01971002
07-14-2000
Daisy L. Justice, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Daisy L. Justice v. Department of Veterans Affairs
01971002
July 14, 2000
Daisy L. Justice, )
Complainant, )
) Appeal No. 01971002
v. ) Agency No. 96-0158
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely appealed the agency's final action concerning her
complaint of unlawful employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791.<1>
The appeal is accepted. See 64 Fed. Reg. 37,644, 37,659 (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.402(a)).
BACKGROUND
Complainant filed a complaint in which she claimed that the agency
discriminated against her on the bases of physical disability (severe
bronchial asthma and allergies) and reprisal in connection with the
terms and conditions of her employment. She characterized as incidents
of discrimination the following matters:
On October 6, 1991, the agency reassigned complainant from her position
as a dispatcher in its law enforcement division to a position in its
library services division;
On an unspecified date an agency physician allegedly refused to
appear before the Office of Workers Compensation (OWCP) to explain why
complainant was returned to duty despite the instructions of her personal
physician to the contrary;
On an unspecified date, two individuals, who complainant did not identify,
allegedly refused to release certain information pertaining to the
accommodation of her disability;
On unspecified dates, complainant's immediate and higher-level supervisors
required her to perform more tasks than her co-workers;
On unspecified dates, the library services chief used complainant's
performance appraisals to badger her;
On June 28, 1993, the library services chief asked complainant to obtain a
clarification of a medical statement prepared by her physician in April
1993; and
On unspecified dates, complainant's supervisor required her to work in
areas sprayed with pesticides, which aggravated her asthma and allergies
and caused her to suffer anxiety, depression, and emotional distress.
The agency initially dismissed the first four matters and accepted the
last three. In Justice v. Department of Veterans Affairs, EEOC Appeal
No. 01940392 (July 11, 1994), request for reconsideration denied EEOC
Request No. 05940868 (March 14, 1996), the Commission ordered the agency
to investigate all seven matters. Pursuant to the Commission's order,
the agency carried out its investigation and issued a final decision of
no discrimination with respect to the entire claim, from which complainant
now appeals.
Complainant began working as a telephone operator in the agency's law
enforcement division in November 1988. Shortly after she began working,
she began to experience allergic reactions to various substances in
the air within her work area. By January 1990, she was having asthma
attacks as well. In a letter to the agency dated January 9, 1990, her
physician stated that she was experiencing reactions to dust, pollens,
molds, chocolate, milk, and tobacco smoke. Consequently, she needed to
work in an environmentally controlled area for thirty days. Supplemental
Investigative Report (SIR), Exhibit (Ex.) C12. When complainant brought
the matter to the security chief's attention on January 16, 1990,
the chief asked the engineering department to evaluate the ventilation
system and gave orders to keep the fan on and refrain from smoking in
the operations center. SIR, Aff. B1b, p. 11. In a memorandum dated
January 18, 1990, and addressed to complainant's union representative,
the security chief confirmed that he had requested the engineering
department to take several steps to alleviate complainant's problem.
Those steps included: installing an air return to draw smoke away from
the area; keeping the fan on at all times; designating the operations
center, including complainant's work area, as a non-smoking area; and
having an industrial hygienist monitor the area for thirty days. SIR,
Aff. B1b, attachment 4. In response to additional concerns raised by
the representative, the security chief asked the engineering department
to add a charcoal filtering system and a steam coil. SIR, Aff, B1b,
attachment 5. The security chief stated that the facility spent about
$38,000 to change the air conditioning, heating and filtering systems,
in response to concerns raised by complainant and others, SIR, Aff. B11,
pp. 3-4.
On February 20, 1990, complainant's physician stated that complainant's
condition improved under the environmentally controlled conditions that
had been in place for the previous 43 days. He stated that complainant's
condition should continue to improve if complainant was not exposed to
tobacco smoke, dust, pollens, molds, chocolate, or milk. SIR, Aff. B1b.
