Victoria H. Shealey,
Complainant,
v.
Jacqueline A. Berrien,
Chair,
Equal Employment Opportunity Commission,1
Agency.
Appeal No. 0120070356
Agency No. 200400055
DECISION
On October 21, 2006, Complainant filed an appeal from the Agency’s
August 30, 2006, final decision received by her September 23, 2006,
concerning the non-mixed case claims raised in her equal employment
opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq., and 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(a).
This case is before us following a final decision in which the Agency
found that it had not failed to provide Complainant with reasonable
accommodation for her claimed disability; that it had not subjected
Complainant to disparate treatment based on race, sex, disability, and in
reprisal for prior protected activity under the Rehabilitation Act with
regard to personnel actions including denial of a requested reassignment,
denial of a within-grade increase, and the withholding of a performance
evaluation; and that it had not subjected Complainant to discriminatory
harassment on the aforementioned bases. For the reasons which follow,
the Commission MODIFIES the Agency’s final decision, and finds that
the Agency failed to provide Complainant with reasonable accommodation.
ISSUES PRESENTED
Whether Complainant was discriminated against on the bases of race
(African American), sex (female), disability (major depression) and in
reprisal for prior protected EEO activity arising under Title VII when
the Agency:
(1) Refused to reassign her to the Dedicated Charge Receipt Unit (DCRU);
(2) Refused to reassign her to the DCRU as a reasonable accommodation;
(3) Denied her a performance evaluation and informed her that it would
be withheld indefinitely; and
(4) Subjected her to harassment/a hostile work environment, including
denying her an alternate work schedule (5/4/9) and other actions.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant
worked as an Investigator, GS-12, at the Agency’s Chicago District
Office in Chicago, Illinois. The record reflects that on May 28, 2003,
Complainant was placed on a 90-day Performance Improvement Plan (PIP)
for unacceptable work performance that was subsequently extended until
January 20, 2004.2
On June 9, 2003, Complainant sent an e-mail message to the District
Director requesting a “voluntary reassignment” to the DCRU, where
she would have performed intake duties and responded to mail, telephone,
and walk-in inquiries. The June 9, 2003, message did not specify a
reason for the request. Complainant alleged that she also made a verbal
request for reassignment through her union representative on June 27,
2003, and her requests were denied.
On July 3, 2003, Complainant sent an e-mail message to the Deputy
Director informing her of Complainant’s two prior requests for
reassignment and raising “ADA and Title VII concerns.” On July
22, 2003, Complainant submitted a memorandum to the Deputy Director,
noting her previous requests and reiterating her desire to be reassigned
to the DCRU. In the memorandum, Complainant alleged that she felt that
Agency officials had denied her requests “in retaliation” and that her
request was “now a health concern.” Complainant submitted a letter
from her psychologist, along with the memorandum stating that she was
“unable to continue working in her present position” and that she was
unable “to maintain concentration, pace and persistence sufficient for
her challenging 40 plus hour position.” The psychologist’s letter
indicated that Complainant remained capable of working in a “less
confrontational” full-time position, and the most suitable position
for her “appears to be as an Investigator (Dedicated Charge Receipt).”
On August 4, 2003, the Deputy Director issued a memorandum to Complainant
stating, in pertinent part, that she should address any EEO concerns
through the EEO process. The memorandum further stated that the Deputy
Director was interpreting Complainant’s July 3 and July 22, 2003,
communications as a request for reasonable accommodation. On August
6, 2003, the Deputy Director forwarded Complainant’s reasonable
accommodation request and supporting documentation to the Agency’s
Acting Disability Program Manager/Harassment Coordinator.
On October 14, 2003, Complainant sent the Acting Disability Program
Manager a memorandum addressing the reasons for her request for an
accommodation. Specifically, Complainant stated that she requested
reassignment to the DCRU due to her “psychological assessment that [she
was] suffering from cumulative stress.” Complainant stated that her
stress was exacerbated by “the highly stressful and extreme pressure
of the day to day functions of the non-Dedicated Investigator position.”
On October 29, 2003, the Acting Disability Program Manager e-mailed the
Deputy Director indicating that she planned on drafting a medical inquiry
for Complainant’s psychologist. She recommended that Complainant
be temporarily detailed to the DCRU for 90 to 120 days and suggested
the possibility of suspending Complainant’s PIP until her condition
improved and she returned to her original position. However, Complainant
was not offered the temporary detail, nor was the PIP suspended.
On November 25, 2003, the Acting Disability Program Manager sent a letter
to Complainant’s psychologist asking for more information regarding
Complainant’s claimed condition and limitations. Complainant’s
psychologist responded to the inquiry by letter on December 23, 2003.
The psychologist indicated that Complainant suffered from “Major
Depression, Single Episode, Moderate with Anxiety.” The psychologist
further indicated that Complainant’s problems were “largely reaction
to occupational stressors,” and that Complainant should be moved to a
different position if the stressors were not alleviated. The psychologist
noted that Complainant suffered from a number of symptoms, including
upset stomach, difficulty concentrating/making decisions, headaches,
diminished energy for activities, feelings of isolation, crying, and
insomnia, and opined that these symptoms “are due to cumulative stress,
physiological arousal from stress and major depression with anxiety.”
