05981166
07-14-2000
Barbara R. Rosenthal, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Barbara R. Rosenthal v. Department of Justice
05981166
July 14, 2000
Barbara R. Rosenthal, )
Complainant, )
)
v. ) Request No. 05981166
) Appeal No. 01960791
Janet Reno, ) Agency No. I-93-6268
Attorney General, )
Department of Justice, )
Agency. )
______________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On September 9, 1998, Barbara R. Rosenthal (complainant) timely
initiated a request to the Equal Employment Opportunity Commission (EEOC
or Commission) to reconsider the decision in Barbara R. Rosenthal v.
Department of Justice, EEOC Appeal No. 01960791 (August 4, 1998).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved clearly erroneous interpretation
of material fact or law; or (2) the decision will have a substantial
impact on the policies, practices, or operation of the agency.
29 C.F.R. �1614.405(b).<1> For the reasons set forth below, complainant's
request is DENIED; the previous decision is MODIFIED as set forth below.
The record reflects that complainant was employed by the agency
as an Immigration Examiner, GS-7, for the agency's Immigration and
Naturalization Service (INS). She filed a formal EEO complaint alleging
that the agency discriminated against her on the basis of her multiple
physical disabilities (Temporomandibular Joint [TMJ] Dysfunction, chronic
metatarsalgia of the left foot, weakness in left thumb, allergic rhinitis)
when she was denied a waiver of the police training portion of the basic
training for her position, which was in the competitive service; and
when she was constructively discharged, in that she resigned rather than
convert to an excepted service �Schedule A� appointment as a condition to
being exempted from the police training. Complainant submitted evidence
to establish, inter alia, that on account of the weakness of her left
thumb she could not complete the police training, which included training
in use of firearms, defensive tactics, and arrest techniques.
The previous decision found that the agency had discriminated against
complainant on the basis of physical disability when she was denied
a waiver of the police training. The previous decision noted that
the agency incorrectly asserted that it would be obligated to provide
complainant reasonable accommodation only if she acceded to its demand
that she accept conversion to a Schedule A appointment. The previous
decision then found that the agency had made no showing that accommodating
complainant in her competitive service position would pose an undue
hardship.
The previous decision further found that complainant had not established
that her working conditions were such that a reasonable person in
complainant's position would have resigned. The previous decision found
that a reasonable person in complainant's position would have accepted
the conversion to a Schedule A appointment and thus remained employed
while continuing to protest the agency's actions.
Because of the finding that complainant's resignation had been voluntary,
the previous decision did not order the agency to reinstate complainant.
The previous decision also noted that complainant had sustained no
tangible loss of pay or benefits prior to her resignation, and so did not
order back pay or benefits. The previous decision found, however, that
the agency had failed to act in good faith with regard to its obligation
to accommodate complainant's disability, and therefore ordered the agency
to consider complainant's claim for compensatory damages.
In her request for reconsideration, complainant reiterates her argument,
raised below, that the prospect of converting to a Schedule A appointment,
a less secure position than her career appointment, rendered her working
conditions intolerable. The agency offered no reply to complainant's
request.
To establish that she is a �qualified individual with disability�
within the meaning of the Rehabilitation Act, and therefore entitled
to the Act's protection, complainant must show that she has a physical
or mental condition which substantially impairs one or more of her major
life activities, and that she nonetheless is able to perform the essential
functions of her position either with or without reasonable accommodation.
See 29 C.F.R. �1630.2.<2> During the pendency of these proceedings, the
Supreme Court issued several decisions in which it made clear that, in
order to claim qualified individual with disability status, an individual
would have to show that he or she has a condition which ��significantly
restrict[s] ... the condition, manner, or duration under which an
individual can perform a particular major life activity as compared to
the condition, manner, or duration under which the average person in the
general population can perform that same major life activity.'� Sutton v.
United Air Lines, Inc., 527 U.S. 471 (1999) (citing 29 C.F.R.�1630.2).
The Court in Sutton further held that such a determination is to be made
with regard to any mitigating measures used by the individual. Id.
As regards complainant's TMJ Dysfunction, metatarsalgia, and allergic
rhinitis, the evidence of record does not substantiate that any of
these conditions substantially impairs any of complainant's major
life activities. As regards the �weakness of left thumb,� however,
the evidence of record reveals that, secondary to a traumatic injury
some years past, complainant has little, if any, use of her left thumb.
During the pendency of the events at issue, complainant submitted a
letter to the agency explaining that she has no use of her left thumb
for gripping; any jarring or bumping of her left thumb causes her pain;
and she cannot hold anything heavy in her left hand without dropping it.
At the same time, the complainant also submitted to the agency a letter
from her attending physician, who stated that complainant has restricted
movement of the left thumb joint; noticeable weakness of the left thumb;
and an area of tenderness that prevents her from doing much physical
exertion using the left thumb and hand. In addition, a supervisor
described complainant's thumb as having �flopped around.�
Complainant uses no mitigating measures to compensate for this loss
of use, which leaves her substantially impaired in her ability to
perform manual tasks as compared to the average person in the general
population. Further, complainant nonetheless was able to perform the
essential functions of her position, as evidenced by an �Outstanding�
performance rating. Accordingly, the Commission finds that complainant
is a qualified individual with disability entitled to the protection of
the Rehabilitation Act.