Complainant had been on extended leave and had returned to work on
February 26, 1990. Shortly after her return to work, she experienced
a severe flair-up of symptoms after the environment had been modified
to alleviate her problem. Her physician referred her to a pulmonary
specialist for consultation. The specialist notified the physician by
letter dated March 29, 1990, that complainant exhibited allergic reactions
to additional substances, including aerosols, perfumes, animal dander,
and grass. At this time, there had not been any mention of pesticides in
any of complainant's medical documentation. It was not until August 1990,
that complainant's allergic reaction to pesticides was discovered.
The agency sprayed pesticide in complainant's work area on August 15,
1990. The heavy concentration of pesticides in the spray apparently
triggered an asthma attack. Complainant's physician reported that
complainant had an episode of wheezing after exposure to pyrethrin and
other irritants that comprised the pesticide compound. In a letter
addressed to the security chief dated August 16, 1990, complainant
requested that management take steps to ensure that residues of
chemical pesticides had been removed from the work area, and that no
further spraying take place in that area. SIR, Aff. B1b, attachment 7.
The environmental services chief, the individual who did the spraying,
stated that there was no problem in honoring complainant's request not
to do any more spraying. SIR, Aff. B13, p. 2.
The employee assistance program coordinator indicated in a letter dated
August 6, 1991, that complainant's health conditions had worsened
throughout 1991, and were exacerbated by ongoing conflicts between
herself, her supervisors, and her co-workers. Investigative Report
(IR), Exhibits (Exs.) C11, C14. By memorandum dated August 23, 1991,
the personnel chief notified complainant that she was required to submit
to a medical examination. The personnel chief stated that in January
and June 1991, complainant became incapacitated as the result of asthma
attacks and had to leave her work station. IR, Ex. C14. In addition,
complainant's physician indicated that he saw her on February 18, 1991,
and was continuing to treat her conditions. A medical note from a doctor
at the Scioto Paint Valley Mental Health Center, dated February 20,
1991, indicated that complainant was under treatment for a stress-induced
disorder, and that any change in her routine would be detrimental to her.
A letter from complainant to various agency personnel dated February 21,
1991, indicates that she was undergoing psychotherapy in addition to
being treated for her allergies and asthma. A note from complainant's
physician and an emergency treatment report indicate that complainant
had been exposed to pyrethrin between July 25 and July 28, 1991. IR,
Exs. C10, C11, C14; SIR, attachments to Aff. B1c, Exs. C12, C13.
At this time, complainant was still in her dispatcher position within
the law enforcement division.
On July 29, 1991, complainant , the facility director, and the EEO
manager signed a document in which complainant stated that she would
unconditionally withdraw five EEO complaints. Paragraph (2) of the
agreement indicates that complainant would utilize the agency's employee
assistance program (EAP), and that management would provide appropriate
assistance. IR, Ex. C12. Complainant shortly thereafter scheduled an
appointment with the EAP coordinator, a licensed clinical psychologist.
In a memorandum to the facility director dated August 6, 1991, the EAP
coordinator reported that, based on the medical evaluations that he
received from complainant's physician, complainant had a history of
allergies and bronchial asthma that had been aggravated by passive
smoke in her workplace. He stated that complainant's physician
recommended a transfer to a different department. He noted that,
although efforts had been made to accommodate her in the dispatcher
position, the confrontations between complainant, her supervisors, and her
co-workers that resulted from her remaining in the dispatcher position
were so intense that her emotional distress would likely continue if
she stayed where she was. He also noted that complainant had not had
previous conflicts over working conditions in other positions. In his
concluding paragraph, he recommended that the agency relocate her to
another position. IR, Ex. C11.
By letter dated August 14, 1991, the facility director notified
Complainant that she would be given a 90-day detail to a typing technician
position in the library services branch, pending the evaluation of her
ability to perform the duties of her dispatcher position. By memorandum
dated August 23, 1991, the personnel chief directed complainant to report
for a medical examination that had been scheduled on August 29th. IR,
Ex. C14. In a letter to the building management services chief dated
August 27, 1991, complainant requested that she be notified of any
intent to use insecticides in the general area of the library services
building, in order to prevent medical emergencies from arising as a
result of exposure to pesticides. IR, Ex. C13. By memorandum dated
September 27, 1991, the personnel chief indicated that he concurred
with the findings of the examining physician that complainant needed a
reasonable accommodation. On the basis of those findings, the personnel
chief recommended that complainant be permanently reassigned to the
position of library technician within the library services branch.
