01980807
11-22-1999
Surjit Bains, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Surjit Bains, )
Complainant, )
)
v. ) Appeal No.01980807
) Agency No.4F-945-1210-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The complainant timely filed an appeal with this Commission from a
final decision, dated October 31, 1997, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.110.<1> The Commission accepts the
complainant's appeal in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented in this appeal is whether the agency proved
that it have been an undue hardship for the agency to accommodate
the complainant's mental disabilities (dysthymia, sleep-wake schedule
disorder, status post major depressive disorder-severe) by allowing her
to continue to work a portion of her regular eight-hour shift, instead
of removing her from agency employment, effective on or about June 17,
1995.<2>
BACKGROUND
The relevant facts are not in dispute. The complainant worked for
the agency as a distribution clerk from 1978 to 1987, when her husband
and brother were killed in a construction accident. The complainant
then developed various depressive symptoms characterized by dysphoria
(being sad, blue and down in the dumps), diminished energy, a significant
disruption in her sleep cycle, exhaustion, lack of initiative, social
isolation, pessimism, worry. The complainant also developed physical
symptoms including headaches, heartburn, nausea, palpitations, and
shortness of breath. The complainant resigned agency employment in 1989,
following two years of intermittent leaves of absence due, in part,
to her being overwhelmed with emotion.
In 1990, the complainant received Electronic Convulsive Therapy (ECT)
treatment which improved, but did not abate, her depressive condition.
Prior to the ECT treatment, the complainant was suicidal and could not
sit or stand for a minute at a time due to agitation. The complainant's
concentration, attention and memory were also adversely impaired at
that time. Following the ECT treatment, the complainant's condition
improved to the extent that she was able to return to work in the Hayward,
California Post Office on July 14, 1990, as a part-time-flexible (PTF)
employee. As a PTF employee, the complainant did not have a regular
fixed schedule.
On July 31, 1992, the complainant's psychiatrist notified the agency
that the complainant needed to sleep at the same time every night due
to her medications and the need to prevent a return of her depression.
The psychiatrist recommended that the complainant not work between 11:00
p.m. and 5:00 a.m. The psychiatrist also indicated that she expected
the complainant to be off medication by August 1993. In response,
the agency permitted the complainant to report to work a light duty
assignment from 6:00 a.m. to 10:30 a.m.
Effective June 26, 1993, the agency assigned the complainant to a
full-time regular mail processor position (job #DB301) on Tour 1, with
specific work hours from 2:00 a.m. to 10:30 a.m. There is no indication
on the bid sheet that the position required scheme knowledge although the
complainant had such knowledge. On August 3, 1993, the complainant's
psychiatrist advised the agency that the complainant should not work
between the hours of 11:00 p.m. and 6:00 a.m. because the changing of
her sleep cycle would cause a recurrence of her depression. The agency
again permitted the complainant to work a light duty assignment from
6:00 a.m. to 2:30 p.m.
On August 8, 1994, the complainant's psychiatrist again notified the
agency that the complainant's depressive condition would be adversely
effected by working between 11:00 p.m. and 6:00 a.m. The complainant's
psychiatrist indicated that the restriction would remain in effect for
two years. On August 15, 1994, the agency directed the complainant
to report for a light-duty assignment on August 10, 1994, pending a
fitness-for-duty examination. The complainant was to perform all mail
processing duties assigned by her supervisor. The complainant was to work
from 8:50 a.m. to 5:00 p.m. Sunday, and 6:00 a.m. to 10:30 a.m. Monday,
Tuesday, Friday, and Saturday.
As part of fitness-for-duty that examination, the complainant was
referred to a second psychiatrist. The consulting psychiatrist examined
the complainant, reviewed her medical records, and administered a
Minnesota Multiphasic Personality Inventory (MMPI). In a October 26,
1994 report, he diagnosed the complainant has having dysthymia, sleep-wake
schedule disorder, and status post major depressive disorder-severe. The
consulting psychiatrist found that the complainant's medical treatment,
including daily medication, was appropriate. He also concurred in the
prescribed limitations, i.e., no overtime work and no work between 11:00
or 11:30 p.m. through 6:00 or 6:30 a.m. The psychiatrist recommended
that the restrictions remain in place for one year at which time they
should be re-evaluated by her treating physician and, if necessary, by
a second consultant. The psychiatrist concluded that the complainant's
prognosis was fair. However, he indicated that often when a person has
not recovered from depression within five years, an incomplete recovery
is the result. The psychiatrist indicated that, therefore, it may be
that the complainant's restrictions and limitations would remain as
permanent restrictions and limitations.
