Requesting Reasonable Accommodation should be a simple request if its deserved. All that is required to accomplish this important request is to find someone above you in the chain of command (i.e. supervisor, manager), and make the request verbally or written.
When this request for reasonable accommodation is ignored, denied or used against you, and you can prove it, your eeoc discrimination claim is ore likely to be accepted.
Evelyn L. Orosz, )
Complainant, )
) Appeal No. 01970955
v. ) Agency Nos. 94-54-0260
) 94-54-0132
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely appealed the final agency decision (FAD) of the
Department of Commerce, (agency) concluding that it had not discriminated
against her in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. §791 et seq.<1> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. § 1614.405).
ISSUES PRESENTED
Complaint #1: Agency No. 94-54-0260
Whether the agency discriminated against complainant when on January 12,
1994, her supervisor failed to provide her a reasonable accommodation
for her physical disability (lower back and disc injury); and
Complaint #2: Agency No. 94-54-0132
Whether the agency discriminated against complainant on the bases of
her physical disability and in reprisal for her participation in prior
EEO activity when:
she was precluded from obtaining a career ladder promotion to GS-11
because she was unable to meet the rotational requirements of the
position;
she was unable to independently obtain a transfer to another work unit
because she was branded a “trouble maker” by agency officials; and
(3) she was subjected to a hostile work environment as follows:
a) on February 22, 1994, the Management Information Systems Chief,
issued her a memorandum entitled “Leave Counseling;”
b) on September 26, 1994, the Chief denied her request to perform computer
back-ups less frequently;
c) on September 28, 1994, her supervisors told her that, effective
October 17, 1994, she had to report to the agency’s facility in Riverdale,
Maryland for 60-days and threatened her with disciplinary action if she
did not report as directed;
d) her supervisors were unresponsive to her requests for guidance and
clarification of the issues and documentation issued by staff supervisory
personnel;
e) on November 17, 1994, her immediate supervisor denied her requests
for participation in the flexiplace program or transfer to another work
unit or waiver of the rotational requirement;
f) she received a Fiscal Year 1994, performance rating of “fully
successful;” and
g) her supervisors refused to acknowledge that she is disabled although
she provided them with copious medical documentation.
BACKGROUND
At the time this complaint arose, complainant was employed by the agency
as a Computer Specialist GS-9, at the Silver Spring, Maryland Facility.
She began working for the agency in 1988 as a GS-5 under a career ladder
to GS-11. Believing she was a victim of discrimination, complainant
filed two formal complaints alleging discrimination as stated above under
“Issues Presented.” The agency accepted complainant’s complaints and
conducted an investigation. Thereafter, complainant initially requested
a hearing with an EEOC administrative judge, however, she subsequently
withdrew her request, opting, instead, to have a final agency decision
(FAD) on the record. The agency issued its FAD on January 25, 1995,
finding no discrimination.
The record also contains copies of two prior Commission decisions in
appeals from final agency decisions concerning whether the agency’s
imposition of the rotational program was discriminatory and whether the
agency properly dismissed complainant’s complaint for untimeliness. See
Orosz v. Department of Commerce, EEOC Appeal No. 01940636 (August 10,
1994); and Orosz v. Department of Commerce, EEOC Appeal No. 01945621
(January 25, 1995). In Appeal No. 01940636 the Commission held that
although the record on appeal indicated that complainant was disabled,
she failed to demonstrate to the agency that she was disabled and should
be accommodated at the time she initially challenged the rotational
assignment. The decision noted that complainant did not present
medical evidence to the agency in support of her claim of disability.
The Commission further held that complainant did not establish
discrimination based on disparate treatment when the agency required
her to do a rotation as a condition of advancement to the GS-11 position.
In Appeal No. 01945621, the Commission held that the agency improperly
dismissed complainant’s complaint in Agency No. 94-54-0260 on the
grounds of untimely EEO Counselor contact. The Commission noted that
complainant’s complaint broadly alleged that the agency failed to provided
her with a reasonable accommodation for her disability. However, the
Commission further found that as to certain requested accommodations that
the agency denied, complainant’s EEO Counselor contact was untimely. More
specifically, the Commission found that the agency advised complainant
on January 12, 1994, that it could not exempt her from the rotational
requirement and declined to restructure her present position. Complainant
should have initiated EEO Counselor contact as to this decision within
forty-five days of her receipt of the agency’s letter. Therefore,
complainant’s failure to do so precluded her from asserting that the
agency’s decision as to this suggestion for accommodation violated the
Rehabilitation Act. As a final note, the Commission concluded that
whether the agency’s failure to provide other accommodations, such as
placement in the Alternative Workplace (Flexiplace) Program or other
similar programs, violated the Rehabilitation Act is an issue for further
consideration and processing. Thus, the Commission remanded complainant’s
timely reasonable accommodation claims for further processing.
