U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Retha W.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Rural Development), Agency. Appeal No. 0120161254 Agency No. RD-2015-00306 DECISION 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 January 6, 2015, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission REVERSES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency properly found that Complainant did not establish that she was harassed or denied a reasonable accommodation for her disability. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-12 Area Specialist within the Agency's Rural Development (RD) department in Newnan, Georgia. In her position, Complainant oversees 43 apartment complexes, which she visits annually. Additionally, Complainant reviews files, walks property, ensures that property is properly maintained, interviews tenants and performs compliance reviews, and performs random physical inspections of property. Complainant also reviews annual operating budgets for apartment complexes. On or about November 7, 2013, Complainant and other employees informed the Acting Area Director (AAD) that the office building had black mold on the outside wall, and "other hazards." On November 22, 2013, Complainant's physician diagnosed her with Cellulitis of Nose and Acute Sinusitis, with ear pain, headaches, rhinorrhea, fatigue, fever, joint swelling, sinus pain, sneezing, and a sore throat. On November 25, 2013, Complainant and the Area Director (AD) sent photographs of black mold growing on the outside rear of the office building to the State Director. On or about December 11, 2013, Complainant and the AD sent photographs of black mold in the building attic, which were sent to the State Office. Complainant also informed the AAD that she was allergic and sensitive to the office building, and experienced watering eyes, coughing, sneezing, and headaches because of the mold outside her office window. Also on December 11, 2013, the State Office Procurement Specialist (SOPS) received complaints from each RD employee at Newnan that reported that they were experiencing cold/flu-like symptoms and were concerned for their health and safety. On December 24, 2013, the building owner retained a private company to perform mold inspection, and samples were collected. On January 9, 2014, the SOPS received a copy of the inspection report and concluded that "there should be no or minimal impact on employees," and there was no need for an emergency evacuation. On or about January 23, 2013, Complainant applied for fulltime telework by submitting a telework agreement. The agreement was signed by the AAD, but was not approved by the State Director at that time. On March 5, 2014, the State Director approved Complainant for telework, and Complainant continued on telework until the Agency moved into a new building in late August 2015. On April 1, 2015, Complainant filed an EEO complaint in which she alleged that the Agency harassed and discriminated against her on the basis of disability and sex (female) when: 1. Since approximately December 21, 2013, management failed to grant Complainant's request for reasonable accommodations, and on January 27, 2015, directed her to return to work after an extended medical absence, in a building that she believes is unsafe; and 2. Since approximately December 31, 2013, management has subjected her to additional harassing treatment, including by requiring her work in an unsafe building and ignoring repeated concerns she and several of her coworkers brought to management's attention about the building's safety. In an investigative statement, Complainant stated that as a result of working in an unsafe building, she developed acute asthma and lung damage that nearly caused her death. She stated that she now has mobility issues, damaged kidney function, and atrial fibrillation that did not exist before being made to work in Agency's building at 580 Highway 34 East in Newnan. She stated that because of her condition, she can no longer work out in the gym, take Zumba classes, and hike. Complainant also stated that her ability to use the restroom has been impaired, and she is on dialysis. Complainant stated that on November 7, 2013, she and other employees first complained to the Acting Assistant Director (AAD) about mold on the back outside wall of the office building, and "other safety hazards." She stated that the AAD then notified the State Director of employees' concerns. Complainant further stated that after being diagnosed with asthma in December 2013, she emailed several requests to the Agency asking for "the reasonable accommodation of a safe work environment." Complainant further stated that in the period before this diagnosis, she developed a number of symptoms, including headaches, coughing, losing her voice, and inability to get well. She stated that her symptoms eased after she left work, but as soon as she returned to work, they would return. Complainant stated that the Area Director (AD) and AAD discovered black mold in the building, took pictures, and sent the pictures to the State Office on or about December 11, 2013. Complainant stated that the State Director continued to ignore her concerns about the unsafe work environment and requests for reasonable accommodation. Complainant further stated that in April 2014 she again brought concerns about the building's safety to the AD. She stated that in responding to an inquiry from the Department of Labor's Occupational Safety and Health Administration (OSHA), the State Director reported that "the supervisor has asked that we remove the employees from the site