Bart M., Complainant v. Michael J. Astrue, Commissioner, Social Security Administration, Agency. Appeal No. 0720110030 Hearing No. 471-2009-00055X Agency No. CHI-08-0405-SSA DECISION Concurrent with its February 28, 2011, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency's final order. ISSUES PRESENTED The issues presented are whether Complainant is a qualified individual with a disability, and whether the Agency unlawfully discriminated against him in violation of the Rehabilitation Act. BACKGROUND Complainant was hired as a Service Representative by the Agency in July 2006 in the Muskegon, Michigan, office under the Federal Career Intern Program (FCIP). He attended Agency training in Benton Harbor, Michigan, from August 2006 through November 2006. While still in training for the Service Representative position in September 2006, he was offered and accepted a Claims Representative, GS-11, position in Ludington, Michigan, which was approximately 65 miles from his home in Muskegon, Michigan. He attended additional training in North Flint, Michigan, for the Claims Representative position from December 2006 through March 2007. He reported for duty in the Ludington office in April 2007. The Ludington Office had a total of six, and at times seven, employees at any given time during the events in this complaint. Complainant initiated EEO Counseling in April 2008. On June 5, 2008, Complainant filed an EEO complaint (later amended) alleging that the Agency discriminated against him on the basis of disability (mental - anxiety and attention deficit disorder, or ADD) when: 1. his reasonable accommodation request for a transfer to the Muskegon, Michigan, Field Office was denied on March 18, 2008; 2. he was subjected to harassment (non-sexual) and a hostile work environment when management ignored his repeated complaints of his coworkers' unprofessional conduct towards him, which aggravated his disabilities; he was not adequately mentored; his work was not reviewed for long periods of time, which caused him to have a backlog; he was placed under direct supervision from January 2008 to April 2008; derogatory observation notes were placed in his SF-7B Extension File; management constantly threatened to terminate his FCIP position if his performance did not improve; and 3. his FCIP position was not converted to a Career Conditional Appointment, and he was terminated from the Agency effective July 22, 2008.1 The Agency accepted the above listed issues for investigation on August 8, 2008. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Both parties filed motions for a decision without a hearing, which the AJ denied, finding there were too many disputed facts for summary judgment to be appropriate. The AJ also resolved numerous disputes which arose during the discovery process, including a motion to compel filed by Complainant. The AJ held an evidentiary hearing on March 31, 2010, via video teleconference for the AJ, who appeared from Milwaukee, Wisconsin, while the parties were located in Detroit, Michigan. The testimony of at least one witness was taken by telephone, with the witness located in Chicago, Illinois. On August 4, 2010, additional testimony was heard from one witness for Complainant, in which the AJ appeared via telephonic conference call from Milwaukee, Wisconsin, the Agency representatives were located in Chicago, Illinois, Complainant was located in Muskegon, Michigan, and the witness was located in North Flint, Michigan. The AJ issued a decision on January 12, 2011. In her decision, the AJ found that the facts of the case were as follows. Once in Ludington (in April 2007), a Technical Expert (TE) was assigned to Complainant as his mentor. She moved into the cubicle next to him, and listened to and monitored his interviews with claimants, showed him how to organize his desk and work his action lists, and walked him through claims "from start to finish." Complainant claimed that the TE told him, "You'll see what a bitch I can be," and was rude to him. When Complainant would ask questions, the TE would respond, "We covered that already," and not give him the guidance he needed. Complainant stated that the TE once said to him, "Go take your pill, you're not getting it," in reference to his medication for his ADD. Other co-workers would say, "What's wrong with you, why aren't you getting it?" The TE testified that initially Complainant was doing well and picked up the job quickly; Complainant's first-level supervisor (MO-1) also testified that Complainant started out well. In July 2007, Complainant told MO-1 that his co-workers were harassing him, and had been doing so since April 2007, when he arrived in the Ludington Office. Complainant claimed he told MO-1 that the harassment was aggravating his anxiety and ADD, and that it was inhibiting his ability to learn and perform his job. Complainant testified that MO-1's reaction was to tell Complainant that there was nothing she could do, and that Complainant would just have to learn to live with it. MO-1 testified that she told Complainant he needed to "deal with the employees as they were." This coincided with MO-1 and the TE deciding, also in July 2007, that the TE was going to "pull back" from her hands-on mentorship and require Complainant to work more independently. Soon after, it was observed that Complainant was struggling with his tasks, having problems, and "getting more and more stressed out." The TE testified that "the more stressed out he got, obviously, the worse the job performance became." The personal relationship between