The facility director indicated his approval on that same document.
By memorandum dated October 21, 1991, the personnel chief notified the
library services chief that complainant would be permanently reassigned
to the library services branch, effective October 6, 1991. IR, Ex. C14.
In a notice dated October 24, 1991, the personnel services chief, acting
on behalf of the agency, formally offered complainant the reassignment.
The notice stated that complainant's certification of the reassignment
would be an acknowledgment by her that management had made every effort
to reasonably accommodate her disability, that the reassignment was
a viable solution to her difficulties, and that continued assistance
would be available to her through the EAP. Complainant indicated on
the certification that she accepted the reassignment offer. She signed
the notice and dated it October 25, 1991. The SF-50 documenting the
reassignment indicated that its effective date was October 7, 1991,
and that it was based on the results of the medical examination. IR,
Ex. C14.
ANALYSIS AND FINDINGS
To bring a claim of disability discrimination, appellant must
first establish that she has a disability within the meaning of
the Rehabilitation Act. Murphy v. United Parcel Service, Inc., 527
U.S. 516 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999);
Albertsons, Inc., v. Kirkingburg, 527 U.S. 555 (1999). An individual with
a disability is one who has, has a record of, or is regarded as having
a physical impairment that substantially limits one or more of her major
life activities. 29 C.F.R. � 1630.2(g).<2> Complainant presented medical
documentation showing that she has been diagnosed with severe bronchial
asthma, and that she exhibited allergic reactions to a variety of common
substances, including cleaners, pesticides, tobacco smoke, dust, pollen,
milk, and chocolate. IR, Exs. B1b, C9, C10. We find that complainant's
condition constitutes a disability because it substantially impairs her
ability to breathe. See Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995); Davidson v. Department of Defense -
Office of Dependents Education, EEOC Petition No. 03950135 (October 20,
1995).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Although the
courts developed this test in the context of Title VII, the analysis also
applies to disparate treatment claims brought under the Rehabilitation
Act. Hansen v. Department of the Air Force, EEOC Appeal No. 01920621
(September 10, 1992); Prewitt v. United States Postal Service, 662 F.2d
292, 305 n.19 (5th Cir. 1981).
In general, complainant must initially establish a prima facie case by
demonstrating that she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). She may
do so under the Rehabilitation Act with a showing that she was treated
differently than a similarly situated individual outside of her group. See
Ward v. United States Postal Service, EEOC Appeal No. 01985961 (March
6, 2000); Potter v. Goodwill Industries of Cleveland, 518 F.2d 864, 865
(6th Cir. 1975). Where reprisal is at issue, complainant may establish a
prima facie case by showing that she engaged in protected EEO activity,
that individuals named in the complaint knew of that activity, and
that she was subjected to an adverse action at such a time or in such
a manner as to support a causal connection between the two events.
Frye v. Department of Labor, EEOC Request No. 05940764 (December 15,
1994); Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318 (D. Mass), aff'd, 545 F.2d 222 (1st Cir. 1976).<3>
The prima facie inquiry on the bases of disability and reprisal may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct with respect
to all seven matters comprising complainant's claim of disability
discrimination and reprisal. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanations are pretextual. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the Navy,
EEOC Request No. 05950351 (December 14, 1995). With these principles
in mind, we now turn to the incidents raised in complainant's appeal.
Reassignment to Library Services
In her affidavit, complainant claims that her reassignment to the library
services was �faulty,� and resulted from collusion between the security
chief and the library services chief. Supplemental Investigative
Report (SIR), Affidavit (Aff.) B1b, pp. 2, 25. The agency stated
that it reassigned complainant to the library services branch in
order to accommodate her disability. To be eligible for reasonable
accommodation of any kind, including reassignment, complainant must show
that she is a qualified individual with a disability. See Cleveland
v. Policy Management Systems Corp., 526 U.S. 795, (1999). A qualified
individual with a disability is one who can, with or without reasonable
accommodation, perform the essential functions of the position in
question. 29 C.F.R. � 1630.2(m). Here, the record establishes that she
was able to perform the essential functions of the dispatcher position,
except when she was experiencing allergic reactions or asthma attacks,
as demonstrated by the fact that she was rated fully successful in her
job performance as a dispatcher. SIR, Ex. C8. The agency was therefore
required to reasonably accommodate complainant unless it could show that
doing so would impose an undue hardship upon its operations. 29 C.F.R. �
1630.9(a). Reasonable accommodation may include job restructuring,
modified work schedules, or reassignment to a vacant position. 29 C.F.R. �
1630.2(o)(2)(ii).
