U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marx H.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120162333 Agency No. 14-00259-03453 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 May 18, 2016, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission REVERSES IN PART the Agency's final decision. ISSUE PRESENTED The issue presented are whether the Agency properly found that Complainant did not prove that she was subjected to unlawful discrimination or denied a reasonable accommodation for her disability. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-6 Secretary within the Pharmacy Department at the Agency's Naval Medical Center in San Diego, California. In this position, Complainant performed a variety of clerical and administrative duties that support the work of the organization and was the only Secretary in the Pharmacy Department. In a Letter of Reprimand dated July 22, 2014, S1 stated that Complainant was being reprimanded for failing to complete work assignments in a timely manner. Specifically, the letter stated that on July 10, 2014, S1 directed Complainant to invite staff to present a six-month follow-up of their collateral duty findings for future leadership meetings by July 3, 2014, and Complainant asked for an extension until July 7, 2014. The letter stated that when S1 asked where Complainant was on the task on July 7, 2014, Complainant stated that she had not completed it, and provided a vague list when S1 asked her to provide a list of tasks accomplished. The letter further stated that on July 2, 2014, Complainant informed her that she could not complete the minutes for the June 27, 2014 leadership meeting within the two-day deadline, and when S1 received the minutes, they contained errors and did not reflect appropriate information about names and ranks of participants. The letter stated that when S1 emailed Complainant to inform her to have the corrected minutes submitted to her by noon on July 8, 2014, Complainant said she would try to complete them by July 9, 2014. Additionally, the letter indicated that Complainant failed to complete the minutes for the Leadership meeting on July 11, 2014 within the two-day deadline, offered no explanation of why she did not complete the assignment, and still had not submitted the assignment to S1. On an Agency Reasonable Accommodation Request Form addressed to S1 dated August 11, 2014,2 Complainant revealed that she has the condition of Frontal Temporal Lobe Dementia and that the condition affected her thinking processes and the communication of her thoughts to her hands, which caused her to take much longer to complete tasks. Complainant further revealed that her condition was permanent and she was seeking treatment for the condition. Additionally, Complainant requested to have "additional/longer length of time to complete/assignments given to me in line with my duties." In a letter from S1 to Complainant dated August 12, 2014, S1 requested "detailed medical documentation" from Complainant's physician, including the nature and severity of Complainant's medical condition and physical impairment; an explanation of the impact of Complainant's medical condition and the extent to which her impairment limited her activities both on her job; the extent to which Complainant's impairment limited her ability to perform an activity or activities; an explanation of whether the impairment is or can be controlled by medication or medical intervention/assistive devices; an assessment of Complainant's ability to successfully perform the essential functions of her position, with or without reasonable accommodation; and if an accommodation is required, the particular accommodation requested, with explanations as to how the accommodation will assist Complainant in performing the essential functions of her position. The letter stated that Complainant had 15 days to submit the requested information, and included a Documentation of Essential Functions Form and Complainant's position description. In a letter dated August 22, 2014, S1 proposed to suspend Complainant for five days for failing to complete work assignments in a timely manner. The letter stated that in July 2014, Complainant failed to meet the July 16, 2016 deadline to update the staff for the Leadership meeting presentation. The letter also stated that on June 11, 2014, Complainant was tasked with updating the department telephone list by the first week of each month, but on July 30, 2013, she failed to explain why the July telephone listing had not been updated. The letter further stated that as of August 22, 2014, S1 did not receive the minutes for the June 27, 2014 meeting within the two-day deadline, and when Complainant submitted them on August 12, 2014, S1 returned them to her that same day to make numerous corrections. S1 stated that she again returned the minutes to Complainant to make more corrections on August 15, 2014, and when S1 asked about the status of the corrections on August 22, 2014, Complainant offered no response, and S1 still had not received the completed assignment. Additionally, the letter stated that Complainant did not verify her time card by close of business August 20, 2014, although S1 reminded her to do so as recently as July 24, 2010. On or about September 24, 2014, Complainant submitted a Documentation of Essential Functions, which was completed by her physician. In this document, Complainant's physician reported that she experienced significant language impairment that impacted her job knowledge and skills, and Complainant required an increased length of time to perform work duties. Regarding interpersonal skills and teamwork, the physician stated that Complainant might have difficulty with language