On approximately August 8, 1989, complainant injured her back and was
out on full compensation for six months. In 1991, complainant was
promoted to GS-9. In August 1992, complainant became eligible and
was recommended for a career ladder promotion to GS-11. Subsequently,
complainant’s third line supervisor (Responsible Official, RO) informed
her that rotating assignments at the agency’s three job sites located
in Rockville, Maryland; Riverdale, Maryland; and Washington, D.C. was a
requirement for the promotion. Thereafter, as a reasonable accommodation
for her disability, complainant requested a promotion to the GS-11
position without performing the rotating assignments. In response to
her accommodation request, in a January 12, 1994, memorandum, the RO
explained there was a very small staff working the System Development
Group, and that this left little or no room for operational recovery
in terms of emergencies or extenuating circumstances. Therefore,
it was essential for all staff to be adequately trained so that they
could be used at any of the three locations within a moment’s notice.
He further noted that this capability helped to offset and compensate
for some of the deficiencies of not having a larger staff. According to
the agency’s FAD, rotation also became a requirement for complainant’s
GS-9 position on December 10, 1993, but the RO waived the rotational
assignments in order to accommodate complainant’s disability. However,
complainant was later requested to report to the Riverdale site for a
period of 60-days. The RO noted that it was necessary for complainant
to be at the Riverdale facility in order to perform the job functions
because the equipment she needed to work on was located there as were
staff who could train her in the use of the equipment. The requirement
of a rotation to the Washington, D.C. location was eliminated.
Complainant contends that she proposed four reasonable accommodations
for the agency’s consideration:
Waiver of the rotation requirement and expanding responsibilities at
her present work site.
Restructuring the existing position.
Reassignment to a similar position that does not require rotation.
Consideration for placement in the Alternative Workplace Program.
In its FAD, regarding complainant’s accommodation claims (Complaint
#1 and Complaint #2, claim #1) , the agency found that complainant was
a qualified person with a disability as defined by the Rehabilitation
Act with regard to her present GS-9 position, however, it concluded that
complainant could not perform the essential functions (rotation to three
different sites) of the GS-11 position. Therefore the agency found that
complainant was not a qualified person with a disability with regard to
the GS-11 promotion position, and, thus, not entitled to the protections
of the Rehabilitation Act.
The agency analyzed complainant’s second complaint (excluding claim
#1) as a disparate treatment claim. With regard to complainant’s
claim that she was unable to transfer to another unit because she was
branded a “trouble maker,” the agency found that complainant failed to
establish a prima facie case on any bases because she failed to show
that agency officials had indicated to potential employers that she was
a “troublemaker.” The agency further found with regard to complainant’s
hostile environment claims that she failed to prove that the personnel
actions cited were taken because of unlawful bias or retaliation.
ANALYSIS AND FINDINGS
Reasonable Accommodation
An agency is required to make reasonable accommodations for 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. 29 C.F.R. § 1630.2(o); 29 C.F.R. § 1630.2(p).<2>
In order to assert a claim of disability discrimination, complainant
must satisfy the threshold requirement that she is a disabled person
as defined by the Rehabilitation Act of 1973. EEOC Regulation 29
C.F.R. § 1630.2(g) defines a person with a disability as one who: (i)
has a physical or mental impairment which substantially limits one or
more of such person’s major life activities; (ii) has a record of having
such an impairment; or (iii) is regarded as having such an impairment.
Major life activities include, but are not limited to, caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. § 1630.2(i).
The Supreme Court has held that the determination of whether a person is
an “individual with a disability” must be based on his or her condition
at the time of the alleged discrimination. The positive and negative
effects of mitigating measures used by the individual, such as medication
or an assistive device, must be considered when deciding if he or she
has an impairment that substantially limits a major life activity.
Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United
Parcel Service, Inc., 527 U.S. 516 (1999).
There is no dispute between the parties that complainant is disabled,
i.e., has an impairment that substantially limits a major life
activity. After a thorough review of the record, the Commission agrees
that complainant’s impairment rises to the level of a disability
as defined by the Rehabilitation Act. The record establishes that
complainant has a chronic lower back and disc condition that substantially
limits her ability to sit and lift. She is restricted from sitting
for more than 15 minutes at a time and from lifting over 10 pounds.
