Harvey G.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (Bureau of Reclamation), Agency. Appeal Nos. 0120132052 0120150844 Agency Nos. DOI-BOR-12-0127 DOI-BOR-14-0053 DECISION Complainant timely filed two appeals from Agency final decisions concerning his equal employment opportunity (EEO) complaints 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. The Commission accepts the appeals pursuant to 29 C.F.R. § 1614.405(a). We exercise our discretion to consolidate the appeals in this decision. See 29 C.F.R. § 1614.606. For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision with regard to Agency No. DOI-BOR-12-0127, and AFFIRMS in part and REVERSES in part the Agency's decision with respect to Agency No. DOI-BOR-14-0053. ISSUE PRESENTED The issue presented is whether Complainant established that he was denied reasonable accommodation for his disability when he was not allowed to telework, and was subsequently terminated from employment with the Agency. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Engineering Technician (Drawing), GS-09, with the Agency's Bureau of Reclamation in Billings, Montana. Report of Investigation No. DOI-BOR-12-0127 (ROI-1), at 1. Complainant has been diagnosed with Myasthenia Gravis, sensory-neural bilateral hearing loss, and diaphragmatic paralysis. Id. at 49-50. Complainant informed the Agency of his medical conditions when he was hired in 2001. According to Complainant, in 1998 his neurologist diagnosed him with Myasthenia Gravis, which is a chronic neuromuscular disease that has debilitating symptoms, causing double vision, slurred speech, stumbling, difficulty chewing and swallowing, and that causes periods of total incapacitation. Id. Complainant's Myasthenia Gravis has worsened over time, making it more difficult for him to engage in physical activity, including driving an automobile for extended periods of time. Id. at 10. In a letter dated June 5, 2001, Complainant's doctor noted that Complainant's condition was chronic, and that "[e]xtended periods of driving aggravate symptoms of the disease and cause double vision, which may endanger him and others on the road." Id. at 68. Medical documentation further indicated that Myasthenia Gravis is a disease of the nerves that can cause periodic and progressive total body weakness. Id. at 251. When originally hired, the duties of Complainant's Engineering Technician Position (Drawing) in Billings, Montana required that Complainant: Perform drawing management and technical engineering related work utilizing current technology, including Computer Aided Design and Drafting (CADD) and Reclamation's Electronic Document System (REDS) software. Id. at 263. Complainant's duties also included "planning, scheduling, and coordinating resources to provide a current drawing database" and collecting "data for and prepar[ing] general and complex layouts and engineering drawings." The position description for Complainant's Engineering Technician (Drawing) position noted that, at times, Complainant might be required to perform: Conduct on-site investigations to collect and assemble design data and technical information that affect engineering designs, specifications, operations, maintenance, technical drawings, power systems, troubleshooting, and project schedules, all of which influence projects and are critical for efficient and safety operation and maintenance activities. Obtain[ ] field data requires review and verification of installations and conducting "point-to-point" checks on electrical wiring and associated equipment, hydraulic and mechanical equipment, and piping systems to ensure accuracy of data and drawings to existing facility conditions. Id. at 266. After a coworker retired from the Agency's Yellowtail Field Office in May 2009, Complainant's position required travel almost every night of the week. Id. at 132. However, after his condition worsened, Complainant requested reasonable accommodation from his first-level supervisor (S1) on December 11, 2011. Id. at 52. As an accommodation, Complainant, in accordance with his doctor's orders, requested: 1. No more than 6 nights per month of overnight travel; 2. No more than 10 minutes of climbing stairs per day; and 3. Rest breaks as required when driving. Id. On January 19, 2012, Complainant received a memorandum from S1 in response to his request for accommodation. Therein, S1 described the functions of Complainant's position, which he believed were essential. S1 wrote as follows: The essential function of your position . . . requires you to perform work in both a typical office setting and in remote field locations including dams, power plants, switchyards, irrigation facilities, campgrounds, and outdoors. Outdoor work may involve exposure to extreme climate conditions. Time [is] spent in travel status to and at the various Field Offices within the Area Office. Your position requires you to travel to perform the functions of the Contracting Officer's Representative to monitor progress under the contract, assure quality control, and ensure other technical aspects of the contract are being satisfied by the contractor. Your position requires you to perform spot checks and follow-up to ensure deliverables are acceptable. To monitor the progress of projects, it is necessary for you [to] be on-site. Id. at 130-31. In the January 