Surjit Bains, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 22, 1999
01980807 (E.E.O.C. Nov. 22, 1999)

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.