01987040
03-08-2002
J. Mia Manzano, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
J. Mia Manzano v. Department of the Air Force,
Appeal No. 01987040
03-08-02
.
J. Mia Manzano,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01987040
Agency Nos. AR0000980614 & AL900990022
Hearing No. 100-96-7503X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
ISSUES PRESENTED
Whether complainant was disabled within the meaning of the Rehabilitation
Act, and if so, whether the agency failed to reasonably accommodate
her; and
Whether the agency discriminated against her on the bases of disability
and reprisal in connection with various incidents that took place between
December 1992 and June 1993.
BACKGROUND
The agency employed complainant as a GS-12 supervisory personnel
specialist, i.e, a �branch chief,� at Aviano Air Force Base, Italy.
She filed a complaint in which she claimed that the agency discriminated
against her on the bases of disability (asthma, hyperprolactinemia with
pituitary adenoma, stress-related illness, depression), in connection
with the following occurrences:
Her supervisor's continuous failure to make reasonable accommodation
for her disabilities, March 1992 - June 1993;
Her supervisor's delay in issuing complainant her 1992 performance
evaluation until January 22, 1993, which allegedly resulted in her
inability to receive a within-grade increase or relocate to a position
near sufficient medical facilities;
Her supervisor's continuous failure to take timely action on her workers
compensation claim, December 1992 - January 1993;
Her supervisor's continuous failure to grant her request to be released
from her overseas employment agreement and return to the United States
for medical treatment, December 1992 - May 1993;
Her supervisor's decision to force her to resign on June 11, 1993,
rather than grant her an involuntary medical release; and
Her supervisor's improper retroactive denial of previously approved
annual leave, July 1993, and thereafter, her supervisor's continuous
failure to respond to her repeated requests to use accrued leave.
The agency initially dismissed the complaint, but in J. Mia Manzano
v. Sheila E. Widnall, Secretary, Department of the Air Force, EEOC Appeal
No. 01944630 (December 30, 1994), the Commission ordered the agency to
process it. Pursuant to the Commission's order, the agency investigated
the matter and thereafter referred it to an Administrative Judge (AJ).
The AJ held a hearing and recommended a finding of no discrimination.
The agency adopted the AJ's recommendation as its final decision.<1>
This appeal followed.
The agency hired complainant in 1989 and assigned her to Aviano Air Force
Base on February 17, 1991, as a GS-11 personnel management specialist.
Her duties included running the recruitment program, providing managerial
advice on recruitment, and various other related functions. Pursuant to
the terms of her overseas employment agreement, she was required to
serve a three-year tour at Aviano or any other overseas duty station.
The agreement specified that if she did not serve the full three-year
tour, she would have to forfeit her entitlement to return transportation
and reimburse the government for travel and relocation expenses.
In December of 1991, complainant was promoted to GS-12 supervisory
personnel management specialist. She resigned from her overseas position
in June of 1993 and returned to the United States the following month,
eight months short of completing her tour. Her resignation did not take
effect until October 1993.
Complainant was first diagnosed with asthma in 1983, the symptoms of
which include wheezing, shortness of breath, difficulty breathing,
dizziness, headaches, and exhaustion. In 1986, she was diagnosed with
hyperprolactimenia. This condition causes her to experience constant
lactation due to elevated blood levels of prolactin, weight gain,
depression, headaches, high blood pressure, and enlargement of the
pituitary gland. Pituitary gland swelling, in turn, put pressure
on the optic nerves, which resulted in partial visual impairment.
Both conditions were controllable with the appropriate medication, and
were under control until February or March of 1992. Complainant maintains
that these conditions had been aggravated by severe job stress between
April 1992 and her resignation in June 1993. Investigative Report
(IR), pp. 78, 83; Enclosure A, Affidavit dated August 11, 1995, p. 6;
Supplemental Affidavit (SA) dated August 11, 1995,� � 11, 12.