19, 2012, memorandum, S1 also described the physical duties of Complainant's position: The physical demands of this position require occasional walking, bending and stooping, and lifting. Field work can include working on ladders, considerable walking, bending and stooping, climbing stairs, extensive use of the hands and occasionally lifting and carrying equipment weighing up to 50 pounds. Id. At the end of the memorandum, S1 noted that, based on his review, Complainant could not perform the essential functions of his position and no reasonable accommodation could be provided. Id. S1 did note, however, that although Complainant could not be accommodated in his current position, he was researching other options for Complainant, including reassignment to a vacant, funded position. Id. In a subsequent memorandum to Complainant dated February 2, 2012, S1 offered Complainant the choice between two Engineering Technician (Drawing), GS-9, positions for reassignment. Id. at 127-28. S1 offered Complainant his choice between a position at the Yellowtail Field Office in Fort Smith, Montana, or a position at the Canyon Ferry Field Office in Canyon Ferry, Montana. S1 noted, however, that the Agency would not pay any expenses for Complainant's relocation. Id. Toward the end of the memorandum, S1 warned Complainant that if he refused to accept either position, the Agency would most likely take action to remove him from employment for medical reasons. Id. Complainant did not accept either assignment. Complainant explained that the assignments to both the Yellowtail and Canyon Ferry Field Offices would require long driving commutes for him, in violation of his restrictions. Id. at 121. Complainant further explained that moving to a new location outside his commuting area would have caused him financial hardship because he had recently purchased a home in 2010 in Billings, Montana, near his work location. Id. Complainant indicated that previously, in June 2010, he had asked for reassignment to the Yellowtail Field Office based on his medical conditions and offered to pay for the move out of his own pocket, but the Agency had declined. Id. at 64. Thereafter, on February 9, 2012, Complainant requested of S1 that he be considered for a noncompetitive appointment to an advertised Internet Technology (IT) Specialist position under BR-DEGP-MT-12-05 and BR-GP-MT-12-07. Id. at 57. Complainant's request was denied by the Agency's HR Specialist. According to Complainant, the HR Specialist told him that he could not be noncompetitively appointed to the IT position because it would be a promotion. Id. Specifically, the HR Specialist, via e-mail dated February 15, 2012, advised Complainant that the IT position had promotion potential to the GS-11 level, so Complainant would have to participate in the competitive process. Id. at 158. Via e-mail dated February 17, 2012, Complainant reiterated that he wished to be noncompetitively appointed to the subject IT positions. Id. at 155-57. The HR Specialist responded the same day via e-mail, advising Complainant that he was not qualified for the advertised IT positions based on his education and experience. Id. Therein, the HR Specialist wrote that the basic education requirements for the position were a degree in computer science, engineering, information science, information systems management, mathematics, operations research, statistics, or technology management, or a degree with 24 credit hours in one of those fields. Id. The HR Specialist also noted that the position's duties included providing PC customer support to users, and that Complainant's application failed to show that he had such specialized experience. As a result, Complainant's name was not placed on the certificate of eligible candidates for the position. Id. Complainant, meanwhile, requested to be allowed to telework from home on at least a part-time basis as an accommodation, which S1 denied. On March 28, 2012, S1 told Complainant via e-mail that his Billings, Montana Engineering Technician position required "face-to-face interaction with engineering staff and power facility staff, and demand[s] on-site comparison of drawings with/to power facility equipment." Id. at 132-135. Therein, S1 also noted that Complainant's physical presence was required at the Agency's power facilities, which are located some distance from the Agency's Billings Office. S1 pointed out that Complainant took more than one hundred overnight trips from January 2009 through December 2011. Id. Through e-mails, Complainant requested that S1 reconsider his telework request. Id. Therein, Complainant specifically requested that management fill an Engineering Technician position, from which a previous employee retired in 2009. Id. Complainant indicated that this newly-hired employee could primarily perform onsite visits with power-plants. Id. Complainant noted that this would have enabled him to perform his drawing management duties from Billings, Montana. Id. Months later, on September 12, 2012, the Deputy Area Manager issued Complainant a Notice of Removal Memorandum, terminating Complainant from employment, effective September 14, 2012. Report of Investigation No. DOI-BOR-14-0053 (ROI-2), at 198-206. Therein, the Deputy Area Manager terminated Complainant, reasserting S1's belief that Complainant could not perform