U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Davina W.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 0120152757 Agency No. FBI20130268 DECISION On October 23, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's July 28, 2015, final decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission REVERSES the Agency's FAD which found that Complainant was not denied a reasonable accommodation.2 The complaint is REMANDED for compliance. ISSUES PRESENTED Did the Agency correctly conclude that Complainant did not prove by a preponderance of the evidence that she was denied a reasonable accommodation, which led to her termination? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management & Program Analyst at the Mission Support Unit, High Value Detainee Interrogation Group, National Security Branch in Springfield, Virginia. She had been in the position since September 2012, but worked for the Agency since 2010. ROI, p. 8. Complainant explained that she suffered from Major Depressive Disorder and Anxiety Disorder. Id. Individuals in Complainant's supervisory chain were the Unit Chief as Complainant's first-level supervisor (S1) and the Section Chief (S2). Approximately one month into Complainant's employment with the Mission Support Unit, Complainant experienced some attendance issues leading to her being charged with seventy hours of absent without approved leave (AWOL). ROI, p. 19. On June 4, 2013, the Agency presented Complainant with a notice of proposed termination drafted by a Human Resource Specialist (S3) advising management on the issue of Complainant's attendance. ROI, p. 17-18. On June 5, 2013, Complainant disclosed that she had a medical condition to relevant management officials and requested reasonable accommodation in order to allow her to complete an 80-hour work week. ROI, p. 112. Complainant submitted medical documentation from her psychologist dated June 10, 2013 and July 10, 2013 stating that she suffered from Major Depressive Disorder. ROI, p. 121, 123. The doctor explained that Complainant's symptoms included that she was "struggling with her ability to focus" and "make[ing] decisions even with simple daily activities." ROI, p. 121. Additionally, the doctor stated that Complainant "has been struggling with her ability to be at work on time mainly because she is chronically sleep deprived," and that "her symptoms are incapacitating at times and are the reason for her inability to work." ROI, p. 121. The doctor suggested that Complainant "will greatly benefit from reasonable accommodations and a flexible work schedule that will allow her deliver [sic] 80 hours per pay period and still be able to attend her medical as well as her therapy appointments." Id., at 123. After receipt of the request, the Agency's disability program offered Complainant a part-time schedule, which Complainant explained would be a financial hardship for her to accept.3 ROI, p. 8-9. Complainant requested a "daily variable schedule" which would allow her to choose what time she arrived each day but still work a full-time schedule. FAD, p. 8-9. An Agency official explained that the disability program wanted a more predictable schedule, and she was instead offered an arrival time of 8:00 am - 9:30 am daily. ROI, p. 66.4 Complainant also appealed her proposed termination meeting with the Assistant Director, Human Resources Division (S4) on August 8, 2013. ROI, p. 22. S4 decided to hold the termination decision in abeyance for a 90-day period in order to provide Complainant with an opportunity to improve. On September 19, 2013, Complainant was provided with a letter outlining expectations for the 90-day period, which commenced on September 23, 2013. Specifically, Complainant was provided with a gliding schedule, which allowed her to report to work between 8:00 am - 9:30 am. ROI, p. 143. The letter also stated that Complainant needed to call S1 no later than 9:20 am on days that she expected to arrive after 9:30 am. Id. Under the terms of the letter, Complainant had to adhere to the schedule, except for circumstances where she properly requested and was granted leave. ROI, p. 143. Complainant was hesitant in accepting the schedule being offered. ROI, p. 16. Management recorded Complainant's arrival and departure time every day during the 90 day period, and also included notes as to why Complainant was late. According to the Agency, Complainant was late from several minutes to several hours on twenty one occasions. S1 Affidavit, ROI, p. 84. Additionally, Complainant did not call prior to the designated time of 9:20 am on three occasions. On February 4, 2014, the Agency terminated Complainant's employment stating that the termination was a result of her "continued excessive and unexcused absences." ROI, p. 153. On March 28, 2014, Complainant filed an EEO complaint alleging that the Agency denied her a reasonable accommodation for her mental disability which led to her termination from employment.5 At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI 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 a FAD pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant did not prove that the Agency denied her a reasonable accommodation. STANDARD OF REVIEW Appeals from an Agency's final action are reviewed de novo. See 29 C.F.R. § 1614.405(a). CONTENTIONS ON APPEAL I. Complainant's Contentions On Appeal Complainant explained that her disability is related to her medical conditions of Major Depressive Disorder and Anxiety Disorder. Complainant contends that her tendency to oversleep due to her disability has caused her to be late on numerous occasions at work leading to management proposing to remove her from her position. Complainant contends that she formally requested reasonable accommodation, and she specifically requested a flexible alternative schedule that would allow her to work a full 80-hours a pay period. Complainant contends that the Agency responded that a flexible schedule would not be an "effective" accommodation. Complainant contends that Agency offered her a part-time schedule which would have resulted in a significant pay reduction. According to Complainant, she was subsequently offered a "gliding schedule" which required her to report to work between 8:00 am and 9:30 am during the 90-day period the Agency's proposed termination was held in abeyance. However, Complainant did not view this as an accommodation because the management official offering the gliding schedule did not know that she was disabled.6 II. Agency's Contentions On Appeal The Agency contends that Complainant was terminated from her position because she began reporting late to work on a routine basis about a month into starting her position with the office, and measures taken to improve Complainant's attendance were not successful. According to S1, Complainant often attributed her lateness to childcare issues, and did not initially mention that she was having medical issues. The Agency explained that it proposed to terminate Complainant on June 4, 2013, however, the termination was held in abeyance for a 90-day period in order to give Complainant the opportunity to improve. The Agency contends that Complainant was late on twenty-one occasions during the 90-day period. The Agency contends that Complainant did not inform her manager that her lateness on these occasions was a result of her disability. That is, the Agency contends that Complainant's excuses for her lateness were that she "overslept, had childcare issues, or confusion with her husband regarding childcare issues." Agency Brief, p. 14. Therefore, management decided to terminate Complainant's employment. ANALYSIS AND FINDINGS The Agency concluded that Complainant did not prove by a preponderance of the evidence that she was denied a reasonable accommodation. The Agency concluded that Complainant was terminated from her position because of her inability to timely arrive to work. Reasonable accommodation means, "modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position." 