EEOC Finds Agency Should Have Allowed Employee with Terminal Cancer to Telework

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By Deryn Sumner, December 13, 2017

Last month, the Commission issued a decision modifying a Final Agency Decision which had found no discrimination, and found the National Science Foundation failed to accommodate an employee with stage 4 terminal cancer.  This case is notable for a few reasons.  One, it is another in a string of cases where the Commission has instructed agencies that it must allow telework as a reasonable accommodation.  It is also notable in that it illustrates how long these cases take to process, as this one was filed in 2011, and the Complainant died several years prior to receiving the decision.  Finally, this case is notable to me personally as I had the pleasure of knowing and representing the Complainant before her death.  Although this case took many years to litigate and my client did not live to see her claims prevail, I am proud to finally obtain justice on her behalf.

The case citation is Doria R. v. National Science Foundation, EEOC Appeal No. 0120152916 (November 9, 2017). First, let’s address the procedural delays. The Complainant filed her formal complaint on November 9, 2011.  She received an ROI and requested a hearing before an Administrative Judge.  That administrative judge granted summary judgment in the agency’s favor on February 9, 2012.  The Office of Federal Operations reversed the grant of summary judgment and remanded the case for hearing more than 21 months later in Doria R. v. National Science Foundation, EEOC Appeal No. 0120121886 (December 11, 2013).  It then took until October 2014, another 10 months, for the case to actually be heard by an EEOC Administrative Judge.  It took six years to the day from when the Complainant filed her formal complaint to when the EEOC issued a decision finding discrimination. And the decision is not even final yet, as remedies including compensatory damages and attorney fees have not yet been decided. Although I counsel my clients that the federal sector EEO complaints process takes years, this puts a sobering reality on what a realistic timeframe for processing means.

In terms of the facts of the case, they are pretty straightforward for the claims on which the Complainant prevailed.  Doria R., as the Commission has renamed her, had been diagnosed with breast cancer, which had metastasized in her bones and caused her spine to be very brittle.  She had been in a car accident, which further exacerbated her spinal injuries and required surgery, and there was concern that she could become paralyzed if her spine was further injured.  The Complainant requested to telework full-time because of her surgeon’s concern that she should not commute to work on public transportation due to a risk of further injury. This request was denied because of alleged concerns about the Complainant’s productivity on days she teleworked.  She then requested one additional day of floating telework per week, which was also denied after the Agency repeatedly requested additional medical documentation.

The Commission noted, “providing disabled employees with the reasonable accommodations of telecommuting is consistent with the Rehabilitation Act’s goal of assuring ‘equality of opportunity, full participation, independent living, and economic self-sufficiency’ for individuals with disabilities.” The Commission further found that there was no justification for the Agency to request additional medical documentation, as what the Complainant provided substantiated that she was limited in major life activities and that there was a nexus between the requested accommodation and her limitations. In finding the Agency failed to accommodate the Complainant, the Commission also noted that the Agency did not present specific evidence that the Complainant’s productivity was lower on days she teleworked as compared to days she was in the office, that granting additional telework days would have impacted the Agency’s mission or would have otherwise caused an undue hardship.  The Commission also found that the Agency’s 10-month delay in responding to the request for telework, given that the Complainant needed the telework immediately and “each day the Agency failed to provide her with additional telework threated to exacerbate her serious medical condition, to the point of paralysis” rendered the delay unreasonable.

The Commission has clearly indicated to agencies that the days of denying requests for telework on the basis that an agency is not responsible for an employee’s commute to work are over.  I’m not saying that telework is always an appropriate or effective accommodation.  However, agencies should carefully examine such requests based on the Commission’s decision here, as well as in Lavern B. v. HUD, EEOC Appeal No. 0720130029 (February 12, 2015), and in other recent decisions. [email protected]

What to Do if You’re the Victim of Workplace Harassment

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By Deryn Sumner, December 13, 2017

First, a joke.  My husband and I were walking down the street recently when he turned to me and asked, if Santa Claus knows if you’ve been bad or good, how did he not pick up on the fact that Rudolph was being bullied by the other reindeer in the workplace? I did not have a good answer for him. But I can share with you the EEOC’s guidance on what you should do if you believe you are being subjected to harassment in the workplace.

