Debra Applewhite, Complainant,v.Ida L. Castro, Chairwoman, United States Equal Employment Opportunity Commission, Agency.

Equal Employment Opportunity CommissionApr 6, 2000
01994939 (E.E.O.C. Apr. 6, 2000)

01994939

04-06-2000

Debra Applewhite, Complainant, v. Ida L. Castro, Chairwoman, United States Equal Employment Opportunity Commission, Agency.


Debra Applewhite, )

Complainant, )

) Appeal No. 01994939

v. ) Agency Nos. 0-9400121-DE

) 0-9500024-DE

Ida L. Castro, Chairwoman, ) 0-9400047-DE

United States Equal Employment )

Opportunity Commission, )

Agency. )

____________________________________)

DECISION

Complainant timely filed an appeal with this Commission from a final

agency decision (FAD) concerning her complaints of unlawful employment

discrimination on the bases of race (Black), mental disability

(unspecified) and reprisal in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and 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 and hereinafter referred to as 29 C.F.R. � 1614.405).<2>

For the following reasons, the FAD is AFFIRMED.

ISSUES PRESENTED

The issues presented are whether complainant was discriminated against

based on her: (a) race and reprisal for raising EEO concerns when she

was not selected for a grade 5/7 Investigator position in June 1994;

(b) race and reprisal for raising EEO concerns and filing prior EEO

complaints when she was harassed with regard to the terms and conditions

of her employment, including verbal and written reprimands, unfair work

assignments, difficulty in securing leave and continual scrutiny; and

(c) disability and in reprisal for filing prior EEO complaints when her

appointment was terminated in February 1995, without being granted a

transfer to accommodate her disability, as she had requested in November

1994.

BACKGROUND

Prior to joining the agency, complainant was employed by the United

States Postal Service ("USPS"). In September 1989, the USPS terminated

her employment during her probationary period. Pursuant to an EEO

settlement agreement, complainant was reinstated, with a new probationary

period and a new seniority date. Complainant remained in the employ

of the USPS until February 9, 1993, when she was hired by the agency

as an Office Automation Assistant, GS-5.<3> She was appointed to this

position as a Schedule A excepted service employee under the provisions

of 5 C.F.R. � 213.2102(u), which provide for the hiring of persons

with severe disabilities who have been certified by state vocational

rehabilitation agencies as likely to succeed in the performance of

their duties. Upon completion of two years of satisfactory service

and upon a recommendation for conversion to competitive status by their

supervisors, employees hired under this section can convert to permanent

career status. However, complainant was terminated on February 3,

1995, prior to completion of two years of service and without having

been recommended for conversion.

In her first complaint, complainant alleged that she was discriminated

against based on race and reprisal when she was not selected for a grade

5/7 Investigator position in June 1994 (issue (a)). The agency contended

that complainant was never considered for the position because, as a

Schedule A excepted appointee, she did not have competitive status.

The record establishes that because of the large number of persons

(thirty-two) with competitive status applying for the position, none of

the forty-nine candidates lacking competitive status were considered.

A Hispanic female with competitive status ultimately was selected.

Complainant's second complaint alleged that the agency had harassed her on

the bases of her race and reprisal. With respect to her contention that

various disciplinary actions were taken in order to harass her, the record

reflects the following. In February and June 1994, complainant was orally

counseled and reprimanded for prolonged absences from her work station

and for discourteous conduct. In a memorandum dated June 14, 1994,

complainant's supervisor (a Supervisory Trial Attorney who was the Legal

Unit Supervisor (the STA)) advised complainant that the unit's afternoon

workload necessitated a change in her schedule from 7:00 a.m. to 4:30

p.m. to 8:00 a.m. to 5:30 p.m. By memorandum dated June 14, 1994,

complainant objected to this change and accused the STA of initiating it

to retaliate against her. Complainant stated that the STA threatened "to

shove [the change] down [her] throat" and, if she objected, to "make it

harder on" her and to negatively influence her professional opportunities.

Complainant also stated that the STA characterized another employee as

mentally "slow" and as being less desirable to look at than complainant.