expression, but her personality and interpersonal skills were unchanged In a letter dated October 10, 2014, S2 sustained the charges against Complainant and suspended her for five days. Complainant served her suspension from October 13, 2014 through October 17, 2014. On November 14, 2014, Complainant filed an EEO complaint in which she alleged that the Agency harassed and discriminated against her on the bases of disability and age (born in 1952)3 when: 1. After informing supervisors on June 2, 2014 of her medical disability, she was required to complete weekly tasks without receiving specific instructions or tools; 2. On July 22, 2014, she was issued a Letter of Reprimand for failure to complete a work assignment in a timely manner; and 3. On August 26, 2014, she was issued a Notice of Proposed 5-Day Suspension, which was effectuated starting October 13, 2014, for failure to complete assignments in a timely manner. In an investigative statement, Complainant stated that on May 23, 2014, she was diagnosed with Temporal, Frontal Lobe Dementia, which is a permanent and progressive condition that causes her to experience hand-eye coordination deficit, impacts on thinking processes and communication, and a longer period of time to complete tasks. Complainant further stated that her condition adversely impacted her focus and concentration, and caused her to experience insomnia and anxiety. Complainant stated that she informed her supervisors (S1 and S2) about her condition on or about May 23, 2014 and June 2, 2014, verbally as well as through written documentation from her physician. Complainant further stated that she was given little if any help to perform the duties given to her, some of which had been added to her amended position description. She stated that previously, the position description did not require her to write minutes from meetings, and she had done "strictly payroll." However, Complainant stated that when S1 became her supervisor, she added duties to her position description that she had never done before, such as taking notes and minutes. Complainant stated that she was deluged with these new tasks that were in her new position description. Complainant stated that from June 2014 until November 2014, S1 directed her to complete minutes from a weekly Officers Department meeting within a specific time frame and required her to improve her typing skills. Complainant stated that she sought but was not given a format or agenda or copies of previous meeting minutes, and was told that the group did the minutes for themselves before she was given the new task. Complainant stated that S1 gave her a copy of minutes from another area of the facility, which were not related to the minutes she needed because the format and verbiage were different from what she needed. Complainant further stated that S1 told her that she could have an additional two hours away from her desk in another office to complete minutes from the Friday Leadership Office, but the office that S1 offered was in an area where people randomly came in and out all day. She stated that she went to the office, but it was difficult to complete the minutes with all the people coming in and out of it. Complainant stated that her work environment was "severely stressful" with all the added tasks and time frames, but no support from her superiors. Complainant stated that it became apparent to her that she had to retire sooner than she anticipated to preserve her health, and therefore, she retired after 25 years of civil service. Complainant further stated that on July 22, 2014, S1 issued her a reprimand for not completing her duties in a timely fashion. Complainant stated that she did not feel she should have reprimanded because she was not assisted to prepare for the work that was required of her, and she had informed management of her "mental deficit with documentation." Complainant stated that she had difficulties completing assignments because of Dementia and asked for extra time to complete assignments, but S1 kept "hounding" her to complete the minutes. Complainant stated that she was not counseled or warned that her actions could result in disciplinary action before the reprimand was issued. Regarding the suspension, Complainant stated that she failed to complete the assignments in a timely manner because of her disability. She stated that she had a hard time completing her work assignments, and S1 refused to accept her work. Complainant also stated that she did not believe she should have been suspended because she was not given proper support and assistance from her superiors to prepare her for tasks. She also stated that she believed the suspension was a "punitive action" due to her inability to complete tasks because of her "very well-documented disability." S1 stated that in meeting with herself, Complainant, S2, and another official, Complainant advised her that she had a cognitive disorder called Aphasia. S1 further stated that Complainant presented management with a one-page printout from a medical visit that indicated Complainant had a cognitive disorder. S1 stated that there was no further information presented, she did not keep the document, and Complainant did not provide copies of it to management. S1 further stated that Complainant did not ask for any assistance, but S1 advised her to let them know that if she needed assistance. She also stated that Complainant acknowledged that being a secretary was her job, she was required to perform filing and speaking tasks, and she would work on her typing with the hope that with practice, she would improve her skills. S1 further stated that a few days after the meeting, she consulted with a Human Resources Specialist (HR Specialist), and as