoid the construction noise while continuing to work.  Likewise, reassigning Complainant to Headquarters until the construction was completed also would have accommodated Complainant's medical needs.  The Agency has not shown that these options would have been an undue hardship during the construction period.  Therefore, we find that Complainant proved that the Agency denied her a reasonable accommodation with respect to claims 9 and 22.  

Claims 11 and 12

Complainant stated that she is concerned about her ability to see the Agency shuttle/van from the lobby at night as well as the driver's inability to see her waiting in the lobby.  Complainant further stated that there is no place for her to sit in the lobby.  

TG stated that the Agency did not control the use of the building lobby, that he requested that seating be placed in the lobby area, and that "building management" declined to grant his request for seating in the lobby.  GP also stated that the lobby is not under Agency control, and although the Agency has requested that chairs or a bench be placed in the lobby, the landlord has refused.  GP further stated that there is a bench outside the building.    

Upon review, we find that the bench just outside the office building provided Complainant with adequate seating as well as the ability for Complainant and the shuttle driver to see each other.  While Complainant may find that this seating is less than optimal because it is outside, we note that individuals with disabilities are entitled to effective accommodations, not necessarily their accommodations of choice.  See Castaneda v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994).  Consequently, we find that Complainant did not prove that she was subjected to reasonable accommodations with respect to claims 11 and 12.  

Claim 14  

Complainant maintains that she was denied a reasonable accommodation when the Agency failed to provide her with voice recognition software on her computer.  The Agency stated that Complainant's request for audio assistive computer technology was denied on May 5, 2010, because she did not provide requested detailed medical documentation from her physician that demonstrated that she required such software.  

Upon review, we note that Complainant submitted documentation from a physician that stated that she needed to use voice recognition software.  However, Complainant's need for voice recognition software was not obvious, and the submitted documentation does not explain the medical need for it.  As such, the Agency properly asked Complainant for more documentation that specified why she needed the software, which Complainant did not provide.  When an individual's disability or need for reasonable accommodation is not obvious, ands she fails to provide reasonable documentation requested by the employer, the employer will not be held liable for failure to provide the requested accommodation.  EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002, at Q. 6 (Oct. 17, 2002).  Consequently, we find that Complainant did not prove that she was denied a reasonable accommodation with respect to claim 14.  

Claim 15

Complainant stated that the Agency denied her a reasonable accommodation because it did not provide her with a reliable latch in the women's restroom disabled-accessible stall that kept the stall door closed.  She stated that she has had to use crutches, canes, and hooks to close the door.  Complainant stated that there have been occasions when the latch opened on its own or was opened by others while she was in the stall because she could not fully close or fasten the latch.  

Upon review, we find that the record reflects that the Agency promptly and reasonably responded to Complainant's report and repaired the latch so that it properly closed the stall door within a reasonable amount of time.  While Complainant may have had to improvise to close the stall door until the latch was repaired, we do not find that this situation was so egregious as to deny Complainant use of the restroom facilities.  Consequently, we find that Complainant failed to prove that the Agency denied her a reasonable accommodation with respect to claim 15.  

Claim 18

Complainant alleged that the Agency denied her a reasonable accommodation because it did not excuse her from appearing in hearing rooms that had fluorescent lights.  The record reveals that in a letter dated April 5, 2010, Complainant's physician informed the Agency that fluorescent lighting could induce fainting and seizure-like episodes in Complainant. The Agency maintained that Complainant was informed that she nonetheless must work in the hearings rooms, but it accommodated Complainant by allowing her to wear sunglasses in hearing rooms, turning down lights, and opening curtains to allow for natural lighting.   

Upon review, we determine that the Agency was notified of Complainant's need for a reasonable accommodation during the relevant time period because it had documentation from the her physician that revealed that she was susceptible to migraine-like systems when exposed to fluorescent lighting.  The Agency claims that it provided reasonable accommodations with respect to this matter, but we find that there is no evidence that the Agency's offered accommodations were effective accommodations for Complainant.  For example, there is no evidence in the record that wearing sunglasses would have shielded Complainant from the impacts of fluorescent lighting.  Additionally, the Agency has not shown that Complainant would be able to see sufficiently to read or walk safely inside during hearings.  Further, the Agency did not rebut Complainant's claim that the hearing rooms do not have light switches that permit the lowering of lights, and that opening curtains did not mitigate the impact of fluorescent lights on her.  As such, the Agency had two basic options to accommodate Complainant:  1) use non-fluorescent lighting in the hearing rooms; or 2) ensure that Complainant did not have to work in the hearings rooms.  We are persuaded that using non-fluorescent lighting in the hearings rooms is the most appropriate accommodation in this case.  The Agency has not shown that replacing the fluorescent lights with other types of lighting would be an undue hardship.  Yessenia H. v. Dep't of Veterans Affairs, EEOC Appeal No. 0720070027 (Oct. 13, 2015) (agency failed to provide reasonable accommodation where it did not promptly provide complainant who had fluorescent light sensitivity that triggered migraines with non-fluorescent and natural lighting at work).  Consequently, we find that the Agency denied Complainant a reasonable accommodation with respect to claim 18.  