Finally, complainant stated that the STA advised her that a challenge to

the change would "take months ... to get through the complaint process."

On July 1, 1994, the STA issued a Memorandum of Counseling which advised

complainant that management would not force her to change her schedule.

However, the STA rebutted complainant's assertions and denied threatening

her or referring to the other employee as mentally slow and less desirable

to look at. The STA maintained that he had only stated that complainant's

abilities "at half speed" were better than the other employee's abilities

"at full speed." The STA stated that he had merely advised complainant

that, in his opinion, she could not successfully challenge a schedule

change through the grievance process as the applicable union agreement

granted management the right to unilaterally make schedule changes.

This Memorandum also cautioned complainant to avoid making false claims

regarding other employees and to avoid creating misleading summaries of

conversations with management officials.

On September 13, 1994, the Regional Attorney (complainant's second

level supervisor) issued a Counseling Memorandum regarding complainant's

productivity, which specifically referenced a project which she failed to

complete, compared her productivity to that of a coworker, and notified

her that a demonstrable improvement was expected "throughout the remainder

of [her] tenure." Finally, on December 6, 1994, the Regional Attorney

issued complainant a Letter of Reprimand for insubordination, abuse of

sick leave, dereliction of duty and poor work productivity. The Letter

stated that after being instructed to finalize a work product, complainant

replied that she was going home ill. Complainant was requested to first

e-mail her latest draft of the project to other employees, but she refused

to do so, stating that "I don't want to. I don't feel like it. I am sick."

Although complainant was given a direct order to e-mail the product

before she left, she did not comply. The Letter found that her failure

to e-mail the product before leaving constituted willful insubordination.

In addition, the Letter noted that complainant had maintained a negative

sick leave balance very near the -240 hour allowable maximum during most

of her tenure. The Letter concluded that complainant consistently used

sick leave either in order to avoid completing urgent work products,

providing several examples of sick leave taken in connection with

deadlines, or to provide herself with four or five day weekends.

The Letter found that complainant was derelict in the performance of

her duties when she failed to arrange substitute front desk coverage

and failed to ensure that a work product was issued within the legal

time limit. Finally, the Letter found that complainant had poor work

productivity, giving two examples of work which was not completed within

a reasonable period of time.

In addition to alleging that the foregoing discipline was issued for

the purpose of harassment, complainant contended that two comparative

employees (a Caucasian female with a disability and a Hispanic male with

no known disability) were treated more favorably. Complainant maintained

that she received less desirable assignments than the coworkers and that

the coworkers were more preferably treated with respect to scrutiny,

evaluations, discipline and the ease of obtaining leave. Complainant's

supervisors denied giving her less desirable assignments and asserted

that complainant in fact had a lighter work load than the coworkers.

Her supervisors maintained that any difference in scrutiny, evaluations,

discipline and the ease of obtaining leave was based on the superior

behavior, performance, and leave usage of the coworkers.

As for complainant's third complaint, the record reflects that in

February and May 1994, complainant requested to be transferred out of

the Legal Unit. On November 30, 1994, she requested a reassignment

under the Rehabilitation Act by submitting EEOC Form 557, "Reasonable

Accommodation Request." Complainant stated that she had a "Mental

Disability (Refer to Schedule A Appointment Status) [and] Medical

Certification of Disability by Colorado State Vocational Rehabilitation

Program." Complainant stated that a reassignment with a change of

supervisors was necessary because her current management required her

"to complete incredible work assignments in unrealistic and unreasonable

time frames," threatened her with discipline, required her "to continually

account for productivity," harassed her regarding alleged errors, and

gave her conflicting assignments.

By letter dated December 6, 1994, the agency's District Director requested

that complainant provide a medical history and diagnosis of her condition,

an assessment of her current clinical status and how the condition affects

a major life activity, medical documentation describing how her condition

impacts on the performance of her job duties, and a medical prognosis.

