U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cherilyn C.,1 Complainant, v. Dr. Grace Bochenek, Acting Secretary, Department of Energy, Agency. Appeal No. 0120170497 Agency No. 150024HQGC DECISION Complainant timely filed an appeal, pursuant to 29 C.F.R. § 1614.504(b), with the Equal Employment Opportunity Commission (EEOC or Commission) regarding the Agency's September 2, 2016 decision concerning the implementation of the terms of a settlement agreement into which the parties entered. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-14 level employee in the Office of National Environmental Protection Act ("NEPA") Policy and Compliance within the Agency's Office of General Counsel in Washington, DC. Believing that the Agency subjected her to unlawful discrimination on the basis of sex, age, and disability (retinopathy) and physical limitations resulting from hand and cervical spine injuries), Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On April 9, 2015, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve the matter. In relevant part, the Agency agreed to: 3.B.1. Promptly contact the [Chief Information Officer ("CIO")] for assistance and make all reasonable efforts to request the CIO to install, reinstall, and reestablish the Dragon 13 software and any other software and assistive technology currently available or subsequently obtained through the [Computer Accommodation Program ("CAP")] on [Complainant's] workstation once the software is received from CAP. Upon notification by [Complainant] of a lack of response from the CIO to her requests for customer assistance, her supervisor will follow up with the CIO and request a prompt resolution of the Issue; and 3.B.5. Reassess [Complainant's] workspace and computer accommodations every six months to ensure effectiveness. On August 8, 2016, Complainant contacted the Agency, raising a number of breach allegations pertaining to her reasonable accommodations. Among other things, Complainant alleged that the Agency failed to meet its obligation to "promptly" provide her with the assistive technology and technical assistance under Provision 3.B.1. For instance, Complainant claimed it took the CIO eight months to provide her access to the software it ordered as a reasonable accommodation for her visual impairment (i.e. Dragon 13, Zoom Text/Reader, and MagiTalk software).2 Complainant alleges that once the software was installed, she struggled with ongoing technical difficulties, and that the CIO further breached the Agreement by acting largely unresponsive to both her and her supervisor's requests for technical assistance. According to Complainant, CIO's failure to address her technical difficulties has prevented her from completing the necessary CAP software training. On September 2, 2016, the Agency issued a decision, finding that most of Complainant's claims constituted breach in violation of both 3.B.1 and 3.B.5 of the Agreement. The Agency acknowledged the CIO was "either dilatory installing the software/equipment and/or not sufficiently responsive to the Complainant's requests for assistance in addressing configuration and technical issues with regard to her request for reasonable accommodations." The Agency also agreed with Complainant's allegation that the CIO's "slow, and at times, incomplete" responses to her requests for assistance prevented the Agency from fully implementing Complainant's training. Accordingly, the Agency, in its decision issued by its EEO office, "ordered" appropriate Agency personnel to fully implement the terms in provisions 3.B.1 and 3.B.5 of the Agreement by: Working with the CIO... to provide the reasonable accommodations that are the subject of this breach claim to the Complainant within forty-five (45) days of receipt of this decision. [Appropriate Agency personnel] will report to [the Agency's EEO office] whether it has fulfilled the terms of the Settlement Agreement in accordance with this Order no later than October 15, 2016. The Complainant is also advised to make a good faith effort to fully cooperate with this Order. The record shows that the Agency cured most the breaches within the 45 day time frame, and initiated a diligent, good faith effort to timely arrange training for Complainant. However, there is no evidence that the report was submitted to the Agency EEO office, and little mention of efforts made to fix the technical glitches Complainant describes. Specifically, Complainant alleges that the Dragon Naturally Speaking vocabulary files will not save to her computer, and thus, the software does not recognize or properly transcribe what she is saying. Similarly, Complainant alleges that her MagiTalk software fails to recognize her commands, preventing her from coordinating her visual and dictation assistive technology. In light of these concerns, Complainant submitted the instant appeal to