U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anya F.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 0120160945 Hearing No. 530-2014-00171X Agency No. DECA001252013 DECISION On December 4, 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 November 30, 2015, final decision 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 and REMANDS the Agency's final decision (FAD), which found that Complainant did not demonstrate that she was denied a reasonable accommodation. ISSUES PRESENTED The issue presented are whether the EEOC Administrative Judge (AJ) erred by dismissing Complainant's request for a hearing and ordering that her complaint be remanded to the Agency for the issuance of the FAD; and whether the Agency erred in finding that Complainant was not denied a reasonable accommodation. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales Store Checker, GS-03 at the Agency's McGuire Air Force Base Commissary at the McGuire Air Force Base, New Jersey. In October 2011, Complainant injured her right knee (Degenerative Joint Disease). The injury affected Complainant's ability to pivot on that knee. Complainant requested that she not be assigned to the self-checkout lane as performing this fast-paced assignment caused pain to her knee. Complainant's supervisor (S1) requested documentation and approved Complainant's request in October 2011. The accommodation remained in place until March 2013, when a new supervisor (S2) took over. S2 questioned Complainant's need for the accommodation and requested new medical documentation. She asked Complainant how it was that she could work in the warehouse without a problem. Complainant explained that she could move slowly in the warehouse and control her movements while the self-checkout was a high-paced activity that required quick movements. The quick movement caused her pain, which caused her knee to swell, and rendered her unable to work for 24-48 hours. The result of working at the self-checkout was that Complainant had to take leave the day after she worked to seek medical attention. On April 25, 2013, following the submission of new medical documentation, S2 denied Complainant's accommodation request after she consulted with the Disability Program Manager (DPM). Contrary to Complainant's physician, the DPM did not find that Complainant's injury was a disability and S2 agreed with him. They further agreed that Complainant could be taught to perform the self-checkout duties without pivoting. Moreover, S2 told Complainant that as she was a good worker and valued employee she would limit the amount of time she would assign her to work at the self-checkout. S2 indicated that because she denied Complainant's accommodation request, she only assigned her to work at the self-checkout lane in fifteen minute increments. She also indicated that Complainant only served three times in the self-checkout lane since February 10, 2013. Complainant believed that she was treated differently than other employees who did not have prior EEO activity. Complainant had previously been involved in a coworker's arbitration, and she believed that S1 was aware of her participation. On June 18, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of disability (Degenerative Joint Disease) (DJD) and reprisal for prior protected EEO activity when, on April 25, 2013, she was denied a reasonable accommodation. At the conclusion of the investigation, 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). Complainant requested a hearing but the AJ denied the hearing request on the grounds that Complainant did not timely submit a prehearing statement, list of proposed witnesses, or attend the prehearing conference. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD found that Complainant was not an individual with a disability; therefore, she was not entitled to a reasonable accommodation. Management determined that Complainant should have been able to work the self-checkout lane without pivoting. Management noted that Complainant could work in the warehouse and other assignments without complaints of knee pain. S2 indicated that she did not use Complainant that much in the self-checkout lane and felt that Complainant's injury did not amount to a disability and moreover her physician did not indicate that Complainant could not perform fast paced duties. The FAD concluded that Complainant did not show that she was denied a reasonable accommodation or that she was subjected to reprisal or harassment. CONTENTIONS ON APPEAL On appeal, Complainant contends, among other things, that the AJ erred in dismissing her hearing request on the grounds that she did not comply with the AJ's order; the AJ erred in remanding the case back to the Agency for a FAD; and the Agency's FAD erred in finding that she was not subjected to discrimination as alleged. In response, the Agency, contends among other things, that it was within the AJ's discretion to remand the case back to the Agency for a FAD as Complainant failed to comply with the AJ's Order. The Agency also requests that its finding of no discrimination be affirmed. ANALYSIS AND FINDINGS At the outset, we note that an Administrative Judge has inherent powers to conduct a hearing and issue appropriate sanctions. EEO-MD 110 Ch. 7, § III(D) (Aug. 5, 2015); Complainant v. Dep't of Commerce, EEOC Appeal No. 0120140776 (Feb. 13, 2015). Administrative Judges have broad authority over the conduct of hearings. 29 C.F.R. § 1614.109 et seq. If a party does not respond to an order of an Administrative Judge, the Administrative Judge may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. § 1614.109(f)(3). An Administrative Judge must first issue a Notice to Show Cause to the non-complying party. EEO-MD-110, Ch. 7, § III(D), n. 6; see DaCosta v. Dep't of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000). Here, we do not find that the AJ abused her discretion in dismissing Complainant's hearing request and remanding her complaint for a final agency decision. 