Turning now to complainant's request for reconsideration, the gist of
complainant's request is an argument which was raised, and rejected,
below: that the prospect of converting to a Schedule A appointment,
a less secure position than her career appointment, rendered her working
conditions intolerable. The Commission finds this argument unpersuasive.
Complainant's request meets none of the criteria for reconsideration,
and therefore is DENIED. However, the Commission exercises its discretion
to reconsider the matter on its own motion.
This case presents an unusual set of facts leading up to complainant's
resignation. Complainant requested that the agency reasonably
accommodate her disability by waiving the police training portion of
the basic training for her position. Such training was not related
to the essential functions of complainant's position, which she had
been performing successfully for some time. Management officials
denied complainant's request, and informed her that the only way she
could obtain a waiver of the police training was by converting to a
Schedule A appointment, a position which was less secure and would
have afforded complainant fewer rights than the career appointment
she presently occupied. The record reflects that management officials
were unsure of their position, and sought the guidance of the agency's
Office of General Counsel. Rather than wait for such guidance, however,
management officials proceeded to deliver to complainant an ultimatum:
either accept conversion to a Schedule A appointment by a date certain,
or be terminated. Complainant, who maintained that she was legally
entitled to keep her career appointment and be accommodated, resigned
rather than face the stigma of termination. Shortly after complainant
resigned, management officials were informed by the Office of General
Counsel that the course of action they proposed was unlawful, and that
they were obliged to accommodate complainant in her career appointment.
Nonetheless, the agency made no attempt whatsoever to return complainant
to employment.
The previous decision correctly found that these facts do not constitute
the intolerable working conditions necessary for a finding of constructive
discharge. However, this set of facts, evidencing remarkable bad-faith
dealing on the part of the agency, establish that the direct cause of
complainant's loss of employment was the agency's discriminatory actions.
Had the agency not unlawfully demanded that complainant accept conversion
to a Schedule A appointment or be terminated, complainant would not
have resigned her career position. Under these circumstances, the
Commission finds that complainant should be made whole for this injury.
Accordingly, the Commission will order that complainant be reinstated
to her former position, with back pay and benefits.
The decision in Appeal No. 01960791 is MODIFIED as to the remedy afforded
complainant, and as modified, is AFFIRMED. There is no further right
of administrative appeal from the decision of the Commission on this
request for reconsideration.
ORDER (D1199)
The agency is ORDERED to take the following remedial action, if it has
not already done so:
(A) The agency shall reinstate complainant to her position of
Immigration Examiner, GS-7, together with back pay and benefits,
including any subsequent step and grade increases which complainant would
have received, retroactive to the date of complainant's resignation.
Should complainant decline the offer of reinstatement, her entitlement
to back pay and benefits shall cease as of the date of declination.
Complainant shall be afforded a minimum of ten (10) business days to
decide whether to accept the offer of reinstatement.
(B) The agency shall conduct a supplemental investigation pertaining
to complainant's entitlement to compensatory damages incurred as a
result of the agency's continuing failure to accommodate complainant's
disabilities prior to her resignation. The agency shall afford
complainant sixty (60) days to submit additional evidence in support
of her claim for compensatory damages. Within thirty (30) days of
its receipt of complainant's evidence, the agency shall issue a final
decision determining complainant's entitlement to compensatory damages,
together with appropriate appeal rights.
(C) The agency shall post at its Immigration and Naturalization Service,
Northern Service Center, 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 customarily are 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.
(D) The agency shall promptly insure that its policies concerning IOBTC
training for Immigration Examiners are in compliance with the requirements
of the Rehabilitation Act.
(E) The agency shall provide training in the obligations and duties
imposed by the Rehabilitation Act to all the managerial officials
responsible for agency actions in this case.
(F) 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 complainant,
including evidence that the corrective action has been implemented.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, 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 back pay 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 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.�
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.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
July 14, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
____________________________
Date Equal Opportunity Specialist
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
et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that 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 Department of Justice, Immigration and Naturalization Service,
Northern Service Center supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under law.
The Department of Justice, Immigration and Naturalization Service,
Northern Service Center has been found to have discriminated against
the individual affected by the Commission's finding on the basis of
her physical disabilities by failing to provide her with appropriate
reasonable accommodation. The Commission has ordered that this
individual be reinstated with back pay and benefits and receive an
appropriate compensatory damages award, and attorney's fees and costs.
The Department of Justice, Immigration and Naturalization Service,
Northern Service Center 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
and will not retaliate against employees who file EEO complaints.
The Department of Justice, Immigration and Naturalization Service,
Northern Service Center 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: _________________
29 C.F.R. Part 1614
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.
2Pursuant to the Rehabilitation Act Amendments of 1992, the employment
standards of the Americans with Disabilities Act (ADA) also apply to
all non-affirmative action employment discrimination claims filed by
Federal applicants or employees with disabilities under section 501 of
the Rehabilitation Act. Pub. L. No. 102-569 �503(b), 106 Stat 4344 (1992)
(codified as amended at 29 U.S.C. �791(g) (1994)).