29 C.F.R. § 1630.2(o)(1)(ii). The request need not be in writing or use the magic words of "reasonable accommodation." The employee need only inform the agency that she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. U.S. Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24. 2006). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation; see also, Abeijon v. Dept. of Homeland Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012). A federal agency must "make reasonable accommodation for the known physical or mental limitations" of a qualified employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program. 29 C.F.R. § 1630.9(a). In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). Complainant is an individual with a disability because she is limited in the major life activity of sleeping as a result of Major Depressive Disorder. Complainant is a qualified individual with a disability because she can perform the essential functions of her job with the reasonable accommodation of a schedule modification or use of leave. Upon receiving Complainant's request for a reasonable accommodation, the Agency implemented a gliding schedule for Complainant, however, this was not an effective accommodation because Complainant still had to report to work between 8 am and 9:30 am. On many occasions, it was evident that her disability caused her to oversleep and caused her to report to work beyond 9:30 am. To the extent the Agency argues that Complainant's lateness was caused by childcare or other issues, an examination of the Agency's attendance log for Complainant during the 90 day abeyance period demonstrates that a majority of Complainant's calls involved lateness due to oversleeping. Further, the childcare and other issues were, in a majority of instances, caused by her disability, particularly as it relates to oversleeping. For example, on December 3, 2013, Complainant called at 9:37 am explaining that she just woke up and still had to get her son ready for school. ROI, p. 149. This was already beyond the 9:30 am timeline set for Complainant to arrive at work. Additionally, the Agency did not want to allow Complainant any flexibilities beyond the 8 am - 9:30 am schedule as evidenced by the fact that it decided to cite to all 21 instances of lateness during the 90-day period, regardless of the fact that Complainant contacted her supervisor to inform her of the lateness on all but three occasions. The fact that she was late was ultimately held against her leading to her termination. Complainant also appears to have been charged AWOL for these occasions, illustrating that leave was also not offered as part of the accommodation. ROI, p. 16. Given these circumstances, a maximum flexible schedule would have served as a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002) (stating that reasonable accommodation may include modified work schedules including adjusting arrival and departure times, and use of paid and unpaid leave). Finally, the Agency did not offer arguments as to why providing Complainant with a maximum flexible schedule would present an undue hardship. Therefore, these circumstances illustrate that Complainant proved by a preponderance of the evidence that the Agency failed to provide her with a reasonable accommodation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD which found that Complainant was not denied a reasonable accommodation is REVERSED. The complaint is REMANDED for compliance with this decision and the Order below. ORDER (C0610) The Agency is ordered to take the following remedial action within one hundred and twenty (120) calendar days from the date this decision is issued: 1. Offer Complainant reinstatement to a Management & Program Analyst position at the Mission Support Unit, High Value Detainee Interrogation Group, National Security Branch in Springfield, Virginia, or a similar position. 2. The Agency shall award Complainant the appropriate amount of back pay, interest, and other benefits pursuant to 29 C.F.R. § 1614.501(c), which was lost as a result of Complainant's termination. If Complainant declines the reinstatement offer, back pay shall be awarded up the date that Complainant declines the offer of reinstatement. 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. 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. Conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to this complaint. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission. A copy of the final decision must be submitted to the Compliance Officer as referenced below.7 4. Provide training to the Agency personnel responsible for the discrimination placing special emphasis on an employer's obligation to provide reasonable accommodation. 5. Post at the Mission Support Unit, High Value Detainee Interrogation Group, National Security Branch in Springfield, Virginia, copies of the notice discussed below. 6. The Agency shall consider taking appropriate disciplinary action against the Agency officials involved in the discrimination. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Mission Support Unit, High Value Detainee Interrogation Group, National Security Branch in Springfield, Virginia, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 12-8-2017 __________________ 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 Even though the claim accepted for investigation was disability discrimination, the FAD treated the matter as denial of accommodation because it was evident Complainant was alleging this via her written complaint and the investigation. 3 Complainant feared that she would not be able to keep her health insurance under a part-time schedule. ROI, p. 66-67. 4 As the FAD explained, no documents from the disability program were included in the investigation. FAD, p. 9. 5 The formal complaint was lengthy and is paraphrased. 6 Complainant submitted medical documentation to management outlining her medical conditions and restrictions; however, it appears that management officials testified that they did not know she was disabled because the documentation did not specifically state that Complainant had a disability. 7 Where a discriminatory practice involves the provision of a reasonable accommodation, compensatory damages may not be awarded where the employer demonstrates good faith efforts to make a reasonable accommodation. 42 U.S.C. § 1981a(a) (3). The Agency did not demonstrate that it engaged in a good faith effort to provide a reasonable accommodation. Rather, the Agency enforced a rigid attendance schedule after being informed of Complainant's disability leading to Complainant's termination. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2015-2757 2 0120152757