Award Increased in Discrimination Finding

Wednesday, March 13, 2013

The EEOC's Office of Federal Operations (OFO) in the case Underwood v. Social Security Administration, EEOC Appeal No. 0720120001 (October 10, 2012), upheld an administrative judge's (AJ's) finding that the Social Security Administration discriminated against Underwood, an SSA contact representative, when SSA failed to reasonably accommodate her disability. The OFO also quadrupled the compensatory damages award from $2,500 to $10,000.

Underwood's supervisor had placed her on a leave restriction in July 2007, and the agency ultimately sought to remove Underwood based on the hundreds of hours of absence without leave she accumulated while incapacitated from her then-undiagnosed disorder. The parties then entered into "abeyance agreement" by which the agency held in abeyance Underwood's proposed removal as long as she provided a medical note each time she took unscheduled leave.

In May 2008, Underwood was diagnosed with bipolar disorder and post traumatic stress disorder, and her psychiatrist supplied a report including Underwood's prognosis, the medication she was prescribed, and her limitations. In October 2008, Underwood requested an accommodation that would allow her to take unscheduled leave from time to time when she suffered debilitating flare ups. She supported her request with the doctor's report.The agency ignored the request and instead requested additional, detailed information from the doctor. Underwood could not immediately obtain the additional information sought by the agency. Underwood's doctor characterized the requested level of detail as "absurd;" Underwood could also not afford the cost of the additional report.

The agency denied her accommodation request and said it would only "reassess" the request if she complied with its demand for the additional detailed report. Underwood finally was able to provide a medical report in January of 2009, but the agency processed it only as a request for a hardship transfer and failed to process the request for flexible leave as an accommodation. Underwood then filed her EEO complaint.

The AJ ruled after hearing that the agency should have engaged in the interactive process with Underwood, holding that the agency bore the burden "to engage in the interactive process to determine whether flexible leave would have allowed Complainant to perform the essential functions of the position." The AJ also agreed that the request for additional medical details was not in good faith, observing that the agency was "elevating form over substance." The AJ rejected the agency's argument that the "abeyance agreement" was an accommodation. The AJ noted in particular that an agency is obliged to provide an "effective" accommodation, and that the requirements of the abeyance agreement were not at all "effective," especially as the requirement to obtain medical certification for each absence caused Underwood additional stress, made it more difficult for her to perform her essential work functions, and compounded her suffering.

Underwood ultimately resigned her position about a year after she filed her EEO complaint, but did not pursue a constructive discharge claim. However, based on testimony from Underwood and three co-workers, the OFO increased the AJ's award of $2,500 in compensatory damages to $10,000, finding that this amount took into consideration the severity of the harm she suffered, the length of time she suffered the harm (15 months), and that it was consistent with prior Commission precedent.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.