On October 31, 1994, the union filed a grievance alleging that since
August 10, 1994, the agency had failed to apply the National Agreement's
provisions for ill or injured employees and had arbitrarily prevented
the complainant from working an eight-hour tour by scheduling two
transitional employees to perform work the complainant could have
performed. On November 29, 1994, the agency directed the complainant to
report for a light-duty assignment on November 30, 1994. The complainant
was to perform all mail processing duties assigned by her supervisor and
to answer the phones as needed. The complainant was to work from 8:50
a.m. to 5:00 p.m. Sunday, and 6:00 a.m. to 2:30 p.m. Monday, Tuesday,
Friday, and Saturday. The notice indicated that if it was not renewed,
she would be returned to her regular assignment following April 30, 1995.
The complainant received a similar notices, dated January 31, 1995 and
May 2, 1995, which extended the light duty assignment until June 30, 1995.
On January 24, 1995, the agency notified the complainant that following
a review of the complainant's medical documentation and restrictions, the
agency had determined that her assignment, job #DB301, would be reposted
for bid at the next available opportunity. The agency indicated that
the complainant would become unassigned, effective February 4, 1995,
and that her unassigned work schedule would be posted on January 31, 1995.
On May 17, 1995, the agency notified the complainant that she would be
separated from agency employment thirty days following the receipt of
the notice. The union filed a grievance on the separation. The union
contended that the complainant's light duty request had met all of the
requirements set forth in Article 13 of the National Agreement and that
the agency had not demonstrated the nonexistence of work to continue
the accommodation of the complainant's medical restrictions.
Effective July 15, 1995, the agency abolished job #DB301, the position
the complainant had occupied from the date of her conversion to full time
regular employment, June 26, 1993, until she was unassigned from that
position, effective February 4, 1995. The union grieved the abolition
of the position. In a step 2 decision, the agency represented that the
position was abolished because it had been vacant for over six months
�without any apparent ill effect upon mail processing as a whole.� The
agency further represented that it had created another position in its
place which allowed work hours for both mail processing and support
services.
The complainant sought EEO counseling and filed a formal complaint
alleging that the agency had discriminated against her based on her
age and mental disabilities when it removed her from her position in
violation of the Rehabilitation Act, the Americans with Disabilities Act,
and the Civil Rights Act of 1991. The complainant indicated that she
sought reinstatement, accommodation, back pay with interest, benefits,
compensatory damages, and all other relief the law allows.
After an agency investigation, a hearing was held before an Administrative
Judge. The Administrative Judge found that the complainant was a
person with a disability. The Administrative Judge also found that
the complainant was a qualified person with a disability if afforded
a part-time work schedule. The Administrative Judge further found
that the agency had not met its burden of proving that permitting the
complainant to continue working a portion of her scheduled tour, from
6:00 a.m. to 10:30 a.m. would result in undue hardship on the operations
of the agency's program.
As to the agency's undue hardship contentions, the Administrative
Judge first found that the collective bargaining rights of more senior
employees would not be adversely affected by allowing the complainant to
work part-time in her Tour 1 position. Second, the Administrative Judge
found that the resources needed to respond to a union grievance which
sought full-time employment for the complainant were not sufficient
to establish undue hardship. Third, the Administrative Judge further
found that the agency's contention that there was a critical need for the
complainant's services between 2:00 a.m. and 6:00 a.m. was not supported
by the record evidence. The Administrative Judge found that the agency
had not proven that accommodating the complainant in a part-time schedule
had required sufficient additional overtime expenditures to constitute
an undue hardship. The Administrative Judge also found that the agency
employed a supplementary [lower-paid] workforce of casual and transitional
employees, including two employees who were permitted to work on Tour
II, who could be brought in to work when needed and who were capable
of performing the duties of the complainant's bid position. Fourth, the
Administrative Judge found insufficient evidence to support the agency's
contention that the complainant's part-time work schedule caused a moral
problem. Only one of four employees identified by the complainant's
supervisor as complaining, testified at the hearing. She testified that
she had not complained. She also testified that several employees had
asked her if she knew why the complainant was not working nights but had
not complained about the situation. The Administrative Judge further
found that even if the morale of some employees was negatively affected
by the complainant's part-time schedule, the agency had not shown that
negative morale had caused any employee's performance to deteriorate or
the agency to operate less efficiently.