This article is on the front page of the EEOC’s website, which is unsurprising given that every news cycle brings reports of additional celebrities, politicians, directors and CEOs being accused of harassment. I for one am glad that these issues are being brought to the forefront and commend the brave women and men who are risking their careers and personal reputations to speak out against workplace harassment.

But back to the EEOC’s tips on how to respond to harassment in the workplace. The first tip is to tell the person who is harassing you to stop, so long as you feel comfortable doing so. Anyone who is familiar with what it takes to establish an actionable claim of harassment knows why this tip is so important. In order to establish an actionable claim of harassment, the complainant must demonstrate that the conduct was unwelcome. Going along with the inappropriate conduct, even if there is an imbalance of power or intimidation, opens the door to a defense that the interactions were consensual and therefore not unlawful.

The EEOC article next tells employees to check and see if the employer has an anti-harassment policy. As employees of the federal government, the answer is yes, and that policy is likely distributed on at least an annual basis. The policy should lay out how an employee can report harassment, but as the EEOC’s article mentions, you can and should speak to a supervisor (and it doesn’t have to be your own supervisor) about the conduct. As we all know, and as the EEOC’s article mentions, reporting harassment (either something you’ve been subjected to, or by opposing harassment you have witnessed) constitutes protected activity for which you are protected from retaliation.

If the Agency does not take appropriate steps to end the harassment, then, the article notes, private sector employees have the option to file a private sector charge and federal employees can proceed with the complaints process. The article is available on the EEOC’s website here: https://www.eeoc.gov/eeoc/newsroom/wysk/harassed_at_work.cfm

[email protected]

EEOC’s 2017 Performance and Accountability Report

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By Deryn Sumner, December 13, 2017

The Equal Employment Opportunity Commission recently issued its Performance and Accountability Report for Fiscal Year 2017. You can find the complete report here: https://www.eeoc.gov/eeoc/plan/upload/2017par.pdf

The bulk of the report focuses on the efforts made by the EEOC on obtaining relief for victims of discrimination in the private sector and before state and local governments. According to the report, the EEOC secured $484 million in monetary relief in fiscal year 2017, and $86 million in monetary relief for federal government employees and applicants. The report also referenced the reduction in pending private sector charges in what the Acting Chair of the EEOC diplomatically called a “resource-constrained environment.” The report also discusses advances in modernizing the private sector charge processing process by moving more aspects of the charge processing process to online. To that I can only offer my congratulations, and a hope that the EEOC will move towards modernizing more of the federal sector process in 2018 and beyond, including allowing complainants and their representatives access to the FedSEP (Federal Sector EEO Portal)system.

 

In terms of the federal sector process, the EEOC offers the following statistics for fiscal year 2017:

  • The EEOC resolved 4,284 appeals of agency decisions, including 85% of appeals that were more than 500 days old at the beginning of the fiscal year;
  • The age of those cases still pending at the Office of Federal Operations was reduced by 13.6%;
  • The EEOC categorized 100% of the pending appellate case inventory and 98.2% of new inventory into a new case management system;
  • With regards to cases pending at the hearing stage, the EEOC asserts that 70.1% of these cases had an initial status conference in FY 2017. The Commission noted that this metric will not reach 100% as not all cases require initial status conferences;
  • The Commission updated and released guidance including A Guide to Assist Federal Agencies to Provide Personal Assistance Services; Bathroom/Facility Access and Transgender Employees; and Proposed Enforcement Guidance on Harassment that Creates a Hostile Work Environment;
  • Finally, the EEOC issued 68 findings of discrimination (note, this refers to decisions from the Commission’s Office of Federal Operations, not initial decisions issued by administrative judges).

 

I appreciate the EEOC’s transparency to federal government employees and the federal taxpayer as to its progress on efforts to eradicate workplace discrimination.  [email protected]

Collateral Attacks: Cooler Sounding Than They Actually Are

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By Deryn Sumner, November 20, 2017

Collateral attack.  Sounds pretty cool on its face, like a move you’d use to take down your opponent in a street fighting video game.  In reality, it’s just a basis for an agency to dismiss a formal EEO complaint because the complainant is attempting to use the EEO process to go after an entity outside of the jurisdiction of what’s covered by Title VII and the accompanying other civil rights statutes.