The psychologist recommended that Complainant should work no longer
than 40 hours per week, and suggested that she could work in the same
position with approved rest periods and “reduced hours or reduced
responsibility, case load, meetings times, etc.” The psychologist
indicated that Complainant’s condition could improve by April 2004 if
his recommendations were followed. The psychologist also emphasized
that Complainant’s depression “will continue and worsen unless an
accommodation is found.”
On January 27, 2004, the Acting Disability Program Manager issued
a memorandum to the Deputy Director finding that, based on a review
of the medical evaluation provided by Complainant’s psychologist,
Complainant suffered from a mental impairment that rose to the level
of a disability. She recommended several accommodations that “may be
considered” as accommodations for Complainant’s impairment, including
maintaining Complainant’s job structure through well-defined daily task
schedules; reducing the number of complex cases assigned to Complainant
and/or establishing reasonable time frames for the completion of work;
allowing Complainant to telework; approving leave to attend therapy
sessions; approving an extended period of leave; changing Complainant’s
supervisor or, alternatively, assisting in improving communication
between Complainant and her supervisor; and providing Complainant
with approved breaks. She further recommended “that any approved
accommodation(s) be provided for a period of 90 days, after which time,
subsequent requests from the employee to extend the accommodation(s)
can be determined upon the receipt of supporting medical documentation.”
In February 2004, Complainant inquired as to why she had not yet received
a within-grade increase (WGI). Complainant alleged that she had been
eligible for a step-increase since November 2003. On or around March 1,
2004, Complainant learned that her request for a WGI was denied.
On March 26, 2004, the Deputy Director issued Complainant a
memorandum addressing her request for a reasonable accommodation.
In the memorandum, the Deputy Director stated that she and the District
Director had determined that Complainant was not “an individual with a
disability as defined under the ADA.” However, in an effort to assist
Complainant, management was willing to offer several adjustments. First,
the Deputy Director offered to approve an extended leave of absence.
Second, if Complainant wanted to continue working, the Deputy Director
offered to approve a flexible schedule allowing her to arrive at work
anytime before 9:30 a.m., or to take a longer break during the day;
approve a part-time work schedule with appropriate leave to cover
additional hours not worked; develop a set of well-defined daily task
schedules for Complainant to complete; approve leave for Complainant to
attend therapy sessions; and schedule a RESOLVE mediation session between
Complainant and her supervisor to assist in improving their communication.
The Deputy Director stated that, as Complainant’s psychologist noted in
his communication with the Acting Disability Program Manager, “these
adjustments may be useful between now and April 30, 2004, and so will
be offered until then.”
On April 2, 2004, Complainant met with the Deputy Director and initially
accepted an offer of a 5/4/9 flexible work schedule as an accommodation
from April 5 until April 30, 2004. However, on April 7, 2004, Complainant
submitted a memorandum to the Deputy Director rescinding her decision
to work a 5/4/9 schedule because she did not feel that it was reasonable
that she could only take advantage of the schedule until April 30, 2004.
Complainant stated in her memorandum that “the 5/4/9 schedule, while
appreciated, will not allow me to enjoy any benefit to my disability
which might possibly result if the accommodation were extended for a
longer, more reasonable period of time.”
On April 20, 2004, Complainant was issued a Notice of Proposed Reduction
in Grade from a GS-12 to a GS-9 Investigator position, effective 30 days
from the date of receipt, due to unacceptable work performance in one
of her critical job elements.
On May 25, 2004, the District Director denied Complainant’s request
for reconsideration of her supervisor’s decision to deny her WGI.
The District Director noted that Complainant had previously been placed
on a PIP and that her supervisor still had not determined that she had
achieved an acceptable level of work performance.
On July 9, 2004, Complainant e-mailed the District Director stating that
her work environment had been “made hostile by continuing discrimination
and retaliation that [Complainant had] complained of for more than a
year.” Complainant further stated that “[a]s I cannot continue
in my employment under such such [sic] abject working conditions I am
forced to resign. Accordingly, I hereby resign my position effective
immediately.” Report of Investigation (ROI) at F-31.
PROCEDURAL HISTORY
On October 22, 2003, Complainant filed an EEO complaint alleging both
individual and class claims. The class portion of Complainant’s
complaint alleged that Agency employees were discriminated against
based on their race (African American) and sex (female) when their
work performance was considered to be deficient. Complainant’s
class allegations were consolidated with a class complaint filed by
another employee and forwarded to an EEOC Administrative Judge (AJ)
in accordance with 29 C.F.R. § 1614.204. On May 19, 2004, the AJ
issued a decision finding that the complaint did not meet the criteria
for class certification. On July 2, 2004, the Agency issued a final
decision fully adopting the AJ’s decision. Complainant’s complaint
was then investigated as an individual complaint of discrimination,
with the July 2, 2004, dismissal date of the class allegations serving
as the “new” filing date for her individual complaint.3
Complainant amended her individual complaint several times between October
22, 2003, and July 2, 2004. On September 20, 2004, the Agency issued
Complainant a letter accepting for investigation whether Complainant
was discriminated against on the bases of race (African American),
sex (female), disability (major depression) and in reprisal for prior
protected EEO activity arising under Title VII when the Agency:
(1) Refused to reassign her to the Dedicated Charge Receipt Unit (DCRU);
(2) Refused to reassign her to the DCRU as a reasonable accommodation;
(3) Denied her a performance evaluation and informed her that it would
be withheld indefinitely;
(4) Subjected her to harassment/a hostile work environment, including
denying her an alternate work schedule (5/4/9) and other actions;
(5) Denied her a WGI; and
(6) On July 9, 2004, forced her to resign her position (constructive
discharge).4
The Agency’s September 20, 2004, letter informed Complainant that
her complaint would be investigated and that she had a right to request
a hearing after the investigation with respect to claims 1 through 4.