the essential functions of his Billings, Montana position due to his medical conditions. Id. The Deputy noted, in pertinent part, that S1 attempted to provide Complainant with reassignment to either the Yellowtail Field Office, or the Canyon Ferry Field Office. Id. The Deputy indicated that these offered Engineering positions would have clearly accommodated Complainant. Id. The Deputy noted that Complainant would have had to rent a residence at either location, which would have accommodated him. Id. at 201. The Deputy noted, however, that Complainant neither accepted nor declined S1's offer for reassignment and clearly ignored S1's offer, not agreeing with the conditions of it. Id. The Deputy indicated that Complainant's request to telework was denied, and found that Complainant's refusal to travel and frequent absence from work made it impossible for him to perform the essential functions of the Billings position. Id. One year later on September 10, 2013, Complainant applied, via USAJobs, to the position of Engineering Technician, GS-9, located in Fort Smith, Montana under Announcement No. BR-GP-MT-13-46. The Vacancy Announcement noted that there were two vacant Engineering Technician positions available. Id at 344-47. One vacant position was located in the Yellowtail Field Office and the other at the Canyon Ferry Field Office. Id. These were apparently the same positions/locations that Complainant was offered for reassignment, which he declined. Id. at 353. The Vacancy Announcement specified that the position only required "Two travel nights per month." Id. The Vacancy Announcement also noted that the Agency "has determined that the duties of this position are suitable for telework and the selectee may be allowed to telework with supervisory approval." Id. Complainant averred that he could perform the duties of the position with the accommodations of flexible hours and the ability to telework. According to Complainant, the Supervisor Facility Operations Specialist, who served as selecting official for the Canyon Ferry position, told him that these accommodations would be provided if he were selected. Id. at 242. The selecting official was supervised by the Deputy Area Manager who, as noted above, issued Complainant the Notice of Removal dated September 12, 2012. Id. at 317. The selecting official averred that Complainant's disability and his reasonable accommodation efforts were "not germane to an Engineer Technician's ability to perform at Canyon Ferry." Id. 321. According to the selecting official, he reviewed the candidates' resumes, quick hire questions and answers, and college transcripts. Id. at 318. There were seven candidates up for consideration, which included Complainant. Id. at 319. The selecting official indicated that one candidate was removed from consideration due to that candidate being selected by management for the Yellowtail Field Office. Id.2 The selecting official indicated that only three candidates, excluding Complainant, were selected to be interviewed for consideration for Canyon Ferry. Id. According to the selecting official, Complainant was not selected to be interviewed due to his lack of certain electrical experience and/or education. Id. However, according to Complainant's testimony, his resume showed that he had 11 years of hands-on electrical experience. Id. at 243-244; see also id. at 106-110. On March 27, 2012, Complainant filed an EEO complaint (Agency No. DOI-BOR-12-0127) alleging that the Agency discriminated against him on the bases of disability and reprisal when: 1. On January 19, 2012, he received a memorandum which stated that he was not able to perform the essential functions of his current position, and that there were no reasonable accommodations that could be made to allow him to continue to work in his current position. 2. On February 2, 2012, he received a memorandum wherein the Agency offered him two Engineering Technician (Drawing) GS-09, positions. The memorandum stated "if you decline this offer, your declination will cancel any further consideration of reassignment as a reasonable accommodation. The Agency will initiate further action up to and including removal based on medical reasons since you are physically unable to perform the essential duties of your current position." 3. On February 9, 2013, he requested to be considered for a non-competitive appointment to the current advertised IT Specialist positions advertised under BR-DEGPMT-12-05 and BR-GP-MT-12-07. 4. He was not selected for the positions of IT Specialist advertised under BR-DEGP-MT-12-05 and BR-GP-MT-12-07. 5. The Human Resources Office breached his medical privacy when it opened a "blue envelope" addressed to OWCP without authorization sometime between January 21, 2012, and February 6, 2012. 6. A Human Resources Specialist falsified medical records related to his disability when she dated his OWCP Form CA-2 signature line as January 18, 2012, but he did not actually sign it until January 31, 2012. On March 6, 2014, Complainant filed a second EEO complaint (DOI-BOR-14-0053) alleging that the Agency discriminated against him on the bases of disability and reprisal when: 7. He was not selected for the position of Engineering Technician, GS-9, advertised under Vacancy Announcement No. BR-GP-MT-13-46; and 8. On September 14, 2012, he was terminated from his position as an Engineering Technician. The Human Resources (HR) Office also did not issue him a Career Transition Assistance Plan/Interagency Career Transition Assistance Program (CTAP/ICTAP) Letter of Eligibility. Complainant claimed that by not being issued the CTAP/ICTAP Letter of Eligibility he was deprived of the preferences/advantages he would have otherwise enjoyed as an applicant. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notices of his right to request a hearing before an EEOC Administrative Judge (AJ). With regard to Agency No. DOI-BOR-12-0127, Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f). With respect to DOI-BOR-14-0053, Complainant, instead of a hearing before an EEOC AJ, specifically requested that the Agency issue a final decision. The Agency thereafter issued final decisions pursuant to 29 C.F.R. § 1614.110(b). The decisions concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Agency's Final Decision DOI-BOR-12-0127 Initially, the Agency procedurally dismissed claims 5 and 6 for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency noted that Complainant failed to show how he suffered personal harm with respect claim 5. The Agency also noted, with regard to claim 6, that Complainant asserted that its conduct placed him at a disadvantage because deadlines were moved backwards, but he did not indicate that he was unable to meet his deadlines. The Agency also noted that the Commission has no jurisdiction over the Privacy Act and the worker's compensation process within the OWCP. Nonetheless, the Agency addressed claims 5 and 6 on the merits. The Agency additionally found that, although Complainant may have been an "individual with a disability," he failed to establish that he was a "qualified individual with a disability." Namely, the Agency found that Complainant could not perform the essential functions of his position with or without accommodation. The Agency noted that Complainant's doctor wrote that Complainant was unable to travel more than six nights per month, but the position required travel on almost every night of the year. The Agency noted that Complainant's position required frequent overnight travel for the purposes of face-to-face interaction with engineering and power facility staff, conducting on-site comparisons of drawings with regard to power facility equipment. The Agency noted that it was not obligated to eliminate the essential functions of Complainant's position. The Agency further indicated that, once it was determined that Complainant could not perform the essential functions, it offered him reassignment. The Agency also found that it was under no obligation to either competitively or noncompetitively appoint Complainant to the subject IT Specialists position because he did not meet the education and experience requirements. The Agency found that it satisfied its obligations under the Rehabilitation Act. Agency's Final Decision DOI-BOR-14-0053 On April 14, 2014, the Agency issued a partial acceptance/partial dismissal of No. DOI-BOR-14-0053. The Agency accepted claim 7 (nonselection) for investigation, but dismissed claim 8 (termination) for untimely EEO Counselor contact. On October 27, 2015, the Agency thereafter issued its final decision, with regard to claim 7. Therein, the Agency found that, although Complainant established that he was an individual with a disability, he was not subjected to discrimination as alleged. The Agency specifically found that it articulated legitimate, nondiscriminatory reasons for its nonselection, which Complainant failed to establish were pretext for discrimination. CONTENTIONS ON APPEAL On appeal, Complainant, through his attorney, argues that he was a qualified individual with a disability who could perform the essential functions of his position. Complainant asserts that S1's proposal to change his duty location as an accommodation failed to address his medical restrictions as it related to travel. Complainant maintains that S1's proposed accommodation of making him travel to distant duty stations was not effective. Complainant further asserts that the Agency failed to establish that granting his request for accommodation would have caused an undue hardship. Complainant lastly argues that the Agency demonstrated bad faith in denying his request for accommodation, and therefore should be liable for compensatory damages.3 The Agency submitted briefs in opposition to Complainant's appeals, each of which urged the Commission to affirm its final decisions. 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 Reasonable Accommodation Initially, we find that the Agency improperly dismissed claim 8 (termination) for untimely EEO Counselor contact. We find that Complainant's termination claim is part of a continuing violation with regard to his request for reasonable accommodation. See Complainant v. Dep't of Health and Human Serv., EEOC Appeal No. 0120130602 (Sept. 12, 2014) (agency improperly dismissed EEO complaint for untimely counselor contact when management continued to ignore complainant's requests for reasonable accommodation, which complainant asserted were still ongoing) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)) see also Farinas v. Equal Employment Opportunity Commission, EEOC Request No. 05900840 (Oct. 19, 1990) (continuing violation found when allegations of discriminatory harassment and denials of accommodation had common goal of removing complainant from his position). We find that Complainant's request for reasonable accommodation was still ongoing at the time of his termination. As such, Complainant's contact with the EEO Counselor was timely, and we reverse the Agency's dismissal of this claim. Therefore, Complainant's termination claim will be addressed herein as part of his overall denial of reasonable accommodation claim. 