Barbara R. Rosenthal, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionJul 14, 2000
05981166 (E.E.O.C. Jul. 14, 2000)

05981166

07-14-2000

Barbara R. Rosenthal, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Barbara R. Rosenthal v. Department of Justice

05981166

July 14, 2000

Barbara R. Rosenthal, )

Complainant, )

)

v. ) Request No. 05981166

) Appeal No. 01960791

Janet Reno, ) Agency No. I-93-6268

Attorney General, )

Department of Justice, )

Agency. )

______________________________________)

DECISION ON REQUEST FOR RECONSIDERATION

On September 9, 1998, Barbara R. Rosenthal (complainant) timely

initiated a request to the Equal Employment Opportunity Commission (EEOC

or Commission) to reconsider the decision in Barbara R. Rosenthal v.

Department of Justice, EEOC Appeal No. 01960791 (August 4, 1998).

EEOC regulations provide that the Commissioners may, in their discretion,

reconsider any previous decision where the party demonstrates that:

(1) the previous decision involved clearly erroneous interpretation

of material fact or law; or (2) the decision will have a substantial

impact on the policies, practices, or operation of the agency.

29 C.F.R. �1614.405(b).<1> For the reasons set forth below, complainant's

request is DENIED; the previous decision is MODIFIED as set forth below.

The record reflects that complainant was employed by the agency

as an Immigration Examiner, GS-7, for the agency's Immigration and

Naturalization Service (INS). She filed a formal EEO complaint alleging

that the agency discriminated against her on the basis of her multiple

physical disabilities (Temporomandibular Joint [TMJ] Dysfunction, chronic

metatarsalgia of the left foot, weakness in left thumb, allergic rhinitis)

when she was denied a waiver of the police training portion of the basic

training for her position, which was in the competitive service; and

when she was constructively discharged, in that she resigned rather than

convert to an excepted service �Schedule A� appointment as a condition to

being exempted from the police training. Complainant submitted evidence

to establish, inter alia, that on account of the weakness of her left

thumb she could not complete the police training, which included training

in use of firearms, defensive tactics, and arrest techniques.

The previous decision found that the agency had discriminated against

complainant on the basis of physical disability when she was denied

a waiver of the police training. The previous decision noted that

the agency incorrectly asserted that it would be obligated to provide

complainant reasonable accommodation only if she acceded to its demand

that she accept conversion to a Schedule A appointment. The previous

decision then found that the agency had made no showing that accommodating

complainant in her competitive service position would pose an undue

hardship.

The previous decision further found that complainant had not established

that her working conditions were such that a reasonable person in

complainant's position would have resigned. The previous decision found

that a reasonable person in complainant's position would have accepted

the conversion to a Schedule A appointment and thus remained employed

while continuing to protest the agency's actions.

Because of the finding that complainant's resignation had been voluntary,

the previous decision did not order the agency to reinstate complainant.

The previous decision also noted that complainant had sustained no

tangible loss of pay or benefits prior to her resignation, and so did not

order back pay or benefits. The previous decision found, however, that

the agency had failed to act in good faith with regard to its obligation

to accommodate complainant's disability, and therefore ordered the agency

to consider complainant's claim for compensatory damages.

In her request for reconsideration, complainant reiterates her argument,

raised below, that the prospect of converting to a Schedule A appointment,

a less secure position than her career appointment, rendered her working

conditions intolerable. The agency offered no reply to complainant's

request.

To establish that she is a �qualified individual with disability�

within the meaning of the Rehabilitation Act, and therefore entitled

to the Act's protection, complainant must show that she has a physical

or mental condition which substantially impairs one or more of her major

life activities, and that she nonetheless is able to perform the essential

functions of her position either with or without reasonable accommodation.

See 29 C.F.R. �1630.2.<2> During the pendency of these proceedings, the

Supreme Court issued several decisions in which it made clear that, in

order to claim qualified individual with disability status, an individual

would have to show that he or she has a condition which ��significantly

restrict[s] ... the condition, manner, or duration under which an

individual can perform a particular major life activity as compared to

the condition, manner, or duration under which the average person in the

general population can perform that same major life activity.'� Sutton v.

United Air Lines, Inc., 527 U.S. 471 (1999) (citing 29 C.F.R.�1630.2).

The Court in Sutton further held that such a determination is to be made

with regard to any mitigating measures used by the individual. Id.

As regards complainant's TMJ Dysfunction, metatarsalgia, and allergic

rhinitis, the evidence of record does not substantiate that any of

these conditions substantially impairs any of complainant's major

life activities. As regards the �weakness of left thumb,� however,

the evidence of record reveals that, secondary to a traumatic injury

some years past, complainant has little, if any, use of her left thumb.

During the pendency of the events at issue, complainant submitted a

letter to the agency explaining that she has no use of her left thumb

for gripping; any jarring or bumping of her left thumb causes her pain;

and she cannot hold anything heavy in her left hand without dropping it.

At the same time, the complainant also submitted to the agency a letter

from her attending physician, who stated that complainant has restricted

movement of the left thumb joint; noticeable weakness of the left thumb;

and an area of tenderness that prevents her from doing much physical

exertion using the left thumb and hand. In addition, a supervisor

described complainant's thumb as having �flopped around.�

Complainant uses no mitigating measures to compensate for this loss

of use, which leaves her substantially impaired in her ability to

perform manual tasks as compared to the average person in the general

population. Further, complainant nonetheless was able to perform the

essential functions of her position, as evidenced by an �Outstanding�

performance rating. Accordingly, the Commission finds that complainant

is a qualified individual with disability entitled to the protection of

the Rehabilitation Act.