The Agency further informed Complainant that claims 5 and 6 constituted a
mixed-case complaint5 and that the Agency would issue a final decision on
claims 5 and 6 after the investigation, pursuant to 29 C.F.R. § 1614.302.
At the conclusion of the investigation, on September 29, 2005, the Agency
issued a final decision on claims 5 and 6, the mixed-case portion of
Complainant’s complaint, finding no discrimination.6
With respect to claims 1 through 4, the non-mixed portion of
Complainant’s complaint, Complainant timely requested a hearing,
but on December 22, 2005, she withdrew her request. Consequently, on
August 30, 2006, the Agency issued a final decision on the non-mixed case
claims pursuant to 29 C.F.R. § 1614.110(b). The Agency’s decision on
claims 1 through 4 concluded that Complainant failed to prove that she was
subjected to discrimination as alleged. Specifically, the Agency found
that Complainant failed to establish that she was subjected to disparate
treatment because of her race, sex, disability, or in reprisal for her
prior protected EEO activity. The Agency further found that Complainant
failed to establish that she was denied a reasonable accommodation or
subjected to a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant states, inter alia, that she was discriminated
against and “denied due process granted to all employees in the form of
denial of alternative dispute resolution [(ADR)] proceedings which [she]
sought to resolve the matter internally.” Complainant further states
that the Agency acted in bad faith during settlement discussions when
it “did not complete settlement” and that she was forced to resign
due to the Agency’s discrimination. Complainant alleges that she was
“denied fair treatment in all proceedings regarding the matter.”
In response, the Agency urges the Commission to affirm its final
decision. The Agency argues that none of the allegations raised by
Complainant on appeal were addressed in the Agency’s final decision,
and the Commission should affirm the Agency’s final decision because
Complainant has not alleged that the decision was incorrectly decided.
The Agency further argues that the issue of Complainant’s constructive
discharge was previously addressed as part of her mixed-case complaint,
and it is therefore inappropriate to raise this issue on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to
29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEO-MD-110,
Chapter 9, § VI.A. (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker,”
and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment
of the record and its interpretation of the law”).
ANALYSIS AND FINDINGS
Forced Resignation, WGI Denial
We first address Complainant’s argument on appeal that she was
“forced to resign due to the Agency’s discrimination.”7 The
record reflects that Complainant’s claim of constructive discharge
and denial of the WGI were accepted for investigation by the Agency and
addressed in the Agency’s final decision on her mixed-case claims.
EEOC regulations indicate that “[i]f the Complainant is dissatisfied
with the [A]gency’s final decision on the mixed case complaint, the
[C]omplainant may appeal the matter to the MSPB (not EEOC) within 30
days of receipt of the [A]gency’s final decision.” 29 C.F.R. §�
�1614.302(d)(1)(ii). We find that the proper venue to appeal the
Agency’s decision on claims 5 and 6 was the MSPB, and Complainant
cannot contest the Agency’s decision on this mixed-case claim in
the instant appeal. The Commission’s review here is limited to the
Agency’s decision on claims 1 through 4, her non-mixed case claims.
Reasonable Accommodation
In claim 2, Complainant argued that the Agency discriminatorily denied
her request for a reasonable accommodation. Under the Commission’s
regulations, an agency is required to make reasonable accommodation
of the known physical and mental limitations of a qualified individual
with a disability unless the agency can show that accommodation would
cause undue hardship. 29 C.F.R. § 1630.9. In order to establish that
Complainant was denied a reasonable accommodation, Complainant must
show that: (1) she is an individual with a disability, as defined by 29
C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability
pursuant to 29 C.F. R. § 1630.2(m); and (3) the Agency failed to provide
a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, EEOC No. 915.002 (Oct. 17, 2002) (RA Guidance).
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 an 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). They also include
thinking, concentrating, interacting with others, and sleeping. See
EEOC Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997) (Psychiatric
Disabilities Guidance).
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.
Complainant alleged that she suffered from “cumulative stress”
that began in 2001 with a difficult pregnancy and became progressively
worse “by the highly stressful and extreme pressure of the day to day
functions of the non-Dedicated, investigator position.” Complainant
indicated that she suffered from a variety of symptoms as a result of
her condition, including insomnia, diarrhea, nausea, difficulty walking,
fatigue, shortness of breath upon coming to work, difficulty performing
tasks at home, and an irregular menstrual cycle. Complainant also
indicated that at work she had difficulty concentrating, was easily
confused, and had “great difficulty completing complex tasks accurately
and effectively.”