By letter dated December 8, 1994, complainant informed the agency's

Disability Program Manager that she required accommodation because,

rather than working under average and normal conditions with reasonable

and realistic time frames, she was overburdened with assignments and

was "supervised by managers who lack sensitivity and have unreasonable

and unrealistic expectations." By letter dated December 12, 1994,

complainant submitted a letter from her physician which stated that

he had treated complainant since 1991, that she had "a long-standing

psychiatric disorder for which she is taking psychotropic medication"

and that, to avoid the risk of relapse, she should be transferred to a

situation where she had only one supervisor.

Attempting to obtain additional information regarding the nature

of complainant's disability, management officials participated in a

teleconference with her physician on January 9, 1995. By letter dated

January 19, 1995, the physician stated that complainant "was reluctant

to allow [him] to say certain things about her condition [during the

teleconference, but] she does have a chronic mental illness and has been

hospitalized multiple times in the past [and] requires psychotropic

medication in order to maintain her stability." The physician opined

that complainant's current work situation was "excessively stressful due

to the environment, rather than the work itself," and that he hoped that

the agency could transfer her to a different department.

The record indicates that complainant particularly sought to be

reassigned within the agency's Denver office as an Office Automation

Assistant under a new supervisor. However, agency officials were of the

opinion that there was no vacant, funded position for which complainant

was qualified and which did not subject incumbents to stress or require

them to meet deadlines similar to those required of complainant in her

current position.

On January 30, 1995, complainant was informed that her employment

was terminated effective February 3, 1995. The record establishes

that complainant's appointment was terminated because of, among other

matters, her excessive sick leave (with such leave timed to avoid pressing

projects and to coincide with weekends), her insubordinate behavior, her

poor productivity and her negative and disruptive conduct. By letter

dated February 13, 1995, complainant was advised that her request for

a reassignment was moot in light of the termination of her Schedule A

appointment.

Complainant's instant complaints were accepted and investigated by

the agency. Complainant timely requested a hearing and these matters

were scheduled to be heard before an Administrative Judge (AJ) who,

in accordance with Commission policy, was not an employee of the EEOC.

However, on February 16, 1999, the AJ remanded these matters back to the

agency on the basis that complainant had failed to cooperate and failed

to proceed. The AJ noted that she had not ruled on the agency's motion

for findings and conclusions without a hearing because complainant's

attorney had recently advised the AJ that she was no longer representing

complainant. The AJ also noted that complainant had indicated that she

desired the AJ to take an active role in ongoing settlement discussions.

Therefore, on January 12, 1999, the AJ held a teleconference between

herself and the parties. Because complainant stated that her telephone

could not accept incoming calls, arrangements were made for her to use

a telephone in the agency's office. According to the AJ, after the

agency proffered a settlement offer, complainant insisted that the AJ

or the agency representative instruct her as to whether to accept it,

reject it, or make a counteroffer. While the AJ advised complainant to

"seriously consider" the offer, she informed complainant that neither

she nor the agency representative could offer advice on the decision.

The agency representative proposed sending a written copy of the offer

to complainant by facsimile machine. Complainant stated that she was

leaving the open line for the purpose of locating a machine but instead

left the building. The AJ then instructed the agency representative to

mail complainant a copy of the proposed settlement agreement. The AJ

scheduled another teleconference for February 1, 1999 and advised

complainant that a refusal to participate could result in the dismissal

of her complaints. On January 21, 1999, the AJ received a letter from

complainant stating that she wanted the AJ to resolve the matter on

her behalf. Complainant failed to participate in the teleconference

without prior notice to the AJ or the agency representative. The AJ

scheduled a third teleconference for February 11, 1999 and again advised

complainant that a refusal to participate could result in the dismissal

of her complaints. On February 16, 1999, after complainant again failed

to participate without prior notice, the AJ remanded the matter back to

the agency. Thereafter, on April 27, 1999, the agency issued a FAD on

the merits of complainant's complaints.

