Ava Underwood, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency. Appeal No. 0720120001 Hearing No. 531-2010-00063X Agency No. PHI090255SSA DECISION On October 21, 2011, Complainant filed an appeal from the Agency's October 17, 2011, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contact Representative, GS-0928-08, at the Agency's Downtown Field Office in Baltimore, Maryland, until her resignation on April 30, 2010.1 Due to a disability (which at the time was undiagnosed), Complainant had difficulty coming to work, and as a result she incurred hundreds of hours of absence without leave. On July 5, 2007, Complainant's supervisor placed her on leave restrictions which required her to provide medical documentation whenever she took unscheduled sick leave. Complainant's supervisor required that the medical documentation contain a brief diagnosis, the date the condition began, a statement that Complainant was totally incapacitated or unavailable for duty, how the condition precluded her from duty and when she could return to work. The supervisor required that the documentation come from a licensed medical practitioner and be on the practitioner's letterhead. Subsequently, on multiple occasions Complainant claimed that she was too sick to come to work but did not obtain the required medical documentation. Complainant was issued numerous suspensions and ultimately a proposed removal, which was put on hold after the parties entered into an Abeyance Agreement.2 Since entering into the Abeyance Agreement, Complainant complied with the Agreement and provided the required medical documentation each time she had an unscheduled absence. On May 31, 2008, Complainant was diagnosed with Bipolar Disorder and Post Traumatic Stress Disorder (PTSD). Complainant's psychiatrist submitted documentation dated May 31, 2008, which described Complainant's diagnosis, prognosis, the medication she was prescribed, and Complainant's limitations. The psychiatrist stated that Complainant could have periods of sickness and would have to attend doctor's appointments, but would be able to perform her job of Contact Representative. Complainant stated that the symptoms of her disabilities sometimes left her so depressed that she was incapacitated and unable to get out of bed in the morning. The Agency ultimately applied the psychiatrist's documentation towards Complainant's request for leave under the Family Medical Leave Act. On October 28, 2008, Complainant requested a reasonable accommodation for her disabilities. Complainant stated that she wanted to take unscheduled leave for the days that she is depressed and unable to see her psychiatrist without fear of punishment for failing to have medical documentation. She also stated that she would like to take unscheduled leave for doctor's appointments and to see her therapist as needed. Additionally, Complainant requested as a reasonable accommodation a hardship transfer to Florida so she could be with her family. Even though the Agency already had the May 31, 2008 medical documentation on file for Complainant's medical conditions, Complainant's supervisor gave Complainant a November 7, 2008 memorandum detailing what the Agency required in order to grant her reasonable accommodation request. The Agency provided a very precise and detailed list of the medical information it wanted from Complainant's physician, and stated that the information must be provided on the physician's letterhead. Instead of asking the physician to provide a general prognosis, diagnosis and an explanation of the limitations of Complainant's disability, the Agency asked very specific questions about Complainant's prognosis, diagnosis, treatment, effects, and limitations. The AJ noted that the Agency's requirements were problematic because "they are absurdly detailed and elevate form over substance." Complainant was unable to immediately provide the medical documentation requested. Complainant's psychiatrist determined that the extensive documentation the Agency required was "absurd" and she refused to comply, stating that she had already provided enough information about Complainant's disability. Additionally, Complainant was unable to pay $150.00 to obtain a more detailed medical report. As a result, on January 6, 2009, Complainant's request for a reasonable accommodation was denied, and she was told the decision would be reassessed if she provided the medical documentation. A few days later Complainant submitted to her supervisor a medical report dated January 5, 2009, from her psychiatrist. The report stated that the psychiatrist has seen Complainant since May 2006, she is being treated for Bipolar Disorder and PTSD, and it described the medications she is prescribed. The psychiatrist explained that Complainant has a life long illness that is treatable, and while at one point Complainant resorted to alcohol to treat her symptoms, she now is refraining from drinking alcohol and is functioning normally on medications. The psychiatrist stated that Complainant needs to be free of stress, which can trigger deterioration in her mental health state and result in a relapse. The psychiatrist noted that Complainant can work as a full time employee with support and understanding from her supervisors. The psychiatrist also recommended that Complainant be allowed to work close to where her family lives. Upon receiving the January 5, 2009 medical report, Complainant's supervisor only processed it as a request to reassess Complainant's hardship transfer request, and did not process Complainant's request for flexible leave as an accommodation. On April 1, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (Bipolar Disorder and Post Traumatic Stress Disorder) and in reprisal for prior protected EEO activity when: 1. In January 2009, the Agency denied her request for flexible leave as a reasonable accommodation; 2. The Agency impermissibly denied Complainant's hardship transfer request as a reasonable accommodation; 3. The Agency permitted a co-worker to sexually harass her; 4. Complainant was treated differently than her co-worker; and 5. On June 10, 2009, Complainant was monitored more closely than her co-workers with regard to leave and time-keeping matters. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On November 13, 2010, the AJ partially granted the Agency's Motion for a Decision Without a Hearing, and found that Complainant did not establish that a genuine issue of material fact existed with regard to her claim of sexual harassment and her hardship transfer request as a reasonable accommodation. The three surviving issues went to a hearing, which was held on October 13, 2010, October 14, 2010, November 16, 2010, and November 23, 2010. On May 2, 2011, the AJ issued a bench decision on liability and damages, and found that the Agency failed to reasonably accommodate Complainant's disability. The AJ found that the supervisor should have treated Complainant's January 5, 2009 medical report as a request for reassessment of her request for a reasonable accommodation in the form of flexible leave. The AJ did not find the supervisor credible when she stated that Complainant told her she was no longer pursuing flexible leave as a reasonable accommodation. The AJ pointed to numerous documents in the record that made it clear that at the time Complainant submitted the January 5, 2009 medical report, Complainant was not abandoning her request for flexible leave as a reasonable accommodation. The AJ found that Complainant is a qualified individual with a disability, and that the Agency should have engaged in the interactive process and provided Complainant with flexible leave as an accommodation. The AJ also found that Complainant failed to establish that she was treated differently or monitored more closely than any of her co-workers because of discrimination. The AJ awarded Complainant $2,500.00 in non-pecuniary compensatory damages, and $28.00 in pecuniary damages. The Agency was also ordered to post a notice of discrimination. On August 25, 2011, the AJ issued a decision on Attorney's Fees and Costs, and ordered the Agency to pay Complainant $29,589.15 in attorney's fees. The AJ issued an Order Entering Judgment on or around September 12, 2011. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged and rejecting the damages awarded to Complainant. CONTENTIONS ON APPEAL On appeal, the Agency contends that the AJ erred in determining that the Agency failed to engage in the interactive process by misstating the record and making an erroneous credibility determination. The Agency also contends that the AJ erred by disregarding the terms of the Abeyance Agreement, which allowed Complainant to retain her employment with the Agency despite a history of absences without leave. The Agency contends that the AJ erred in finding that the Agency failed to accommodate her by not allowing her to take unscheduled leave when Complainant was already permitted to take unscheduled leave. Finally, the Agency contends that the AJ erred in formulating an accommodation to alleviate Complainant's stress even though the AJ misstated the record, and there is no evidence the accommodation would alleviate Complainant's stress. In opposition to the Agency's appeal, Complainant contends that all of the AJ's findings of fact are supported by evidence in the record and his credibility determinations should be affirmed. Additionally, Complainant simultaneously filed an appeal, in which she contends that she is entitled to a compensatory damages award of $20,000.00 for non-pecuniary damages, and the AJ's award of $2,500.00 does not fully compensate her for the harm caused by the Agency's failure to reasonably accommodate her. Complainant did not appeal the claims in which the AJ found she failed to establish that she was subjected to discrimination. In opposition to Complainant's appeal, the Agency contends that if the Commission finds that the Agency is liable for failure to reasonable accommodate Complainant, the AJ's award for compensatory damages should be upheld. ANALYSIS AND FINDINGS 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 110, Chapter 9, at § VI.B. (November 9, 1999). Reasonable Accommodation The Commission notes that the Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he 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 on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). 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. See 29 C.F.R. §§ 1630.2(c) and (p). Here, the Agency does not dispute that Complainant is a qualified individual with a disability; it only disputes that it failed to provide her with a reasonable accommodation. The Agency contends that the AJ erred in determining that the Agency failed to engage in the interactive process. Our regulations provide that to determine whether an accommodation is reasonable and appropriate, the Agency may need to initiate an informal interactive process with the individual in need of the accommodation. 