01984092
05-11-2000
David S. Winn, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
David S. Winn v. Department of the Navy
01984092
May 11, 2000
David S. Winn, )
Complainant, )
) Appeal No. 01984092
v. ) Agency No. 95-00187-029
) Hearing No. 120-96-5521X
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
Complainant timely appeals from a final agency decision ("FAD") concerning
his complaint of unlawful employment discrimination 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).
For the reasons set forth below, the FAD is AFFIRMED.
Complainant has asthma and diabetes; also, as a result of an on-the-job
injury, he incurred extensive trauma to his back, including a herniated
disk. The parties do not dispute, and the Commission concurs, that
complainant is a qualified individual with a disability as defined
by 29 C.F.R. 1630.2(m).<2> Complainant was on workers' compensation
from 1987 to 1991, when he was placed in a position designed to meet
his restrictions pursuant to a program designed to utilize employees
receiving workers compensation. When he returned to work, complainant had
a number of restrictions, including a prohibition against walking more
than one hour a day and on being in extremely hot or cold temperatures.
Complainant was given a special chair to support his back and arms.
He was assigned to work in any of six toolrooms throughout the facility.
Complainant sought EEO counseling on April 25, 1995 and raised
several issues. In his formal EEO complaint, filed on June 5, 1995,
complainant alleged that he was discriminated against based on his
physical disabilities (herniated disk, asthma, diabetes and leg pain)
and in reprisal for prior EEO activity when: (a) he received a Notice Of
Proposed Suspension for being away from the job site on March 22, 1995;
(b) he received a Notice of Decision on Proposed Suspension on April
21, 1995; (c) these actions denied him due process; and (d) he was
not accommodated with a parking space within seventy five feet of his
work site. Complainant's complaint was accepted and investigated by the
agency, and a hearing was thereafter held before an EEOC Administrative
Judge ("AJ"). After the hearing, the AJ issued a Recommended Decision
("RD") which found that complainant had been subjected to discrimination
on the bases of his physical disabilities and reprisal when he was
suspended for ten days for being away from his work site. The AJ also
found that complainant had been denied reasonable accommodation when he
was not provided with a handicapped parking space within seventy five
feet of his work site and when he was not provided with a urinal within
seventy five feet of his work area prior to approximately July 1994.
The AJ awarded complainant $200,000 in compensatory damages.
With respect to the issue of parking, the record reveals that when
complainant returned to work in 1991, he was restricted from walking
more than one hour at a time. Of the six toolrooms in buildings at
the facility in question, all but one (in Building Z-398) permitted
complainant to park within seventy five feet of the building.
See complainant's testimony, Hearing Transcript ("HT") at 247. In May
1994, while complainant was assigned to Building Z-398, his walking was
further restricted to seventy five feet at a time. Complainant requested
and received a handicapped parking sticker.<3> As complainant's parking
area was still some 350 feet away, his supervisor arranged for another
employee to pick complainant up from the parking lot. However, this
arrangement lasted only a short while. Complainant then walked from
his assigned space to the toolroom for approximately three weeks, which
caused his back to hurt for several hours. Then complainant began to
park in a location within the prescribed distance until he was reassigned
to another building in approximately July 1994.
The RD stated that when complainant "returned to work in 1991, his medical
restrictions prohibited him from walking farther than seventy five feet."
The RD found that complainant was granted a space located over 350 feet
from the toolroom in Building Z-398, forcing him to walk this distance
for months, although it was noted that complainant was temporarily
accommodated by having an employee pick him up in the parking lot.
The RD stated that complainant "was never issued a space within his
limitations and ... was forced to continue to park illegally" causing him
to experience severe back pain and to receive numerous parking tickets.
The AJ criticized the agency for not only assigning complainant a parking
space outside the prescribed distance but for failing to grant him "a
sticker rather than a place" since (according to the AJ) a sticker would
have given complainant the flexibility to park in the closest available
handicapped space at each toolroom and saved the agency from having to
issue him an actual space at each toolroom.