The record contains a letter from Complainant’s psychologist, dated
July 11, 2003, indicating that Complainant is “unable to maintain
concentration, pace and persistence sufficient for her challenging
40 plus hour position.” The letter further indicated that “the
confrontational nature of the current position lowers her abilities to
perform at her former level.”
A second letter of record from Complainant’s psychologist, dated
December 23, 2003, states that Complainant had “Major Depression,
Single Episode, Moderate with Anxiety” and that her problems were
“largely reaction to occupational stressors.” In the letter,
Complainant’s psychologist indicated that Complainant regularly
suffered from a number of symptoms, including upset stomach, difficulty
concentrating, difficulty making decisions, headaches, diminished energy
level for activities, feelings of isolation, crying, and insomnia.
The psychologist indicated that these symptoms “are due to cumulative
stress, physiological arousal from stress and major depression with
anxiety.” The psychologist further indicated that Complainant was
unsupported by management and felt the need to “check and recheck
work” to avoid errors. Also, the psychologist stated that, at work,
Complainant was “sometimes dizzy and disoriented, pushes herself to
do anything, dissatisfied with (some) projects, cries at work (twice a
week), avoids people . . . and has difficulty with decisions.” The
psychologist noted that Complainant had begun working with a psychiatrist
who prescribed her an antidepressant and a medication “for sleep.”
Upon review, we find that Complainant is substantially limited in the
major life activity of concentrating. See Holland v. Soc. Sec. Admin.,
EEOC Appeal No. 01A01372 (Oct. 2, 2003) (finding that the complainant’s
impairments caused him to be substantially limited in the major life
activity of concentrating because his “reports of excessive worrying,
intrusive thoughts, uncontrollable and repetitive checking behavior
affecting numerous daily activities, poor sleep, and depressed
mood . . . substantially affected his ability to concentrate”).
We note that the record contains a letter from the Agency’s Acting
Disability Program Manager finding that, based on a review of the medical
evaluation provided by Complainant’s psychologist, Complainant “has
a mental impairment which rises to the level of a disability.” The
Acting Disability Program Manager found that Complainant’s diagnosed
impairment “significantly limits [Complainant’s] ability to sleep,
take care of self, concentrate long enough to complete tasks, pace self
(lacks stamina), and the ability to deal with job-related stress, which
appears to be associated with a poor supervisor/employee relationship.”
After establishing that she is an individual with a disability,
Complainant must establish that she is a “qualified individual with a
disability,” which is defined as an individual with a disability who,
with or without a reasonable accommodation, can perform the essential
functions of the position held or desired. 29 C.F.R. § 1630.2(m).
Here, we find that Complainant was able to satisfy the requirements of her
position and perform the essential functions of the Investigator position
with a reasonable accommodation. The record shows that Complainant’s
psychologist and two agency officials – the Deputy Director and the
Acting Disability Program Manager – all felt that Complainant could
perform her position with limited accommodations, such as working no
more than 40 hours a week; reducing the number of complex cases assigned
to her; approving leave to attend therapy sessions; and assisting in
improving communication between Complainant and her supervisor.8 Based
on the above, we find that Complainant is a “qualified” individual
with a disability within the meaning of the Rehabilitation Act.
Next, we address Complainant’s request for a reasonable accommodation.
An employee is required to show a nexus between the disabling condition
and the requested accommodation. See Hampton v. U.S. Postal Serv., EEOC
Appeal No. 01986308 (July 31, 2002) (citing Wiggins v. U.S. Postal Serv.,
EEOC Appeal No. 01953715 (Apr. 22, 1997)). We find that Complainant
submitted sufficient documentation and has established the required
nexus between her disabling condition and the requested accommodation.
The question of undue hardship arises where an employer asserts that
it was unable to provide a requested accommodation because it would
have been unduly costly, extensive, substantial, or disruptive, or it
would have fundamentally altered the nature of the agency’s operation.
See Yost v. U.S. Postal Serv., EEOC Appeal No. 01A51457 (June 13, 2006);
29 C.F.R. § 1630.2(p). Here, a more rigorous analysis of undue hardship
is unnecessary because the Agency does not make such an assertion in the
instant case. We note that the record is devoid of evidence to support
a finding that reducing Complainant’s work load and providing her
with approved rest periods or reduced work hours would have caused the
Agency significant difficulty or expense. See RA Guidance. Additionally,
the Agency does not dispute that Complainant could have been granted
the requested accommodations. We therefore find that the Agency has
not established that granting Complainant’s request for accommodation
posed an undue hardship.
We find that instead of making efforts to seek a reasonable
accommodation for Complainant in her current position as prescribed
by the Rehabilitation Act and as recommended by the Agency’s Acting
Disability Program Manager, the Agency denied her request. We note
that the Deputy Director solicited the Acting Disability Program
Manager’s opinion on the matter, but she elected to disregard the
Acting Disability Program Manager’s determination that Complainant
suffered from a mental impairment that rose to the level of a disability
and required accommodation. The Deputy Director did not address how she,
in conjunction with the District Director, determined that Complainant
was not an individual with a disability under the Rehabilitation Act.