the TE and Complainant deteriorated during this time, culminating in a work confrontation on September 20, 2007, between the TE and Complainant. The TE reportedly took Complainant to task for his work methods, and the fact that he was making the same errors repeatedly. Complainant responded by telling the TE that he couldn't learn the way she was explaining things to him, and questioning why there was such hostility between them. The TE told Complainant that he needed to find a way to understand and learn on the job, and to spend "more time trying to remember what he's been taught, and less time playing games [i.e. spending work time unproductively]." Complainant denied playing games, whereupon the TE cited a time when Complainant had been told to ask questions as they arose but he instead spent several hours writing out questions and comments about work issues. The TE stated that doing so "it was wasting both our time." The next day, the TE reported to MO-1 and the second-level supervisor (MO-2) that Complainant was making inappropriate remarks to her of a personal nature, which made her uncomfortable. MO-1 decided to remove the TE as Complainant's mentor following these two incidents. She assigned Complainant a mentor from the Muskegon, Michigan, office (Mentor-1), as of September 24, 2007. Mentor-1 at first came to the Ludington Office one day a week, and would communicate via e-mail and telephone when she was not in the office, which Complainant found to be cumbersome and inadequate. By December 3, 2007, Mentor-1 had gradually increased her days in the Ludington Office to five days a week. Complainant was given written feedback on his performance, and suggestions on improving his overall efficiency. Although the TE was no longer Complainant's mentor, she was still actively involved in reviewing his work and providing guidance. She sent e-mail updates to MO-1 and MO-2 regarding her assessment of Complainant's work. Mentor-1 also expressed her assessment of Complainant to MO-1 and MO-2 in a September 24, 2007, e-mail in which she wrote, "I think he needs things shown to him over and over until he gets it. Not once today and then again next week. Not sure we have the time to do that all the way." On September 30, 2007, Complainant asked to participate in a program that would allow him to do a temporary detail in the Muskegon Office. His request was denied by MO-2 on the grounds that he was not functioning at a fully-successful level in his current position. Complainant testified that he told MO-2 about the difficulties he was having working in the Ludington Office, in his marriage, and with the 65-mile commute, which created issues in being able to schedule doctors' appointments to treat his conditions and adjust his medication to deal with the increased stress. MO-2 testified that she did not believe that Complainant was being subjected to a hostile environment. Also in September 2007, the Area Director from Chicago, Illinois, made an office visit to Ludington. Complainant testified that he told the Area Director about his difficulties with the TE and other co-workers, that he believed he was being harassed, and that he had been informed he would just have to deal with it. The Area Director testified in her affidavit that she told Complainant that he needed to let management know what training he needed in order to better learn and perform his job. Complainant testified that by October 2007, his anxiety was getting progressively worse due to the rude comments, exclusion by co-workers, a back-log of uncompleted work, no assistance from a mentor, distance from managers, and trouble at home. He claimed that his psychological and physiological symptoms were affecting his ability to learn and perform his job. In December 2007, the Deputy Area Director and a team visited the Ludington Office. One of the team members observed the TE talking to Complainant in an offensive tone. The incident was discussed with the Deputy Area Director, and Complainant told the Deputy Area Director about the troubles he was having at the Ludington Office. Soon after, MO-1 held a staff meeting at which everyone was told to treat each other with courtesy and respect. In the spring of 2008, all the Ludington employees were given training on conflict resolution and respect in the workplace. Complainant claimed that the three individuals most responsible for his harassment stated that they did not have to change. In February 2008, all employees were subjected to desk audits. MO-1 informed Complainant that he was not organized, was behind in his work, and that his mail was not worked in a timely manner. Complainant claimed that the negative results of the audit were put in his personnel file. MO-1 stated she did not know what Complainant was referring to when he claimed the negative information was put in his SF-7B Extension File. On February 5, 2008, MO-1 informed Complainant that she was developing a plan to assist him in improving his performance. In response, Complainant asked MO-1 and MO-2 to have an EEO Counselor come to the office to help resolve some of the problems but his request was denied. On February 11, 2008, Complainant was given his Performance Assistance Plan (PAP). It was to last 30 days, at which point, if his performance did not improve, he would be put on an Opportunity to Perform Successfully Plan. The PAP was put in his SF-7B Extension File. On February 10, 2008, Complainant sent MO-1 an e-mail requesting a reasonable accommodation, specifically asking for a transfer to the Muskegon Office. He stated