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.