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. See 29 C.F.R. §§ 1630.2(o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002)(Reasonable Accommodation Guidance). Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. Id. The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish disability discrimination, complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. In the instant case, the Agency found that Complainant was an individual with a disability due to his Myasthenia Gravis condition as well as other conditions. The Agency found, however, that Complainant was not a qualified individual with a disability, and he therefore failed to satisfy the second prong. While the Agency correctly determined that Complainant is an individual with a disability, we find that the Agency erred in determining that Complainant is not a qualified individual. As discussed below, we find that the Agency erred in finding that it satisfied its obligations under the Rehabilitation Act. Unable to engage in significant travel and meet the physical demands of the power plant/dam on-site visits, Complainant specifically requested to be allowed to telework, among other accommodations. However, S1 denied Complainant's request, indicating that face-to-face interactions to conduct on-site visits of field offices is an essential function of the position. ROI-1, at 132. Nevertheless, S1 offered Complainant the choice between two Engineering Technician (Drawing), GS-9, positions for reassignment. S1 specifically noted in the February 2, 2012, memorandum: In searching for positions in which you are qualified and could perform the essential functions, two alternative locations were identified. Therefore, the Agency is offering you reassignment to the position of Engineering Technician (Drawing), GS-0802-09, at the Yellowtail Field Office or at the Canyon Ferry Field Office [emphasis added]. Id. at 127. Complainant declined the reassignments because they were outside of his commuting area, and the Agency did not offer him relocation costs. Id. at 121. The Fort Smith facility is located over two hours one-way driving from Complainant's Billings, Montana home. The Canyon Ferry facility is located even farther, over three and one-half hours driving one-way from Complainant's home. Complainant did not accept the Agency's reassignment offers, asserting that an unpaid move to either location would result in a financial hardship for him. Id. Complainant stated that he had recently purchased a home in Billings in 2010, near his current work location. Id. Complainant also maintained that such a lengthy commute would violate his medical restrictions of driving no more than an hour without a rest period. We note that S1, in the February 2, 2012, memorandum, specifically warned Complainant that if he refused to accept either reassignment, the Agency would most likely take action to remove him from employment for medical reasons. After Complainant did not accept the reassignments for the reasons above, the Agency carried out its warning, terminating him on September, 14, 2012. However, the Commission's regulations explicitly state that an employer must reassign an affected individual to a vacant position that is equivalent based on relevant factors, including geographical location. See Reasonable Accommodation Guidance. If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower-level position for which the individual is qualified. Id. In the instant case, the two offered reassignments to Complainant were clearly not equivalent to Complainant's Billings, Montana location in terms of geographical location. The record reflects that the Agency did not continue with the interactive process after Complainant declined the reassignments. We find that when the Agency issued the February 2, 2012, "take it or leave it" offer, with the subsequent termination, it effectively cut off the interactive process with Complainant. See Lavern B. v. Dept. of Housing and Urban Dev., EEOC Appeal No. 0720130029 (Feb. 12, 2015) (affirming the AJ's decision that noted, "'the [a]gency did not continue to engage in the interactive process when it was required to do so, cutting against its defense that it did everything possible to accommodate Complainant.'"); Harden v. Social Sec. Admin, EEOC Appeal No. 0720080002 (Aug. 12, 2011) (finding that agency improperly cut off interactive process with complainant). In the instant case, we do not find that the interactive process or the Agency's ongoing duty to accommodate Complainant was ended by virtue of Complainant's decision not to accept reassignment outside of his current geographical location. However, the Commission has recognized that an agency's failure to engage in the interactive process does not, in itself, constitute a violation of the Rehabilitation Act. See Pitts v. U.S. Postal