EEOC Appeal 2023000772

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Willie L.,1
Complainant,
v.
Robert F. Kennedy, Jr.,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 2023000772
Agency No. HHS-NIH-NIAID-040-22
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission
(EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
October 13, 2022, final decision concerning his equal employment opportunity
(EEO) complaint of employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
For the following reasons, the Commission REVERSES the Agency’s final decision.
At the time of events giving rise to this complaint, Complainant worked as a Senior
Technology Transfer and Patent Specialist at the Agency’s Technology Transfer and
Intellectual Property Office in Washington, D.C.
On March 11, 2022, Complainant filed an EEO complaint alleging discrimination
by the Agency based on disability (mental and physical) when management denied
1 	This 	case 	has 	been 	randomly 	assigned 	a 	pseudonym 	which 	will 	replace
Complainant’s 	name 	when 	the 	decision 	is 	published 	to 	non-parties 	and 	the
Commission’s website.

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his request to work a part-time schedule as a reasonable accommodation and
management denied his request for reconsideration.
The 	investigation 	into 	the 	complaint 	revealed 	that 	Complainant 	suffered 	a
hemorrhagic 	stroke 	on 	February 	3, 	2021, 	which 	resulted 	in 	a 	five-week
hospitalization. 	Following a period of extended leave, Complainant’s neurologist
authorized him to return to work on a part-time basis. 	On October 7, 2021,
Complainant submitted a written request for a modified work schedule that would
permit him to take frequent breaks and take leave to attend medical appointments as
needed, work an initial part-time schedule, and telework full-time from home.
On October 8, 2021, the Agency requested that Complainant submit sufficient
supporting 	medical 	documentation 	to 	process 	his 	reasonable 	accommodation
request. Complainant returned his completed Medical Inquiry form on October 12,
2021, and the Agency informed Complainant that his medical information was
sufficient. According to Complainant, his neurologist only authorized him to return
to work on a part-time basis. In the Medical Inquiry form, dated October 7, 2021,
Complainant’s physician recommended telework; extra time to complete tasks
without strict deadlines; important information conveyed in a quiet environment free
of distractions; work on projects with familiar context rather than new material; one
project at a time rather than multiple projects simultaneously; and a gradual return
to 	work 	starting 	part-time. 	Complainant’s 	physician 	concluded 	with 	the
recommendation of 20 hours per week from October 18, 2021, through July 18,
2022.
On December 3, 2021, an Accessibility Consultant advised management to grant
Complainant’s requested accommodations of frequent breaks, leave to attend
medical appointments, and telework. 	However, the Accessibility Consultant
recommended 	that 	management 	deny 	Complainant’s 	request 	for 	a 	part-time
schedule because permitting Complainant to indefinitely work a part-time schedule
would remove essential job duties and be tantamount to granting open-ended leave
without an established return date, constituting an undue burden. The Accessibility
Consultant asserted that having a part-time schedule was essentially a request for
Leave Without Pay (LWOP), which he viewed as an undue hardship for the Agency.

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On January 3, 2022, Complainant’s supervisor, the Director, denied Complainant’s
requests for a modified work schedule with frequent breaks and an initial part-time
work schedule. However, he approved time off for medical appointments and full-
time telework.
On January 12, 2022, Complainant requested reconsideration of the decision
denying his request to work a part-time schedule until he could return to a full-time
schedule. The Agency denied Complainant’s request on February 2, 2022. 	As a
result, Complainant did not return to work and exhausted his accrued leave.
Complainant subsequently received unpaid leave.
In a letter dated March 22, 2022, Complainant’s physician stated that Complainant
could return to work immediately if restricted duty were allowed. 	The physician
defined restricted duty as: extra time to complete tasks, maximum of 20 hours per
week, and the need to work from home. 	The physician stated Complainant could
gradually return to full-time at a rate of increase five hours per week, every four
weeks. 	The physician added that Complainant was not medically fit to return to
work full-time from February 3, 2021 through July 13, 2022.
On 	May 	20, 	2022, 	following 	Complainant’s 	request 	for 	second-level
reconsideration, the Agency approved Complainant to work a part-time schedule
through July 13, 2022. 	The approval memorandum indicated that documentation
Complainant provided on March 7, 2022, permitting Complainant to work part-time
for approximately two months, was reasonable to allow for recovery of endurance
and stamina and measured return to a full-time work schedule.2 Complainant stated
that prior to the approval of part-time work Complainant had been forced to use all
available leave or go without pay.
At the conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation and notice of his right to request a hearing before
an EEOC Administrative Judge (AJ). When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b), which concluded that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.
Complainant then filed the instant appeal.
2 The record does not include the referenced March 7, 2022 memorandum.