Complainant stated that, after her promotion, she began to experience
increasing stress as a result of the pressures that she was under in
her job. Those pressures resulted from a combination of circumstances,
including: ten-hour workdays; having to perform the work of several
people; constant disruptions; conflicting priorities; and strained
relationships with her supervisor. As a result of the stress that she
had been experiencing, she began to suffer from increasing asthmatic
symptoms, chest pains, constant headaches, congestion, memory lapses,
and sleeplessness. Throughout 1992, she continued to experience extreme
anxiety, insomnia, loss of appetite, vision problems, episodes of memory
loss, and uncontrollable crying. On one occasion in August of 1992,
complainant suffered a severe dissociative episode in which she �blacked
out� behind the wheel of her car, and had to spend several hours in
the emergency room at the base medical clinic. Following that episode,
complainant experienced bouts of dizziness and nausea which caused her
to miss work on several occasions. Several employees reported that they
had observed complainant crying at work. Complainant testified that she
would break down two or three times a week. By May, she was visiting
the on-base mental health clinic on a frequent basis. She stated that,
by January 1993, her vision problems and dizziness became so severe that
she could not read street signs. IR 68-69; 78-79, 86; SA, � � 13-21,
34; Complainant's Hearing Exhibit (CHE) 1; SA, attachments 39, 52.
Complainant made numerous visits to various physicians and mental health
clinics, both on and off base, between April 1992 and February 1993.
She also raised her health concerns with her supervisor, beginning in
April 1992, and kept him regularly informed as to her condition and
treatment. The two of them discussed possible accommodations for her,
including allowing her to take work home, working in a conference room,
or working with her office door closed in order to minimize interruptions.
Other suggestions made by complainant, such as closing down the office for
two days, were not adopted because of the adverse impact that they would
have on customer service. Hearing Transcript (HT) II, 130-38, 203-206.
According to the base medical personnel who treated complainant, her
condition proved to be difficult to diagnose and treat because neither
the base nor the town near which it was located had sufficient mental
health facilities to deal with the unique combination of physical, mental,
and emotional problems complainant had been experiencing. Consequently,
a physician who treated complainant recommended that she be referred to a
facility where she could be seen by an English-speaking physician, such
as a base in England or Germany. This physician also noted, however,
that civilian employees were given the lowest priority for referrals to
those facilities. IR 85; CHE 2; HT I, 31-35; HT II, 142-47.
Complainant did not receive her performance appraisal for fiscal year
1992 until January 1993. She maintains that her supervisor's failure to
timely deliver her appraisal resulted in her not receiving a within-grade
increase to which she was otherwise entitled. The supervisor admitted
that the appraisal was due to be issued by September 15, 1992, and that
he had not given it to complainant until January 22, 1993. When asked
why he waited so long, the supervisor replied that he was concerned that
complainant might react negatively or emotionally to receiving a �fully
successful� rating when she had received a higher rating the year before.
The supervisor testified that he feared that complainant would become
suicidal as a result of receiving a lower evaluation, that he did not
want the performance discussion to be a cause of her mental or emotional
deterioration, and that he based this conclusion on previous discussions
and encounters that he had with complainant. Complainant filed an MSPB
appeal and a complaint to the Office of Special Counsel (OSC) regarding
the supervisor's delay in issuing the appraisal. In her appeal, she
stated that she believed that she had been discriminated against on
the basis of gender in that male supervisors received their appraisals
on time. The MSPB dismissed her appeal for lack of jurisdiction and
mootness, while the OSC investigated the matter and indicated that
it had found no evidence of a prohibited personnel practice warranting
further inquiry. Complainant acknowledged that her within-grade increase
had been retroactively granted. SA, attachments 2-5, 9; HT II, 148-51.
In December 1992, complainant initiated a claim for workers compensation.
She gave the supervisory report form to her supervisor on December 9th.
He did not complete the supervisory report until January 23, 1993.
When asked why he waited seven weeks to complete the form, he replied
that he had not seen medical reports from either the clinic or the
Office of Workers Compensation Programs (OWCP). He also stated that on
January 23, he signed the report even though he still had not seen the
medical documentation. The medical report itself was not signed off on
by a physician until April 7, 1993. SA, attachments 1, 30; HT II, 162-67.
On January 17, 1993, complainant initiated a request to be released
from her overseas employment agreement so that she could return to
the United States for medical treatment. Her request was not granted
until May 5, 1993, and she did not actually leave the facility until
June 13th. Complainant filed an informal grievance on the delay on
April 15, 1993. In the grievance, she noted that she had informed
her first and second-line supervisors that she needed to return to
the United States very quickly in order to obtain medical treatment,
particularly for a pituitary adenoma. She indicated that her emerging
vision problems and dizziness might have been indicative of developing
tumors. The commander of the facility granted her grievance. He noted
that the delay in processing her request was caused by bureaucratic
delays rather than bad faith on the part of complainant's supervisors.