this Commission, alleging that the Agency remained in breach of terms 3.B.1. and 3.B.5. of the Agreement, claiming that: 1. She cannot adjust the color contrast settings on her computer; 2. Her Dragon Naturally Speaking vocabulary files do not properly save to her computer; and 3. The MagiTalk program fails to recognize her commands. Complainant requests that the Agency specifically perform its obligations under the terms of the Agreement, and seeks compensatory damages for emotional pain caused by the extended delay in its implementation. ANALYSIS Under 29 C.F.R. § 1614.504(a), any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. Complainant's allegations all concern ongoing technical difficulties, exacerbated by the failure of the Chief Information Officer ("CIO") to respond to her and her supervisor's requests for assistance. Under Provisions 3.B.1 and 3.B.5 of the Agreement, as well as the Agency's own September 2, 2016 decision, the CIO was obligated to provide Complainant and her supervisor with technical assistance and report on the effectiveness of the assistive technology as a reasonable accommodation for Complainant. Claim 1 alleges that the Agency breached the Agreement by denying Complainant access to adjust the color contrast settings on her computer as a reasonable accommodation that would allow her to see what's on the monitor. Complainant does not specify if this technical difficulty arises from her assistive technology software. However, the Agency determined, and we agree, that "since [her supervsior] confirmed that [Complainant's dual monitors] were obtained through [the Computer Accommodation Program ("CAP")] ... they fall within the ambit of the Settlement Agreement pursuant to Paragraph 3.B.1." Therefore, the CIO is obligated under the Agreement to ensure the monitors are properly set up to accommodate Complainant's visual impairment. As there is no evidence in the record that the Agency, specifically CIO or an agency official in the Office of the CIO ("OCIO") acted on this matter we find the Agency breached the Agreement. Claims 2 and 3 both describe continuing technical difficulties with Complainant's Dragon and MagiTouch software that essentially render them ineffective as a reasonable accommodation. Under 3.B.1, the CIO is responsible for ensuring this assistive technology is properly installed and providing a "prompt resolution of the issue" if Complainant or her supervisor requests assistance. Further, the reassessments CIO is required to conduct under 3.B.5 indicate that this responsibility to "ensure effectiveness" is ongoing. Complainant alleges that she made multiple requests, as did her supervsior on her behalf, to CIO and individuals within OCIO, without success. The only evidence in the record that OCIO addressed the technical difficulties Complainant raises is a September 2, 2017 email from the Deputy CIO to Complainant's supervisor. In addition to the above referenced software issues, Complainant further alleged in the record that she could not effectively use her assistive technology because the Agency did not give her the proper "privileges and settings;" and that her "box" (a translator device converting Agency software and documents into a format consistent with Complainant's assistive technology) reflected an out of date version of her software. The email informs the supervisor that the box he uses is not connected to her software and states (in conflict with the supervisor's statement in the record) that OCIO never altered her permissions. There is no indication that the Deputy CIO spoke with Complainant about her concerns, or checked her software to determine a cause for the technical difficulties she described. This is not a sufficient explanation or evidence to satisfy the CIO's obligations under the Agreement. Again, we find the Agency breached the express terms of Provisions 3.B.1 and 3.B.5 and undermined its purpose or effect by depriving Complainant of the reasonable accommodations it promised in exchange for entering the Agreement. Despite the significant delays obtaining the agreed upon reasonable accommodations, we note that the record does not reference whether the Agency provided Complainant with alternate accommodations or intermediate relief. Therefore, we remind the Agency that its obligation to provide Complainant with reasonable accommodations is ongoing. The EEOC Compliance Manual, Section 2, "Threshold Issues," p. 2-73, EEOC Notice 915.003 (July 21, 2005), provides that because an employer has an ongoing obligation to provide a reasonable accommodation failure to provide such accommodation constitutes a violation each time the employee needs it." Furthermore, pursuant to 29 C.F.R. § 1614.504(c), allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. The Commission has specifically held that the denial of reasonable accommodation