29 C.F.R. § 1630.2(o)(3). This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. Id. Here, the Agency did not address Complainant's request for a reassessment of her request for a reasonable accommodation after she submitted the January 5, 2009 medical report. There is no indication in the record that the Agency continued to process Complainant's reasonable accommodation request. We agree with the AJ that if the Agency felt that the provided medical documentation did not present enough information for the Agency to determine whether or not flexible leave would accommodate Complainant's disability, the Agency should have engaged in the interactive process and asked Complainant or her psychiatrist whether the stress from her disability could have been alleviated by more flexible leave, how often she would need flexible leave, etc. The Agency should not have just ignored Complainant's request to reassess flexible leave as a reasonable accommodation. As a result, we find that the AJ was correct in determining that the Agency failed to engage in the interactive process. The Agency contends that Complainant did not provide the Agency with the requested medical documentation to support her reasonable accommodation request, and as a result her request was denied. An Agency is entitled to know that an individual has a covered disability that requires a reasonable accommodation. Questions and Answers: Policy Guidance on Executive Order 13164: Establishing Procedures To Facilitate the Provision of Reasonable Accommodation (October 20, 2000). Therefore, the Agency may ask for information about the disability, the activities it limits, and the need for accommodation -- but only if the disability and/or need for accommodation is not obvious, or if information already submitted by the individual is insufficient for the Agency to make these determinations. Id. An Agency may not otherwise ask for medical information based on a person's request for a reasonable accommodation. The record reflects that Complainant submitted medical documentation from her psychiatrist on May 31, 2008, which described her diagnoses, prognosis, medications, and limitations. The psychiatrist stated that Complainant had periods of sickness and also would have to attend doctor's appointments, but would be able to perform her job of Contact Representative. The Agency did not establish that this medical documentation was insufficient. Further, despite already having this documentation, the Agency requested more medical information, which the AJ found to be problematic because the request for additional information was "absurdly detailed and elevate[d] form over substance." Due to the extensive information requested, Complainant's psychiatrist refused to provide the information and Complainant could not afford the detailed medical report.3 However, a few days after Complainant's reasonable accommodation request was denied, Complainant submitted to her supervisor a detailed medical report from her psychiatrist dated January 5, 2009, which again described her prognosis, diagnosis, treatment, effects, and limitations. Complainant provided this information in accordance with the January 6, 2009 memorandum denying her request for a reasonable accommodation, which stated that the request for a reasonable accommodation would be reassessed if Complainant provided the required medical documentation. There is no evidence in the record that would cause us to disturb the AJ's credibility determination that Complainant's supervisor lacked credibility when she testified that Complainant was no longer seeking a reasonable accommodation when she submitted the January 5, 2009 medical report. Similarly, evidence in the record supports the AJ's determination that Complainant was credible when she stated that she submitted the January 5, 2009 medical report in order to have her flexible leave reasonable accommodation request and her hardship transfer request reassessed. As a result, we find that Complainant provided the Agency with the requested medical documentation to support her reasonable accommodation request, and the burden was on the Agency to engage in the interactive process to determine whether flexible leave would have allowed Complainant to perform the essential functions of the position. The Agency also contends that Complainant was already receiving the accommodation that she requested - that she be able to take unscheduled leave as necessary. However, a review of the record reveals that Complainant requested as a reasonable accommodation that she be allowed to take unscheduled leave without providing medical documentation. At the time of her request, Complainant was on leave restrictions and was required to provide medical documentation every time she took unscheduled leave. On the days Complainant woke up depressed and she could not even get herself out of bed, the symptoms of her disability were exacerbated by the fear of getting in trouble at work for not having medical documentation and the stress from the commute to and from the doctor and the worry about how she would pay for another doctor's appointment. As a result, we find that the record establishes that Complainant was not currently receiving the reasonable accommodation that she requested. Additionally, the Agency asserts that it had provided Complainant with a reasonable accommodation when it entered into an Abeyance Agreement rather than proceeding to terminate her. As an initial matter, we note that nowhere in the Abeyance Agreement does it indicate that the agreement is a reasonable accommodation for Complainant's disability. Instead, the agreement appears to solely address disciplinary issues. Additionally, we note that a reasonable accommodation must be effective. U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). Under the Abeyance Agreement, Complainant was required to provide medical documentation every time she used sick leave. As discussed above, Complainant described her medical