Okay, so not as cool as it sounds.  But what are examples of collateral attacks?  Well, as the EEOC recently, and precisely, stated, “[a] claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum’s proceeding, such as the grievance process, the unemployment compensation process, or the workers’ compensation process.”  Katherina A. v. United States Postal Service, EEOC Appeal No. 0120172007 (September 22, 2017).  In Katherina A., the complainant was trying to assert that her supervisors discriminated against her when they allegedly submitted inaccurate information to the Department of Labor regarding a workers’ compensation claim that the complainant filed.  The agency dismissed it as a collateral attack and the Commission agreed, noting its prior precedent that claims related to the merits of a workers’ compensation claim cannot be brought before the EEOC.

But there are more types of collateral attacks than just those involving grievances, unemployment claims, or OWCP claims.  Collateral attacks can also take the form of claims involving application and approval for disability retirement.  For example, in Jae S. v. United States Postal Service, EEOC No. 0120171832 (July 14, 2017), the Commission affirmed a dismissal of a claim of race, sex, disability, and reprisal discrimination where the complainant alleged that management improperly stated he had performance and ethics issues in responding to OPM regarding his application for disability retirement.  The Commission agreed that it was inappropriate for the complainant to use the EEO process to collaterally attack something that took place before OPM.

An agency can also dismiss claims on the basis that they constitute a collateral attack on entitlement to FMLA.  For example, in Edmund L. v. United States Postal Service, EEOC Appeal No. 0120171050 (September 14, 2017), the Commission agreed with the agency that an allegation that the agency discriminated against the complainant when management failed to follow FMLA regulations was under Department of Labor’s jurisdiction.  The Commission affirmed the dismissal of that claim as a collateral attack and outside of the EEO process.

Finally, collateral attacks can also be used as a basis to dismiss claims involving internal agency investigations, such as in Nerissa S. v. Department of Army, EEOC Appeal No. 0120171616 (September 20, 2017). There, the complainant alleged that agency management officials interviewed during a criminal investigative division (CID) investigation, “intentionally provided false, misleading, and incomplete information to the CID investigator, and advocated bringing a False Claims Act lawsuit against her.” The Commission agreed that this constituted a collateral attack on the CID investigation and affirmed dismissal of the claim.

While collateral attacks may not be as cool in reality as they sound, they are a useful tool for agencies to ensure that claims raised in EEO complaints are properly within the EEOC’s jurisdiction.  [email protected]

Agency Shows It Would Have Been Undue Hardship to Grant Unpaid Leave to Employee as Religious Accommodation

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By Deryn Sumner, November 15, 2017

Although we see many more cases involving claims addressing the federal government’s obligation to accommodate employees with disabilities, the federal government also has an obligation to reasonably accommodate employees’ religion.  In both types of accommodation, an employer can assert that providing the requested accommodation would pose an undue hardship to the employer’s operations.  The definition of “undue hardship” when responding to requests to accommodate an employee’s religion is less onerous than when responding to requests to accommodate an employee’s disability.

The Commission’s regulation at 29 C.F.R. 1630.2(p)(1) defines “undue hardship,” in considering requests to accommodate disabilities, as “significant difficulty or expense incurred by a covered entity,” and lists five factors that should be considered, all of which consider the overall cost to the facility and the agency as a whole, and the impact on the operations and the other employees.

Looking at “undue hardship” under the lens of religious accommodations, the regulation at 29 C.F.R. 1605.2(e), an employer may assert that it cannot accommodate a need for accommodation if it would require “more than a de minimis cost” or if it would require a variance from a bona fide seniority system.

The Commission recently addressed a claim of religious discrimination in Allan F. v. United States Postal Service, EEOC Appeal No. 0120150643 (October 27, 2017).  The complainant, who was Muslim, worked as a full-time Mail Handler and submitted a leave form requesting 24 hours of LWOP from October 7-12, 2011 for “religious holiday season.” A few days later, the complainant submitted a second leave form requesting 40 hours of annual leave for a “choice vacation.”  The LWOP request was denied, but the annual leave request was granted.  The complainant filed an EEO complaint alleging religious discrimination when his request for 24 hours of LWOP was denied.  After receiving a Report of Investigation, the complainant requested a hearing. The Administrative Judge granted summary judgment in the agency’s favor, and the agency issued a final action adopting this decision, from which the complainant appealed to EEOC’s Office of Federal Operations.