However, he acknowledged that the four months that it took to reach a
decision on her request caused her emotional anguish and uncertainty.
In addition, complainant was placed under the authority of an Air Force
officer, Colonel V, pursuant to an arrangement which reduced, but did
not a completely eliminate, her supervisor's authority over her. CHE 22;
SA, attachments 6-8, HT II 183-84, 194.
In February 1993, the supervisor temporarily promoted one of complainant's
subordinates to act in complainant's stead. He testified that he did
this in order to reduce complainant's workload and alleviate some of
her stress. He did so on the recommendation of a base social worker, who
suggested that complainant's work environment be changed. This individual
remained acting branch chief through complainant's resignation in June
1993, and thereafter, was placed into the position on a permanent basis.
During this time, the supervisor allowed complainant to work on special
projects that did not require intense interaction with others. HT II
145, 170-72.
On June 16, 1993, after she departed Aviano, complainant filed a second
appeal to the MSPB, this time on the delay in the processing of her
return request. She claimed, in part, that the agency discriminated
against her on the basis of disability by waiting for four months before
finally deciding to grant her request. The MSPB dismissed her second
appeal, again for lack of jurisdiction. CHE 22; SA, attachments 6-10,
13, 27, 32, 43; HT II, 167-168.
Complainant submitted her resignation on June 11, 1993. The supervisor
testified that on that day, he told complainant to come to his office,
and that when she did so, he presented her with a letter of resignation
for her to sign. Complainant was told that if she did not sign the
resignation form, her travel orders would be cancelled, and she would have
to pay her own transportation and shipment expenses. Complainant signed
the form on June 11, 1993, but the effective date of the resignation
was October 4, 1993. The supervisor noted in a memorandum prepared
and signed on June 11th that she had requested to be released from her
overseas employment agreement for personal reasons, and that such an
action was voluntary in nature. The supervisor admitted that, until that
day, he did not tell complainant that she had to resign in order to be
released from her overseas employment agreement. The supervisor also
testified that he never implemented complainant's resignation because
she eventually received a favorable ruling from the OWCP on her workers
compensation claim. SA, attachments 6, 12, 48; HT II, 185-88, 198.
When asked about the effective resignation date of October 4th,
the supervisor testified that complainant's requests for 90 days of
leave without pay and 16 days of annual leave had been approved by
Colonel V. However, that approval contravened a policy memorandum that
had been issued in March 1993, which prohibited terminal annual leave.
Consequently, complainant's effective resignation date would have to
be pushed back 16 days earlier. After she returned home, complainant
received a memorandum from the supervisor dated July 19, 1993.
In that memorandum, he stated that complainant's request to use annual
leave before beginning her use of leave without pay would have to be
disapproved, and that Colonel V was unaware of the terminal leave policy
when he initially approved her request. He noted that complainant would
receive a lump sum payment to cover 138 hours of accrued annual leave.
She was eventually paid, but not in a lump sum. SA, attachments 45,
48, 51; HT II, 191-92, 194-95.
Complainant continued to experience the symptoms of her conditions
after she returned to the United States. She was diagnosed with major
depression in April 1994, for which she was given Prozac. According to a
report from her treating psychologist dated April 6, 1994, complainant's
prognosis was excellent, but indicated that full recovery would take
between one and two years. However, in a follow-up report dated November
1, 1994, the psychologist stated that complainant was unable to perform
in any job comparable to the one she held in Aviano. The psychologist
noted that, while her condition was stable enough for her to perform in
a light duty position, a job similar to her job in Aviano would cause
a recurrence of her symptoms and a continuation of her disability.
She emphasized that complainant's prognosis and potential for full
recovery and return to the former level of activity in a comparable
position was extremely poor. Complainant's treating psychiatrist
concurred in this assessment. Based upon this information, the Office
of Workers Compensation awarded her benefits in February 1995. SA,
attachment 52.<2>
The AJ found that none of complainant's impairments rose to the level
of a disability within the meaning of the Rehabilitation Act. He also
found that none of the supervisor's actions were attributable to a
retaliatory motivation on his part. The AJ ultimately concluded that
the agency neither discriminated nor retaliated against complainant in
connection with any of the incidents described above.
ANALYSIS AND FINDINGS
The decision on an appeal from an agency's final action shall be based
on a de novo review, except that the review of the factual findings in
a decision by an administrative judge following a hearing shall be based
on a substantial evidence standard of review. 29 C.F.R. � 1614.405(a).