The record indicates that this condition is permanent and that no medical
treatment, such as surgery, could improve this condition.
The interpretive appendix to the Americans with Disabilities Act notes
that “other major life activities include, but are not limited to,
sitting, standing, lifting, reaching.” See Interpretive Guidance,
29 C.F.R. § 1630.2(i). The Commission has found in the past that an
individual with a lifting limitation of 10 pounds is substantially
limited in the major life activity of lifting. See Breen v. Department
of Transportation, EEOC Petition No. 03970016 (March 20, 1997); Selix
v. United States Postal Service, EEOC Appeal No. 01970153 (March
16, 2000). Moreover, an individual who is limited to sitting for
intervals of 15 minutes at a time, is clearly significantly restricted
as to the duration under which she can sit as compared to the duration
under which the average person in the general population can sit.
See Interpretive Guidance, 29 C.F.R. § 1630.2(j)(ii). Accordingly,
the Commission agrees with the agency’s finding that complainant is an
individual with a disability.
The only issues that remain are whether complainant is a qualified
individual with a disability, and, if so, whether the agency provided
complainant with a reasonable accommodation. 29 C.F.R. § 1630.2(m)
defines a qualified individual as an individual with a disability who
satisfies the requirements for the employment position she holds or
desires and can perform the essential functions of that position with
or without reasonable accommodation.
Complainant essentially argues that she is a “qualified” individual
for the GS-11 promotion position because her supervisors recommended
her for the position without any reservations. She further argues that
the agency in prior FADs (noted above) on this matter acknowledged that
she is qualified for the GS-11 position. The agency on the other
hand argues that the record shows that complainant was qualified for
promotion to GS-11, except for her inability to satisfy the requirement
to rotate to different work sites. The agency maintains that the
rotational requirement is an essential function of the GS-11 position.
The agency further contends that the rotation requirement was added to
the Position Description of the Computer Programmer Analyst’s position,
GS-11, in order to provide training and experience to develop various
proficiencies required at each work site.
We are not convinced by the agency’s argument that rotating between
three work sites is an essential function of the GS-11 position. We note
that the agency states in its FAD that the rotation to the Washington,
D.C. location was eliminated. Therefore, complainant need only receive
training on the equipment located at the Rockville and Riverdale,
Maryland sites. In support of our finding on the essential functions,
we note that the amendment to the Position Description for the GS-1l
position adding the rotational requirement was made subsequent to
complainant’s recommendation for promotion to the position. Furthermore,
the amendment only added the rotational requirement while the remaining
essential functions for the position remained the same. There appears
to be no dispute that complainant is qualified for the position.
We note that the rotational assignment was added in order to provide
incumbents training and experience on various equipment and networks
located at each site. We find that the agency has failed to show that
complainant could not receive the essential training and experience
by some other means while remaining at the Silver Spring location.
We note that complainant asserts that the Silver Spring site as well
as the Riverdale site is equipped for networking. Therefore, after
examining the duties involved and the training provided at each site,
we find that the rotational training and experience are not essential
duties or functions of the position. Thus, the Commission finds that
complainant is fully capable of performing the essential functions of
the GS-11 position without accommodation and is a qualified individual
with a disability.
In light of the above finding, the burden now shifts to the agency to
show that no reasonable accommodation of complainant’s disability is
possible, or that the suggested accommodations would impose an undue
hardship on the agency. Prewitt v. United States Postal Service, 662,
F.2d 292 (5th Cir. 1980). The Commission finds that the agency has not
met this burden. When provided with complainant’s suggestions for a
reasonable accommodation, the RO refused to consider such in light of
his assessment that complainant could not perform an essential function
(rotation to other sites) of the GS-11 position. We note that the only
explanation the RO offered as to why he could not provide a reasonable
accommodation by waiving the rotational requirement for complainant was
that the small staff working for the System Development Group was already
overtaxed. We find that this explanation is not adequate in order to
satisfy the agency’s obligation for providing a reasonable accommodation.
The agency’s conclusory statement regarding the “overtaxed staff”
does not establish an undue hardship. For instance, the agency has
not explained how often emergencies or extenuating circumstances have
occurred in the past in support of its cause to amend the position.
