01962747
10-22-1998
Angela C. Bradley, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Angela C. Bradley v. United States Postal Service
01962747
October 22, 1998
Angela C. Bradley, )
Appellant, )
)
v. ) Appeal No. 01962747
) Agency No. 4A-1461-93
William J. Henderson, ) Hearing No. 160-95-8476X
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
On February 24, 1996, Angela C. Bradley (hereinafter referred to as
appellant) initiated a timely appeal to the Equal Employment Opportunity
Commission (Commission). The final decision of the United States Postal
Service (hereinafter referred to as the agency) was dated January
26, 1996. Appellant's complaint alleged that she was discriminated
against on the bases of physical disability, race, national origin and
sex in violation of �501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq., and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented herein are whether appellant proved, by
a preponderance of the evidence, that she was discriminated against
because of her physical disability (strokes), race (Black), national
origin (African-American) and sex (female) when:
1) on December 16, 1992, she was verbally instructed not to return to
work and placed in a non-duty status;
2) on or about December 22, 1992, she received a letter advising her
that she would be separated from employment effective January 22, 1993,
for failure to meet the requirements of her position; and
3) on March 11, 1993, her request for a change of craft was denied.
BACKGROUND
Appellant filed a formal complaint on June 1, 1993.<1> Following an
investigation of her complaint, appellant was provided a copy of the
Report of Investigation (ROI) and notified of her right to request
a hearing before an EEOC Administrative Judge (AJ). On November 7,
1995, a hearing was held. During the hearing, appellant's complaint,
which was initially based only on disability, was expanded to include
race, sex, and national origin.<2> On December 12, 1995, the AJ issued
a recommended decision finding no discrimination based on race, sex
and national origin. With respect to disability, the AJ found that
the agency failed to accommodate appellant's disability. Thereafter,
the agency issued a final decision adopting the AJ's recommendation
regarding race, sex and national origin. The agency, however, rejected
the AJ's recommendation regarding discrimination based on disability.
This appeal followed.
ANALYSIS AND FINDINGS
By regulation, the Federal government is charged with becoming "a model
employer" of individuals with disabilities. 29 C.F.R. �1614.203(b).
This goal was also expressed by Congress when it enacted the
Rehabilitation Act. Gardner v. Morris, 752 F.2d 1271 (8th Cir. 1985);
Prewitt v. U.S. Postal Service, 662 F.2d 292, 301-02 (5th Cir. 1981).
As a threshold matter, one bringing a claim of discrimination on the
basis of disability must show that s/he is a person with a disability
within the meaning of the Rehabilitation Act. A person with a disability
is one who has, is regarded as having, or has a record of having an
impairment that substantially limits one or more major life activities.
29 C.F.R. �1614.203(a)(1). Major life activities include caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. �1614.203(a)(3).
We find that the AJ correctly determined that appellant is a person with
a disability within the meaning of the Rehabilitation Act. The record
indicates that on October 31, 1990, appellant, a city Letter Carrier,
experienced a ventricular aneurysm (stroke) and was off work for 10 weeks.
When she returned to duty on January 14, 1991, she requested and was
granted light duty, since she was unable to perform her regular carrier
duties.<3> Appellant also requested that the agency change her craft
from Carrier to Clerk.
The request was not addressed by the agency. Appellant worked in
her light duty assignment until June 10, 1991, but was then off work
for thirty-one (31) weeks due to an illness. She returned to her
light duty assignment on January 13, 1992, but in February 1992, she
suffered a second stroke and was off work for thirty-three (33) weeks
until October 1992. After being sent home in December 1992, appellant,
in January 1993, had a third stroke. A September 14, 1993 letter from
Doctor A, a neurologist, indicates that appellant's January 1993 stroke
left her with difficulty thinking and vertigo. According to Doctor
A, appellant will always be pre-disposed to strokes as well as having
a severe migraine headache condition. Doctor A said that the only job
that appellant could perform is a purely sedentary one. Doctor A opined
that appellant's pre-disposition to strokes was caused by the stress of
her Letter Carrier position.<4>
Reasonable Accommodation
To establish a prima facie case of discrimination based on a failure
to accommodate a disability, appellant must show: (1) that she is an
"individual with a disability" for purposes of the Rehabilitation Act,
as defined in 29 C.F.R. �1614.203(a); (2) that she is a "qualified person
with a disability," in that she is qualified for and can perform the
essential elements of the position at issue with or without reasonable
accommodation, as specified in 29 C.F.R. �1614.203(a)(6); and (3) that
she received an adverse employment action as a result of her disability.
Arneson v. Heckler, 50 FEP Cases 451 (8th Cir. 1989); Treadwell
v. Alexander, 707 F.2d 453 (11th Cir. 1983); Prewitt, 662 F.2d 242.