Instead, the Deputy Director stated that her determination conflicted
with the Acting Disability Program Manager’s determinations because
the Acting Disability Program Manager interacted with Complainant and
her doctor “on her own” and “made the determination without [the
Deputy Director’s] input.”
The Agency repeatedly failed to provide Complainant with an accommodation
from July 2003 until April 2004. When the Agency did offer Complainant
“adjustments,” we find that the Agency failed to provide her with an
effective accommodation. The Deputy Director informed Complainant that
she would only be granted an accommodation from April 5 through April
30, 2004, despite the fact that her medical documentation suggested that
she would need an accommodation from December 2003 through April 2004,
or approximately four months. Accordingly, we find that the Agency
violated the Rehabilitation Act by failing to provide complainant with
a reasonable accommodation.
We further find that the Agency violated the Rehabilitation Act by
unnecessarily delaying its response to Complainant’s request for an
accommodation. The Commission has previously stated that an employer
should respond expeditiously to a request for an accommodation.
RA Guidance at Q. 10. If the employer and the individual with a
disability need to engage in an interactive process, this, too, should
proceed as quickly as possible. Id. Similarly, the employer should
act promptly to provide the reasonable accommodation. Id. Unnecessary
delays can result in a violation of the Rehabilitation Act. See id.
In determining whether there has been an unnecessary delay in responding
to a request for reasonable accommodation, relevant factors would include:
(1) the reason(s) for delay, (2) the length of the delay, (3) how much
the individual with a disability and the employer each contributed to the
delay, (4) what the employer was doing during the delay, and (5) whether
the required accommodation was simple or complex to provide. Id. at n.38.
Complainant initially requested a reasonable accommodation in July 2003,
but the Deputy Director did not issue a final determination on her request
until approximately nine months later. Although the Agency spent portions
of the relevant time period minimally participating in the interactive
process with Complainant, the record evidence provides insufficient
justification for the nine-month delay in processing the request.
For instance, the record shows that the Acting Disability Program Manager
inexplicably took several months to make a recommendation regarding
Complainant’s request, and the Deputy Director did not issue a final
determination for two months after receiving the Acting Disability Program
Manager’s memorandum. The Agency provided no reason for the nine-month
delay on appeal or in the record. Moreover, there is no indication that
Complainant contributed to the delay, and the accommodations ultimately
recommended and/or adopted – mainly involving a reduced work load,
leave, and better communication with management – were not complex.
We note that the Agency’s own procedures for providing reasonable
accommodation during the relevant time period required Agency officials to
make a decision on a request for accommodation within 15-20 business days
after receipt of any requested medical documentation, absent additional
extenuating circumstances. EEOC’s Procedures For Providing Reasonable
Accommodation For Individuals With Disabilities, Notice No. 560.003
(Feb. 7, 2001).9
Based on our review of the record, we find that the Agency did not respond
to Complainant’s request for an accommodation within a reasonable
period of time. Therefore, we find that the Agency unnecessarily
delayed responding to Complainant’s request, and that the delayed
response constituted a violation of the Rehabilitation Act. See Cruzan
v. Dep’t of Def., EEOC Appeal No. 0120071893 (Aug. 15, 2008) (finding
that management’s failure to advise the complainant of its decision
on his accommodation request for four months constituted an unnecessary
delay in violation of the Rehabilitation Act); Villanueva v. Dep’t
of Homeland Sec., EEOC Appeal No. 01A34968 (Aug. 10, 2006) (finding
that the Agency’s six month delay in processing the complainant’s
accommodation request violated the Rehabilitation Act).
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of
discrimination, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of
establishing a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802
n.13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Cmty Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,
Complainant bears the ultimate responsibility to prove, by a preponderance
of the evidence, that the reason proffered by the Agency was a pretext for
discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Complainant may establish a prima facie case of race or sex discrimination
by demonstrating that: (1) she is a member of a protected class,
(2) she was subjected to adverse treatment, and (3) she was treated
differently than otherwise similarly situated employees outside of her
protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419
(Mar 13, 2003); Ornelas v. Dep’t of Justice, EEOC Appeal No. 01995301
(Sept. 26, 2002). It is not necessary, however, for Complainant
to rely strictly on comparative evidence in order to establish an
inference that the Agency was motivated by unlawful discrimination.
Soriano v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb. 21, 2004);
see O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996);
EEOC Enforcement Guidance on O'Connor v. Consol. Coin Caterers Corp.,
EEOC Notice No. 915.002, at 4 n.4 (Sept. 18, 1996).