Serv., EEOC Appeal No. 0120130039 (Mar. 13, 2013) (citing Doe v. Social Sec. Admin., Appeal No. 01A14791 (Feb. 21, 2003)). Liability depends on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation. Id. Accordingly, the fact that the Agency failed to properly engage in the interactive process, does not, by itself, demand a finding that Complainant was denied a reasonable accommodation. Rather, to establish a denial of a reasonable accommodation, Complainant must establish that the failure to engage in the interactive process resulted in the Agency's failure to provide a reasonable accommodation. Id. In the instant case, one of the accommodation requests by Complainant was to be allowed to telework from his home in Billings, Montana. Management, however, denied Complainant's request and instead offered him the choice of two reassignments outside of his geographical location. Complainant did not accept either assignment. Complainant elaborated that the reassignments to either location would require long driving commutes for him, in violation of his medical restrictions. When Complainant declined these reassignments, the Agency did not continue with the interactive process, but instead terminated him. We find that the Agency's termination of the interactive process resulted in its failure to provide Complainant with accommodation. Specifically, had the Agency not given Complainant the ultimatum to accept one of the reassignments, and instead had continued with the interactive process in good faith, it would have clearly found an accommodation suitable to Complainant's restrictions within his geographical location. In particular, we note that Complainant specifically requested telework as an accommodation in his current position in Billings, Montana, which the Agency denied, asserting that this position required travel with face-to-face interaction. But the record reflects that, had the Agency continued with the interactive process, it would have found that it could have provided Complainant the ability to telework with either of the two offered reassignments. We note that, notwithstanding Complainant's restrictions and physical limitations, S1 nevertheless found that Complainant was qualified and could perform the essential functions of the offered reassignments. As such, given that Complainant was deemed qualified for the reassignments, had the Agency not ended the interactive process, it would have found that it could have accommodated him by providing him with telework with either of the offered positions, as became manifest with the announcement of those positions as competitive vacancies. We note that in allowing an employee to telework an employer "may need to reassign some minor job duties or marginal functions (i.e., those that are not essential to the successful performance of a job) if they cannot be performed outside the workplace . . . ." Work at Home/Telework as a Reasonable Accommodation, Question 4, available at http:// www.eeoc.gov/facts/telework.html (last modified October 27, 2005). We further note that an employer should not, however, deny a request to telework as a reasonable accommodation solely because a job involves some contact and coordination with other employees. Id. Frequently, meetings can be conducted effectively by telephone and information can be exchanged quickly through e-mail. Id. Based on the above, we find that Complainant established that he was a qualified individual with a disability who was denied reasonable accommodation when he was denied telework and subsequently terminated from employment. See Saner v. U.S. Postal Serv., EEOC Appeal No. 01A13291, footnote 1 (Oct. 10, 2002) (noting that "agencies may be responsible for accommodating employees with disabilities with respect to their daily commute to work such as by modifying a work schedule, applying a work-at-home policy where it would be an effective accommodation and would not be an undue hardship, or reassignment to a facility closer to the employee's home."); Lavern B., EEOC Appeal No. 0720130029 (agency denied complainant reasonable accommodation when it, among other things, did not grant his request to telecommute 100 percent of the time). We remind the Agency that the federal government is charged with the goal of being a "model employer" of individuals with disabilities, which may require it to consider innovation, fresh approaches and technology as effective methods of providing reasonable accommodations. Rowlette v. Social Sec. Admin., EEOC Appeal No. 01A10816 (Aug. 1, 2003); 29 C.F.R. §1614.203(a). We believe that providing Complainant with the above reasonable accommodation furthers this goal. In addition, we find that Complainant is entitled to compensatory damages for the Agency's failure to accommodate him. Where a discriminatory practice involves the provision of a reasonable accommodation, damages may be awarded if the agency fails to demonstrate that it made a good faith effort to provide the individual with a reasonable accommodation for his disability. 