that the unresolved tension with his co-workers was still having an impact on his ability to learn and perform his job. MO-1 responded on February 11, 2008, informing Complainant that he needed to submit the proper form to request the reasonable accommodation, along with acceptable medical evidence. Complainant submitted the form on February 25, 2008. Complainant told MO-1 that he wanted a transfer to Muskegon because his ADD made focusing and organizing difficult, and his anxiety was aggravated by the lack of consistent mentoring and training. Complainant believed that the Muskegon Office employees were able to be more specialized, which would allow him to concentrate on learning one area of work, versus having to be a generalist in the Ludington Office. He also believed that by working closer to home, he would be able to take his medication on a more effective schedule, and would be able to more easily see his doctor and schedule more appointments with his counselor. MO-1 did not believe that a move to Muskegon would be beneficial, and expressed her opinion that the Muskegon employees had a heavier workload, and a faster pace of work, than those in the Ludington office. MO-2 testified that the Muskegon Office had a larger work load and was much busier than the Ludington Office. After evaluating Complainant's reasonable accommodation request, and reviewing the medical evidence and the input from MO-1, the Agency, through MO-1, denied Complainant's reasonable accommodation request in March 2008, on the grounds that he was not an individual with a disability. On April 3, 2008, Complainant was put on an Opportunity to Perform Successfully Plan (OPS). He had been informed on March 26, 2008, that his performance was still deficient in several areas, despite the PAP. The OPS was effective from April 3, 2008, for a period of up to 120 days, set to end between July 22 and August 1, 2008. Complainant's FCIP appointment was for a two-year period that ran from July 23, 2006, through July 22, 2008. He was notified that if his performance did not improve by July 22, 2008, his FCIP appointment would be allowed to expire. On June 3, 2008, the Department of Veterans Affairs (VA) issued a determination that Complainant was 100-percent disabled, and determined that he became 100-percent disabled as of October 18, 2007.2 Complainant showed his VA disability rating to MO-1, requested to take a few days leave, took leave in June 2008, and never returned to work. He was informed by letter dated July 2, 2008, that effective July 22, 2008, his employment would be terminated. On April 17, 2008, and on July 9, 2009, Complainant applied for Social Security Disability benefits. In a determination dated October 17, 2009, he was deemed disabled by SSA due to "anxiety related disorders," as of June 15, 2008. The AJ concluded that Complainant was a qualified individual with a disability. She found that he was substantially limited in his ability to concentrate and think due to his Attention Deficit Hyperactivity Disorder (ADHD),3 and his anxiety. She found that the evidence indicated that Complainant's condition is permanent, that he was on medication and would need to continue taking medication for the foreseeable future. The AJ wrote, "When Complainant has an anxiety attack his hands tremble, he becomes clumsy, his stomach tightens, his mouth gets so dry he cannot speak, his heart races, he loses his ability to read and speak clearly and he loses his short term memory, i.e., he forgets things he said, the names of people he knows, tasks he knows how to do, and at times becomes disoriented to time and place." Complainant's doctor noted that he experienced intrusive thoughts, decreased concentration and difficulty following instructions. The AJ found that, although the VA and the SSA had found Complainant to be 100-percent disabled due to his anxiety, that did not render him unqualified for the purposes of analysis under the Rehabilitation Act. She found that Complainant was performing well in his position of Claims Representative until July 2007. Once Complainant began experiencing the effects of the harassment to which he was subjected, thereby exacerbating his anxiety, and his requests to be accommodated and removed from the environment were declined, his performance then began to deteriorate. It ultimately resulted in his disability retirement. The AJ stated, "In short, an Agency cannot refuse to provide an accommodation or subject an employee to a harassing environment, and then when the employee cannot perform in the environment created by the Agency, argue that he was not 'qualified' for the job because of bad performance. To allow such a result would grant immunity to the Agency precisely because it succeeded in avoiding its legal responsibility to provide a reasonable accommodation, thereby thwarting the very purpose of the Rehabilitation Act." AJ Decision, p.20. The AJ found that, prior to the exacerbation of Complainant's anxiety disorder due to the harassment, Complainant was performing the essential functions of his position, and that had he been reasonably accommodated as he requested, he would have continued to successfully perform the essential functions. As to Complainant's harassment claim, the AJ found that Complainant was subjected to unwelcome behavior and that the harassment was based on his disability. She found that the "co-workers knew of his limitations due to his disability and ridiculed him because of them," and that the comments were "aimed at the fact that Complainant was taking too long to