In its FAD, the agency found that the RD included several clearly
erroneous findings of fact. First, while the RD implied that complainant
had not been granted a parking space meeting his medical restrictions
since he returned to work in 1991, the agency noted that it had granted
complainant a handicap parking decal when he requested one in 1991 and
granted him a second decal in May 1994 after complainant requested another
one.<4> See supra, n. 1. Second, the RD found that since returning to
work in 1991, complainant was prohibited from walking farther than seventy
five feet. However, in fact, complainant was medically authorized to
walk for up to one hour at a time until May 10, 1994. Third, while the
RD stated that complainant parked "illegally" after he began parking in a
closer space, and that he was held financially responsible for the tickets
he received as a result, complainant in fact testified that "somehow [his]
supervisor got rid of [the tickets] for [him]." HT at 221. However,
the FAD adopted the RD to the extent that it held that complainant was
denied reasonable accommodation for the approximately three week period
during May 1994, when he walked from the parking lot to Building Z-398.
With respect to the suspension, the record reflects that in December 1994,
complainant was assigned to the toolroom at Fort Story. Upon arrival,
he discovered that the chair he usually used to accommodate his back
injury was missing and that the thermostat was set to a high temperature.
Complainant placed a call the Industrial Equipment Mechanic Supervisor
(the "Supervisor"), but he was not at his desk. Complainant spoke
to a secretary, who indicated that she was sitting in complainant's
usual chair. Complainant stated: "Never mind, just tell the boss that
I'm here." The Supervisor never received a message that complainant
had telephoned. Complainant left the building and sat in his truck for
the rest of the day. Complainant maintained that, when he had been at
Fort Story on one other occasion, his chair was missing and he had been
instructed by the Supervisor to sit in his truck. The General Foreman
was informed that complainant was sleeping in his truck while on duty,
and he telephoned the Maintenance Department Head (the "Department Head"),
who in turn called the Supervisor. The Supervisor drove to Fort Story
although, as he anticipated, complainant was off duty by the time he
arrived. While the Supervisor confirmed that the toolroom offered only a
broken chair and a stool, the Supervisor denied that complainant asserted
that the temperature had affected his asthma. In any event, the agency
contended that complainant should have simply lowered the thermostat.
Complainant ultimately was issued a Letter of Suspension which charged
him with being away from his work site. Complainant was suspended for
ten days starting on May 1, 1995.
Complainant stated that this action resulted in trouble sleeping, rapid
heartbeats, and nausea. Complainant's physician diagnosed him as having
a stress reaction and took him out of work until March 18, 1996.
Before the AJ, the agency argued that the suspension was justified, noting
that complainant admitted leaving the worksite and failed to contact a
supervisor. While acknowledging its failure to provide complainant with
a chair which accommodated his disabilities, the agency asserted that
complainant elected to engage in misconduct by leaving the site without
proper notice to a supervisor and that this misconduct in turn led to
a number of complaints that complainant was sleeping in his vehicle.
The agency contended that complainant was disciplined for misconduct
and that it was not required to excuse such misconduct, even if the
misconduct had a nexus to a disability.
The RD found that the agency failed to accommodate complainant by
ensuring that he had an appropriate chair on the date in question.
Given that this failure forced complainant "to make his own accommodation
[and] that he had tried to contact his supervisor [who] had on one
other occasion allowed [him] to sit in his truck," the RD found it
"reasonable for [complainant] to conclude that sitting in his truck was
a suitable alternative." Accordingly, the AJ found that the suspension
constituted discrimination on the basis of disability but found that
complainant failed to present any evidence that it constituted reprisal.
The agency adopted the RD's finding that complainant's suspension
constituted disability discrimination.
The record reflects that complainant's diabetes and the medication used
to control its symptoms, caused incontinence. The EEO Counselor's
report indicates that during pre-complaint counseling in April 1995,
complainant discussed the agency's alleged failure to provide him with
nearby restroom facilities when he was assigned to Building Z-398 in 1991
to approximately July 1994, when he was reassigned to another building.
While this claim was not contained in complainant's formal EEO complaint,
the AJ included this issue at the hearing on the basis that the evidence
established that the agency had a pattern of denying him accommodation
for his disabilities.
With respect to this issue, the record indicates that when complainant
returned to work in 1991, he was assigned to Building Z-398 which lacked
a bathroom. The closest bathroom was located in an adjacent building.
Complainant asserted that he had requested that the agency install a
bathroom in his work area but this request was denied on the basis that
the toolroom did not have the necessary plumbing for installation of
a bathroom. However, complainant maintained that the agency installed
a deep sink instead. If he felt that he could not reach the restroom in
time, complainant urinated in the sink, cleaning it afterwards. In early
1994, the Department Head overheard a female employee complaining about
complainant's use of the sink. On March 30, 1994, the Department Head
issued complainant a Letter of Caution which stated that "[a]lthough you
may have a medical problem you are prohibited from urinating in the sink[;
if] you wish to request reassignment to another location you may do so;
otherwise I expect you to use the bathroom or to make other acceptable
arrangements."