because of hysteria and psychological issues." She stated that the State Director's comments were evidence of a stereotypical attitude toward women. Complainant further stated that although she was hospitalized for severe lung and other organ damage, the Agency instructed her to return to the same unsafe building on January 13, 2015. Complainant also stated that in an email to the Area Director (AD) on January 19, 2015, she requested an air purification filter system be placed on the heat and air conditioning units of the building; entrance to the Rural Development office door be repaired and made accessible; an accessible restroom be checked to ensure that safety bars are at the correct heights; and that accessible parking spaces are clearly marked. Complainant stated that none of her requested accommodations were granted, but management subsequently told employees that RD would move out of the building. Complainant stated that she been subjected to harassment by working in an unsafe building with black mold, leaky ceilings, rotten wood, faulty ventilation, and other hazards, including broken concrete, tripping hazards, toilets that did not flush properly, and accessible parking that was not properly designated. The State Director stated that he became aware of Complainant's accommodation requests when in a December 11, 2013 email, she indicated health concerns and the need to telework. The State Director further stated that the AAD responded favorably to Complainant's request in an email dated January 27, 2014.2 The State Director also stated that on January 1, 2014, an initial mold inspection was performed on the office, and the report indicated that there was water damaged wood decking in the attic. Regarding the situation in 2015, the State Director further stated that active duty employees were scheduled to return to work in the office on January 26, 2015, but Complainant was on approved medical leave on that date. The State Director further stated that within 10 days of Complainant's January 26, 2015 return date, he ordered all active employees in the Newnan Office to telework because the building continued to have offensive odors. The State Director further stated the Director of Administrative Programs said that employees should be moved from the office because of hysteria and psychological issues; he did not say this. The AD stated that on January 16, 2015, she received an email from the Director of Administrative Programs that said that all Newnan employees would have to return to working at the building, and she was instructed to forward the letter of instruction to all RD staff. She stated that she forwarded the email to Complainant's personal email account because Complainant's office account had been closed because of the length of time she was out of work on medical leave. The AD further stated that she spoke to Complainant on January 20, 2015, and clarified that she had been instructed to send the notice to "all" Newnan employees, but she informed Complainant that she would not be asked to return until her physician cleared her to return to duty. After 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 unlawful harassment or denied a reasonable accommodation as alleged. CONTENTIONS ON APPEAL On appeal, Complainant reiterates her claim that the Agency denied her a reasonable accommodation when it did not provide her with fulltime telework from the date she asked management to provide her with a safe working environment (December 11, 2013), until the date the Agency allowed workers to telework fulltime (March 5, 2014). The Agency does not present any arguments on appeal. 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"). ANALYSIS AND FINDINGS Reasonable Accommodation Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §1630.9. In this case, the record reveals that Complainant has allergies, asthma, and sinusitis. Additionally, the record reveals that Complainant successfully performed the essential functions of her position during the relevant time period. The Agency found that Complainant is a qualified individual with a disability, and we concur with this conclusion. Complainant alleges that she was denied a reasonable accommodation when management did not approve her to telework from December 11, 2013 until March 5, 2014. The record reveals that on December 11, 2013, Complainant informed the AAD that she had allergies and sensitivity to the air quality in the building and could smell mold throughout the building. She further reported that she experienced watering eyes, coughing, sneezing, and headaches because of the mold growing outside her window and "desperately need[ed] something to be done." In a letter to the AAD dated January 6, 2014, Complainant revealed that she had Bronchitis, and the mold would aggravate the condition when she returned to work that week. Complainant further revealed that she was also diagnosed with adult asthma. Additionally, on January 14, 2014, Complainant requested to telework fulltime because the building made her sick and exacerbated her medical conditions. Upon review, we note that it is undisputed that Complainant's building had mold and other conditions that made employees sick, including Complainant. This is underscored by the fact that the Agency moved its offices to another location in response to employee Complainants and the discovery of mold in the building. We find that because exposure to the office building precipitated and exacerbated Complainant's medical conditions, fulltime telework was the only appropriate accommodation in this case, except for moving Complainant's office to another