learn or that he needed to be told information repeatedly." The AJ further found that the harassment rose to the level of unreasonably interfering with Complainant's work performance and/or creating an intimidating, hostile or offensive work environment. She noted that other co-workers (not the harassers) credibly testified as to the poor treatment accorded Complainant. Complainant testified that the more he was ridiculed, the more he experienced anxiety, and the more his work performance suffered. The AJ concluded that the Agency was aware of the harassment and failed to take immediate and appropriate remedial measures. She concluded that Complainant had reported the harassing behavior to MO-1 and MO-2, and that two other employees had complained to MO-1 about the way Complainant was treated. She found that the "minimal steps" taken by the Agency in the spring of 2008, the trainings on conflict resolution and respect in the workplace, were ineffective at stopping the harassment. Prior to these trainings, Complainant had been told to learn to deal with the employees as they were. Therefore, the AJ found that the Agency was liable for the harassment based on Complainant's disability as perpetuated by his co-workers. The AJ further concluded that the failure of management to provide an adequate mentor, the placement of Complainant on the PAP and the OPS, and the constant threats of termination occurred due to Complainant's disability, and that these actions rose to the level of a hostile working environment and resulted in a tangible employment action, Complainant's termination. As to Complainant's claim that the Agency failed to reasonably accommodate him, the AJ found that the Agency had failed to engage in the interactive process or provide reasonable accommodation to Complainant, beginning with his earliest verbal requests in July 2007. Complainant continued to ask for effective mentoring, and an end to the harassment which aggravated his anxiety and ADD. Instead, MO-1 and the TE decided to pull back from the intensive mentoring and require Complainant to work more independently. In September 2007, Complainant told the TE that he could not learn the way she was explaining things to him, which put the Agency on notice that he needed a different method of mentoring in order to be able to learn. The AJ noted that the Agency attempted to aid Complainant by giving him a new mentor in September 2007, but that Mentor-1, even though she was aware that Complainant would likely learn better by being given scenarios he could work repeatedly, said, "Not sure we have the time to do that all the way." The AJ also noted that the TE still continued to have a role in training Complainant even after he was assigned a new mentor, and that there continued to be hostility directed at Complainant by the TE. The AJ stated that had MO-1 or MO-2 "engaged properly in the interactive process and listened to Complainant's concerns not only about the mentoring issues but also the harassing environment, they would have been able to properly develop a reasonable accommodation to Complainant's disabilities." The AJ further found that the Agency could have granted Complainant's request for the temporary transfer to the Muskegon Office, made in September 2007, and that it would not have been an undue hardship to do so. The AJ awarded Complainant non-pecuniary damages in the amount of $15,000. She ordered the Agency to offer Complainant reinstatement into the position of Claims Representative, or an equivalent job (if Complainant agrees) for which he qualifies. She noted that the findings of the VA of a 100-percent disability rating and of the SSA that Complainant was disabled for the purposes of Social Security Disability benefits were not a bar to reinstatement and not a determination of whether Complainant would be capable of working with a reasonable accommodation. Therefore, if Complainant accepted the Agency's offer of reinstatement, the Agency was required to engage in the interactive process with Complainant, including what reasonable accommodation could be provided to enable Complainant to perform the essential functions of a position, including the possibility of a position in the Muskegon Office with the assistance of a mentor. The AJ noted that, as time had passed since Complainant's original requests for reasonable accommodation, a new determination of whether he is qualified for the position might need to be made. The Agency was ordered to provide back pay from the date of Complainant's termination (July 22, 2008) to the date of his acceptance or rejection of the new position. The Agency was also ordered to provide EEO training with an emphasis on reasonable accommodation (including a handout) to the responsible individuals, post a notice that discrimination had been found, remove the adverse materials from Complainant's personnel file, and to pay attorney's fees. The Agency was ordered to provide interim relief in accordance with 29 C.F.R. § 1614.505, and to offer Complainant temporary reinstatement in the Muskegon Office during the pendency of this appeal. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected him to discrimination on the basis of disability as alleged. It filed the instant appeal. Complainant did not file a cross-appeal. The Agency's final order offered Complainant a temporary position as a Claims Representative in the Muskegon, Michigan office, in accordance with the interim relief provisions. CONTENTIONS ON APPEAL On appeal, the Agency argued that the AJ's decision was incorrect and should be reversed. The Agency argued both at hearing and on appeal that Complainant was incapable of holding a civilian job once he had been discharged from the military in 2002, and that his poor performance was caused by his own inability to get along with co-workers at his various employers. It argued that what Complainant perceived to be harassment was actually the close supervision needed in order to turn him into a successful performer, and that the comments relied upon by the AJ in making her finding of harassment were too infrequent to constitute a severe or pervasive hostile work environment. The Agency further argued that Complainant's 100-percent VA disability rating, as of June 12, 2008, rendered him unqualified. It also argued that Complainant's past work history was indicative of a pattern that was caused by Complainant, and the work issues that existed in the Ludington Office were the fault of Complainant. Complainant submitted a statement in opposition to the Agency's brief in which he disputed the assertions by the Agency that he was not qualified, and he requested that we affirm the decision of the AJ. He noted that the AJ found MO-1 not to be credible in portions of her testimony, which would affect the overall credibility to be granted to MO-1's assertions regarding Complainant's ability to function in the Muskegon Office. STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at § VI.B. (Nov. 9, 1999). ANALYSIS AND FINDINGS Conduct of the hearing The AJ appeared at hearing via video teleconference for the evidentiary hearing held on March 31, 2010. In Allen v. U.S. Postal Serv., EEOC Appeal No. 01A51259 (Aug. 21, 2006), the Commission determined that videoconferencing provides an acceptable alternative to an in-person hearing. The Commission identified a number of factors that an Administrative Judge should consider before electing to proceed via videoconferencing, including: the availability and proximity to the participants of the videoconferencing facilities; the adequacy of the available videoconferencing facilities, to include any technological issues; the cost to the respondent agency (if any) balanced against the savings in travel time for all parties, and the AJ; the number of expected participants; and the objections of the parties, if any. Id. In the instant case, as in Allen, there is no indication of objection to the use of videoconferencing by either party. Under these circumstances, the Commission concludes that the AJ did not abuse her discretion by electing to hold a video-conference hearing. Additionally, two witnesses testified at the evidentiary hearing telephonically, and one witness testified telephonically on August 4, 2010. The Commission has held that testimony may not be taken over the telephone in the absence of exigent circumstances, unless at the joint request of the parties and provided that specified conditions have been met. See Louthen v. U.S. Postal Serv., EEOC Appeal No. 01A44521 (May 17, 2006). Neither of the parties objected to the telephonic portions of the hearing. We note that the AJ found that the Louthen requirements had been met. (HT. p. 20) Therefore, the telephonic testimony was permissible. Qualified Individual with a Disability/Reasonable Accommodation This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2007-2008, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability. Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). To be entitled to a reasonable accommodation, Complainant must first show that he is an individual with a disability, within the meaning of the Rehabilitation Act. 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 a record of such impairment; or (3) is regarded as having such impairment. 29 C.F.R. § 1630.2(g). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. § 1630.2(i). An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner, or duration under which an individual can perform a major life activity. 29 C.F.R. § 1630.2(j). The individual's ability to perform the major life activity must be restricted as compared to the ability of the average person in the general population to perform the activity. Id. The AJ rendered factual findings with regard to Complainant's ability to think and concentrate, as a result of his anxiety and ADD, finding that he was substantially limited in these major life activities on a permanent basis. We find that the AJ's findings that Complainant is an individual with a disability were supported by the testimony and evidence in the record. A complainant must further be considered a qualified individual with a disability, meaning that he must be able to perform the essential functions of the position held or desired with or without reasonable accommodation. 