In addition, appellant must make at least a facial showing that her
disability can be accommodated. Treadwell, 707 F.2d at 477-78.
As previously noted, appellant returned to duty on January 14, 1991,
after her first stroke. She began a light duty assignment in the Central
Forwarding System Section (hereinafter the Mark-Up Unit). According to
the agency, appellant's restrictions prevented her from performing
the full range of duties that encompass the Automated Mark-Up Clerk
(Level 4) position, i.e., keyboard/typing skills, preparing mail to be
keyed on machines, taking mail off of belts, loading mail on computers,
lifting buckets and sacks of mail, and moving containers and equipment.
The only duty that appellant could perform was removing address labels off
of undeliverable second-class publications and resubmitting the items to
their publisher. The agency maintained that there was no funded vacant
position set aside to exclusively perform the duties that appellant had
been assigned.
On December 16, 1992, A-1, the Mark-Up Unit's supervisor, received
a telephone call from the Labor Relations office and was told that
"[f]or the best interest of the Postal Service and [appellant], to tell
her not to report [back for duty] . . . ." (Hearing Transcript (HT)
at p.23). According to A-1, she told appellant before she was able
to "clock in." (HT at p.26). By notice dated December 16, 1992, A-2,
supervisor of the Computer Forwarding Systems, and A-3, Area Manager,
Delivery & Retail Operations, notified appellant that she would be
separated from the agency, effective January 22, 1993, because she
had failed to meet the essential requirements of her Letter Carrier
position. The notice outlined appellant's repeated absences from work
and noted her physician's statement that appellant should have restricted
duties indefinitely. The notice maintained that since November 1990,
appellant had 62 days of being absent without leave (AWOL), for a total
of 496 hours; 29 days of unscheduled annual leave, for a total of 232
hours; 187 days of unscheduled sick leave (SL)/LWOP in lieu of SL, for
a total of 1496 hours; and 163 days of LWOP for a total of 1304 hours.
In addition, the notice cited 17 instances of lateness during the period
of January 29, 1991 through May 6, 1991. Consequently, the agency found
that appellant's separation was warranted because of her attendance and
medical history, including the fact that her medical condition had been
determined to be of an indefinite duration. Appellant was informed that
she had the option of applying for disability retirement or resigning.
A-3 testified that appellant was accommodated as long as possible;
however, she was unable to perform the essential functions of her
Carrier position. Likewise, he said that she could not perform all of the
requirements of a Mark-Up Clerk. He noted that even in her limited role,
appellant, on numerous occasions, had to go to the nurse complaining of
dizziness and lightheadedness.(HT at p.69).
A-2 said that appellant was separated because of her record of light
duty assignments, lateness, absences, and her Doctor's statement that
she would need restricted duty indefinitely.(ROI at Affidavit B).
In a letter dated February 23, 1993, appellant, after her third stroke,
submitted a request for a change of craft. Appellant indicated that
she was no longer able to work as a Carrier, because she was unable
to lift anything over 20 pounds. Appellant, however, said that she
was willing to change her craft to a Clerk position. She requested
that she be placed into either a Window or Mark-Up Clerk position.
Appellant's request was denied by A-4, the Postmaster.<5> He said
that his review of appellant's medical record necessitated his denial.
According to A-4, appellant could not satisfy the essential functions of a
Window or Mark-Up Clerk position. He noted that both positions required
her to stand for long periods of time, move parcels or equipment and to
lift 20 pounds or more.(ROI at Affidavit E).
After a careful review of the record, the Commission finds, contrary to
the agency, that appellant was a qualified person with a disability.
A qualified disabled person is one who, with or without reasonable
accommodation, can perform the essential functions of the position
in question. 29 C.F.R. �1614.203(a)(6). The agency, when it ordered
appellant home, notified her of her separation, and denied her request
for a change in craft, said that appellant could not perform the essential
functions of the Carrier and Window and Mark-Up Clerk positions; however,
A-1's testimony clearly revealed that the agency created a unit called the
3579 Unit.(HT at pgs.34, 41 and 42). This unit, which was separate from
the Mark-Up Unit, was responsible for returning second-class magazines.
Id. This is the same work that appellant was performing when she was
sent home. The 3579 Unit, according to A-1, performed no other duties.