constitutes a recurring violation that repeats each time the accommodation is needed. See Burris v. Navy, EEOC Appeal No. 01200645531(Jan. 10, 2007); Harmon v. Office of Personnel Management, EEOC Request No. 05980365 (Nov. 4, 1999). Regarding Complainant's request for monetary relief, as the prevailing party to this complaint, Complainant is entitled to attorney's fees and costs. See Maher v. Gagne, 448 U.S. 122 (1980); Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980); EEOC v. Madison Community Unit Sch. Dist. 12, 818 F.2d 577 (7th Cir. 1987); Cerny v. Dep't. of the Navy, EEOC Request No. 05930899 (Oct. 19, 1994). However, compensatory damages are not warranted in this case because such damages are only available when a complainant is found to have been discriminated against. Thayer v. United States Postal Serv., EEOC Request No. 0520120218 (Jun. 13, 2012). Here, Complainant is asking us to enforce the terms of a settlement agreement. Nothing in our regulations provides for compensatory damages to be awarded for a breach of settlement. Berendsen v. Dep't of Agriculture, EEOC Request No. 05950488 (Mar. 1, 1996). CONCLUSION Accordingly, we conclude that the Agency remains in breach of the terms of its settlement agreement with Complainant, and the matter is REMANDED to the Agency for action in accordance with the following Order. ORDER 1. To the extent it has not already done so, the Agency must, within (60) calendar days of the date of this Decision, comply with the Agency's Order to specifically implement parts 3.B.1 and 3.B.5 of the Agreement by: a. "Work[ing] with the CIO [and OCIO] to provide the remaining reasonable accommodations that are the subject of this breach claim to Complainant" and ensuring Complainant receives "prompt" OCIO assistance; and b. Fully implementing Complainant's CAP training, which the Agency previously failed to complete "because of [OCIO's] slow, and at times, incomplete responses" to Complainant's requests for assistance; to mitigate scheduling issues, the Agency may consider augmenting in-person training with alternative formats, so long as they are effective. 2. The Agency must submit a Compliance Report within thirty (30) calendar days of completion of the ordered action, per the instructions below, and including (but not limited to) the following documents: a. Proof of Compliance with Provision 3.B.1: A signed and dated statement from an appropriate OCIO official (email format is acceptable so long as it includes the heading with the subject, date, and sender/recipient lines) addressing the following issues: i. Explain how OCIO specifically implemented the Agreement, including how it (1) fixed/ensured continued access for Complainant to adjust the color contrast settings on her computer; and (2) resolved the technical difficulties Complainant described regarding saving Dragon Speaking Vocabulary files and with MagiTalk recognizing commands; ii. Clarify what "settings and privileges" are necessary to operate Complainant's assistive technology, and confirm that Complainant has access to those "settings and privileges;" iii. Respond to Complainant's concerns in the record explaining the box, and when, if ever, these sites may appear different to Complainant (e.g. the box requires manual updates whereas Complainant's software automatically updates); and iv. Describe efforts OCIO has taken to ensure "prompt" resolution to Complainant's concerns. b. Proof of Compliance with Provision 3.B.5: Copy of the most recent accommodations reassessment report as directed under 3.B.5. c. Proof of training: proof of attendance (e.g. signed and dated roster, certificate of completion or narrative statement by an appropriate Agency official confirming training hours) and a course description providing some indication that the training was appropriate. 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 (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 (M0416) 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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 March 27, 2017 _______________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 The Agency accepted Complainant's breach claim as timely because the "record demonstrates that Complainant relied on [S1] and [OCIO] to install the agreed upon software/hardware promptly, and to respond to her requests for assistance when the software/hardware had not been installed during an ongoing period of time." Also, Complainant initially notified the Agency of the alleged breach on January 7, 2016, the parties requested extensions and the matter was placed in abeyance for several months, delaying a decision. The August 8, 2016 breach date is based on an additional breach claim, which the Agency combined with Complainant's initial allegations. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170497 8 0120170497 9 0120170497