Before the AJ, the agency contended that complainant never provided
any medical information indicating that he required nearby restroom
facilities because of his diabetes. Rather, the agency contended that
any location requirements resulted from his back injuries. As previously
noted, these injuries restricted complainant from walking for more than
an hour at a time prior to May 1994, and no more than seventy five feet
at a time after that date. The agency acknowledged that Building Z-398
did not have a bathroom and that the toolroom in that building was located
farther away from a bathroom than any other toolroom. However, an agency
official testified that he used a measuring wheel and actually measured
the distance between the door of Building Z-398 and the door of the mens'
bathroom in the adjacent building and that the distance was within seventy
five feet. HT at 72.<5> The agency contended that when complainant
returned to work in 1991 and requested the installation of a bathroom
closer to his work site, the request was denied on the basis that there
was a restroom within his walking restriction. The agency denied that it
subsequently installed the deep sink for complainant's use as a urinal,
although it acknowledged that the Supervisor was aware that complainant
would occasionally use the sink for urination and clean it afterward.
The RD found that complainant would at times have only thirty seconds to
reach a restroom and that he occasionally wet his pants when attempting to
reach the restroom. The RD stated that in 1991, complainant "presented
management with his medical records [indicating his] diabetic condition
and also brought in a note from his physician which explained that it
was necessary for [him] to have a restroom convenient to him." The AJ
found that the agency installed a deep sink in complainant's work area
in which he could urinate when he could not reach the closest bathroom.
In addition, the RD held that "the nearest restroom facilities were not
accessible to [complainant because they] were located in another building,
and in order to reach them, [complainant] would have been required to walk
beyond the limit of his walking restriction." RD at 24. The RD found
that because the Department Head had recently joined the facility, he was
"unaware of the circumstances," prior to the female employee's complaint
in early 1994, but that "after being made aware of the circumstances,"
he nonetheless issued complainant a Letter of Caution.
The AJ found that the provision of a sink rather than a urinal or a
portable toilet, or transferring complainant to a building with an
accessible restroom, was "outrageous and beyond credulity." RD at 24.
Accordingly, the AJ found that the agency did not act in good faith and,
therefore, was not shielded from compensatory damages pursuant to the
provisions of Section 102 of the Civil Rights Act of 1991, as amended,
42 U.S.C. � 1981a(b).
In its FAD, the agency found that the AJ erred in expanding the scope of
his jurisdiction to include this claim. The agency noted that complainant
did not raise this issue in his formal EEO complaint. The agency found
that complainant did not establish a continuing violation, in that the
accepted issues concerned accommodation for his back injuries and did
not present any questions concerning his diabetes. In addition, any
issue concerning the location of a restroom was resolved at the time of
complainant's assignment to another building in approximately July 1994,
and complainant did not seek EEO counseling until April 1995.
The agency noted that the AJ had based his award of $200,000 in
compensatory damages on the agency's actions with respect to the alleged
provision of a deep sink rather than a urinal, which the AJ found to be
"wholly unreasonable, unsanitary, and deeply embarrassing." RD at 29.
In addition, the amount of damages was based on the finding that the
agency "took an inexcusable and egregious period of time (over a year)
in which to provide [complainant] with a disability parking sticker even
though the [agency] knew of [his] need for a parking space within seventy
five feet," (RD at 29) whereas the sticker in fact had been provided on
May 15, 1994, five days after complainant submitted medical restrictions
reducing his walking from one hour to no more than seventy five feet
at a time. Accordingly, the agency found the AJ's award of damages to
be excessive. The agency awarded $10,000 in compensatory damages.
Complainant timely appeals, without comment. In its brief on appeal,
the agency reviews the record and asserts that the RD contains numerous
misstatements of fact and mis-characterizations of evidence, as well as
omissions and internal contradictions.<6> The agency contends that it
properly set the amount of compensatory damages at $10,000.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405(a)), all post-hearing factual findings by an AJ will be
upheld if supported by substantial evidence in the record. Substantial
evidence is defined as "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Universal Camera
Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
The Commission notes that complainant's severe, permanent back injuries
restricted him from lifting or carrying more than ten (10) pounds
and prohibited him from pulling, pushing, bending or climbing stairs.