29 C.F.R. § 1630.2(m). The AJ found that Complainant would have been able to perform the essential functions of his position of Claims Representative if the Agency had granted his requests for more effective mentoring and a stop to the harassing environment. The Agency did not provide a reasonable accommodation to Complainant which was effective, or which enabled him to perform the essential functions of his position. The Agency was unable, or unwilling, to stop the harassment of Complainant by his co-workers, as we discuss below. Complainant specifically informed his supervisors that the harassment was having a detrimental effect on his ability to think and concentrate on his tasks. While the Agency attempted to provide an accommodation to Complainant when it brought in Mentor-1 from the Muskegon Office, Mentor-1 expressed her opinion that the Agency did not "have the time" to repeatedly run Complainant through scenarios until he was comfortable in handling each type of claim, despite his informing the Agency that he would learn best in this manner. Additionally, Complainant requested a transfer to the Muskegon Office, which would have had the effect of removing him from the harassing environment, aiding him in his efforts to consult with his physician on the stress and to maintain a more effective medication schedule. Although MO-2 testified that Complainant would not have been able to perform successfully in the busier Muskegon Office, Complainant maintained that he would have been able to successfully perform in that environment, as he would have been free of the harassing behavior of the Ludington Office. The AJ also found that MO-1 and MO-2 failed to engage in the interactive process with Complainant, and instead blamed Complainant for the workplace problems, and "counseled him that he needed to learn to get along with his co-workers." She found that Complainant was labeled as "unteachable and essentially incapable of learning, ultimately leading to performance improvement plans and termination." AJ Decision, p. 27. The AJ concluded that the Agency had not shown that Complainant's requested accommodations would have constituted an undue hardship. The Agency argued that Complainant's VA disability rating, and the representations that he made as to his condition in asking to have his rating revised, indicated that Complainant was not a qualified individual with a disability. We find, however, that the AJ properly weighed that evidence and applied the correct legal precedents in her finding that a 100-percent VA disability rating or a finding by SSA that a person is disabled does not necessitate a finding in the EEO process that a complainant is not qualified for the purposes of the Rehabilitation Act. We also find that the Agency's argument that Complainant's previous employment history, between the time of his discharge from the military in 2002 and the time he began work for the Agency in 2006, is not relevant to Complainant's work history once he started work at the Agency. Therefore, we decline to reverse the AJ's finding that Complainant was a qualified individual with a disability at the relevant time, and find that the Agency failed to provide Complainant a reasonable accommodation which would enable him to perform the essential functions of his position. Harassment It is well-settled that harassment based on an individual's disability is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) s/he is a qualified individual with a disability covered under the Rehabilitation Act; (2) s/he was subjected to unwelcome conduct; (3) the harassment complained of was based on his/her disability; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). The AJ found that Complainant was subjected to a hostile work environment by his co-workers, and also by his supervisor, culminating in a tangible employment action when his FCIP appointment was allowed to expire. The AJ found that the pervasive harassment rose to the level of unreasonably interfering with Complainant's work performance, and occurred over a period of fourteen months. The insults and comments directed at Complainant included such comments as: "Take your pill, you're not getting it;" "What's wrong with you, why aren't you getting it;" "Don't give me that, you should know that by now, you had training;" and "Why can't you just pay attention." Other co-workers credibly testified that Complainant was treated like "dog poop," that employees were rude to him, found fault with his work, had disregard for Complainant, talked to him in a "disrespectful" manner, and treated him badly in general. One employee was so uncomfortable with the way Complainant was treated that she complained to MO-1 about it. Another co-worker testified that employees would "gang up" on Complainant, call him stupid, and would be "laughing, carrying on, [Complainant] can't do it, [Complainant] doesn't understand." We find that the AJ's factual findings regarding the behavior to which Complainant was subjected are supported by the record in this case, and should not be disturbed on appeal. These actions and the atmosphere created clearly interfered with Complainant's ability to perform his functions. He repeatedly complained to supervisors about the treatment, and yet, the Agency failed to stop the harassment of Complainant. An agency is liable for harassment by a co-worker or other non-supervisor when it "knows or should have known of the conduct, unless the agency can show that it took immediate and appropriate corrective action." See 29 C.F.R. § 1604.11(d). Whether the agency's action is appropriate depends upon "the severity and persistence of the harassment and the effectiveness of any initial remedial steps." Taylor v. Dep't. of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992). The appropriateness of the agency's conduct in response to harassment depends upon "the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps." Owens v. Dep't of Transportation, EEOC Appeal No. 05940824 (Sept. 5, 1996). Appropriate corrective action is a response that is reasonably calculated to stop the harassment. When an employer becomes aware of alleged harassment, the employer has the duty to investigate such charges promptly and thoroughly. See Rodriguez v. Dep't of Veterans Affairs, EEOC Appeal No. 01953850 (Aug. 29, 1996). The AJ found in her decision that Complainant was subjected