Furthermore, other than explaining why complainant’s accommodation
suggestions are not possible, the agency does not offer any of its own
reasonable accommodations. Under 29 C.F.R. § 1630.2(p), in determining
whether accommodation is reasonable, the agency should consider a
number of factors, including, for example, the nature and net cost of
the accommodation needed; the overall financial resources of the facility
involved, the number of persons employed at such facility, and the effect
on expenses and resources; and the impact of the accommodation upon
the operation of the facility. We further note that the agency is not
limited to considering only those accommodations specifically requested
by the employee. See Walsh v. United States Postal Service, EEOC Appeal
No. 01853056. Since we find that the agency made no attempt to show
that an accommodation could not be provided for the GS-11 position, the
agency failed to meet its burden to show an undue hardship. Accordingly,
we find that complainant has met her burden of establishing that she was
subjected to disability discrimination when she was denied a reasonable
accommodation in order to perform the duties of the GS-11 promotion
position.
Disparate Treatment
Once a complainant has established that he or she is a qualified person
with a disability as defined by our regulations, the Commission follows
the guidance of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
in assessing whether a complainant has established a prima facie case of
disability discrimination based on disparate treatment. See also Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981);
Oberg v. Secretary of the Navy, EEOC Request No. 05890451 (July 20, 1989)
(applying the McDonnell Douglas standard to disability discrimination
based on disparate treatment); and Dickerson v. United States Postal
Service, 01822242, (1983) (applying the McDonnell Douglas formula to
reprisal cases). Applying the applicable law, we find that complainant
has not successfully rebutted the agency’s explanations for the actions
at issue in complainant’s complaint #2. For instance, notwithstanding
our finding that the agency did not satisfy its burden to show how
providing complainant an accommodation would be an undue hardship, the
agency provided a legitimate nondiscriminatory explanation regarding why
complainant was not promoted to the GS-11 position. We further note
that during the time complainant was recommended for promotion to the
GS-11 position four other employees were selected and all performed
the rotational requirements of the position, the same requirements
that complainant was expected to meet if she wanted to be promoted to
the GS-11 position. Thus, the record shows that the agency treated all
GS-11 Computer Specialists the same. Based on a preponderance of the
evidence, we find that complainant did not adequately rebut the agency’s
explanations as to show that the agency acted with a discriminatory
animus. Furthermore, we find that complainant’s claim that she was
branded a “troublemaker” by agency officials is uncorroborated and
appears to be nothing more than speculation.
Regarding complainant’s hostile work environment claim, we note that the
seven personnel actions cited by complainant were more than adequately
addressed by the agency in its FAD. In order to prevail on a claim
of hostile environment harassment, a complainant must show that: (1)
she belongs to a protected group; (2) she was subjected to harassment
that was sufficiently severe or pervasive to alter the conditions
of employment and create an abusive or hostile environments; and (3)
the harassment was based on an impermissible factor such as a physical
disability or reprisal. See generally, Taylor v. Department of the
Air Force, EEOC Request No. 05920194 (July 8, 1992). Complainant has
failed to meet this burden. First, we find, based on a totality of the
circumstances, the actions were not sufficiently severe and pervasive
as to create a hostile environment. Second, the agency has offered
legitimate, business-related explanations for each of the actions
at issue. Further, complainant has not established that these actions
were based on her physical disability or reprisal.
In light of our finding that the agency failed to provide complainant a
reasonable accommodation, we now turn to the relief to which complainant
is entitled. Where discrimination is found, the injured party is to
be placed, as near as may be, in the situation she would have occupied
if the wrong had not been committed. Albemarle Paper Company v. Moody,
422 U.S. 405, 418-19 (1975). Complainant contends that she is entitled
to compensatory damages in the amount of $50,000.00 for mental and
physical pain and suffering inflicted as a result of the agency’s
discriminatory actions. Under Section 102 of the Civil Rights Act of
1991 (CRA), compensatory damages may be awarded for pecuniary losses,
emotional pain, suffering, inconvenience, mental anguish, and loss of
enjoyment of life. We find that based on the record before us, we have
insufficient information to determine the amount of compensatory damages
complainant is entitled to as a result of the agency’s failure to provide
a reasonable accommodation. Since this is the only action we have found
to be discriminatory, complainant is only entitled to those damages which
are shown to be directly related to the agency’s failure to accommodate.
CONCLUSION
Based upon a review of the record, and the foregoing reasons, it is the
decision of the EEOC that the agency discriminated against complainant
on the basis of her disability when it failed to provide her a reasonable
accommodation on January 12, 1994. In accordance with this decision, the
Commission affirms the final agency decision with regard to complainant’s
other issues. On remand, the agency shall comply with the order below.