To establish a prima facie case of disability discrimination under
a disparate treatment theory, the complainant must demonstrate that:
(1) she is an individual with a disability, as defined by 29 C.F.R. §
1630.2(g); (2) she is a qualified individual with a disability pursuant
to 29 C.F.R. § 1630.2(m); and (3) she was subjected to an adverse
personnel action under circumstances giving rise to an inference of
disability discrimination. Carney v. Fed. Deposit Ins. Corp., EEOC
Appeal No. 01986113 (Aug. 3, 2000) (citing Prewitt v. U.S. Postal Serv.,
662 F.2d 292 (5th Cir. 1981)).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802).
Specifically, in a reprisal claim, and in accordance with the burdens set
forth in McDonnell Douglas and Coffman v. Dep’t of Veterans Affairs,
EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish
a prima facie case of reprisal by showing that: (1) she engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, she was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000). A nexus may be shown by evidence that the adverse
treatment followed the protected activity within such a period of time
and in such a manner that a reprisal motive is inferred. See Clay
v. Dep’t of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005).
The Commission has stated that adverse actions need not qualify as
“ultimate employment actions” or materially affect the terms and
conditions of employment to constitute retaliation. EEOC Compliance
Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998);
see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)
(finding that the anti-retaliation provision protects individuals from a
retaliatory action that a reasonable person would have found “materially
adverse,” which in the retaliation context means that the action
might have deterred a reasonable person from opposing discrimination or
participating in the EEO process).
Claim 1
With respect to claim 1, we find that Complainant failed to establish a
prima facie case of race, sex, or disability discrimination. Complainant
was a member of the aforementioned protected classes because she is
African American, female, and, as addressed above, she established that
she is a qualified individual with a disability. However, she failed to
establish that she was treated differently than any similarly situated
individuals outside of her protected classes. Although Complainant
alleged that an employee outside her protected classes was transferred
to the DCRU after he experienced problems during his probationary period
two years earlier, he was not similarly situated to Complainant because
he was a GS-7 Investigator trainee. Complainant failed to provide any
other evidence establishing an inference that discrimination occurred.
Complainant failed to establish a prima facie case of reprisal
discrimination because she failed to establish that she had participated
in prior protected EEO activity when her request for a transfer was denied
in June 2003. Complainant alleged that Agency denied her request because
she had filed a grievance regarding her placement on a PIP. However,
participation in a grievance process is only protected if claims of
discrimination were raised therein. See Holder v. Dep’t of Def., EEOC
Appeal No. 01930108 (May 26, 1993) (citing Cotton v. Dep’t of the Army,
EEOC Request No. 05850021 (Sept. 16, 1985)). Complainant’s June 2003
grievance contesting her placement on a PIP did not raise allegations
of employment discrimination.
Claims 2 and 3
With respect to claim 2, assuming arguendo that Complainant established
a prima facie case of race, sex, and reprisal discrimination,10 we find
that the Agency articulated legitimate, nondiscriminatory reasons for
its actions. Complainant alleged that she was discriminated against
when the Agency refused to reassign her to the DCRU as a reasonable
accommodation. The Deputy Director stated in the record that Complainant
was not transferred to the DCRU because the Acting Disability Program
Manager did not recommend reassigning Complainant to the DCRU in her
January 27, 2004, memorandum. Additionally, the Deputy Director noted
that the Chicago District Office had plans to disband the unit “based
on changing office needs and the Agency’s plan to implement the National
Call Center.”
With respect to claim 3, assuming arguendo that Complainant established a
prima facie case of race, sex, disability, and reprisal discrimination,
we find that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Complainant’s supervisor submitted a
statement indicating that Complainant was placed on a PIP on May 28,
2003, for unacceptable work performance in the “Quality of Work” and
“Individual Accountability” critical elements. The PIP was initially
scheduled to end in October 2003, but it was subsequently extended
to January 20, 2004, to allow Complainant additional time to improve
her work performance. The supervisor indicated that Complainant did
“little work” from October through December 2003, and she turned in a
large number of cases for her supervisor to review in mid-January 2004.
As a result, the supervisor was unable to provide Complainant with an
evaluation of whether her work performance had sufficiently improved by
the end of the PIP. The supervisor informed Complainant that she would
need time to assess her work before she could tell Complainant “where
she stood.” On April 20, 2004, after assessing Complainant’s work
and conferring with other officials, the supervisor issued Complainant a
Notice of Proposed Reduction in Grade because her work performance was at
an unacceptable level with regard to the “Individual Accountability”
critical element.
Complainant now bears the burden of proving, by a preponderance of the
evidence, that the Agency’s articulated reasons were a pretext for
discrimination. Upon review, we concur with the Agency’s determination
that Complainant failed to establish pretext. We find that the record
is devoid of any evidence that the Agency’s denial of her request for a
transfer to the DCRU or the indefinite delay of her performance evaluation
were motivated by discriminatory animus based on her protected classes
of race, sex, or prior protected EEO activity. Although we find that
the Agency discriminated against Complainant based on her disability
when she was denied a reasonable accommodation, we find no persuasive
evidence in the record that the Agency’s failed to provide her with
a reasonable accommodation based on her race, sex, or in reprisal for
her prior protected EEO activity.
We note that Complainant did not submit evidence that the Agency had
allowed similarly-situated individuals outside of her protected classes
to transfer to the DCRU during the relevant time period. Similarly, she
failed to submit evidence that similarly-situated individuals outside of
her protected classes were issued performance evaluations while on a PIP.