a result of the consultation, she emailed Complainant and asked if she needed an accommodation. S1 stated that Complainant replied to the email but did not answer in the affirmative, but instead said that it was her intention to do what was required of her, and she would keep S1 informed of her future doctor's appointments that might change the situation down the road. S1 stated that Complainant did not request an accommodation until several weeks after the June 2, 2014 meeting, but the HR Specialist informed her that Complainant inquired about a reasonable accommodation on July 21, 2014 and was given documentation to request an accommodation on August 7, 2014. S1 stated that she reviewed Complainant's August 11, 2014 accommodation request and identified the essential functions of her position. S1 further stated that on August 12, 2014, she issued a letter to Complainant requesting additional medical documentation in support of her request to the HR Specialist within 15 calendar days, but S1 understood that Complainant did not provide any additional medical documentation in response to this request. S1 stated that the essential functions and critical elements of Complainant's position include customer satisfaction; interpersonal skills and teamwork; answering the telephone; greeting staff members within the Pharmacy Department and visitors to the Pharmacy Department; maintaining Pharmacy Quarters daily; creating appointments with pharmaceutical vendors; routing documents to and from the Pharmacy; maintaining the Pharmacy Outlook calendars; scanning documents; assisting employees with the Defense Travel System (DTS); and creating professional intake forums. S2 stated that in the early June 2014 meeting, Complainant presented a piece of paper from her physician that stated she had a cognitive impairment, but there was no information addressing any limitations that would affect Complainant's ability to perform her job. S2 further stated that she acknowledged the paper, she gave the paper back to Complainant, and Complainant kept it. S2 stated that she did not recall Complainant asking for any assistance to perform her duties and responsibilities at that time. The Supervisory Pharmacy Technician (SPT) stated that during the June 2, 2014 meeting, Complainant disclosed that she had the beginning signs of Dementia and offered papers that revealed her medical condition, but SPT never personally looked at the papers. SPT stated that S1 and S2 did not keep the documentation. The HR Specialist stated that Complainant did not provide written documentation supporting any accommodation, and she did not respond to the Agency's request for detailed medical documentation dated August 12, 2014. She further stated that she was not involved in the June 2, 2014 meeting, but she recalled advising S1 to ask Complainant if she was requesting a reasonable accommodation. 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 discrimination as alleged. CONTENTIONS ON APPEAL Complainant does not present any arguments on appeal, and the Agency requests that we affirm its final 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"). ANALYSIS AND FINDINGS Qualified Individual with a Disability Complainant alleges that she was subjected to disparate treatment because of her disability and denied a reasonable accommodation. The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. Therefore, as a threshold matter, we must determine if she is an individual with a disability. We note that, the events in this case arose after January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which expanded the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Under EEOC regulations implementing the ADAAA, an individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has record of such an impairment; or (3) is regarded as having such an impairment. See 29 C.F.R. § 1630.2(g)(1)-(3). A physical or mental impairment is defined as: (1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or (2) any mental or psychological disorder, such as an intellectual disability (formerly termed 'mental retardation'), organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 C.F.R. § 1630.2(h) (2011). The impairment must substantially limit Complainant, or significantly restrict her as to the condition, manner, or duration under which she performs a particular major life activity as compared with the performance of the average person in the general population. See 29 C.F.R. § 1630.2(j)(1)(ii). Major life activities include such functions as caring for one's self, performing manual tasks, learning, reading, concentrating, thinking, communicating, interacting with others, and working. 29 C.F.R. § 1630.2(i)(1)(i). Major life activities also include the operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. 29 C.F.R. § 1630.2(i)(1)(ii). Upon review, we note that Complainant has Frontal Temporal Lobe Dementia, and that Complainant experienced several significant permanent symptoms because of the condition, including major impacts on thought processing and the time it took to complete tasks. As such, we find that Complainant was substantially limited in the major life activity of thinking, and had a condition that impacted her brain, which is a major bodily function or system. Consequently, we find that Complainant is an individual with a disability. The Agency found that Complainant was not qualified because she did not meet deadlines for turning in minutes, making copies, following up on Pharmacy Officer special pay correspondence, scheduling appointments, and responding to emails; she did not schedule staff for collateral duty presentations or appropriately track routing folders; and her typing skills were poor. However, the