to a hostile work environment as perpetuated by his co-workers, and that he complained to management officials about the harassment. She also found that Complainant had met his burden in demonstrating that the Agency knew of the harassment and failed to take immediate and appropriate remedial measures. Not only had Complainant complained about the comments by co-workers, but other employees had voiced their discomfort with the treatment accorded Complainant. The AJ found that the remedial measures attempted by the Agency in the spring of 2008, the training on conflict resolution and respect, were ineffective at stopping the behavior, and were "too little, too late." AJ Decision, p. 23. An employer is subject to vicarious liability for harassment when it is "created by a supervisor with immediate (or successively higher) authority over the employee." Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not result in a tangible employment action being taken against the employee, the employer may raise an affirmative defense to liability. The Agency can meet this defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (a) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (b) that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency or to avoid harm otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270; Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action being taken against the employee. The AJ further found that Complainant established that supervisors MO-1 and MO-2 subjected him to harassment on the basis of his disability when they failed to provide an adequate mentor, placed derogatory observations in his personnel file, constantly threatened to terminate his employment, and ultimately terminated him. As these actions resulted in a tangible employment action, the AJ found the Agency could not avail itself of the affirmative defense. We affirm the AJ's findings as to the existence of a hostile work environment created by both co-workers and supervisors, and as to the liability of the Agency for the harm that resulted. Compensatory Damages In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S.C. § 1981a(b)(3). For an employer with more than 500 employees, such as the Agency, the limit of liability for pecuniary and non-pecuniary damages is $300,000. Id. The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991, No. N 915-002 (July 14, 1992). Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See id. There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). Additionally, complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. See Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). In Carle v. Department of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by Complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). Objective evidence may include statements from the complainant concerning the emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Sinnott v. Dep't of Defense, EEOC Appeal No. 01952872 (Sept. 19, 1996). Statements from others, including family members, friends, and health care providers could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue or a nervous breakdown. Id. Objective evidence also may include documents indicating a complainant's actual out-of-pocket expenses related to medical treatment, counseling and so forth, related to the injury allegedly caused by discrimination. Id. Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996). The more inherently degrading or humiliating the agency's actions are the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. Consequently, somewhat more conclusory evidence of emotional distress will be acceptable to support an award for emotional damages. Id. The Commission notes that, because there is no precise formula by which to calculate non-pecuniary damages, the AJ is afforded broad discretion in determining such damages awards. However, non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or be "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 847, 848 (7th Cir. 1989)). Upon review, we concur with the AJ that Complainant has provided substantial evidence that the Agency's discriminatory conduct caused him to suffer physical and emotional harm. The AJ found that Complainant experienced anxiety and panic attacks directly as a result of the treatment by his co-workers in the Ludington Office. Complainant testified that his anxiety disorder was substantially exacerbated by the harassment and failure to be provided with a reasonable accommodation. The anxiety and panic attacks caused Complainant humiliation when working with clients of the Agency, and which caused the clients to become frustrated with Complainant. The AJ considered the factors of the mental and emotional injury caused by the Agency's actions, the failure to engage in good faith efforts to provide a reasonable accommodation, Complainant's pre-existing anxiety disorder, and the difficulties Complainant was experiencing in his marriage. She also considered the duration of time the Agency refused to provide a reasonable accommodation, approximately one year, the effects of the harassment, and the extreme exacerbation of his anxiety. The AJ determined that Complainant was entitled to an award of $15,000 in non-pecuniary compensatory damages. We find that the AJ's award should be modified. The record shows that due to the exacerbation of Complainant's anxiety disorder, his VA disability rating was revised from 10-percent to 100-percent, and he was determined to be disabled by SSA, for his anxiety disorders. We find that an