42 U.S.C. § 1981a(a)(3); Gunn v. U.S. Postal Serv., EEOC Appeal No. 0120053293 (June 15, 2007). We note that the Agency denied Complainant the opportunity to telework, terminating him instead. The Commission observes that an employer must always attempt to keep an employee fully employed as an accommodation, if doing so will not impose an undue hardship. See Complainant v. Dep't of Veteran's Affairs, EEOC Appeal No. 0120111521, footnote 5 (Dec. 4, 2013), req. for recon den'd, EEOC Request No. 0520140135 (May 29, 2014). The Agency did not do so here. As such, Complainant's request for telework, as long as it did not impose an undue hardship, clearly should have been preferred over termination. See id. We find that the Agency did not act in good faith in this case. Complainant is therefore entitled to present a claim for compensatory damages on the Agency's failure to accommodate him. See West v. Gibson, 527 U.S. 212 (1999); see also Complainant v. Dep't of Justice, EEOC Appeal No. 0120121339 (May 8, 2015) (complainant entitled to present a claim for compensatory damages when she was in bad faith denied accommodation leading to her termination).4 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant established that he was denied reasonable accommodation for his disability when he was denied telework and thereafter terminated. Accordingly, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision with regard to No. DOI-BOR-12-0127, and AFFIRMS in part and REVERSES in part the Agency's decision with respect to No. DOI-BOR-14-0053.5 ORDER The Agency is ordered to take the following remedial action: (1) Within sixty (60) calendar days of the date this decision becomes final, the Agency shall offer Complainant reinstatement into an Engineering Technician (Drawing), GS-9, position with any necessary effective reasonable accommodations, including telework, in accordance with this decision, retroactive to the effective date of Complainant's termination, September 14, 2012, with all the rights, benefits, and privileges. The Agency shall afford Complainant fifteen (15) days to determine whether to accept reinstatement. Should Complainant reject the offer of reinstatement, Complainant's entitlement to back pay shall terminate as of the date of his rejection. (2) Within ninety (90) calendar days of the date this decision becomes final, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due to Complainant, pursuant to 29 C.F.R. § 1614.501. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within ninety (90) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled, "Implementation of the Commission's Decision." (3) The Agency shall also pay compensation for the adverse tax consequences of receiving back pay as a lump sum. Complainant has the burden of establishing the amount of increased tax liability, if any. Once the Agency has calculated the proper amount of back pay, Complainant shall be given the opportunity to present the Agency with evidence regarding the adverse tax consequences, if any, for which Complainant shall then be compensated. (4) Within thirty (30) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. § 1614.108(f). (5) Within ninety (90) days of the date on which this decision becomes final, the Agency shall provide eight (8) hours of EEO training for the Agency officials responsible for the denial of reasonable accommodation to Complainant. The training shall concern the Rehabilitation Act with an emphasis on reasonable accommodation and the Agency's duties to ensure that similar violations do not occur. (6) The Agency shall consider taking disciplinary action against the Agency officials found to have discriminated against Complainant. The Agency shall report its decision. 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. 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 (G0914) The Agency is ordered to post at its Bureau of Reclamation in Billings, Montana, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (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 Hadden's signature Carlton M. Hadden, Director Office of Federal Operations February 4, 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 The Agency's ROI-2 does not provide any information concerning the selection process for the Yellowtail Field Office. ROI-2 only focuses on the selection process for the Canyon Ferry Field Office. 3 We note that Complainant does not specifically contest the dismissal of claims 5 and 6 on appeal. We exercise our discretion to not address those dismissals. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, § IV.A.3. (Aug. 5, 2015) (the Commission has the discretion to focus only on the issues specifically raised on appeal). 4 With regard to claims 3 and 4, we find that the Agency was not obligated to non-competitively place Complainant in one of the vacant advertised IT Specialist positions. Complainant was not qualified for the advertised IT positions based on his education and experience. Complainant does not dispute that he never previously worked as an IT Specialist. 5 Having found that Complainant was denied reasonable accommodation based on his disability, we decline to address reprisal as a basis. We also decline to address Complainant's nonselection claim or his claim regarding his eligibility with regard to the Career Transition Assistance Plan/Interagency Career Transition Assistance Program (CTAP/ICTAP). We note that prevailing on these matters would not entitle Complainant to any greater relief. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132052 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120132052 0120150844