record reveals that Complainant received satisfactory evaluations throughout the relevant period, as reflected in the Agency's August 24, 2014 Notice of Proposed 5-Day Suspension. Further, we note that there is no record that Complainant had any difficulty performing the essential functions of her position until S1 added new assignments with tight deadlines to her job duties that she had not performed previously. As such, we find that Complainant was qualified. Disparate Treatment and Harassment In order to prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). In order to establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an environment, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Claims 1 and 2 For purposes of analysis, we assume, arguendo and without so finding, that Complainant established a prima facie case of disparate treatment based on disability for claims 1 and 2. Nevertheless, we find that the Agency provided legitimate, nondiscriminatory explanations for its actions for claims 1 and 2. Specifically, regarding claim 1, S1 stated that as the Secretary of the Pharmacy Department, taking meeting minutes was within the scope of responsibilities found in Complainant's position description and outlined in the critical elements of her performance appraisal. S1 further stated Complainant requested instructions on how to draft the weekly meeting minutes, and the instructions were subsequently provided to her, as well as an electronic and hard copy template to follow with samples of other minutes to follow. S1 also stated that Complainant was also provided with a tape recorder to assist in her capturing the discussions that occurred during the meeting, and S1 met with Complainant on several occasions to review what was required in the weekly minutes, including reports on each Pharmacy division and attendance. S1 stated that this information was also provided to Complainant via email, and she was given detailed feedback for each set of minutes, and immediately returned S1's comments to Complainant's via email for corrections and completion. She stated that the corrections that Complainant needed to make on her draft minutes included correcting misspellings, the wrong names of division officers, and incorrect content. S1 further stated that Complainant was given electronic and hard copy templates to follow; samples of agendas; and templates for sections of the Pharmacy that might be highlighted in minutes (outpatient, inpatient, etc.). S1 stated that Complainant began taking meeting minutes in June 2014 and did not inform her she could not perform this duty because of her medical condition. However, S1 also stated that in a meeting with Complainant on June 2, 2014, Complainant advised her that she had a medical condition and showed her a medical document that identified the condition, but Complainant kept the document and did not request an accommodation at that time. S1 stated that previously, minutes were taken by each Division Officer for each section, but the Division Officers of outpatient, inpatient, ambulatory care, and branch clinics requested to have Complainant take the minutes to ensure better communication and documentation of the meeting. S1 further stated that she then requested to have Complainant take the weekly Pharmacy meetings. She stated that the assignments given to Complainant were within the scope of the duties and responsibilities outlined in her position description, and were part of the critical elements identified in her performance appraisal. S2 stated that prior to her appointment as Department Head, no meeting minutes were taken. She stated that she decided to have minutes taken in case someone was absent, and S1 assigned this task to Complainant. S2 stated that Complainant was provided a copy of the Pharmacy and Therapeutic Committee meeting minutes as a template for the Friday leadership meeting minutes she was assigned to produce. S2 further stated that Complainant had time to complete the minutes, and if she had any questions, assistance was provided. S2 stated that if Complainant could not meet a deadline, she could identify new deadlines, with S1's approval. S2 also stated that Complainant asked to move to a different desk to complete the minutes because of distractions, and this request was granted. S2 stated that Complainant did not express to her that her condition prevented her from performing these duties. The HR Specialist stated that she advised S1 to make a list of the tasks Complainant had to complete and to provide reasonable due dates. She stated that she met with Complainant and S1 on June 19, 2014 to provide Complainant with work assignments and due dates. The HR Specialist stated that during the meeting, Complainant acknowledged that she been trained to perform these tasks and that the deadlines were well within reason. that the response was not valid. Regarding claim 2, S1 stated that Complainant was issued the reprimand because she failed to meet deadlines for completing meeting minutes and for scheduling staff collateral duty presentations at the Pharmacy Leadership Friday meetings. S1 further stated that Complainant made numerous mistakes and failed to make timely corrections. S1 stated that Complainant's minutes were sent to her for review, but they were never posted because they contained significant errors. S1 stated that she received complaints from Division Officers because the minutes were never posted. S1 further stated that she informed S2 that Complainant was unable to meet deadlines for completing the minutes and for scheduling staff collateral duty presentations at the Pharmacy leadership Friday meetings because of numerous mistakes and the failure to make timely corrections. She