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An agency is required to make reasonable accommodation to the known physical
and mental limitations of an individual with a disability unless the agency can show
that accommodation would cause undue hardship. 29 C.F.R. §§ 1630.2(o) and (p).
To prevail on his denial of reasonable accommodation claim, 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 “qualified” as defined by 29 C.F.R. § 1630.2(m); and (3) the
Agency failed to provide him a reasonable accommodation. See EEOC Enforcement
Guidance 	on 	Reasonable 	Accommodation 	and 	Undue 	Hardship 	Under 	the
Americans with Disabilities Act (Enforcement Guidance), No. 915.002 (Oct. 17,
2002).
An 	employer 	should 	respond 	expeditiously 	to 	a 	request 	for 	reasonable
accommodation. See Enforcement Guidance at Question 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 reasonable accommodation. Id. Unnecessary delays can result
in violation. 	Id. 	In determining whether there has been an unnecessary delay in
responding to a request for reasonable accommodation, relevant factors 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.
Here, it is undisputed that Complainant is an individual with a disability as defined
under the Rehabilitation Act, and the Agency conceded in its final decision that
Complainant is qualified as defined by § 1630.2(m). 	While the Agency agreed to
some of Complainant’s requested accommodations, we find that the Agency
unnecessarily delayed in providing Complainant with the initial part-time schedule,
which resulted in Complainant exhausting his accrued leave and later relying on
unpaid leave, before granting his requested accommodation seven months later
based on his original documentation.
The 	Agency’s 	seven-month 	delay 	in 	processing 	Complainant’s 	request 	for
reasonable accommodation was unreasonable and therefore a violation of the
Rehabilitation Act. See Ria T. v. U.S. Postal Serv., EEOC Appeal No. 0120182257
(Jan. 14, 2020) (finding that the Agency violated the Rehabilitation Act when
complainant was delayed in receiving a reasonable accommodation for two months);
Susan B. v. Dep’t of the Army, EEOC Appeal No. 2020001632 (June 16, 2021)

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(affirming 	AJ’s 	decision 	that 	the 	Agency's 	four-month 	delay 	in 	providing
Complainant an accommodation violated the Rehabilitation Act). Specifically, the
record reveals that Complainant submitted his request in October 2021, and the
Accessibility Consultant provided a recommendation to Complainant’s supervisor
on December 3, 2021. Complainant did not receive a decision until January 3, 2022,
wherein his requests for a modified work schedule to include frequent breaks and an
initial part-time work schedule were denied. Following multiple requests for
reconsideration, Complainant received ultimate approval for his requested part-time
schedule with a gradual return in May 2022. 	During the seven-month period,
Complainant was proactive in pursuing his reasonable accommodation request.
While the Agency argues that Complainant’s request was denied because he
requested an indefinite part-time schedule, the record reveals that management was
aware at the time of his original request that Complainant’s request was an initial
part-time work schedule with a gradual return to full-time work. Thus, we find that
the delays were unnecessary, violated the Agency's responsibility to expeditiously
respond to a request for reasonable accommodation, and demonstrated a lack of good
faith in the Agency’s accommodation efforts.
When discriminatory practice involves the provision of reasonable accommodation,
damages may be awarded if the Agency fails to demonstrate that it made a good faith
effort 	to 	provide 	Complainant 	with 	reasonable 	accommodation 	for 	his
disability. See Gunn v. U.S. Postal Serv., EEOC Appeal No. 0120053293 (June 15,
2007). 	As the Agency has failed to show that it has made a good faith effort to
timely respond to Complainant’s request for an accommodation, he is entitled to
present a claim for compensatory damages on the Agency's failure to timely
accommodate him. See West v. Gibson, 527 U.S. 212 (1999); Complainant v. Dep’t
of Justice, EEOC Appeal No. 0120121339 (May 8, 2015) (complainant entitled to
present a claim for compensatory damage when the Agency failed to establish good
faith 	in 	accommodation 	attempt), req. 	for 	recons. 	den., EEOC 	Request 	No.
0520150404 (Nov. 12, 2015).
Accordingly, we REVERSE the Agency's final decision finding no discrimination
and we REMAND this matter to the Agency to take the following corrective action
in accordance with the ORDER below.