On appeal, the complainant argued, in part, that the agency would have benefited financially by granting the request for LWOP instead of his request for annual leave, and that not being paid during this time was “part of the practice of his faith.”  You may be asking yourself, why didn’t the agency just grant the request for LWOP since then it wouldn’t have had to pay the employee?  Luckily, the agency articulated a legitimate, non-discriminatory reason for this. The agency denied the request for LWOP because of the needs of the service.  If the agency had approved the request for LWOP, it would have allowed another mail handler to be able to take annual leave, which “could have placed them over the maximum percentage of mail handlers off, leading to increased overtime and a financial burden on the Agency.” The agency also noted that LWOP is approved based on management discretion, while annual leave is granted in accordance with the collective bargaining agreement.

Now what about the complainant’s argument that the agency should have accommodated him by not paying him during this timeframe?  The Commission found that the agency made a good faith effort to accommodate the complainant because it granted his request for annual leave during the same timeframe and provided an alternative to the requested accommodation.  The agency was able to show that granting the requested accommodation of LWOP would have created an undue hardship, since there could be an increase in overtime if another mail handler requested to use annual leave during this same timeframe.  So, there you have it — a case where the agency showed granting LWOP would have cost more than approving paid annual leave.  [email protected]

What’s a “Factor Other Than Sex” in Equal Pay Act Claims?

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By Deryn Sumner, November 15, 2017

As we’ve discussed previously in this space, if an employee establishes a prima facie claim of sex discrimination under the Equal Pay Act, the agency can assert a defense by pointing to a factor “other than sex” that explains the difference in pay.  The agency was able to successfully make such an argument in Willa B. v. Department of Veterans Affairs, EEOC Appeal No. 0120152792 (October 26, 2017).  Ms Willa B. worked as a staff psychiatrist and filed an EEO complaint raising 14 issues and alleging race, national origin, color, disability, and sex discrimination, as well as retaliation for prior EEO activity.  For purposes of this discussion, we’ll just focus on her claim that she was denied equal pay for performing the duties of a GS-15 position, while her counterparts were paid at a higher salary when they had less experience.

First, given the type of position the complainant held, the complainant’s salary was determined by a panel. The panel consisted of a chief, another psychiatrist, and an HR employee. The Medical Center Director had the right to approve and change the salary amounts recommended by the panel. The salary was determined in two parts: base pay and market pay. The base pay was determined by prior experience and tenure, and the market pay was determined by the market demand for a psychiatrist of similar education and experience. The psychiatrist also received performance pay, which was an annual one-time payment based on meeting certain criteria during the performance year.

The complainant alleged that she should have been paid more, pointing to two male psychiatrists whom she stated earned more money but had less experience. After holding a hearing, the Administrative Judge found that the difference between the complainant’s salary and the two identified male comparators occurred because of factors other than sex.

The first comparator employee had a higher salary because he had been working at the Medical Center for 10 years longer than the complainant. The second comparator employee had been working for the agency since 1997, while the complainant had only worked there since 2006.  There was also evidence that five other psychiatrists received higher pay than the complainant, including another female psychiatrist, and that a male psychiatrist earned less pay than the complainant.  The Commission agreed with the Administrative Judge’s conclusions and affirmed the finding that the agency did not violate the Equal Pay Act with regards to its compensation of the complainant.  [email protected]

Where to Begin When You Start to Calculate Back Pay

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By Deryn Sumner, November 15, 2017

We’ve discussed a few times how important it is to value a case, even if you represent the agency, and even if you think your case is a slam dunk.  Nothing is predictable with certainty in litigation, and you don’t want to have to inform your settlement authority or client that you don’t know how much the agency is liable for because the agency lost the case.  We typically discuss this in the context of requesting information about compensatory damages during discovery.  You don’t want to be caught unaware of the types of pecuniary and non-pecuniary damages a complainant intends to seek.