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 Chapter 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"). Reasonable Accommodation The Commission's regulations require an agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. § 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at § 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at § 1630.2(n)(3). A request for a modification or change at work because of a medical condition is a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 1. After receiving a request for reasonable accommodation, an agency "must make a reasonable effort to determine the appropriate accommodation." 29 C.F.R. pt. 1614. app. § 1630.9. Thus, "it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." 29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. Part 1630 app. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Question 5. To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she 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 her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). The Agency, in its FAD, found that Complainant had established that she is a member of EEO protected groups on the basis of her disability and reprisal. Based on our review of the record, we agree with the Agency. Complainant's medical documentation shows that she is an individual with a disability within the meaning of the Rehabilitation Act with respect to her Degenerative Joint Disease. We also find it undisputed that Complainant met the requisite skill, experience, education, and other job-related requirements of the Sales Store Checker position, which makes her a qualified individual with a disability. Complainant argued that the Agency could have excluded her from the self-checkout lane assignment as an accommodation and as they had done for the two years before S2's arrival. The record shows that prior to S2 arrival, Complainant had been given such an accommodation and had successfully performed the duties of her position. While it was certainly within S2's right to request updated medical documentation, documentation that was provided, we find no justification on the Agency's part for denying the accommodation request. S2 and the DPM determined that Complainant was not disabled because the inability to pivot, as was required to perform the self-checkout lane duties, was not a disability under the Rehabilitation Act. This finding contrasted with Complainant's physician's finding that the self-checkout duties were "[m]aking her disability worse." We are troubled by the Agency's lack of participation in the interactive process. The evidence shows that Complainant's physician indicated on several occasions with the first being on 10/10/11, that Complainant had DJD and should not perform the self-checkout assignment because she had to pivot to complete the job. With each assignment to the self-checkout lane, Complainant's physician provided documentation that the self-checkout line was damaging her knee. Documentation was provided on 3/12/13, 4/30/13, 5/13/13, and 9/15/13, (See ROI pages 55- 70), all indicating that Complainant should not work the self-checkout lane because it was making her disability worse but management disregarded the medical documentation. Although failing to engage in the interactive process is not a violation in and of itself, when, as here, it results in the denial of a reasonable accommodation such a failure is actionable. Finally, we find that the Agency has not established that providing Complainant the requested accommodation would have resulted in an undue hardship. As noted above for two years before S2 arrived, Complainant had been provided with the accommodation of not having to perform self-checkout duties. The Agency did not argue, nor does the record indicate, that the Agency suffered an undue hardship during this period. On the contrary, S2's decision to cancel Complainant's accommodation was based on her and the DPM's determination that Complainant did not need it. Based on these facts, we find that the Agency denied Complainant a reasonable accommodation. Hostile Work Environment In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of the Rehabilitation Act must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23. To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). In the instant case, we find that Complainant has not established that she was subjected to harassment resulting in a hostile work environment. In this regard, we note that Complainant has not presented any persuasive evidence that she was subjected to severe or pervasive conduct by management with respect to the denial of her accommodation request. We also do not find that management's actions were based on her disability or previous EEO activity. CONCLUSION Accordingly, the Agency's FAD is AFFIRMED in part and REVERSED in part. This matter is REMANDED as set forth in the Order below. ORDER Unless otherwise indicated, the Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision is issued: 1. The Agency is directed to immediately take all steps necessary, in accordance with the Commission's regulations, to provide Complainant with an effective reasonable accommodation that will allow her to perform the essential functions of her position, including excusing her from self-checkout lane duties. 2. The Agency shall provide S2 and the DPM eight hours of EEO training with special emphasis on the Rehabilitation Act's reasonable accommodation provisions. 3. The Agency shall give Complainant a notice of her 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 her claim for compensatory damages within forty-five days (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) days of the date the Agency receives Complainant's claim for compensatory damages. 4. The Agency shall consider taking appropriate disciplinary action against S2 and the DPM. 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 reasons for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of their departure date(s). 5. 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 McGuire Air Force Base Commissary at the McGuire Air Force Base, New Jersey 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 _6/21/18_________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160945 9 0120160945