The individuals who worked in the unit, and who had the same type of
restrictions as appellant, performed these sedentary duties 8 hours
a day. A-1 testified that two male employees who had been injured on
the job were permanently assigned to the 3579 Unit. These employees,
C-1 and C-2, were allowed to change their crafts from Maintenance and
Carrier to Clerk.(HT at p.33). A-1 referred to C-1 and C-2 as "Rehabs"
not Mark-Up Clerks. Id. According to A-1, the 3579 Unit was made up of
employees from different crafts who were injured on the job. Appellant,
it would appear, was able to perform the essential functions required
to work in the 3579 Unit.<6>
The Commission has previously held that the term "position in question"
is not limited to the position actually held by the employee, but
also includes positions that the employee could have held, with or
without reasonable accommodation, as a result of reassignment or job
restructuring. See, e.g., Ignacio v. United States Postal Service,
EEOC Petition No. 03840005 (Sept. 4, 1984), aff'd, Special Panel No. 1
(Feb. 27, 1986); Johnson v. United States Postal Service, EEOC Request
No. 05910506 (August 1, 1991); Ferguson v. United States Postal Service,
EEOC Request No. 05880848 (May 8, 1990). Here, there is no evidence that
the agency considered permanently assigning appellant to the 3579 Unit.
We note in this regard, A-4's letter to appellant denying her request
for a change in craft.
We are also not persuaded by the agency's attempt to distinguish
between its treatment of light duty and limited duty employees. We note
that in September 1996 the Commission issued an Enforcement Guidance
on Workers' Compensation and the ADA. The Guidance provides that an
employer may not avoid its obligation to accommodate an individual with
a disability simply by asserting that the disability did not derive from
an occupational injury.<7> The Guidance does not require an employer
to create a light duty position for an employee with a disability as a
reasonable accommodation. Subject to undue hardship, however, an employer
must provide other forms of reasonable accommodation required under the
ADA, such as: 1. restructuring a position by redistributing marginal
functions which an individual cannot perform because of disability;
2. providing modified scheduling; or 3. reassigning an employee to an
equivalent existing vacancy for which the individual is qualified.
The agency has not presented persuasive evidence that it would have been
an undue hardship for it to have accommodated appellant by allowing her
to continue working in the 3579 Unit after December 1992. Like the AJ,
we are not persuaded by A-3's general assertion that allowing appellant,
a Carrier by craft, to remain in a light duty assignment would have
violated "the agreement in crafts." (HT at p.70). The agency, in its
final decision, maintained that creating a rehabilitation position for
appellant would have meant crossing crafts and creating a preferred
assignment within the Clerk Craft. According to the agency, this would
have violated Article 37, Section 3 of the National Agreement (NA)
that requires all newly established craft assignments to be posted for
full-time craft employees eligible to bid. The agency also argued
that principles of seniority would have been violated with regard
to Article 37, Section 7 of the NA, which provides that seniority is
lost when one changes from one craft to another. We disagree with the
agency's position. A-1's testimony indicates that it was unnecessary
for the agency to create a new permanent position in order to accommodate
appellant. The agency already had the 3579 Unit in place. The agency,
therefore, could have avoided any conflict with the NA by granting
appellant's request for a change in craft and permanently assigning her
to the 3579 Unit as was done with C-1 and C-2.
During the hearing, A-3 also maintained that appellant's separation
resulted from a class action grievance filed by the local union. The
grievance was filed because a number of light duty employees were crossing
crafts.(HT at p.70). However, on cross examination, he acknowledged
that the grievance was not filed until "somewhere after 1992" and that
a resolution did not occur until 1994.(HT at p.79). After appellant's
attorney pointed out that appellant had already been separated, A-3
then said that in anticipation of the class action grievance, agency
officials examined a list of light and limited duty employees in order
to determine what could be done to either return the employees to their
craft, find a job within their medical restrictions, or decide who had
no possibility of returning to their craft.(HT at p.81). With respect
to appellant, A-3 said that "[f]rom her medical note that she submitted
to us and the restriction and all that, the best accommodation that we
could have made is in the [3579 Unit] and it couldn't be forever."(HT
at p.88). Again, we find the agency's explanation to be unpersuasive.
As noted above, the agency could have accommodated appellant by allowing
her to continue working in the 3579 Unit after December 1992.
Accordingly, we find that the appellant has met the burden of establishing
that she was subjected to disability discrimination when she was denied
a reasonable accommodation by the agency. The agency's final decision
is REVERSED with regard to its finding of no discrimination based on
disability.
DISPARATE TREATMENT
With regard to appellant's allegation that she was also discriminated
against on the bases of her race, sex, and national origin, the Commission
finds that the AJ's recommended decision correctly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Because the agency adopted the AJ's finding of no discrimination, we
AFFIRM the final decision in this regard.
REMEDY
We now turn to a determination of the relief to which appellant is
entitled. Where discrimination is found, the injured party is to be
placed, as near as may be, in the situation she would have occupied if
the wrong had not been committed. Albemarle Paper Company v. Moody,
422 U.S. 405, 418-19 (1975). This would include back pay for all
periods she did not work due to not being reasonably accommodated,
and reimbursement of leave used for the same reason.
On appeal, appellant requested, among other things, that she be provided
the option of reassignment or front-pay until she reaches retirement
eligibility. She also requested compensatory damages for losses resulting
from the refusal to grant her January 5, 1991 request to change her craft,
and the costs associated with her removal.