stated that she also told S2 that Complainant was not appropriately tracking routing folders; did not follow up on Pharmacy officer special pay correspondence in a timely manner; did not respond to a Pharmacy supervisor's request for a position description for a supervisory position; did not respond to two pharmaceutical heads' requests for appointments with the Pharmacy Department head; did not appropriately fill out routing sheets per guidance; did not submit time cards on time; did not respond to emails in a timely manner; and did not accurately track the certificates for certifying officials for the Pharmacy supervisor that were to be sent to payroll. S1 also stated that she reached out to the HR Specialist in late June 2014 about how to proceed with an employee who was not completing tasks, and the HR Specialist recommended the Letter of Reprimand as the appropriate action to take. S1 stated that the Letter of Reprimand was issued on June 22, 2014, and she had been discussing the proper action to respond to Complainant's failure to meet deadlines and follow instructions with the HR Specialist for weeks prior to reprimand. S2 stated that S1 told her that there were several instances wherein Complainant failed to meet deadlines regarding her tasks, and S2 was working with the HR Specialist to determine how to handle the matter. S2 stated that S1 later informed her that based on HR Specialist's recommendation, she decided that a Letter of Reprimand was the best course of action, which seemed reasonable to S2. The HR Specialist stated that on or about July 2, 2014, S1 contacted her to discuss Complainant's failure to complete her work within the specified timeframes, and S1 and the HR Specialist discussed how to move forward with efforts to correct Complainant's "behavior." The HR Specialist further stated that she advised S1 to ask Complainant why she was unable to complete tasks and informed her of the documentation needed to support a Letter of Reprimand if S1 determined that this was the proper action to take. After a thorough review of the record, we note that while it is undisputed that Complainant revealed that she had Dementia to management during a meeting on June 2, 2014, there is no evidence that Complainant indicated that her condition impacted her ability to perform her job duties until after the issuance of the reprimand. We do not find that Complainant has shown that the Agency's explanations for its assignments and issuance of the Letter of Reprimand were pretext for unlawful disability discrimination. Consequently, we find that the Agency properly found that Complainant did not prove that she was subjected to unlawful harassment or disparate treatment regarding claims 1 and 2. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Claim 3: Suspension Regarding claim 3, we reiterate that Complainant is a qualified individual with a disability. Additionally, Complainant was suspended only a couple of weeks after management learned that she had a mental condition and requested accommodation of that condition. Moreover, the Agency acknowledges that Complainant was reprimanded because she did not complete assignments in a timely manner, although it was aware that her Dementia caused her to need more time to complete assignments. Under these circumstances, we find that Complainant established a prima facie of disability discrimination case for claim 3. Because Complainant established a prima facie case of disability discrimination, the Agency now has the burden of producing a legitimate, non-discriminatory explanation for suspending her. As stated above, the Agency maintains that it suspended Complainant because she did not complete assignments in a timely manner and made errors in her work products. However, we note that on August 11, 2014, Complainant informed the Agency that she had Frontal Temporal Lobe Dementia, and that the condition affected her thinking processes, which caused her to take much longer to complete tasks. Complainant's job largely consisted of performing tasks that necessarily involved composing documents and typing. As such, from August 11, 2014, the Agency was aware that Complainant needed significantly more time to complete her assignments, and Complainant's failure to complete assignments by deadlines and work product errors were mostly attributable to her mental condition. Nevertheless, the Agency suspended her for work errors and failing to complete assignments in a timely manner after it was aware of the impact of Complainant's condition on her work performance. We note that Commission guidance holds that an agency may discipline an individual with a disability for violating a conduct standard, even if the misconduct resulted from the disability, as long as the conduct standard is job-related for the position in question and consistent with business necessity. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, No. 915.002 (Mar. 25, 1997), at question 30 ("an employer may discipline an employee with a disability for engaging in ... misconduct if it would impose the same discipline on an employee without a disability"). However, work product errors and untimely completion of work assignments are not matters of misconduct; they are matters of performance. Thus, the appropriate manner to respond to such matters is through measures designed to address performance problems, such as appraisals, remedial training, non-disciplinary counseling, and Performance Improvement Plans (PIPs). When, as here, an agency is aware that performance problems are caused by a disability but disciplines an employee for those performance problems, the Agency's actions are punitive against the employee's status as an individual with a