In light of the above, the Administrative Judge recommended that the
agency issue a final agency decision of discrimination based on the
agency's failure to accommodate the complainant's disability.
The agency timely issued a decision rejecting the Administrative Judge's
finding of discrimination. The decision found that the complainant
was not a qualified individual with a disability because she could
not perform the essential functions of her position which included
processing of first class mail on Tour 1. The decision also found that
it had accommodated the complainant's limitations for three years.
The decision indicated that it issued the notice of separation based
on the consulting psychiatrist's determination that the complainant's
restrictions and limitations would probably be permanent and her recovery
incomplete. The decision also found that to assign complainant to a
permanent or a part-time position on Tour 2 would violate the seniority
rights of employees with greater seniority. The decision concluded that,
therefore, the complainant could not have been permanently reassigned
to work only four hours of her regular shift without violating the terms
of the collective bargaining agreement. The decision also noted that an
Arbitrator had found that even though the complainant could perform all
of the tasks required of her job, she was not capable of work on all of
the tours which was an integral part of her job.
On appeal, the complainant contends that the agency failed to comply
with the Administrative Judge's discovery order and then used information
withheld to determine that the complainant was not a qualified individual
with a disability. The complainant also contends, among other things,
that there is no dispute that she can perform her usual full-time duties
as a distribution clerk as long as she is not working between the hours
of 11:00 p.m. and 6:00 a.m.
In response, the agency contends that the final agency decision should
be affirmed for the reasons stated therein.
ANALYSIS AND FINDINGS
After a review of the entire record, including the appeal submissions
of the parties, the Commission finds that the Administrative Judge
accurately described the relevant law and properly applied that law to
the record evidence.
In its final decision, the agency continued to contend that an essential
function of the complainant's position was to process first class mail
on Tour I, almost all of which was processed before 8:30 or 9:00 a.m.
However, the record demonstrates that the agency did not require that
eight hours of first class mail be performed daily by an occupant of
the complainant's bid position. The complainant's bid position was left
vacant for over six months after the agency converted the complainant to
an unassigned regular category, effective February 4, 1995. According
to an agency's Step II grievance decision, this did not have �any ill
effect upon mail processing as a whole.� During most of this period,
the complainant was performing mail processing duties for only a portion
of her bid position's Tour I hours, i.e., from 6:00 a.m. to 10:30 a.m.
After the complainant's removal became effective in June 1995, the agency
abolished the complainant's bid position and created a new position.
However, the new position did not require eight hours daily of Tour
I mail processing duties. Instead, the new position required support
service duties in addition to mail processing duties. Based on this
evidence, the Commission finds that it was not an essential function of
the complainant's bid position to perform eight hours of mail processing
duties each day.
The final agency decision also found that to assign complainant to a
permanent or a part-time position on Tour 2 would violate the seniority
rights of employees with greater seniority. However, the Administrative
Judge did not find that the agency was required to assign the complainant
to a position on Tour 2. The Administrative Judge found that the agency
had not proven that it would be an undue hardship for the agency to
allow the complainant to work a part-time schedule in her bid position
on Tour 1. There is no evidence in the record that permitting the
complainant to work part-time in her bid position as an accommodation for
her disability would have violated a term of the collective bargaining
agreement. The agency would not have been creating a new position for
which other employees could have been allowed to bid.
The final agency decision further relied on the Arbitrator's finding that
the complainant's position required her to work on all of the tours which
was an integral part of her job. However, it appears that this finding
was based on the complainant's position as an unassigned full-time regular
clerk. There is no evidence in the record that the complainant's bid
position required that she work on all tours. Moreover, the Commission
finds that the complainant was an unassigned clerk at the time of her
removal only because the agency failed to accommodate the complainant's
disabilities by allowing her to work a part-time schedule within her bid
position. An employer must allow an employee with a disability to work a
part-time schedule as a reasonable accommodation, absent undue hardship.
�EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act� (March 1, 1999) at p. 32;
see also, Smith v. Department of Labor, EEOC Petition No. 03970145
(December 12, 1997)(offer of part-time employment constituted an offer
of reasonable accommodation given the limitations of the petitioner and
the functional requirements of her position).
For the reasons stated above and in the Administrative Judge's decision,
the Commission finds that the agency has not shown that it would have
constituted an undue hardship on its operations to allow the complainant
to work a part-time schedule within her Tour I bid position as an
accommodation for her disabilities instead of removing her from agency
employment, effective on or about June 17, 1995.
CONCLUSION
For the reasons stated above, it is the decision of the Commission to
REVERSE the agency's rejection of the Administrative Judge's finding of
disability discrimination. In order to remedy the complainant for its
discriminatory actions, the agency shall take the actions described in
the following ORDER.
ORDER
The agency is ORDERED to take all of the following remedial actions
which it has not already taken pursuant to the Arbitrator's award:
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall cancel the complainant's removal and reinstate the
complainant to a full-time mail processing position on Tour I, effective
the date of the complainant's termination on or about June 17, 1995.
Given the length of time that has passed since the complainant last
performed the duties of her position, the agency shall provide the
appellant with all training necessary for her to perform the job duties
The agency shall allow the complainant to work a part-time schedule
if required by her treating physician to accommodate the complainant's
sleep disorder and/or to prevent recurrence of her depression.
The agency shall determine the appropriate amount of backpay with interest
and other benefits due complainant in a part-time work schedule, pursuant
to 29 C.F.R. �1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The complainant shall cooperate in
the agency's efforts to compute the amount of backpay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of backpay and/or
benefits, the agency shall issue a check to the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall provide in-depth training on the agency's accommodation
responsibilities under the Rehabilitation Act to the management officials
responsible for the agency's failure to provide the complainant with
reasonable accommodation in lieu of removal.
The agency shall conduct a supplemental investigation pertaining to the
complainant's entitlement to compensatory damages incurred as a result of
the agency's decision to terminate her employment rather than to provide
her with a reasonable accommodation for her disabilities. See Feris
v. Environmental Protection Agency, EEOC Appeal No. 01934828 (August 10,
1995), request to reopen denied, EEOC Request No. 05950936 (July 19,
1996); Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July
22, 1994); Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993); see also, Turner v. Department of the Interior,
EEOC Appeal Nos. 01956390 and 01960518 (April 27, 1998); Jackson
v. United States Postal Service, EEOC Appeal No. 01923399 (November 12,
1992), request for reconsideration denied, EEOC Request No. 05930396
(February 1, 1993). The agency shall afford the complainant sixty (60)
calendar days to submit additional evidence in support of her claim for
compensatory damages. Within thirty (30) calendar days of its receipt
of the complainant's evidence, the agency shall issue a final decision
determining the complainant's entitlement to compensatory damages,
together with appropriate appeal rights.
The agency is ORDERED to post at its Hayward, California 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 cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
INTERIM RELIEF (F1199)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.502(b)).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. �1614.502(b)(3).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. �1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant also has
the right to file a civil action to enforce compliance with the
Commission's order prior to or following an administrative petition
for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),
and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the
right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action."
29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or
a civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
November 22, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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:
_________________________
__________________________
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 the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791
and 794a, has occurred at the agency's facility in Hayward, California
(hereinafter �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 facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against
an individual when it did not permit her to work part time in her
bid position as a necessary accommodation for her disabilities.
The agency will remedy the discrimination by retroactively reinstating
the individual to her bid position with back pay, interest on backpay,
and benefits, including seniority, leave, and retirement benefits.
The agency will provide the individual with proven compensatory damages,
and permit her to work a part-time schedule if required by her treating
physician as accommodation for her disabilities. The facility will
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all Federal
equal employment opportunity laws.
The facility 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:
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The complainant's complaint alleged discrimination based on her age.
However, both the agency and the administrative judge found no evidence
of age discrimination. The complainant does not contest this finding
on appeal.