But another large source of monetary damages that the agency can be on the hook for is back pay.  Although an exact accounting of how much back pay would go to a complainant may be well beyond the wheelhouse of you as the agency representative, you should have a general idea of the overall amount.  And so how do you start with such calculations?

Well, of course, this is only going to apply in cases where pay is at issue, such as non-selections at a higher grade and terminations.  First, figure out what the relevant timeframe is and what the employee was earning at the time and what he or she would have earned if what is being claimed in the formal complaint is proven. The OPM website has salary scales for many years — don’t forget to account for locality pay!

The Commission’s Management Directive 110, Chapter 11 spells out aspects that should be considered in calculating back pay.  Remember the guiding principle: the goal of remedies is to place the complainant as closely as possible in the position he or she would have held but for the discrimination.  Thus, back pay calculations should consider any step increases, pay differentials, overtime that would have been earned if the employee had been in the position, and any other pay differential, such as premium pay.  Back pay also includes other benefits of employment, such as leave, health insurance contributions, and retirement contributions.

You should also consider whether subsequent events impact an award of back pay, such as subsequently receiving a higher paying job, being unable to work because of a medical condition, or voluntary retirement or resignation from a job.  Benefits such as unemployment compensation should not be deducted from back pay.  However, worker’s compensation benefits may be deductible, depending on the type.

If an employee has been terminated from employment, he or she must take efforts to mitigate damages before the EEOC (the same does not hold true before the MSPB).  Again, you should use the discovery process to find out about these efforts.

The goal here is to have a sense of how much the agency could be on the hook for should it not win its case.  Even if you don’t know down to the penny, having a general range can be essential for settlement discussions and accurately valuing your case.  [email protected]

What Do You Have to Do to Show that You are Incapacitated?

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By Deryn Sumner, October 24, 2017

As we discussed in August’s edition of the FELTG newsletter, the EEOC’s Office of Federal Operations is cracking down on granting extensions on deadlines to file appeal briefs.  In one canned response my office received, the EEOC made reference to a need to show that the party was incapacitated during the regulatory timeframe to file the brief.  Incapacitation is used as the standard for other issues of timeliness, including in determining whether there is a basis to extend the timeframe for making contact with an EEO counselor or filing a formal complaint.  So what does one have to do to show incapacitation before the Commission?  As the case law tells us, merely being stuck on your couch binge-watching TV while you fight off the flu is not going to cut it.

Historically, the EEOC has required the party, typically the complainant, to provide medical documentation to demonstrate the inability to meet a deadline because of a medical condition and to show that the medical condition was so severe so as to prevent the complainant from meeting the deadline.  Being taken to the emergency room will typically be sufficient to show incapacitation, as was the case in Zandra N. v. United States Postal Service, EEOC Appeal No. 0120161756 (July 15, 2016).  Being in a residential treatment program is also typically sufficient to show incapacitation, as shown in Complainant v. Department of Agriculture, EEOC Appeal No. 0120133092 (January 17, 2014).

However, medical documentation alone will not always meet that burden of proof.  For example, in a 2015 case, Refugia v. Department of Homeland Security, EEOC Appeal No. 0120151970 (October 3, 2015), req. for recon. denied, EEOC Request No. 0520160076 (June 8, 2016), the complainant submitted a medical certificate in support of her claim that she was under severe stress during the timeframe she had to file a formal complaint of discrimination, which caused her not to be able to timely file the complaint.  The Commission found that although the complainant submitted medical documentation, she did not demonstrate that she was so incapacitated that she could not meet the deadline.

The Commission did recently credit submitted medical documentation in the case of Jutta A. v. Department of Veterans Affairs, EEOC Appeal No. 0120172048 (September 22, 2017) to excuse the untimely filing of a formal complaint.  There, the complainant received her notice of right to file a formal complaint on March 9, 2017, but did not file her formal complaint until March 28, 2017, 19 days after receiving it and 4 days after the deadline.  The Commission found persuasive that the complainant submitted medical documentation from two medical professionals noting that the complainant was experiencing “crippling anxiety associated with various physical symptoms” as well a respiratory tract infection developed during that time.  Given the short period of time that had elapsed between the deadline and the complainant’s submission, the Commission found fit to reinstate the formal complaint for processing.