disability. Therefore, under these circumstances, we conclude that suspending Complainant for five days was tantamount to suspending her because she has a disability. Therefore, we find that the Agency has not provided a legitimate, nondiscriminatory reason for suspending Complainant. See Natalie v. Dep't of Veteran's Affairs, EEOC Appeal No. 01A12679 (Aug. 22, 2002) (Agency's decision to discipline Complainant's instead of providing an accommodation is not a legitimate non-discriminatory explanation). Thus, we conclude that the Agency failed to rebut the inference of discrimination created when Complainant established a prima facie case of disability discrimination by articulating a legitimate, nondiscriminatory reason for its actions. Therefore, we find that the Agency discriminated against Complainant based on her disability when it suspended her for five days. 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, Complainant requested a reasonable accommodation for her disability when, on August 11, 2014, she informed the Agency that she had Dementia and needed more time to complete assignments.4 The record reveals that in response to Complainant's request, the Agency asked Complainant to provide additional medical documentation to support her request within 15 days. We note that after receiving a request for reasonable accommodation, an agency "must make a reasonable effort to determine the appropriate accommodation." 29 C.F.R. Part 1630, 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 and Undue Hardship under the Americans with Disabilities Act, No. 915.002, at Question 5 (Oct. 17, 2002). Here, while portions of the Agency's request for additional information were unnecessary, we determine that the Agency was justified in asking Complainant and her physician to suggest accommodations that would enable Complainant to perform the essential functions of her position. In so finding, we note that during the relevant period, the only accommodation Complainant had requested was to have additional time to complete assignments. We further note that the Agency had already significantly extended deadlines for Complainant's assignments on several occasions, as well as provided her with model templates, a new desk location, supervisory feedback, and a tape recorder. Therefore, we find that the Agency needed to solicit other suggestions on how to accommodate Complainant. Additionally, the physician's September 24, 2014 assessment that Complainant needed more time to complete assignments because of Dementia was approximately a month beyond the deadline for responding to the Agency's request. Further, the physician's assessment merely repeated Complainant's broad request for additional time to complete assignments, and as such, did not satisfy the Agency's legitimate request for documentation that provided the Agency with additional options for accommodating Complainant. As such, we find that Complainant has not demonstrated that she was denied a reasonable accommodation. See Hoang v. U.S. Postal Serv., EEOC Appeal No. 0120130454 (Apr. 11, 2013) (finding no denial of reasonable accommodation where the Agency requested medical documentation and Complainant failed to identify any reasonable accommodation he requested that the Agency failed to provide). CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding of no discrimination or harassment regarding claims 1 and 2. Regarding claim 3, the Commission REVERSES the Agency's finding that it did not subject Complainant to disability discrimination and REMANDS this matter to the Agency to undertake further actions consistent with this decision and the ORDERS below. ORDER The Agency is ordered to undertake the following remedial actions: 1. Within 120 calendar days after this decision is issued, the Agency shall remove any reference to the October 2014 Suspension from all personnel records, including from Complainant's official personal files. 2. Within 120 calendar days after this decision is issued, the Agency shall reimburse Complainant for any pay lost because of the October 2014 suspension, plus interest. 3. Within 120 calendar days after this decision is issued, the Agency shall provide eight hours of in-person EEO training to all management and Human Resources officials within the Pharmacy Department at the Naval Medical Center in San Diego, with an emphasis on the Agency's obligation to prevent discrimination against individuals with disabilities, as well as to prevent reprisal. 4. Within 120 calendar days after this decision is issued, the Agency shall consider taking appropriate disciplinary action against S1 and S2. 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 S1 or S2 have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 5. The Agency shall conduct a supplemental investigation pertaining to Complainant's entitlement to compensatory damages incurred as a result of the Agency's discriminatory 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. 6. The Agency shall post a notice in accordance with the paragraph below. POSTING ORDER (G0617) The Agency is ordered to post at its Naval Medical Center in San Diego 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. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 6-19-28 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 The record reveals that the Agency received this form on August 11, 2014. 3 In her investigative statement, Complainant withdrew age as a basis for this complaint. Report of Investigation (ROI), p. 436. 4 This request was reinforced by her physician's September 24, 2014 assessment that Complainant needed more time to complete assignments because of Dementia. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162333 16 0120162333