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ORDER
The Agency is ordered to take the following remedial action:
I. 	Complainant is entitled to a backpay award for days he was unable to
work due to the Agency's unnecessary delay and/or denial of reasonable
accommodation. Within sixty (60) calendar days of the date this
decision is issued, the Agency shall determine the appropriate amount
of back pay, with interest, and other benefits due Complainant, pursuant
to 29 C.F.R. § 1614.501. The back pay amount shall be computed in
the manner prescribed by 5 C.F.R. § 550.805, including, but not limited
to the denial of reasonable accommodation from October 18, 2021,
through July 13, 2022.
Complainant shall cooperate with the Agency's efforts to compute the
amount of back pay and benefits due and shall provide all relevant
information requested by the Agency within thirty (30) calendar days
of the Agency’s request.
If there is a dispute regarding the exact amount of back pay, interest,
and/or benefits, Complainant may file a Petition for Enforcement with
the 	Commission. 	The 	Agency 	shall 	still 	pay 	Complainant 	the
undisputed amount of back pay owed within sixty (60) calendar days
of the date the amount is determined. The back pay calculation and
payment period should not exceed one hundred and twenty (120)
calendar days.
II. 	Within sixty (60) calendar days of the date this decision is issued, the
Agency restore the appropriate amount of leave (annual, sick, leave
without pay, etc.) which Complainant took because of the denial of his
reasonable accommodation request and compensate Complainant for
any unpaid leave taken as a result of the denial.
III. 	Within sixty (60) calendar days of the date this decision is issued, the
Agency shall conduct and complete a supplemental investigation to
determine the amount of compensatory damages to which Complainant
is entitled. In so doing, the Agency shall:
a. 	Issue a notice to Complainant of his right to submit evidence based
on our guidance in Carle v. Dep’t of the Navy, EEOC Appeal No.

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01922369 (Jan. 5, 1993) and request evidence from Complainant in
support of compensatory damages. 	The Notice shall provide
Complainant with thirty (30) calendar days to respond (with an
option and instructions to request an extension in the case of
extenuating circumstances). 	Complainant has a duty to cooperate
with 	the 	Agency's 	investigation 	to 	determine 	compensatory
damages, 	including 	responding 	to 	agency 	requests 	for
documentation or completing agency forms.
b. Issue a new final agency decision (“Compensatory Damages FAD”)
based 	on 	the 	findings 	of the 	supplemental 	investigation. The
Compensatory Damages FAD shall state the amount (if any) of
compensatory damages owed to Complainant and explain how the
Agency determined that amount. The Compensatory Damages FAD
shall include appeal rights to the Commission.
c. 	Within sixty (60) calendar days of the date the Compensatory
Damages FAD is issued, the Agency shall pay Complainant the
amount of compensatory damages it determined are owed. If there
is a dispute over the exact amount of compensatory damages owed,
the Agency shall pay the undisputed amount to Complainant. If
Complainant 	disagrees 	with 	the 	Agency’s 	award, 	they 	may
challenge the Agency’s decision on the amount of compensatory
damages by filing an appeal of the Compensatory Damages FAD
with the Commission. Instructions on how to appeal, including the
deadline to file, will be included in the appeal rights portion of the
Compensatory Damages FAD.
IV. 	Within ninety (90) calendar days from the date this decision is issued,
the Agency shall provide four hours of interactive or in-person training
with respect to the Rehabilitation Act and Americans with Disabilities
Act, with special emphasis on requesting, receiving, and responding to
requests for reasonable accommodation, the interactive process, and
undue burden to all human resources personnel in charge of dealing
with 	requests 	for 	reasonable 	accommodation, 	including 	the
Accessibility Coordinator, and supervisors and managers within the
Agency’s Technology Transfer and Intellectual Property Office in
Washington, D.C. 	The Agency shall provide the Compliance Officer

