U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ronnie R.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Indian Health Service), Agency. Appeal No. 0120161406 Agency No. HHSIHS02722015 DECISION On February 1, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's January 5, 2016, final decision (FAD) concerning his 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 Agency's FAD which found that Complainant was not denied a reasonable accommodation is REVERSED, and the complaint is REMANDED for compliance. ISSUES PRESENTED Was the Agency correct to conclude that Complainant did not prove by a preponderance of the evidence that he was denied a reasonable accommodation when the Agency took approximately four months to provide him with an ergonomic chair? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Accountant Lead at the Indian Health Service, Portland Area Office, Division of Financial Management in Portland, Oregon. Complainant suffered from a knee impairment which also caused back pain. ROI, p. 5. Complainant was on muscle relaxers for the pain. Id. He explained that on one occasion, he experienced such intense pain that he was unable to move for 8 hours and had to take several days off from work. Id. Complainant had trouble with sitting in his chair at work due to the back pain, and requested reasonable accommodation on December 1, 2014. ROI, p. 5. Complainant submitted a completed packet requesting accommodation with documentation establishing the need for an ergonomic chair on December 12, 2014, and selected the chair he was requesting. ROI, p. 5. The Agency approved Complainant's request for accommodation shortly after on December 17, 2014. FAD, p. 3. However, the request was forwarded to the acquisitions department, and it was placed on hold pending a meeting with the Agency's EEO manager. ROI, p. 119. The meeting took place in March 2015, and the Agency provided Complainant with the ergonomic chair on March 25, 2015. FAD, p. 3-4. On June 8, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on disability (physical- knees and back) when Complainant was not provided with an ergonomic chair as a reasonable accommodation to his disability until approximately 98 days after Complainant made the request. After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant did not prove that the Agency subjected him to disability discrimination.2 CONTENTIONS ON APPEAL Complainant contends that his case is not about "discrimination," but "power and control." Complainant contends that two sisters in the procurement division have complete control of purchases ranging from office supplies to property. Complainant contends that he was in pain and had to use ice packs while he awaited arrival of the chair for over three months. Complainant contends that this constituted unnecessary delay. ANALYSIS AND FINDINGS The following analyzes whether Complainant proved by a preponderance of the evidence that he was denied a reasonable accommodation when there was a three-month delay in providing him with an ergonomic chair. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) s/he is an individual with a disability; (2) s/he 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). "An employer should respond expeditiously to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Similarly, the employer should act promptly to provide the reasonable accommodation. Unnecessary delays can result in a violation of the ADA." EEOC Compl. Man. (BNA), EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Requesting Reasonable Accommodation (revised October 17, 2002) at EEOM 902:157. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would include: (1) the reason(s) for delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. Id. at n. 38. The Agency does not dispute that Complainant is a qualified individual with a disability. FAD, p. 6. Complainant suffered from a knee impairment which caused back pain, affecting him in the major life activity of sitting. FAD, p. 2. The record reveals that there was a three- month delay in providing Complainant with an ergonomic chair, which the circumstances illustrate was unnecessary. Agency employees were trying to discern what their reasonable accommodation procedures were during the delay. Complainant submitted his request for reasonable accommodation of an ergonomic chair on December 1, 2014 and received the chair on March 25, 2015. While the request was approved by the Agency on December 17, 2014 shortly after Complainant submitted it, there were some delays associated with the acquisitions process for the chair. The Chief of Contracting, the Property Manager, and the Purchasing Agent for the Agency stated that there was no reasonable accommodation process in place at the Agency. ROI, p. 6. As a result, these individuals attempted to schedule a meeting to find out what the procedures were. ROI, p. 6. There was delay in scheduling this meeting for approximately three months, and the meeting was eventually held in March 2015. ROI, p. 6. While the Chief of the Contracting Office seemed to indicate that the Manager of EEO/Diversity asked her not to order the chair until the meeting was scheduled, the record contains an e-mail from the Manager of EEO/Diversity instructing the Chief of the Contracting Office on the obligation to provide an accommodation. ROI, p. 117. The e-mail states that Complainant produced medical documentation showing the need for the chair. Id. However, it appears that the e-mail was met with resistance by the acquisitions department for reasons such as not having a headquarters approval number, and that they were not qualified to determine which chair was appropriate for Complainant. ROI, p. 120. As a result, the acquisitions department placed procurement of the chair on hold until the March meeting. ROI, p. 119. The delay of more than three months, was due solely to the actions of Agency employees, particularly those responsible for procurement of the chair. Complainant submitted all required documentation and established his need for the ergonomic chair as an accommodation at the time of his request in December 2014. It appears that the chair request was placed on hold to discern the Agency's own reasonable accommodation procedures, which the Agency should already have in place, and employees should be informed about. See Policy Guidance On Executive Order 13164: Establishing Procedures To Facilitate The Provision Of Reasonable Accommodation (10/20/00) (explaining the requirements of Executive Order 13164, which requires federal agencies to establish effective written procedures for processing requests for reasonable accommodation). The delay for over three months under these circumstances was excessive. See, e.g., Priscila F. v. Dep't of Treasury, Request No. 0520170177 (May 26, 2017) (finding that three-month delay in replacing ergonomic chair constituted denial of a reasonable accommodation). Therefore, Complainant established that the Agency's undue delay of providing an ergonomic chair constituted a denial of 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 is REVERSED. The complaint is REMANDED for further processing consistent with this decision and the Order below. ORDER Within one hundred and twenty (120) calendar days from the date this decision is issued, the Agency is ORDERED to take the following actions, to the extent that it has not already done so: 1. Provide Complainant with the reasonable accommodation of an ergonomic chair; 2. Conduct a supplemental investigation into compensatory damages for harm caused by the denial of reasonable accommodation within 90 (ninety) calendar days of the date this decision is issued. 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. If there is a dispute regarding the exact amount of compensatory damages, the Agency shall issue a check to the Complainant for the undisputed amount within 30 (thirty) calendar days of the date the Agency determines the amount it believes to be due, and issue a final agency decision on the issue of compensatory damages; 3. Provide training to the Agency's acquisitions department on an employer's obligation to provide reasonable accommodation to qualified individuals with disabilities; 4. Consider taking appropriate disciplinary action against the responsible management officials, particularly members of the management team in the acquisitions department, the Chief of Contracting and the Property Manager. 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); 5. Post at the Indian Health Service, Portland Area Office, Division of Financial Management in Portland, Oregon, copies of the notice discussed below; The Agency shall provide a report of its compliance with this Order to the Compliance Officer referenced below. POSTING ORDER (G0617) The Agency is ordered to post at the Indian Health Service, Portland Area Office, Division of Financial Management in Portland, Oregon 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 (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (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 5-31-18 __________________ 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 While the Agency analyzed the claim as disparate treatment disability discrimination, the issue in the complaint is whether Complainant was denied a reasonable accommodation. Therefore, this decision analyzes the denial of reasonable accommodation, which is adequately supported by the evidentiary record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2016-1406 8 0120161406