award of $40,000 is more appropriate given the nature and duration of the harm. We find that this award is supported by the evidence, consistent with prior Commission precedent, and is neither "monstrously excessive" nor the product of passion or prejudice. See Smith v. U.S. Postal Service, EEOC Appeal No. 0720070031 (Dec. 7, 2009) ($30,000 awarded in non-pecuniary damages where complainant suffered emotional harm in the form of humiliation, harassment, feelings of uncertainty about her job and career, and a relapse of depression over a period of three years); Banks v. U.S. Postal Service, EEOC Appeal No. 07A20037 (Sept. 29, 2003) ($35,000 awarded where complainant suffered from emotional harm in the form of humiliation, intimidation, embarrassment, and deep depression); McNeese-Ards v. Dep't of Veterans Affairs, EEOC Appeal No. 0720090027 (April 15, 2010) ($45,000 in non-pecuniary compensatory damages awarded where complainant suffered from depression, loss of sleep, severe emotional distress, and anxiety). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency and find that the AJ's decision correctly found that Complainant had been discriminated against. We further MODIFY the AJ's award of compensatory damages. ORDER To the extent it has not already done so, within sixty (60) days of the date this decision becomes final: 1. The Agency shall offer Complainant reinstatement to his position at the Agency, or to a substantially equivalent position. Complainant has fifteen (15) days to accept or decline the Agency's offer of reinstatement. Upon acceptance, the Agency shall engage in the interactive process with Complainant to determine what accommodations may be necessary and effective, if Complainant should require a reasonable accommodation. If Complainant should decline the Agency's offer of reinstatement, the date of his declination shall be the end date for any back pay due Complainant. 2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant since July 22, 2008, pursuant to 29 C.F.R. §1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. The Agency shall pay Complainant $40,000 in non-pecuniary compensatory damages. 4. The Agency shall provide training to the management officials at the Ludington, Michigan office regarding their responsibilities under EEO laws, with a special emphasis on the Rehabilitation Act. 5. The Agency shall consider taking appropriate disciplinary action against all responsible management officials still employed by the Agency. 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). 6. The Agency shall post a notice in accordance with the paragraph below. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. INTERIM RELIEF (F0610) When the Agency requests reconsideration and the case involves a finding of discrimination regarding a removal, separation, or suspension continuing beyond the date of the request for reconsideration, and when the decision orders retroactive restoration, the Agency shall comply with the decision to the extent of the temporary or conditional restoration of the Complainant to duty status in the position specified by the Commission, pending the outcome of the Agency request for reconsideration. See 29 C.F.R. § 1614.502(b). The Agency shall notify the Commission and the Complainant in writing at the same time it requests reconsideration that the relief it provides is temporary or conditional and, if applicable, that it will delay the payment of any amounts owed but will pay interest from the date of the original appellate decision until payment is made. Failure of the Agency to provide notification will result in the dismissal of the Agency's request. See 29 C.F.R. § 1614.502(b)(3). POSTING ORDER (G0610) The Agency is ordered to post at its Ludington, Michigan field office copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. 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 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 (M0610) 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 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 77960, Washington, DC 20013. 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 (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 (Z0610) 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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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: ______________________________ Bernadette B. Wilson Acting Executive Officer Executive Secretariat November 4, 2013 Date 1 The Administrative Judge granted Complainant's August 24, 2009, motion to amend his complaint to include issue 3. She found that Complainant had initiated EEO Counseling in a timely manner with respect to his termination. (Hearing Transcript (HT) p. 7. 2 When Complainant began work with the Agency, his VA disability rating was 10-percent for anxiety (due to his presence at the Pentagon on September 11, 2001). 3 Throughout the record, Complainant consistently referred to his having attention deficit disorder, or ADD. The bulk of the references found in his medical documentation also refer to ADD, and the Agency accepted the complaint for investigation with the basis of disability including ADD. However, some references in Complainant's medical records are to attention deficit hyperactivity disorder, or ADHD. The discrepancy in diagnosis was not explained. The AJ decision stated that Complainant had ADHD, but also referenced ADD in the findings. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720110030 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 2 0720110030