With regard to appellant's request for front-pay, we note that an
award of front pay requires that the employee be available to work.
York v. Dept. of the Navy, EEOC Appeal No. 01930435 (February 25, 1994).
Since appellant has retired on disability, she is not available for work
and not entitled to an award of front pay.
With regard to appellant's request for compensatory damages, we note
that under �102 of the Civil Rights Act of 1991 (CRA), compensatory
damages may be awarded for pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, and loss of enjoyment of life. We note,
however, that �102 of the CRA also provides that an agency is not liable
for compensatory damages in cases of disability discrimination where
it demonstrates that it made a good faith effort to accommodate the
complainant's disability. Based on our review of the record, we find
that appellant is not entitled to compensatory damages prior to December
16, 1992. Although the agency did not address appellant's January 5,
1991 request to change her craft, the record is clear that the agency
provided her with light duty work in the 3579 Unit until December 1992.
Furthermore, we note that the United States Supreme Court in Landgraf
v. USI Film Products, 511 U.S. 244 (1994) held that the compensatory
damages provision of the Civil Rights Act of 1991 was not retroactive.
This would preclude an award of compensatory damages for any acts of
alleged discrimination occurring prior to November 21, 1991. See also
Laverdure v. Department of the Interior, EEOC Request No. 05931186
(June 14, 1994). Therefore, appellant would be barred from receiving
compensatory damages for any alleged acts of misconduct that occurred
prior to November 21, 1991.
Therefore, we find that the agency made a good faith attempt to
accommodate appellant, prior to December 16, 1992. Like the AJ, we
find that appellant is entitled, however, to compensatory damages for
the period after December 16, 1992. At that time, the agency did not
make a good faith effort to accommodate appellant's disability, such as,
permanently reassigning her to the 3579 Unit. We must therefore remand
this issue for the agency to determine the amount of compensatory damages
to which appellant is entitled.
CONCLUSION
Based upon a review of the record, and the foregoing reasons, it is the
decision of the EEOC that the agency discriminated against appellant
on the basis of disability when it failed to provide her a reasonable
accommodation in December 1992. The agency's final decision is REVERSED,
in part, and AFFIRMED, in part. On remand, the agency shall comply with
the Order below.
ORDER
The agency is ORDERED to take the following remedial action:
1. Inasmuch as appellant opted to take disability retirement, the agency
shall award appellant back pay (with appropriate interest) from her
last day in a pay status through the date that the Office of Personnel
Management determined that she was totally disabled. Appellant shall
also receive all other pay and benefits commensurate with what she would
have received had she not been discriminated against.
2. The agency shall determine the appropriate amount of back
pay and interest and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The appellant shall cooperate in
the agency's efforts to compute the amount of back pay, interest and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the appellant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The appellant
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."
3. The agency, no later than sixty (60) days from the date this decision
becomes final, shall conduct and complete a supplemental investigation
in order to determine appellant's entitlement, if any, to compensatory
damages for the period arising after December 16, 1992.
4. The agency is directed to conduct training for its management staff
at the Red Hook Station, Brooklyn Post Office, Brooklyn, New York.
This training shall address management responsibilities with respect
to eliminating discrimination in the Federal workplace and all other
supervisory and managerial responsibilities under equal employment law.
5. The agency is ORDERED to post at its Red Hook Station, Brooklyn Post
Office, Brooklyn, New York 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.
6. 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 back pay and other benefits due appellant,
including evidence that the required corrective actions have been
implemented.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501(e)(1)(iii)), he is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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:
OCT 22, 1998
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant's complaint was initially dismissed by the agency as
untimely. This conclusion was affirmed on appeal. See EEOC Appeal
No. 01934470 (October 20, 1993). Following appellant's request for
reconsideration, the complaint was remanded for processing on October
27, 1994. See EEOC Request No. 05940178 (October 27, 1994).
2Appellant did not appear at the hearing.
3A light duty employee is someone who has an injury or illness that is
not job related. On the other hand, a limited duty employee is a person
who has an injury or illness that is related to their job.
4We note, however, that the Department of Labor's Office of Worker's
Compensation did not find that appellant's October 1990 stroke was
job-related.
5The record indicates that on June 21, 1993, appellant applied for
disability retirement. Appellant indicated that her three strokes left
her with weakness, bad headaches and occasional dizziness. Appellant also
indicated that she could not lift over 20 pounds and that she was at
risk if she bumped or bruised herself because of the medication she was
taking, coumadin. On January 19, 1994, the Office of Personnel Management
(OPM) approved appellant's request for disability retirement.
6Appellant was not required to undergo a fitness-for-duty examination
before she was ordered home on December 16, 1992.
7See EEOC's Enforcement Guidance on Workers' Compensation and the ADA,
Notice No. 915.002 (September 3, 1996).