Turning now to complainant's request for reconsideration, the gist of

complainant's request is an argument which was raised, and rejected,

below: that the prospect of converting to a Schedule A appointment,

a less secure position than her career appointment, rendered her working

conditions intolerable. The Commission finds this argument unpersuasive.

Complainant's request meets none of the criteria for reconsideration,

and therefore is DENIED. However, the Commission exercises its discretion

to reconsider the matter on its own motion.

This case presents an unusual set of facts leading up to complainant's

resignation. Complainant requested that the agency reasonably

accommodate her disability by waiving the police training portion of

the basic training for her position. Such training was not related

to the essential functions of complainant's position, which she had

been performing successfully for some time. Management officials

denied complainant's request, and informed her that the only way she

could obtain a waiver of the police training was by converting to a

Schedule A appointment, a position which was less secure and would

have afforded complainant fewer rights than the career appointment

she presently occupied. The record reflects that management officials

were unsure of their position, and sought the guidance of the agency's

Office of General Counsel. Rather than wait for such guidance, however,

management officials proceeded to deliver to complainant an ultimatum:

either accept conversion to a Schedule A appointment by a date certain,

or be terminated. Complainant, who maintained that she was legally

entitled to keep her career appointment and be accommodated, resigned

rather than face the stigma of termination. Shortly after complainant

resigned, management officials were informed by the Office of General

Counsel that the course of action they proposed was unlawful, and that

they were obliged to accommodate complainant in her career appointment.

Nonetheless, the agency made no attempt whatsoever to return complainant

to employment.

The previous decision correctly found that these facts do not constitute

the intolerable working conditions necessary for a finding of constructive

discharge. However, this set of facts, evidencing remarkable bad-faith

dealing on the part of the agency, establish that the direct cause of

complainant's loss of employment was the agency's discriminatory actions.

Had the agency not unlawfully demanded that complainant accept conversion

to a Schedule A appointment or be terminated, complainant would not

have resigned her career position. Under these circumstances, the

Commission finds that complainant should be made whole for this injury.

Accordingly, the Commission will order that complainant be reinstated

to her former position, with back pay and benefits.

The decision in Appeal No. 01960791 is MODIFIED as to the remedy afforded

complainant, and as modified, is AFFIRMED. There is no further right

of administrative appeal from the decision of the Commission on this

request for reconsideration.

ORDER (D1199)

The agency is ORDERED to take the following remedial action, if it has

not already done so:

(A) The agency shall reinstate complainant to her position of

Immigration Examiner, GS-7, together with back pay and benefits,

including any subsequent step and grade increases which complainant would

have received, retroactive to the date of complainant's resignation.

Should complainant decline the offer of reinstatement, her entitlement

to back pay and benefits shall cease as of the date of declination.

Complainant shall be afforded a minimum of ten (10) business days to

decide whether to accept the offer of reinstatement.

(B) The agency shall conduct a supplemental investigation pertaining

to complainant's entitlement to compensatory damages incurred as a

result of the agency's continuing failure to accommodate complainant's

disabilities prior to her resignation. The agency shall afford

complainant sixty (60) days to submit additional evidence in support

of her claim for compensatory damages. Within thirty (30) days of

its receipt of complainant's evidence, the agency shall issue a final

decision determining complainant's entitlement to compensatory damages,

together with appropriate appeal rights.

(C) The agency shall post at its Immigration and Naturalization Service,

Northern Service Center, 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 customarily are 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.

(D) The agency shall promptly insure that its policies concerning IOBTC

training for Immigration Examiners are in compliance with the requirements

of the Rehabilitation Act.

(E) The agency shall provide training in the obligations and duties

imposed by the Rehabilitation Act to all the managerial officials

responsible for agency actions in this case.

(F) 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 of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

The agency shall determine the appropriate amount of back pay (with

interest, if applicable) and other benefits due complainant, pursuant

to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after

the date this decision becomes final. The 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

benefits, the agency shall issue a check to the complainant for the

undisputed amount within sixty (60) calendar days of the date the

agency determines the amount it believes to be due. The 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, at the address referenced in the statement entitled

�Implementation of the Commission's Decision.�

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 of the

agency's calculation of backpay and other benefits due complainant,

including evidence that the corrective action has been implemented.

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).

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:

July 14, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

____________________________

Date Equal Opportunity Specialist

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated which found that a

violation of the Rehabilitation Act of 1973, as amended, 29 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 that 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 Justice, Immigration and Naturalization Service,

Northern Service Center supports and will comply with such Federal law

and will not take action against individuals because they have exercised

their rights under law.

The Department of Justice, Immigration and Naturalization Service,

Northern Service Center has been found to have discriminated against

the individual affected by the Commission's finding on the basis of

her physical disabilities by failing to provide her with appropriate

reasonable accommodation. The Commission has ordered that this

individual be reinstated with back pay and benefits and receive an

appropriate compensatory damages award, and attorney's fees and costs.

The Department of Justice, Immigration and Naturalization Service,

Northern Service Center 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

and will not retaliate against employees who file EEO complaints.

The Department of Justice, Immigration and Naturalization Service,

Northern Service Center 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.

2Pursuant to the Rehabilitation Act Amendments of 1992, the employment

standards of the Americans with Disabilities Act (ADA) also apply to

all non-affirmative action employment discrimination claims filed by

Federal applicants or employees with disabilities under section 501 of

the Rehabilitation Act. Pub. L. No. 102-569 �503(b), 106 Stat 4344 (1992)

(codified as amended at 29 U.S.C. �791(g) (1994)).