building. Although the record reveals that the AAD approved telework agreements for Complainant and the AD on January 27, 2017, there is no evidence that the Agency allowed Complainant to telework fulltime until the State Director allowed her to do so on March 5, 2014. Additionally, Complainant attests that she was not allowed to telework fulltime until March 5, 2014. Consequently, we are persuaded that the Agency did not provide Complainant with fulltime telework until March 5, 2014. Moreover, the fact that Complainant and other employees were allowed to telework fulltime after March 5, 2014 indicates that fulltime telework was not an undue hardship on the Agency. We find that the Agency unreasonably delayed providing Complainant with fulltime telework in this case. In so finding, we note that from December 2013, Complainant reported that her office building was making her seriously sick, and other employees were reporting similar symptoms. The immediacy of Complainant's need for fulltime telework is underscored by evidence that indicates that Complainant experienced serious illnesses when exposed to the building. As such, the Agency had an urgent duty to provide Complainant with immediate fulltime telework. We note that an employer should respond expeditiously to a request for reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation, at Question 10 (Oct. 17, 2002). Therefore, the Commission has held that failure to respond to a request for accommodation in a timely manner may result in a finding of discrimination. See Denese G. v. Dep't of the Treasury, EEOC Appeal No. 0120141118 (Dec. 29, 2016); Shealy v. EEOC, EEOC Appeal No. 0120070356 (April 18, 2011); Villanueva v. Department of Homeland Security, EEOC Appeal No. 01A34968 (August 10, 2006). Here, we find that Complainant was denied a reasonable accommodation when the Agency denied her telework from December 11, 2013, until March 5, 2014. To the extent that Complainant contends that she was denied other accommodations in 2015 related the building's broken concrete, tripping hazards, toilets that did not flush properly, and accessible parking that was not properly designated, we find that she was not denied a reasonable accommodation regarding these matters because she failed to show how these matters were related to her disclosed medical conditions. Additionally, we note that despite being mistakenly notified to return to the office in January 2015, this order was immediately retracted by the Agency, and Complainant continued teleworking fulltime until RD was moved to another office building in late August 2015. As such, Complainant was not exposed to the alleged deficiencies of the building after she began teleworking fulltime on March 5, 2014. Finally, to the extent that Complainant contends that she was subjected to unlawful sex and disability harassment, we do not find that the Agency's actions were severe or pervasive enough to create a hostile work environment. Instead, the Agency's actions are more appropriately viewed as a denial of a reasonable accommodation from December 11, 2013, until March 5, 2014. Moreover, we do not find that management's comments about employee hysteria and psychological issues about building conditions are indicative of gender stereotypes under these circumstances. Therefore, we conclude that Complainant did not prove that she was subjected to unlawful harassment. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision in part and REMAND this matter to the Agency to undertake actions consistent with this decision and the ORDERS below. ORDER To the extent that the Agency has not already done so, the Agency is ordered to undertake the following remedial actions: 1. Within 120 calendar days after this decision is issued, the Agency shall restore any leave (if any) taken by Complainant because of its failure to provide her with a reasonable accommodation, reportedly from December 11, 2013, until the Agency allowed her to work telework fulltime on March 5, 2014. 2. Within 120 calendar days after this decision is issued, the Agency shall consider taking disciplinary action against the State Director. The Agency shall report its decision on discipline 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 or reasons for its decision not to impose discipline. 3. Within 120 calendar days after this decision is issued, the Agency shall provide eight hours of in-person EEO training to the State Director, AAD, and the AD, as well as all persons charged with processing and responding to reasonable accommodation requests for the Newnan office. The training shall have particular emphasis on the Agency's obligation to provide reasonable accommodations for disabilities and to prevent retaliation. 4. The Agency shall conduct a supplemental investigation pertaining to Complainant's entitlement to compensatory damages incurred as a result of the Agency's unlawful actions in this matter. The Agency shall issue a final decision determining Complainant's entitlement to compensatory damages within 120 calendar days after this decision is issued. 5. The Agency shall post a notice in accordance with the paragraph below. 6. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." POSTING ORDER (G1016) The Agency is ordered to post at its Newnan, Georgia facility 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 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 (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 We note that this email was sent to Agency administrative and management officials, not Complainant. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161254 9 0120161254