In the FAD, the agency found that complainant was not subjected to

discrimination. With respect to complainant's nonselection for an

Investigator position (issue (a)), the agency found that she could not

establish a prima facie case of reprisal as there was no evidence that

agency officials were aware that she had engaged in any EEO activity

at the time the decision was made. The agency found that complainant

could not establish a prima facie case of discrimination based on race

in that none of the candidates with non-competitive status were treated

more favorably than she.

With respect to issue (b), the agency found that complainant was not

subjected to harassment based on her race or reprisal with regard

to the terms and conditions of her employment. The agency queried

whether complainant could establish a prima facie case of discrimination

based on race since neither of the comparative employees identified by

complainant occupied the same position as she. One was a Legal Clerk,

GS-6, and the other a Secretary, GS-7. In any event, the agency found

that complainant failed to establish that her race or prior EEO activity

played any part in the actions of which she complained. The agency

found that the relevant officials and the record established legitimate,

nondiscriminatory reasons for such actions, including the verbal and

written reprimands, work assignments, difficulty in securing leave and

scrutiny. The agency found that complainant failed to establish that

these articulated reasons were pretextual.

As to issue (c), the agency found that complainant was not discriminated

against based on her disability or reprisal when her appointment was

terminated in February 1995, and she was not granted a transfer, as she

had requested as an accommodation in November 1994. The agency found

that the relevant officials and the record established legitimate,

nondiscriminatory reasons for terminating the appointment and that

complainant failed to establish that these articulated reasons were a

pretext for discrimination or reprisal. With respect to its failure to

reassign complainant, the agency noted that complainant had attempted

to obtain a transfer out of her unit since May 1994 and did not base

her request for such a transfer on the need for an accommodation until

November 1994. The agency noted that complainant never identified the

precise nature of her disability and found that there was no showing that

a reassignment, even if available, would have accommodated her disability

or have resulted in satisfactory performance. In this regard, the agency

noted that it had to decide whether to convert complainant or terminate

her appointment by February 9, 1995.

Complainant timely appeals and argues that she possessed competitive

status for the Investigator position, either because: (1) the agency

wrongly "diverted" her from the competitive service to a Schedule

A appointment after she applied for agency employment under an open

competitive announcement; or (2) she possessed competitive status in any

event because she completed a probationary period while employed by the

USPS and incurred no break in service when she transferred to the agency;

thus, she had completed at least three years of continuous service at

the time she applied for the position.

Complainant asserts that the AJ erred in allowing her counsel to withdraw

from representation prior to the hearing and erred in requiring her to

move forward with the hearing and settlement discussions even though she

was an individual with a disability who did not have legal counsel.

Complainant attaches a medical document reflecting that she was

hospitalized for psychiatric treatment from March 27 to April 7, 1999.

Complainant argues that this documentation establishes that she was

unable to participate in the teleconferences held in February 1999

and, therefore, the AJ erred in remanding this matter to the agency on

February 18, 1999. Complainant requests that this matter be remanded

for a hearing, both because she was incapable of proceeding in February

1999, and because, absent a hearing before a neutral trier of fact,

the Commission must disqualify itself from issuing a judgment on the

merits of these matters.

ANALYSIS AND FINDINGS

The Commission first notes that complainant's complaint has been processed

in accordance with precedent and applicable Regulations.<4> Accordingly,

the Commission may properly issue judgment on the merits of these matters

even absent a hearing before a neutral trier of fact. See Page v. Equal

Employment Opportunity Commission, EEOC Request No. 05940531 (July 21,

1994); Gerber v. Equal Employment Opportunity Commission, EEOC Appeal

No. 01960290 (August 1, 1996). Should complainant be dissatisfied with

the judgment, she has the right to file a civil action in Federal District

Court.

