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]

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