condition as depression so debilitating that she was unable to get out of bed, and the stress of getting the medical documentation every time she could not get out of bed exacerbated her condition. There is nothing in the record that would indicate that mandating that Complainant provide medical documentation every time her disability prohibited her from getting out of bed was an effective accommodation that allowed her to perform the essential functions of her position. As a result, we find that the Abeyance Agreement was not an effective accommodation. We note that an Agency is not liable for a violation of the Rehabilitation Act by virtue of failing to engage in the interactive process. An Agency is liable if there is a finding that had a good faith interactive process occurred, the parties could have found a reasonable accommodation that would enable the individual with a disability to perform the job's essential functions. Randle-Banks v. U.S. Postal Service, EEOC Appeal No. 07A10076 (Sep. 25, 2002), citing Kvorjak v. Maine, 259 F.3d 48 (1st Cir. 2001). We agree with the AJ that it would have been a hardship on the Agency to allow Complainant to take unscheduled leave in an unfettered manner, which would have interfered in the Agency's ability to plan for the number of employees coming to work and for distribution of workload. However, the AJ further noted, as an example, that Complainant testified that she would have benefited from an accommodation where she could take one day of unscheduled leave every other month without having to provide medical documentation.4 These six days a year would not have been an undue hardship to the Agency because it would have allowed the Agency to maintain control over Complainant's leave, while allowing Complainant six days a year where she would not have had to undergo the stress of getting medical documentation on days where her disability resulted in her heaving a hard time just getting out of bed. Had the Agency made a good faith effort to engage in the interactive process, it could have found a reasonable accommodation such as this that would have allowed Complainant to perform the essential functions of her position without placing an undue hardship on the Agency. As a result, we affirm the AJ's finding that the Agency failed to reasonably accommodate Complainant's disability. Compensatory Damages Complainant contends that she is entitled to a compensatory damages award of $20,000.00 for non-pecuniary damages, and the AJ's award of $2,500.00 does not fully compensate her for the harm caused by the Agency's failure to reasonably accommodate her. The Agency asserts that $2,500.00 is adequate compensation for the minimal harm Complainant suffered. In a claim for compensatory damages, a Complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm suffered; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934156 (July 22, 1994); Notice at 11-12, 14; Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence in support of a claim for non-pecuniary damages claims includes statements from the Complainant and others, including family members, co-workers, and medical professionals. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (hereafter referred to as "Notice"); Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13. A proper award should take into account the severity of the harm and the length of time that the injured party suffered the harm. See Carpenter v. Dep't of Agriculture, supra. Finally, the amount of the award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Jackson v. United States Postal Service, EEOC Appeal No. 01972555 (April 15, 1999), citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989). Here, Complainant did not provide medical documentation to support her damages claims. Instead, Complainant supported her damages claim through her own testimony and the testimony of three of her coworker. Complainant stated that the denial of her reasonable accommodation request caused her a great deal of stress because she always worried that if she got sick and was unable to go to the doctor's for a note she would be terminated. Complainant also stated that the stress from the Agency's failure to reasonably accommodate her disability affected her ability to have a social life. She testified that due to the stress she does not have the strength mentally or physically to interact with friends or family members. Complainant stated that the stress from her job caused her medical conditions to deteriorate, the stress wore her down, she "couldn't take it", and she became suicidal. Eventually Complainant felt that because of her suicidal thoughts, it was better if she resigned from her position, which she did in April 2010. As a result, Complainant suffered harm from the Agency's failure to reasonably accommodate her disability from January 2009 through April 2010, or approximately 15 months. Complainant's coworkers' testimony was vague and focused on the effects of Complainant's disability in general, and did not focus as much on the damages associated with the Agency's failure to reasonably accommodate Complainant. Relevant to the claim Complainant was successful on, one coworker noted that Complainant was often stressed at work after she called out of work and management would ask her for medical documentation. The coworker also testified that Complainant would often be very upset and would frequently cry. Another coworker noted that Complainant resigned because there was too much stress at work and she had too many problems with management. The AJ noted that there were other factors that contributed to Complainant's stress that were