The Commission next notes that its Regulations confer broad discretion on

Administrative Judges in the conduct of hearings. 64 Fed. Reg. 37,644,

37,657 (1999)(to be codified and hereinafter referred to as EEOC

Regulation 29 C.F.R. � 1614.109(e)). After a careful review of the

record, the Commission finds that the AJ did not abuse her discretion

in remanding this matter to the agency after complainant discontinued

her participation in one teleconference without so advising the AJ and

the agency representative and failed to participate in two subsequently

scheduled teleconferences without prior notification. The Commission

is not persuaded that the medical documentation submitted on appeal

establishes that the psychotic episode for which complainant was

hospitalized on March 27, 1999, precluded her from either participating

in the February 1999 teleconferences or from notifying the AJ that

she was unable to participate. Finally, while the applicable laws and

Regulations provide for the payment of reasonable attorney's fees to

prevailing complainants, a complainant is not guaranteed representation

by an attorney in the administrative process. See Burress v. Department

of Veterans Affairs, EEOC Appeal No. 01944407 (August 7, 1995).

The Commission is not persuaded that the AJ abused her discretion

by proceeding with this matter after complainant's counsel withdrew.

In this regard, we note that there is no indication that complainant

requested a continuance in order to secure new counsel and that the AJ,

as an impartial finder of fact, was not able to represent complainant.

Turning to the merits, the Commission finds that the agency properly

determined that complainant failed to establish a prima facie case

of discrimination or reprisal with respect to her nonselection for

an Investigator position inasmuch as none of the candidates lacking

competitive status were considered for selection. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd,

545 F.2d 222 (1st Cir. 1976). Insofar as complainant now asserts that

the agency should have placed her into the competitive service when it

hired her in 1993, the Commission notes that the record establishes that

she was aware that she received a Schedule A excepted appointment when

she was hired. Complainant also argues that she in fact had competitive

status under the provisions of 5 C.F.R. Section 212. However, she has

not offered any evidence tending to show that, when determining that

she lacked such status, the agency's personnel officials interpreted the

applicable provisions in a disparate manner or otherwise intentionally

misinterpreted the provisions in order to discriminate against her.

Accordingly, we decline to determine whether complainant in fact possessed

competitive status.

In issue (b), complainant alleges that the agency subjected her

to harassment on the bases of her race and reprisal with respect to

reprimands, assignments, leave and scrutiny. Harassment of an employee

that would not occur but for the employee's race, color, sex, national

origin, age, disability, or religion is unlawful if it is sufficiently

patterned or pervasive. McKinney v. Dole, 765 F.2d 1129, 1138-39

(D.C. Cir. 1985); see also deLange v. Department of State, EEOC Request

No. 05940405 (March 3, 1995). That is, the agency actions at issue must

be both sufficiently pervasive and directed at the employee because of

his or her membership in a protected class. After a careful review of

the record, the Commission finds that complainant failed to establish

that the complained of actions would not have been taken but for her

membership in protected classes. The agency articulated legitimate,

nondiscriminatory reasons for such actions, and complainant failed

to prove that these reasons were pretextual. Thus, having failed to

establish that such actions were taken on the basis of her membership

in the protected classes, complainant failed to establish that she was

subjected to prohibited harassment. See Wolf v. United States Postal

Service, EEOC Appeal No. 01961559 (July 23, 1998); EEOC Guidance on

Investigating, Analyzing Retaliation Claims, No. 915.003 (May 20, 1998).

In issue (c), complainant alleges both that the agency failed to

accommodate her disability by granting a transfer request and that she

was subjected to discrimination when her appointment was terminated in

February 1995. Turning first to the request for a transfer, we note that

federal agencies are prohibited from discriminating against qualified

individuals with disabilities and must give full consideration to the

placement and advancement of employees with disabilities.<5> Federal

agencies are required to make reasonable accommodation to the known

physical and mental limitations of qualified applicants or employees with

disabilities (unless the agency can demonstrate that the accommodation

would impose an undue hardship). 29 C.F.R. � 1630.2(o). Here,

complainant requested a transfer as an accommodation on November 30, 1994.

In response to this request and in order to determine whether complainant

was an individual with a disability who required an accommodation, the

agency sought to gather relevant information, including her medical

history with diagnosis, an assessment of her current clinical status

and information on how her impairment impacted on the performance of

her duties. Such an individualized assessment as to whether an employee

with a disability can perform with a reasonable accommodation is a key

part of an agency's obligations under the Rehabilitation Act. Further,

this obligation is best met through a flexible, interactive process

that involves both the agency and the individual with the disability.