Although complainant appears to be arguing that she was reassigned
under duress, she has not presented any evidence which supports her
assertion that the agency officials who made the decision to reassign
her were motivated by considerations of her previous EEO activity or
her disability, other than the desire to provide her with a reasonable
accommodation. The agency made extensive efforts to accommodate
complainant in the dispatcher position for over eighteen months
before reassigning her. The agency spent nearly $40,000 to have the
air circulation system in her work area completely renovated so that
hazardous substances could be filtered out. When it became apparent
that complainant was allergic to smoke, the agency designated her work
station a non-smoking area. When complainant requested that the agency
not spray pesticides in her work station, the agency honored her request.
The agency acted promptly upon the EAP coordinator's recommendation
that she be transferred to a different area. In addition to the EAP
coordinator, complainant's own physician also recommended that she
be reassigned to another position outside the law enforcement branch.
Thus, the decision to reassign complainant was made on the basis of her
own doctor's recommendation, the recommendation of the EAP coordinator,
and the results of the medical examination. After reviewing the record,
we find that the agency's decision to reassign complainant from her
dispatcher position to a position in the library services branch was
consistent with the Rehabilitation Act and its interpretive regulations.
Agency Physician's Alleged Refusal to Appear Before OWCP Regarding
Complainant
On May 8, 1993, complainant filed a Freedom-of-Information-Act (FOIA)
request with the agency regarding four claims that she had pending
before the OWCP. Among the documents that complainant included in her
request were records from a medical examination that she had undergone
on February 26, 1990. Letters from complainant's personal physician
to the agency, dated prior to the February 1990 examination, indicated
that complainant was experiencing an acute episode of either asthmatic
or allergic reactions to certain substances in her work environment, and
that she needed to work in an area that was free of dust, tobacco smoke,
pollens, and molds. The agency physician who conducted the February 1990
examination indicated that she could return to normal duty. Complainant
sought to have the agency physician who conducted the February 1990
examination appear before the OWCP and explain the discrepancy between his
assessment of complainant's condition and that of her personal physician.
She contends that the physician refused to appear before the OWCP when
asked to do so. The record does not support this contention, however.
There is no documentation of complainant ever having asked the physician
to provide the requested information. Indeed, complainant never specified
the date on which the agency physician purportedly refused to appear
before the OWCP. This is significant because the agency physician
retired in October of 1990, and therefore would not have been under any
obligation to provide information to the OWCP when complainant submitted
her FOIA request in 1993. SIR, Exs. B9b at 9-11, C3, C12, C13, C14, C21.
We find that complainant did not establish, as a factual matter, that
the agency physician was even asked to appear before OWCP.
Alleged Refusal of Two Individuals to Release Certain Information
Regarding OWCP Claims
Complainant neither identified the individuals in question nor specified
the date on which these individuals refused to comply with her FOIA
request. The individuals to whom complainant refers are most likely the
assistant personnel chief and the agency's privacy act officer. On May
8, 1993, complainant requested the acting personnel chief to make certain
information available concerning her OWCP claims, as previously noted.
By letter dated May 14, 1993, the assistant personnel chief responded
that the agency would provide the requested documentation as soon as
possible, but that it would take time due to the extensive amount of
research involved. The information was eventually released in November
1993. SIR, Exs. B9b at 14, C21. Complainant has presented absolutely
no evidence that either the assistant personnel chief or the privacy
act officer refused to release any information that she requested.
Her request was lengthy, complex, and required many extensive searches.