We further note that Complainant withdrew her request for a hearing and
did not address these claims on appeal. We are not persuaded, based
on the record of investigation, that Complainant has shown that the
Agency’s articulated reasons for its actions were a pretext for race,
sex, or reprisal discrimination.
Hostile Work Environment
Complainant alleged that she was subjected to harassment when,
in March and April 2004, the Agency violated the security of her
personnel/performance information; denied her a WGI; denied her request
for a reasonable accommodation; denied her request for a 5/4/9 work
schedule; issued her a negative performance evaluation and proposed a
reduction in grade; offered her an “unreasonable” accommodation;
and provided no response to her request for reconsideration regarding
the denial of her WGI.
Harassment is actionable only if the incidents to which Complainant
has been subjected were “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); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
78 (1998); Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077
(Mar. 13, 1997). To establish a claim of harassment, Complainant must
show that: (1) she is a member of a statutorily protected class and/or
was engaged in prior EEO activity; (2) she was subjected to unwelcome
verbal or physical conduct related to her membership in that class
and/or her prior EEO activity; (3) the harassment complained of was
based on her membership in that class and/or her prior EEO activity;
(4) the harassment had the purpose or effect of unreasonably interfering
with 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 Roberts v. Dep’t of Transp., EEOC
Appeal No. 01970727 (Sept. 15, 2000) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982)). Further, the harasser’s conduct is
to be evaluated from the objective viewpoint of a reasonable person
in the victim’s circumstances. EEOC Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
Upon review, we find that Complainant failed to establish that she was
subjected to a hostile work environment. Complainant is a member of
several statutorily protected classes, she engaged in prior protected
EEO activity when she filed the instant complaint, and she alleged that
she was subjected to unwelcome verbal or physical conduct. However,
we find no persuasive evidence to show that a reasonable fact-finder
would find that the alleged harassment was motivated by unlawful animus
towards her protected classes. For example, the record reflects that
the Agency denied Complainant’s June 2003 request for a transfer to the
DCRU and placed her on a PIP before she informed the Agency of her need
for a reasonable accommodation or participated in protected EEO activity.
Complainant’s Supervisor stated that Complainant was not eligible for
a WGI once she was placed on the PIP. Complainant provides no evidence
that the Agency violated the security of her personnel/performance
information based on her race, sex, disability, or in reprisal for her
prior protected activity.
Although we have determined that the Agency violated the Rehabilitation
Act by failing to provide Complainant with a reasonable accommodation
and by unnecessarily delaying the processing of her request, there is
insufficient evidence in the record to show that the cumulative incidents
cited are also sufficiently severe or pervasive to create a hostile work
environment. We find that the majority of Complainant’s allegations
were part of her reasonable accommodation claim; the remaining allegations
amounted to unpleasant actions that occurred during the normal course
of business. We note that not every unpleasant or undesirable action
which occurs in the workplace constitutes an EEO violation. See Oncale,
523 U.S. at 81; Epps v. Dep’t of Transp., EEOC Appeal No. 0120093688
(Dec. 19, 2009).
Denial of ADR, Settlement
Complainant argues on appeal that she was somehow discriminated against
when she was denied ADR proceedings and the Commission did not offer
her a settlement in the matter. At the outset, we note that the record
contains an e-mail sent by Complainant, dated September 15, 2003,
stating that she “no longer wished to mediate” her complaint and
requesting that her complaint be returned to the “Office of EEO for
processing.” Moreover, we note that Commission policy states that,
“[n]othing said or done during attempts to resolve [a] complaint through
ADR can be made the subject of an EEO complaint.” EEO-MD-110, at 3-3.
Also, “an agency decision not to engage in ADR, or not to make ADR
available for a particular case . . . cannot be made the subject of an
EEO complaint.” Id. Finally, we note that the Agency was not required
by regulation or statute to settle this case.
Remedies
When discrimination is found, the Agency must provide the party with an
equitable remedy that constitutes full, make-whole relief to restore her
to the position she would have occupied absent the discrimination. See,
e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle
Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Lewis v. Dep’t of Def.,
EEOC Appeal No. 01A24984 (Aug. 10, 2004). We find that placement into
the GS-12 Investigator position, or a substantially equivalent position,
with any necessary accommodations is an appropriate remedy in this case
to return Complainant to the position she would have occupied had she
been reasonably accommodated. We note that Complainant is not entitled
to retroactive placement or to back pay and benefits. Although we
have found that the Agency failed to provide reasonable accommodation,
the record nonetheless reflects that Complainant resigned her position.
Absent a finding of constructive discharge, which does not exist here,
an award which includes retroactive placement and back pay and benefits
would exceed make-whole relief.
A party who establishes 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); see also West v. Gibson, 527 U.S. 212, 217-23 (1999)
(holding that Congress afforded the Commission the authority to award
compensatory damages in the administrative process). For an employer
with more than 500 employees, the limit of liability for future pecuniary
and non-pecuniary damages is $300,000. Id. We find that the record
lacks sufficient evidence to determine whether Complainant is entitled
to compensatory damages. As a result, the issue of compensatory damages
is remanded to the Agency for a supplemental investigation.