See Haug v. United States Postal Service, EEOC Appeal No. 01951337

(January 9, 1998). However, while an agency has an ongoing duty to

accommodate an employee with a disability, "an agency is not obliged

to offer complainant the perfect accommodation or the accommodation

of her choice." Ramona v. United States Postal Service, EEOC Appeal

No. 01943804 (September 18, 1995). Accordingly, while complainant

may have desired a transfer, an agency is not obligated to reassign an

employee with a disability if an accommodation is available which would

allow the employee to perform in the current position.

When she first requested reassignment as an accommodation, complainant

merely referenced her appointment under Schedule A and her certification

by a state vocational rehabilitation agency. However, such certification

is not dispositive of the question of whether an individual has a

disability as defined by the Rehabilitation Act. EEOC Compliance Manual,

Section 902 (March 14, 1995). Accordingly, the agency properly responded

by requesting that complainant provide additional information. Id.

In December 1994, complainant provided a letter from her physician

which stated that she had been treated since 1991 for an unspecified

psychiatric disorder and was taking psychotropic medication. However,

neither this letter, the teleconference with complainant's physician nor

the physician's second letter in January 1995, provided the agency with

information as to complainant's current condition, how the unspecified

disorder affected a major life activity, the effect the disorder had on

her ability to perform the essential duties of her position, or how the

requested reassignment would accommodate the disorder.

Even complainant's physician noted her reluctance to permit disclosure

of specific information regarding her impairment, as stated in his second

letter dated January 19, 1995. Thus, in the course of two letters and a

teleconference, the physician (who had the necessary expertise and direct

knowledge of complainant's particular impairment) stated little more than

that complainant had a chronic mental illness, had been hospitalized

multiple times in the past and required psychotropic medication to

maintain her stability. Such information, together with complainant's

appointment under Schedule A, is adequate to establish that complainant

had a record of a disability and is thus an individual with a disability

as defined in the Commission's Regulations. 29 C.F.R. �1630.2(k).

However, the Commission is not persuaded that this information is

sufficient to establish the need for the requested accommodation.

Although complainant's physician opined that, in order to avoid the risk

of relapse, it would be desirable to place her under the command of only

one supervisor, we note that complainant had been advised orally and in

writing on a number of occasions as to the relevant chain of command,

on how to prioritize her duties and what steps to take in the event

she was given conflicting assignments. The physician also opined that

complainant's current work situation was "excessively stressful due to

the environment, [not] the work itself," and that he hoped that the

agency could transfer her to a different department. The Commission

again finds that these statements were insufficient to establish that

a transfer was required as an accommodation.<6>

Accordingly, the Commission concludes that complainant's reluctance

to provide adequate documentation resulted in the agency's failure to

obtain the information required to make a sound determination on her

accommodation request prior to February 9, 1995, the date by which the

agency was obligated to either terminate her appointment or convert her

to career status. Because complainant had not supplied the information

prior to February 9, 1995, the Commission finds that she was not denied

reasonable accommodation when the agency was unable to act on her transfer

request prior to the termination of her appointment.

Finally, complainant also contends that the agency discriminated against

her based on her disability and retaliation for her prior EEO activity

when it terminated her appointment rather than convert her to career

status. Here, complainant alleges that she was subjected to disparate

treatment and, therefore, has the burden to initially establish that

there is some substance to her claim. In order to carry this burden,

she must first establish a prima facie case of discrimination. McDonnell

Douglas Corp., supra; see also Prewitt v. United States Postal Service,

662 F.2d 292 (5th Cir. 1981); Hochstadt, supra. This means that she must

present a body of evidence such that, were it not rebutted, the trier of

fact could conclude that unlawful discrimination occurred. The burden

then shifts to the agency to articulate a legitimate, nondiscriminatory

explanation for its action. Texas Dept. of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981).