So, if you plan on asserting that personal incapacitation kept you from meeting a deadline, be prepared to have the medical documentation to support your claim.

[email protected]

Commission Reiterates Burden of Proof for Employees to Establish Joint Employment Relationship

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By Deryn Sumner, October 18, 2017

As we’ve discussed in this space before, federal government contractors can have standing to file formal complaints of discrimination against federal agencies, if they can demonstrate that they should be considered joint employees of both the contracting agency and the federal government.  The Commission utilizes the Ma test, named after one of its decisions, Ma v. Department of Health and Human Services, EEOC Appeal No’s. 01962389, 01962390 (May 29, 1998), which laid out a common law test with a number of factors to be examined with the goal of determining whether an employer-employee relationship existed between the employee and the government agency.  Note that this test does not require an employee to demonstrate that the federal government agency controls all aspects of employment, nor does it require an employee to demonstrate that the federal government agency should be considered the sole employer of the employee.  With regards to the individual factors, an employee does not have to demonstrate that the federal government exercises complete agency control in order to show joint employment.  Rather, the test looks at whether the federal government agency exerted sufficient control over the employee’s work such that the employee could raise claims of discrimination against the federal government agency, even though the employee is, on paper, not a federal government employee.

The Ma factors include reviewing the entity that provided the employee with day-to-day assignments, performance evaluations and feedback, tools, material and equipment needed to do the job, whether the agency’s communication that it no longer wants the employee’s services leads to the employee’s termination by the contractor, whether the employee’s position required substantive knowledge and expertise, whether the federal government approved leave requests and other schedule changes, and the entity that provided benefits to the employee.

In the years since the issuance of the decision in Ma, the Commission has addressed hundreds of appeals where an agency has dismissed claims brought by federal government contractors for lack of standing.  In some of these decisions, the Commission did find that the relationship was too tenuous such as to permit standing.  However, in my unscientific view, a majority of these decisions reinstated the complaints and remanded them for investigation.

In a recent decision, Corrina M. v. Department of Defense, EEOC Appeal No. 0120171798 (September 22, 2017), the Commission took the opportunity to note that agencies have not been properly applying the Ma test in making determinations on standing and too often rely on contracts between the federal government and the contractor as dispositive.  The Commission noted that the test had been “announced many times and in several formats, including Compliance Manual chapters, formal enforcement guidance, and federal-sector rulings.” The Commission also stated, “[i]n determining a worker’s status, EEOC looks to what actually occurs in the workplace, even if it contradicts the language in the contract between the staffing firm and the agency.”  Later in the decision, the Commission used the word “holistic” to describe its approach to the analysis.

In the case at hand, the Commission found the agency improperly dismissed the complainant’s complaint for lack of standing and found the agency sufficiently controlled the complainant’s work such that she could proceed with her EEO complaint.  The relevant factors in that case included that the complainant had worked for the agency for over eight years, worked in agency facilities using agency equipment, and the agency had constructive power to terminate the complainant.  The Commission further determined that the agency had the opportunity to gather additional evidence to support its determination that the complainant should not be considered a joint employee, but failed to do so in its decision.

As agencies continue to rely upon contractors to support the various missions of the federal government, it must properly determine whether these contractors have EEO protections.  [email protected]

Accommodating Sleepiness into the Future, But not the Past

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By Deryn Sumner, September 13, 2017

It was a hollow victory for the complainant in a recent case where the EEOC’s Office of Federal Operations found the Department of Transportation failed to accommodate him, but also found his termination during his probationary period was justified.  In issuing the decision, the EEOC overturned an administrative judge’s conclusion that no discrimination occurred in Lloyd E. v. Department of Transportation, EEOC Appeal No. 0120150325 (August 17, 2017). The EEOC reviews the decisions of its administrative judges using a substantial evidence standard of review, as compared to the de novo review given to Final Agency Decisions, which essentially means that decisions from administrative judges are given more deference.  However, here the EEOC found appropriate to modify the final order in part, based on a detailed examination of the timeline in the case, as I discuss in more detail below.  [Editor’s Note: In comparison, MSPB board members grant zero deference to the decisions of their judges, except for credibility determinations based on physical observation.]