Accordingly, the AJ properly determined that complainant was substantially
limited in his ability to perform the major life activities of walking,
performing manual tasks and working. In addition, the AJ properly
determined that since complainant neither testified nor produced
documentary evidence concerning his asthmatic condition, he failed
to establish that it substantially limited his ability to breathe.
The Commission notes that while complainant offered testimonial evidence
regarding his diabetes and that the medication required for treatment
caused incontinence, there is no documentary evidence in the record
concerning the diabetes or the medication.
After a careful review of the record, the Commission finds that the
agency properly rejected the RD insofar as it found that complainant
was denied reasonable accommodation from 1991 to July 1994 due to
the agency's failure to ensure that appropriate restroom facilities
were located within seventy five feet of his work site. First, while
the RD found that complainant provided the agency with both medical
records regarding his diabetic condition and a note from his physician
stating that he needed a nearby restroom, as noted above, there are in
fact no such statements or records contained in the file (nor were any
introduced at the hearing or provided on appeal). Accordingly, the only
evidence of record supports the agency's contention that complainant
never provided such medical information nor asserted that his need for
a nearby restroom was due to his diabetes (as opposed to his limitations
on walking). Second, while the RD found that complainant was prohibited
from walking farther than seventy five feet since returning to work
in 1991, he was medically authorized to walk for up to one hour at a
time until May 10, 1994. Further, complainant was assigned to a work
site with appropriate restroom facilities in approximately July 1994
but did not seek EEO counseling until April 1995. Second, although
complainant raised this issue informally before the EEO Counselor,
he did not include it in his formal EEO complaint. In addition, the
claims accepted by the agency concerned accommodation of complainant's
back injury, and resultant restrictions on walking or sitting, and not
accommodation of complainant's diabetes. See supra, n. 5.
The Commission further finds no basis to disturb the FAD insofar as
it awarded complainant $10,000.00 in compensatory damages. While the
record indicates that complainant has received this award and that the
agency has posted the notice recommended by the AJ, this decision will
restate the appropriate relief in order to ensure that complainant has
the right to petition the Commission for enforcement if necessary.<7>
Therefore, it is the decision of the Commission to AFFIRM the FAD,
and the agency is directed to comply with the following ORDER.
ORDER
To the extent it has not yet done so, the agency is ORDERED to take the
following remedial actions:
(1) The agency shall pay complainant $10,000.00 is compensatory damages
and remove from complainant's personnel file all information concerning
the Notice of Decision on Proposed Suspension issued on April 21, 1995.
The agency shall determine the appropriate amount of back pay and other
benefits due complainant for having served this 10-day suspension,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. 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 complainant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the 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, at the address set forth below.
(2) The agency shall conduct training for its supervisory personnel
at the Norfolk Public Works Center, Norfolk, Virginia, regarding their
obligations under Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791 et seq.
(3) 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 foregoing corrective actions have been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at the Norfolk Public Works Center, Norfolk,
Virginia, 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 set forth below,
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 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.
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. 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:
May 11, 2000
_______________ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
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,
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 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 United States Department of the Navy, Public Works Center, Norfolk,
Virginia was found to have violated the Rehabilitation Act when it failed
to reasonably accommodate a qualified individual with a disability and
when it disciplined the employee because of the employee's disability.
The facility was ordered to conduct training for its supervisory
personnel, regarding their obligations under the Rehabilitation Act, to
pay the individual reasonable attorney's fees incurred in the processing
of the complaint, to expunge all records of the discipline from the
employee's official personnel file, to compensate the employee for pay
lost because of the discipline, and to pay the employee compensatory
damages.
This facility will comply with federal law and 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
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 RD stated that it took the agency nearly a year to issue the
sticker. In the FAD, the agency found that the AJ misread the sticker's
expiration date of "5/15/95" as its issuance date. The record establishes
that the expiration date was May 15, 1995.
4 The decals are valid for one year and the employee is required to
request a decal after its expiration.
5 The estimated distance from the toolroom in Building Z-398 to its door
was approximately twenty to twenty five feet. Thus, the total distance
from the toolroom in Building Z-398 to the restroom in the adjacent
building was approximately one hundred feet. See, e.g., HT at 179.
6 The agency's appeal brief appears to contend that complainant was not
in fact subjected to discrimination with respect to his claims concerning
parking and the suspension. However, the Commission will not entertain
these arguments in light of the FAD's findings of discrimination.
7 In this regard, the Commission notes that while both the RD and the FAD
found that the suspension constituted discrimination, neither provided
that all records of the suspension would be removed from complainant's
official personnel file.