CONCLUSION
Accordingly, the Agency’s finding of no discrimination in claims 1, 3,
and 4 is AFFIRMED. The Agency’s finding of no discrimination in claim
2 is REVERSED and REMANDED for the Agency to take corrective action in
accordance with this decision and the ORDER below.11
ORDER
The Agency is ordered to take the following remedial actions:
(1) Within thirty (30) calendar days of the date this decision becomes
final, the Agency shall offer Complainant placement in an Investigator,
GS-12, position with any necessary reasonable accommodations. Complainant
shall be given a minimum of fifteen (15) calendar days from receipt
of the placement offer within which to accept or decline the offer.
Failure to accept the offer within the time period set by the Agency
will be considered a rejection of the offer, unless Complainant can
show that circumstances beyond her control prevented a response within
the time limit. Placement into the position is not retroactive from
the date Complainant resigned from Agency employment, and she is not
entitled to back pay and benefits.
(2) Within thirty (30) calendar days of the date this decision
becomes final, the Agency shall conduct a supplemental investigation
to determine whether Complainant is entitled to compensatory damages.
Complainant shall be afforded adequate time to submit evidence in support
of her claim. The Agency shall give Complainant notice of her right
to submit objective evidence (pursuant to the guidance given in Carle
v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) and
request objective evidence from Complainant in support of her request
for compensatory damages within forty-five (45) calendar days of the
date Complainant receives the Agency's notice. No later than ninety
(90) calendar days after the date that this decision becomes final,
the Agency shall issue a final Agency decision addressing the issue of
compensatory damages. The final decision shall contain appeal rights
to the Commission. The Agency shall submit a copy of the final decision
to the Compliance Officer at the address set forth below.
(3) Within sixty (60) calendar days of the date on which this decision
becomes final, the Agency shall provide eight (8) hours of EEO training
regarding rights and responsibilities under the Rehabilitation Act to
the Responsible Management Official in the Chicago District Office and
the Responsible Management Official in the agency’s Office of Human
resources;
(4) The Agency shall consider taking disciplinary action against the
Responsible Management Officials in the Chicago District Office and
the Office of Human Resources. The Agency shall report its decision.
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 the Responsible Management Officials are no longer employed by the
Agency, the Agency shall furnish evidence of their separation from Agency
employment; and
(5) 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, including
evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Chicago District Office and its
Headquarters 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.
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 (Nov. 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 (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 (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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
April 18, 2011
Date
1 In the instant matter, the Equal Employment Opportunity Commission
is both the respondent agency and the adjudicatory authority.
The Commission’s adjudicatory function is separate and independent
from those offices charged with the in-house processing and resolution of
discrimination complaints. For the purposes of this decision, the term
“Commission” is used when referring to the adjudicatory authority and
the term “Agency” is used when referring to the respondent party in
this action. The Chair has recused herself from participation in the
appellate processing of this case.
2 Complainant filed a grievance regarding her placement on the PIP,
which was denied by the Agency.
3 There is no evidence in the record that Complainant appealed the denial
of class certification.
4 Complainant also alleged that she was discriminated against when the
Agency placed her on a PIP. However, the Agency dismissed this claim
for untimely EEO Counselor contact and for raising the same matter in a
negotiated grievance process that permits allegations of discrimination.
Complainant does not contest the Agency’s dismissal of this claim
on appeal. Therefore, the Commission will not address this matter in
the instant decision. See Equal Employment Opportunity Commission
Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 9,
§ IV.A. (Nov. 9, 1999).
5 A “mixed-case complaint” is an employment discrimination complaint
filed with a Federal agency stemming from an action that can be
appealed to the Merit Systems Protection Board (MSPB). 29 C.F.R. §�
�1614.302(a)(1). The complaint may contain only an allegation of
employment discrimination or it may contain additional allegations that
the MSPB has jurisdiction to address. Id.
6 Complainant appealed the Agency’s September 29, 2005, final decision
on her mixed-case claims to the MSPB. In April 2006, the MSPB dismissed
her appeal of the Agency’s decision to deny her a WGI. The MSPB AJ’s
decision indicated that Complainant would be allowed to re-file her
appeal of the Agency’s decision to deny her a WGI after adjudication
of her constructive discharge claim. However, in June 2006, Complainant
informed the MSPB of her desire to withdraw her “claims” because
she felt that the MSPB process “was not fair or equitable.” In July
2006, the MSPB dismissed the appeal of her constructive discharge claim.
There is no evidence in the record that Complainant attempted to re-file
an appeal regarding her WGI denial.
7 Complainant did not contest the WGI denial on appeal to the Commission.
8 Complainant initially requested a transfer to the DCRU but later
expressed a willingness to accept alternate accommodations, such as a
5/4/9 flexible work schedule.
9 The Agency’s procedures for providing reasonable accommodation
during the relevant time period were not provided in the record. We take
judicial notice of the document’s contents.
10 As noted above, the Commission has determined that the Agency violated
the Rehabilitation Act by denying her reasonable accommodation and
unnecessarily delaying the processing of her request for an accommodation.
11 As noted in the text, supra, claims 5 and 6 were not properly before
us on appeal.
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