Karen McCoy v. Department of Veterans Affairs 01A20346 05-12-03 . Karen McCoy, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. Appeal No. 01A20346 Agency No. 2000-742 DECISION Complainant timely initiated an appeal from a final agency decision (FAD) concerning her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. For the following reasons, the Commission reverses the agency's final decision. The record reveals that during the relevant time, complainant was employed as an Education Program Manager at the agency's Medical Center in Salt Lake City, Utah. Complainant sought EEO counseling and subsequently filed a formal complaint on November 17, 2000, alleging that she was discriminated against on the basis of disability (multiple sclerosis) when the agency failed to accommodate her request that she continue to work from home on flexiplace. At the conclusion of the investigation, complainant was informed of her right to request a hearing before an EEOC Administrative Judge or alternatively, to receive a final decision by the agency. Complainant requested that the agency issue a final decision. In its FAD, the agency concluded that complainant was a qualified individual with a disability, and that the agency failed to provide a reasonable accommodation to the complainant when it failed to allow her to continue to work from home. The agency ordered the Medical Center to make equitable restitution to complainant, but denied complainant compensatory damages, concluding that the Medical Center made a good faith effort to provide complainant with reasonable accommodation of her disability. On appeal, complainant contended that the evidence in this record did not support a finding of good faith. The agency's March 22, 2002 appeal statement was not considered in this decision, because it does not show that it was filed within 30 days of receipt of the complainant's November 16, 2001 appeal statement, as required by 29 C.F.R. 1614.403(f). ISSUE Whether the agency made good faith efforts to accommodate complainant's disability. BACKGROUND Complainant, who has multiple sclerosis, worked for the agency since 1989, and since at least 1996, worked at home in the agency's flexiplace work program. In February, 2000, an agency audit recommended that the flexiplace program be discontinued and that all employees return to their assigned worksite by April 23, 2000. The agency notified complainant and other employees that they had to return to the worksite; complainant did not return, and for at least some of the time was in a sick leave status. On March 29, 2000, complainant requested, through her doctor, the reasonable accommodation to work at home, explaining that complainant's symptoms were unpredictable, but included numbness and tingling in her legs. Complainant did not believe she could drive safely, and found commuting stressful. Complainant offered to provide more medical information if needed. On April 10, 2000, the Chief of Human Resources advised complainant her request to work from home was denied. The Chief described complainant's request to work at home as a convenience, asserted that an individual who was temporarily disabled could work from home, and concluded that an employee with a permanent condition that precluded an employee's return to work should consider disability retirement. The complainant was instructed to request workplace modifications that would enable her to perform her job at the office. It is not clear if complainant worked from home or was on leave from March, 2000 to September, 2000. On September 14, 2000, complainant's doctor again asked that complainant be allowed to work at home, stressing that it was unsafe for complainant to drive to work and that the stress and long commute (2 hours each way) on public transportation might worsen her symptoms. On October 11, 2000, complainant was directed to return to work or be in an absent without leave status. On November 15, 2000, complainant's lawyer invited the agency to engage in the interactive process with complainant in an attempt to find a reasonable accommodation of her disability. In November and December, 2000, complainant returned to work for a few days, but left again on sick leave. On January 12, 2001, complainant asked for reassignment, which was not granted. On March 13, 2001, the agency offered to reimburse complainant for taxi fare spent on her commute. On April 2, 2001, complainant rejected the offer, asserting that taxis would not be reliable and would not allow her to get to doctor's appointments during the work week. During the investigation of this matter, complainant's first line supervisor asserted his opinion that complainant could do her job from home, but that accommodation would not address the agency's need to “recapture [a] . . . spirit of camaraderie. . . ” by working in the office. The supervisor recognized that getting to and from the workplace was a barrier for complainant, but continued to insist that complainant work in the office. The FAD rejected the agency's arguments for not allowing complainant to work at home, and found that the Medical Center failed in its duty to provide complainant an effective accommodation. The FAD found that no agency official “conducted a job analysis of complainant's position,” and the agency failed to show how allowing complainant to work at home would impact the operation of the facility. The agency did not contact complainant's doctors or schedule an examination of complainant by an agency doctor, and did not review complainant's medical evidence until March, 2001. The FAD found that “management officials display[ed] a remarkable insensitivity” to complainant's disability, and an “unwillingness to acknowledge the disabling nature of a neurological disorder which impacts the brain and the central nervous system.” The FAD concluded that it was not complainant's inability to commute which made working in the office impossible, but the “unpredictability of complainant's neurological symptoms and the fatigue and exacerbation of her disease associated with a longer day and a stressful commute,” that made commuting not “feasible.” ANALYSIS Under the Civil Rights Act of 1991, compensatory damages cannot be awarded where an employer makes good faith efforts to identify and make a reasonable accommodation “that would provide the individual with an equally effective opportunity” at work as is enjoyed by non-disabled individuals. 42 U.S.C. § 1981a. Good faith can be demonstrated by proof that the agency, in consultation with the disabled individual, attempted to identify and make a reasonable accommodation. McCleese v. USPS, EEOC Appeal No. 01981286 (Oct. 19, 2001). Here, given the FAD's finding that complainant's disability produced unpredictable effects, and the FAD's finding that the agency's accommodation of providing for complainant's commute to work was not feasible, we conclude that the agency's accommodation was not reasonable. Equal Employment Opportunity Commission Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, as revised, Oct. 17, 2002 (an accommodation is reasonable if it appears to be feasible). Additionally, an accommodation must be effective. “An ineffective ‘modification' or ‘adjustment' will not accommodate a disabled individual's limitations.” [emphasis original]. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002). Here, the agency had many opportunities to provide complainant with an effective accommodation, but had no interest in doing so. The agency's only objective was to return all flexiplace employees to the workplace, irrespective of employee need. Labeling working at home a convenience, failing to review complainant's position and failing to review complainant's medical evidence for a year after her request for accommodation well demonstrates the agency's disregard of its obligation to provide a feasible and effective accommodation of complainant's limitations. Indeed, the agency completely failed to provide a reasonable accommodation until it was ordered to do so in the FAD. Therefore, we find that the agency did not make a good faith effort to accommodate complainant's disability. Complainant is therefore entitled to an award for any proven compensatory damages. CONCLUSION Therefore, after a careful review of the record, including complainant's contentions on appeal and arguments and evidence not specifically addressed in this decision, we reverse the agency's final decision and remand this case to the agency to take remedial action in accordance with this decision and Order below. ORDER Within 30 days of the date this decision becomes final, the agency shall request objective evidence from complainant in support of her claim for compensatory damages, with sufficient specificity to allow complainant to reasonably respond to the agency's request.<1> The agency shall conduct a supplemental investigation to determine the amount of compensatory damages due to complainant, if any, and issue a final agency decision. The supplemental investigation and final agency decision shall be completed within 60 days of complainant's presentation of objective evidence. A copy of the final agency decision must be submitted to the Compliance Officer, as described below.<2> ATTORNEY'S FEES (H0900) 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 (K0501) 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 19848, Washington, D.C. 20036. 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). 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 (M0701) 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), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 (R0900) 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 (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations _____05-12-03_____________ Date 1 The Commission's decision in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993), describes in detail the type of evidence which should be presented in support of a claim for compensatory damages. 2 The agency is reminded to provide the remedies called for in its FAD.