In this regard, the agency need only produce evidence sufficient

"to allow the trier of fact rationally to conclude" that the agency's

action was not based on unlawful discrimination. Id. at 257. Once the

agency has articulated such a reason, the question becomes whether the

proffered explanation was the true reason for the agency's action, or

merely a pretext for discrimination. St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993). Although the burden of production, i.e., "going

forward," may shift, the burden of persuasion, by a preponderance of

the evidence, remains at all times on the complainant. Burdine, at 256.

After a careful review of the record, the Commission finds that the

relevant agency officials articulated legitimate, nondiscriminatory

reasons for terminating complainant's appointment, including her excessive

sick leave (which was timed to avoid pressing projects and to coincide

with weekends), her insubordinate behavior, her poor productivity and her

negative and disruptive conduct. The Commission finds that complainant

failed to establish that these articulated reasons were a pretext for

discrimination or reprisal.

Accordingly, for the reasons set forth above and after a thorough review

of the entire record, it is the decision of the Commission to AFFIRM the

FAD and find that complainant was not subjected to the discrimination

alleged.

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. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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 this decision. 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:

April 6, 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 1 In the instant matter, the Equal Employment Opportunity

Commission is both the respondent agency and the adjudicatory authority.

The Commission's adjudicatory function is separate and independent from

those offices charged with the in-house processing and resolution of

discrimination complaints. For purposes of this decision, the term

"Commission" or "EEOC" is used when referring to the adjudicatory

authority and the term "agency" is used when referring to the

respondent party in this action. The Chairwoman has recused herself

from participation in this decision.

2 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.

3 Complainant filed an EEO complaint alleging that the USPS subjected her

to discrimination when, among other matters, she was not converted to a

Full-Time Regular Schedule position and ultimately was forced to resign.

On appeal, the Commission affirmed the finding of no discrimination.

See Applewhite v. United States Postal Service, EEOC Appeal No. 01970050

(May 22, 1998).

4 The record contains copies of e-mail, generated after complainant's

termination, from the Regional Attorney to a Personnel Management

Specialist and copied to the STA and other agency officials. In this

e-mail, the Regional Attorney opined that it would be strategically

beneficial to delay the processing of complainant's EEO complaints by

avoiding responding to the EEO Counselor for as long as reasonably

possible. The Commission finds it highly troubling that officials

well aware of the agency's obligation to process EEO complaints in a

timely manner would propose such a course of conduct. Consequently,

the Commission has carefully scrutinized the record in light of this

e-mail. Nonetheless, the record reflects that any delays which may have

been incurred as a result of the officials' proposed actions neither

significantly impeded the EEO Counselor's processing of the complaints

nor had a chilling effect on complainant's or any other employee's desire

to file an EEO complaint. Accordingly, the officials' proposed course of

conduct did not rise to the level of interference with the EEO process.

Cf. Marr v. Department of the Air Force, EEOC Appeal No. 01941344 (June

27, 1996)(supervisory attempt to dissuade an individual from acting as

a witness in an EEO matter); Torrez v. Social Security Administration,

EEOC Request No. 05950947 (March 10, 1998)(the agency's Director of

the Office of Civil Rights and Equal Opportunity stated at a conference

that agencies "fight [EEO complaints] like hell" and that anyone filing

a complaint is "kissing his or her career good-bye"). The Commission

further notes that neither the Regional Attorney nor the Personnel

Management Specialist are currently employed by the agency.

5 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.

6 The Commission notes that the FAD states that "a change of

supervisors is not a proper accommodation [and] [c]hanging the varied

supervisory styles does nothing to accommodate the disability of an

employee." As discussed in the Commission's Enforcement Guidance:

Reasonable Accommodation and Undue Hardship Under the Americans with

Disabilities Act, EEOC No. 915.002 (March 1, 1999), "An employer does

not have to provide an employee with a new supervisor as a reasonable

accommodation... [but] the ADA may require that supervisory methods

be altered as a form of reasonable accommodation." Id. at 46. Here,

however, the record reflects that complainant's supervisors varied their

management styles in an attempt to increase her productivity and addressed

her concerns both orally and in writing.