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with proof of attendance, as well as the contents and materials it used
for the training.
V. 	Within one hundred and twenty (120) calendar days of the date this
decision is issued, the Agency shall consider taking disciplinary action
against the Director and Accessibility Coordinator. 	The Commission
does not consider training to be a disciplinary action. The Agency shall
report its decision to the Commission and specify what, if any, action
was taken. If the Agency decides not to take disciplinary action, then it
shall set forth the reasons for its decision not to impose discipline.
The Agency is further directed to submit a report of compliance in digital format as
provided in the statement entitled “Implementation of the Commission’s Decision.”
The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29
C.F.R. § 1614.403(g). 	Further, the report must include supporting documentation
that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Technology Transfer and Intellectual Property
Office copies of the attached notice. Copies of the notice, after being signed by the
Agency's duly authorized representative, shall be posted both in hard copy and
electronic format by the Agency within 30 calendar days of the date this decision
was issued, and shall remain posted for 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 as directed in the paragraph entitled "Implementation of the
Commission's Decision," within 10 calendar days of the expiration of the posting
period. The report must be in digital format and must be submitted via the Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
ATTORNEY'S FEES (H1125)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. §
1614.501(e)(1)(iii)), they are entitled to an award of reasonable attorney's fees
incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of
attorney's fees shall be paid by the Agency.

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The attorney shall submit a verified statement of fees to the Agency -- not to the
Equal Employment Opportunity Commission, Office of Federal Sector -- within
thirty (30) calendar days of receipt of this decision. The Agency shall then process
the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s
corrective action is mandatory. Within seven (7) calendar days of the completion of
each ordered corrective action, the Agency shall submit via the Federal Sector EEO
Portal (FedSEP) supporting documents in the digital format required by the
Commission, referencing the compliance docket number under which compliance
was being monitored. Once all compliance is complete, the Agency shall submit via
FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). 	The Agency’s final report must contain supporting
documentation when previously not uploaded, and the Agency must send a copy of
all submissions to the Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders
set forth in this decision, without good cause shown, may result in the referral of this
matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for
enforcement by that agency.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1125)
The Commission may, in its discretion, reconsider this appellate decision if
Complainant or the Agency submits a written request that contains arguments or
evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Sector
(OFS) within thirty (30) calendar days of receipt of this decision. 	If the party
requesting reconsideration elects to file a statement or brief in support of the request,
that 	statement 	or 	brief 	must 	be 	filed 	together 	with 	the 	request 	for
reconsideration. 	A party shall have twenty (20) calendar days from receipt of
another party’s request for reconsideration within which to submit a brief or
statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit their request for reconsideration, and any statement or
brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx. 	Alternatively, Complainant can
submit their request and arguments to the Director, Office of Federal Sector, Equal
Employment Opportunity Commission, via regular mail addressed to P.O. Box
77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. 	In the absence of a legible postmark, a complainant’s
request to reconsider shall be deemed timely filed if OFS receives it by mail within
five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the
EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either
party’s request and/or statement or brief in opposition must also include proof of
service on the other party, unless Complainant files their request via the EEOC
Public Portal, in which case no proof of service is required.

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Failure to file within the 30-day time period will result in dismissal of the party’s
request for reconsideration as untimely, unless extenuating circumstances prevented
the timely filing of the request. 	Any supporting documentation must be
submitted together with the 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0124)
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 their 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so,
you may request permission from the court to proceed with the civil action without
paying these fees or costs. Similarly, if you cannot afford an attorney to represent
you in the civil action, you may request the court to appoint an attorney for you. You
must submit the requests for waiver of court costs or appointment of an
attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests.

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Such requests do not alter the time limits for filing a civil action (please read the
paragraph titled Complainant’s Right to File a Civil Action for the specific time
limits).
FOR THE COMMISSION:
T. Gimbrere 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 14, 2026
Date