Claim 19

Complainant stated that she was directed to use electronic transcripts on November 4, 2011, but the Agency knew she needed to use hard copies as an accommodation for her disabilities.  TG denied Complainant's allegation that he directed her to use electronic transcripts and explained that he asked Complainant to provide him with a brief daily summary of her observations of a hearing that OAL was monitoring in the conference room through a remote video link.  TG stated that he expected Complainant to observe the witnesses through the video link and provide him with useful feedback about the testimony, but Complainant only provided him with two daily summaries over the course of several weeks.   He stated that he suggested that Complainant would be able to do the assignment better if she observed the witnesses and took notes of their testimony, but apparently, Complainant decided to read the transcripts of the hearing instead.

After a review of the matter, we are persuaded that TG's version of the facts is more accurate.  In so finding, we note that the record does not contain any documentation that reflects that Complainant was directed to use electronic transcripts, nor is there is any eyewitness corroboration of this allegation.  Consequently, we find that Complainant failed to prove that she was denied a reasonable accommodation with respect to claim 19.  

Overall, we do not find that the Agency made prompt "good faith efforts" to reasonably accommodate Complainant with respect to the particular reasonable accommodation claims on which Complainant prevails.  Therefore, the Agency is not insulated from providing Complainant with an appropriate award for compensatory damages based on our findings that it violated the Rehabilitation Act. See Teshima v. U.S. Postal Serv., EEOC Appeal No. 01961997 (May 5, 1998).

Finally, we note that Complainant has filed several other EEO complaints.  These complaints reveal that Complainant and the Agency have developed a contentious relationship.  In many cases, the strained relationship is related to Complainant's disabilities and requests for accommodations.  Under these circumstances, we strongly urge the parties to consider using formal mediation to attain mutually satisfactory resolutions.  Further, mediation often improves communication between parties so that future conflicts and impasses can be prevented.  Of course, the parties should use a neutral, independent, certified mediator to maximize the potential success of mediation.  Additionally, Complainant's EEO complaints reveal that coworkers were often unhelpful or resistant when Complainant sought reasonable accommodations for her disabilities. Consequently, we recommend that the Agency promptly use formal training as a vehicle to educate all employees about the experiences of individuals with disabilities, as well as Agency obligations under the Rehabilitation Act.  

CONCLUSION

Therefore, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding that Complainant did not prove that she was subjected to unlawful discrimination with respect to claims 1, 4, 6, 7, 8, 10, 11, 12, 14, 15, 16, 17, 19, 20, and 21.  We REVERSE the Agency's finding that Complainant was not denied a reasonable accommodation with respect to claims 2, 3, 5, 9, 13, 18, and 22.  

ORDER

To the extent that the Agency has not already done so, the Agency is ordered to undertake the following remedial actions:

1.	Within sixty (60) calendar days after this decision becomes final, the Agency shall provide Complainant with reasonable accommodation by undertaking the following actions: 1) install and maintain in working order at its 1100 First Street NE Washington, D.C., facility automatic doors at its third-floor entrances/exits, the lobby, and the entrance/exit to the garage area; 2) ensure that all accessible entrances and passageways are clear and unobstructed; 3) henceforth ensure that Complainant is granted assistance with packing and transport related to office moves; 4) ensure that Complainant is henceforth allowed to telework during any prolonged periods of loud construction noise at the office; and 5) replace fluorescent lighting in hearings rooms in which Complainant works with non-fluorescent lighting.   

2.	Within 120 calendar days after this decision becomes final, the Agency shall provide eight hours of in-person EEO training to all Washington, D.C., OAL management officials and supervisors, with a particular emphasis on the Agency's obligation to provide reasonable accommodations to individuals with disabilities.  

3.	The Agency shall conduct a supplemental investigation pertaining to Complainant's entitlement to compensatory damages incurred as a result of the Agency's discriminatory actions in this matter. The Agency shall issue a final decision determining Complainant's entitlement to compensatory damages within 60 calendar days after this decision becomes final.

4.	The Agency shall post a notice in accordance with the paragraph below.

POSTING ORDER (G0914)

The Agency is ordered to post at its Washington, D.C. facilities at 888 First Street, NE and 1100 First Street, NE 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)), 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 (M0815)

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 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, 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 (T0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint.  You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing.  In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint.  If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title.  Failure to do so may result in the dismissal of your case in court.  "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.  If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (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


March 15, 2016
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 Sjögren's Syndrome is a disorder of the immune system, often identified by two of its most common symptoms: dry eyes and a dry mouth.  Mayo Clinic, available online at http://www.mayoclinic.org/diseases-conditions/sjogrens-syndrome/basics/definition/con-20020275 .

3 Baker's cyst is a buildup of joint fluid that forms a cyst behind the knee.  National Institutes of Health (NIH), U.S. National Library of Medicine, available online at https://www.nlm.nih.gov/medlineplus/ency/article/001222.htm .
4 See EEOC Appeal No. 0120113822 (April 12, 2012) (11 claims out of 37 remanded); EEOC Appeal No. 0120114077 (April 12, 2012) (2 claims out of 7 remanded); EEOC Appeal No. 0120121373 (April 12, 2012) (1 claim out of 2 remanded). 
5 GP stated that the Agency shuttle picks up employees in the evening from the P1 garage level until approximately 6:00 pm., and after that picks up employees from street level.  

6 The U.S. Access Board is responsible for enforcing the physical accessibility standards to which the federal government is subject under the ABA.

---------------

------------------------------------------------------------

---------------

------------------------------------------------------------

2
0120123215 










28
0120123215
0120131079