ORDER
The agency is ORDERED to take the following remedial actions:
1. Within sixty (60) days of receipt of this decision, the agency shall
offer complainant a retroactive promotion to the GS-11 Computer Specialist
position or substantially similar position with an accommodation
which would allow complainant to perform the essential functions
of the position successfully. The offer shall be made in writing.
Complainant shall have 15 days from receipt of the offer to accept or
decline the offer. Failure to accept the offer within 15 days will be
considered a declination of the offer, unless the individual can show
that circumstances beyond her control prevented a response within the
time limit.
2. The agency shall award complainant back pay, interest, and all other
benefits she would have received absent discrimination. The agency
shall provide back pay to complainant from January 12, 1994, until date
complainant accepts or rejects the promotion. Complainant shall cooperate
in the agency’s efforts to compute the amount of back pay and benefits
due, and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or other
benefits, the agency shall issue a check to complainant for the undisputed
amount it believes to be due. Complainant may petition for enforcement or
clarification of the amount in dispute. The petition for clarification
or enforcement must be filed with the Compliance Officer, as referenced
in the statement entitled, Implementation of the Commission’s decision.
3. If the offer of reinstatement is declined, the agency shall award
complainant a sum equal to the back pay she would have received computed
in the manner prescribed by 5 C.F.R. §550.805, from July 5, 1995 until
the date the offer of promotion was declined. Interest on back pay
shall be included in the back pay computation. The agency shall inform
complainant, in its offer of promotion, of the right to this award in
the event the offer is declined.
4. Within sixty (60) days of the date of receipt of this decision
the agency shall conduct a supplemental investigation pertaining to
complainant’s entitlement to compensatory damages incurred as a result of
the agency’s failure to provide a reasonable accommodation from the date
complainant’s accommodation request was initially rejected (January 12,
1994) until the date complainant accepts or rejects the agency’s offer for
a retroactive promotion as ordered above in provision one of this order.
The agency shall afford complainant sixty (60) days to submit objective
evidence showing that she incurred compensatory damages and that the
damages were related to the unlawful discrimination found in this case.
Failure to submit the evidence within sixty (60) days will be considered
a waiver of such an award unless complainant can show that circumstances
beyond her control prevented a response within the time limit.
5. The agency shall pay complainant an award of reasonable attorney’s
fees in accordance with the 29 C.F.R. §1614.501.
6. The agency shall post the attached notice at the agency’s Silver
Spring, Maryland Facility. 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.
7. The agency shall provide training in the obligations and duties
imposed by the Rehabilitation Act to the agency officials responsible
for the instant action.
8. 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 actions have been implemented.
INTERIM RELIEF (F1199)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. § 1614.502(b)).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency’s request. See 29 C.F.R. § 1614.502(b)(3).
POSTING ORDER (G1092)
The agency is ORDERED to post at its Silver Spring, Maryland facility
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.
ATTORNEY’S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is 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. The attorney shall submit a verified statement of
fees to the agency — not to the Equal Employment Opportunity Commission,
Office of Federal Operations — within thirty (30) calendar days of this
decision becoming final. 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 (K1199)
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 19848,
Washington, D.C. 20036. 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. § 1614.409).
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. § 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS’ RIGHT TO FILE A CIVIL ACTION (R0400)
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 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
October 20, 2000
_______________ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Opportunity Assistant
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which found
that a violation of Section 501 of the Rehabilitation Act of 1973,
as amended, U.S.C. § 791 et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person’s RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Department of Commerce, Silver Spring, Maryland facility
(facility) supports and will comply with such federal law and will
not take action against individuals because they have exercised
their rights under law.
The facility has been found to have discriminated against an
employee on the basis of her disability when it failed to provide
her with a reasonable accommodation. The facility has remedied
this employee by awarding her a retroactive promotion to a GS-11
Computer Specialist position or a substantially similar position with
adequate accommodations for her physical disability, and appropriate
back pay. The agency was also ordered to pay the employee’s
reasonable attorney’s fees, if applicable, and conduct a supplemental
investigation into the employee’s entitlement to compensatory damages.
The facility will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all federal equal employment opportunity laws.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1On November 9, 1999, revised regulations governing the EEOC’s federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission’s website at www.eeoc.gov.
2The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. The ADA regulations
set out at 29 C.F.R. Part 1630 apply to complaints of disability
discrimination. These regulations can be found on EEOC’s website at
www.eeoc.gov.