The complainant worked as an Airway Transportation Systems Specialist and alleged the Department of Transportation failed to accommodate his depression and sleep apnea when it denied him a reasonable accommodation and terminated him during his probationary period.  The complainant’s work hours were 7:00 a.m. to 5:30 p.m. Monday through Thursday.  He had some issues arriving to work in the morning, once because he showed up at the wrong facility thinking he was supposed to attend a class there, once for oversleeping after getting into an argument with his roommate, and once when he overslept because he had run out of medication.  The complainant had recently relocated and was having issues getting his medication refilled at his new VA Medical Center.  After the complainant failed to show up to work on time the third time, his supervisor contacted HR to ask about disciplining him, and specifically asked about terminating him because he was still a probationary employee. The supervisor also sent out an email to the complainant and other employees reminding them that the morning shift started at 7:00 a.m. and employees needed to notify him if they were going to be late.

Now here’s where the timing becomes important.  The day after the supervisor sent the email reminding everyone to be on time, which was November 16, 2011, the complainant was 45 minutes late to work. In a conversation about the complainant’s tardiness, the complainant reported that he was late because he had problems sleeping and asked if he could switch to working eight-hour days with a start time of 8:00 a.m. The supervisor told the complainant that he could work eight-hour days, but would still need to start work at 7:00 a.m. The supervisor charged the complainant AWOL for being late to work that day.

The next day, November 17, 2011, the complainant spoke to the supervisor again and told him that he was a disabled veteran, what his medical conditions were, and said that he had been late to work because he was not able to get a prescribed medication that helped him sleep.  The complainant then asked again for later start time, this time to be switched to the 1:00 p.m. – 11:00 p.m. shift, which the supervisor denied, saying that instead, the complainant could arrive at 8:00 am and use an hour of leave each day.  Given the complainant’s limited leave balance, he did not agree to this proposed solution.

The complainant reported to work on time from November 17 through December 20, although the record later revealed that a handful of times he came to work in the middle of the night and slept at his desk to avoid being late.  More than a month later, on December 19, 2011, the supervisor asked the complainant if he had been seeking a reasonable accommodation back in November, and asked for medical documentation, as well as whether the complainant could safely perform his job duties, given his need for medication.  The complainant provided a doctor’s note the next day, December 20, 2011, but told his supervisor that he didn’t need accommodations because he had now been taking his medication and was showing up to work on time.

After the complainant requested leave at 8:30 a.m. the following day after not showing up to work, the supervisor terminated him on December 28, 2011 for “continued problems with tardiness.”

The complainant filed an EEO complaint and eventually the case wound its way to an administrative judge.  After holding a video teleconferencing (VTC) hearing, the administrative judge concluded that the agency did offer reasonable accommodation by allowing the complainant to use leave every day and show up by 8:00 a.m.  The administrative judge further found that the agency did not discriminate against the complainant when it terminated him because he did not identify employees outside of his protected class who were treated better, and that he didn’t tell the agency until November 17, 2011 that his tardiness was due to his medical condition.

On appeal, the Commission disagreed with the administrative judge that allowing the complainant to use leave to arrive to work late each day is providing accommodation, noting its prior precedent in Denese G. v. Department of Treasury, EEOC Appeal No. 0120141118 (December 29, 2016) that, “forcing an employee to take leave when another accommodation would permit an employee to continue working is not an effective accommodation.” The Commission further found that allowing the complainant to report to work at 8:00 a.m. did not pose an undue hardship, and that the agency should have accommodated the complainant by granting his request for a modified schedule.  However, the Commission defined the timeframe of the failure to accommodate as only from November 17, 2011 until December 20, 2011 (hence why the dates of the fact pattern are so important).

The Commission did agree that the termination was not discriminatory because the complainant was tardy on five occasions, four of which occurred before he requested reasonable accommodation.  As we’ve previously discussed, an employer does not have to accommodate an employee by forgiving misconduct.  As I mentioned at the start, a hollow victory for the complainant.  What remedies would be appropriate for just a little over a month of not being accommodated?  The Commission remanded the case to the agency for an investigation to determine just that.  [email protected]