related to her unsuccessful claims, such as being denied a hardship transfer, her belief that that she was being sexually harassed by her co-worker, her belief that another co-worker was being treated better than her, and the scrutiny of her taking breaks while at work. Both Complainant and her coworkers mentioned these other contributing factors during their testimony. Additionally, the AJ noted that Complainant's description of her damages directly attributable to the Agency's failure to reasonably accommodate her disability was vague. After careful consideration of the evidence of record, we find an award of $10,000 for non-pecuniary compensatory damages is appropriate. This amount takes into consideration the severity of the harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See Hedgepeth v. Dep't of the Interior, EEOC Appeal No. 01A52869 (Sep. 7, 2006) (The Commission awarded Complainant $10,000 for non-pecuniary damages when the Agency's denial of a reasonable accommodation resulted in Complainant having depression with suicidal tendencies, fatigue, inability to sleep, frequent crying, and fear that she would lose her job. Additionally, there was evidence that there were other factors that contributed to her harm.); Rowan v. Dep't of Veterans Affairs, EEOC Appeal No. 0120070384 (June 19, 2009) (The Commission awarded Complainant $10,000 for non-pecuniary damages where Complainant established that at least some of his stress, humiliation, anxiety, sleeplessness, fears of termination, and depression were attributable to the discriminatory conduct. The Commission noted that the evidence was vague regarding how the pre-existing condition was exacerbated.); Iftikar-Kahn v. U.S. Postal Service, EEOC Appeal No. 07A40137 (Dec. 15, 2005) (The Commission awarded Complainant $9,000 for non-pecuniary damages when the Agency's denial of a reasonable accommodation resulted in Complainant having anxiety attacks, caused her to cry, and caused her distress over the fear of losing her job. Complainant's damages claim was supported only by her own testimony.). Accordingly, we conclude that an award of $10,000 will adequately compensate Complainant for the harm she suffered as a result of the Agency's failure to reasonably accommodate her disability. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order, because a preponderance of the evidence in the record establishes that the Agency failed to reasonably accommodate Complainant's disability. We ORDER the Agency to comply with our order below. ORDER The Agency, to the extent that it has not already done so, is ordered to take the following remedial relief: 1. Within one hundred and twenty (120) days of the date this decision becomes final, the Agency shall pay Complainant $10,000.00 in non-pecuniary compensatory damages. 2. Within one hundred and twenty (120) days of the date this decision becomes final, the Agency shall pay Complainant $28.00 in pecuniary compensatory damages. 3. Within one hundred and twenty (120) days of the date this decision becomes final, the Agency shall pay Complainant $29,589.15 in attorney's fees and costs. 4. Within one hundred and twenty (120) days of the date this decision becomes final, the Agency shall provide a minimum of eight (8) hours of training on the Rehabilitation Act and the Americans with Disabilities Act to the responsible management officials, with a focus on reasonable accommodation. 5. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer referenced herein. 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 employment, the Agency shall furnish documentation of their departure date(s). 6. The Agency shall post the notice discussed 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. 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. POSTING ORDER (G0610) The agency is ordered to post at its Downtown Field Office in Baltimore, Maryland, 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. 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 (S0610) 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. 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: ______________________________ Carlton M. Hadden, Director Office of Federal Operations 1/18/2013 __________________ Date 1 We note that Complainant has not raised a constructive discharge claim. 2 On August 1, 2008, Complainant and the Agency entered into an Abeyance Agreement regarding Complainant's proposed removal. Complainant admitted to failing to follow leave requesting and documenting procedures, and in exchange the Agency placed Complainant's termination on hold for a year and would be set aside if she did not violate any Agency policies or procedures. 3 We agree with the AJ that the record reflects that these are the reasons Complainant was unable to provide the medical documentation prior to January 5, 2009, and not Complainant's failure to cooperate as asserted by the Agency. 4 We note that the Agency asserts on appeal that the AJ misstated the record and that Complainant never requested to take one day of unscheduled leave every other month without having to provide medical documentation. We note that the AJ was merely giving an example of a reasonable accommodation in line with Complainant's request that would have allowed her to perform the essential functions of her position without posing an undue hardship on the Agency. Additionally, the AJ was demonstrating that the Agency would have found that effective reasonable accommodations were available had the Agency engaged in the interactive process. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720120001 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720120001