We therefore find no evidence of discrimination with respect to the
agency's treatment of complainant's FOIA request.
Excessive Workload
Complainant argues that the agency gave her more work than it gave
to her coworkers. In October 1992, and again in April, May and June
1993, complainant expressed her concern to her supervisor and to the
library services chief that she was being given the same workload as
higher-graded employees. The supervisor responded that every library
service technician was doing more work, because the library service was
being given more responsibilities. She also stated that the increased
work load would serve as a means of justifying future grade increases
among the employees, and that complainant excelled in her job performance,
despite her disability. There are no indications that complainant
was treated any differently than her co-workers with respect to the
workload. To the extent that complainant argues that the agency failed
to reasonably accommodate her disability, the record establishes that
complainant was a qualified individual with a disability. She was able
to perform the functions of a library services technician with reasonable
accommodation, namely being allowed to work in an environment free of
substances that could potentially aggravate her asthma and allergies.
29 C.F.R. � 1630.2(m). The agency was therefore required to accommodate
her, unless it could show that doing so would impose an undue hardship
upon its operations. 29 C.F.R. � 1630.9(a). Another disabled employee
stated that she and complainant discussed the accrual of new duties, and
that she believed that complainant wanted to upgrade and would be willing
to deal with the increased stress. She also stated that the library
services chief worked with both her and complainant to accommodate their
disabilities, noting that complainant was allowed to sit down and rest
until she felt ready to return to her tasks. Another library technician
stated that accommodations were made all the time for complainant. SIR,
Exs. B4 at 5, B5 at 6-7 & 12, B7a, C20. The agency has shown that it
took sufficient steps to accommodate complainant's disability, with
respect to the workload.
Performance Evaluations
Complainant appears to be arguing that the library services chief
revised her performance standards in order to make her job more difficult.
She stated that for 1992-1993, the number of performance elements had been
raised from five to nine, and that she was informed that the 1993-1994
performance elements would be made more difficult. The supervisor
and the library services chief responded, as they did previously, that
the needs of the services were changing, and hence, the performance
evaluations had to change as well. Complainant's performance plan
elements were changed in order to more accurately reflect the work that
the library services facility was asked to perform. Apart from her own
unsupported assertions, complainant has not presented any evidence tending
to show that the library services chief was motivated by discriminatory
animus in revising her performance standards.
Management's Request for Clarification of Medical Documentation
Complainant took issue with a request from the library services chief
to clarify the nature and extent of the accommodations that she would
require. In a letter to complainant dated June 28, 1993, the library
services chief asked her to contact her physician and ask the physician to
provide him with more specific guidelines regarding her work restrictions.
Complainant responded by letter dated July 19, 1993, that the physician's
instructions were specific enough, and that no further clarification was
needed. IR, Ex. C23. While complainant may have felt, subjectively,
that the chief's request was intrusive, she has not established that
the chief harbored a discriminatory motive when he made the request.
Alleged Aggravation of Disability
Finally, complainant contends that she was required to work in areas
sprayed with pesticides, which aggravated her asthma, allergies, anxiety,
depression, and emotional distress. Complainant's work area had been
treated with chemical pesticides on May 28, 1993, while she was off
from work. She returned to work on June 1, 1993, at which time her
supervisor told her that the room had been sprayed. Complainant entered
the room and had an adverse reaction, whereupon her supervisor told her
that she did not have to enter the room until she felt well enough to
do so. IR Exs. B1, attachment (4), B11a, B11b at 2-3 & 10-13, C7, C19,
C20, C21, C24. Contrary to complainant, we find that the agency took
reasonable steps to ensure the complainant's exposure to substances that
aggravated her condition would be minimal.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination on the bases of disability or reprisal had occurred.
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).
RIGHT TO FILE A CIVIL ACTION (S1199)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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. If you
file a request to reconsider and also file a civil action, 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:
07-14-00
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1 On 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.
2 The 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. Since that time,
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: www.eeoc.gov.
3 The Commission defines an adverse action as any action that is reasonably
likely to deter protected activity. See EEOC Compliance Manual Section 8,
�Retaliation;� No. 915.003 (May 20, 1998), p. 8-15.