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
Disability
To bring a claim of disability discrimination, complainant must first
establish that she is disabled within the meaning of the Rehabilitation
Act.<3> An individual with a disability is one who has, has a record
of, or is regarded as having a physical or mental impairment that
substantially limits one or more of her major life activities. 29
C.F.R. � 1630.2(g). Major life activities include functions such
as caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. 29 C.F.R. �
1630.2(i). The term �substantially limits� means: unable to perform a
major life activity that the average person in the general population
can perform; or significantly restricted as to 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. 29 C.F.R. � 1630.2(j)(1).
Factors to be considered in determining whether an individual is
substantially limited in a major life activity include: the nature
and severity of the impairment; the duration or expected duration of
the impairment; and the permanent or long-term impact, or the expected
permanent or long-term impact of or resulting from the impairment. 29
C.F.R. � 1630.2(j)(2).<4> Complainant characterized as disabilities
her conditions of asthma, hyperprolactimenia, stress-related illness
and depression. The AJ found that complainant presented no competent
medical evidence that any of her physical impairments rose to the level
of a disability, and that the mental disabilities that complainant had
described were merely symptoms.
We disagree. The medical documentation disclosing the diagnoses of asthma
and hyperprolactimenia indicated that, for several years, complainant
had been able to control these conditions by taking the appropriate
medication. In fact, until March 1992, her symptoms were under control.
However, between April of 1992 and June of 1993, the symptoms of
asthma and hyperprolactimenia had returned, despite complainant's use
of medication. Notwithstanding her reliance on mitigating measures,
her health had deteriorated extensively. By January of 1993, due to
the pressure on her optic nerves caused by her hyperprolactimenia, she
was unable to read street signs. In addition, she began to experience
severe anxiety, insomnia, loss of appetite, and loss of emotional control.
She visited the base mental health clinic on numerous occasions in an
effort to obtain treatment. Contrary to the AJ, we find that complainant
exhibited evidence of depression prior to actually being diagnosed
as having depression. The later diagnosis merely confirmed what base
medical and health care professionals had already observed at the time
of the allegedly discriminatory incidents.
We therefore find that the AJ erred in finding that complainant
was not an individual with a disability. She clearly suffered from
a combination of conditions that substantially limited her ability
to see and concentrate, both of which are major life activities.
See Cottrell v. United States Postal Service, EEOC Appeal No. 07A00004
(February 2, 2001) (complainant substantially limited in the major life
activities of thinking and concentrating). As previously noted, the
swelling of her pituitary gland caused by hyperprolactimenia severely
impacted her ability to see distant objects, particularly street signs.
In addition, the symptoms of depression that she had been experiencing
became so intense that she was unable to focus on the tasks that she
needed to perform in her high-stress work environment. Eventually,
she had to be removed from her supervisory position. On the basis of
the record before us, we conclude, contrary to the AJ, that complainant,
at the time that the incidents at issue in the complaint arose, was an
individual with a disability under the Rehabilitation Act.
We also find that complainant was a qualified individual with a
disability. A qualified individual with a disability is one who can,
with or without reasonable accommodation, perform the essential functions
of the position in question. 29 C.F.R. � 1630.2(m). On cross-examination,
the supervisor opined that complainant continued to perform the duties of
her position adequately, and her performance evaluation reflected this.
Therefore, as a qualified individual with a disability, complainant was
entitled to a reasonable accommodation.
Incident (1)
An agency is required to make reasonable accommodations to the known
physical and mental limitations of qualified individuals with disabilities
unless it can demonstrate that doing so would impose an undue hardship
upon its operations. 29 C.F.R. � 1630.9(a). Reasonable accommodation
may include job restructuring or modified work schedules. 29 C.F.R. �
1630.2(o). Factors to consider in determining whether any of these
accommodations would impose an undue hardship include the size and budget
of the program, the type of operation and the nature and cost of the
accommodation. 29 C.F.R. � 1630.2(p).
With respect to incident (1) above, we find that the supervisor did
provide complainant with several reasonable accommodations for her
condition. For instance, he gave complainant a flexiplace work schedule,
under which she was allowed to work at home. She was the only employee
in the office who had a flexiplace schedule. He also allowed her to work
in a conference room and to close the door to her office, so as to limit
her contacts with others, thereby reducing the demands placed on her.
He would not, however, agree to closing the entire office for two days,
as that would have had a negative impact on customer service, thereby
imposing an undue hardship. After complainant had requested to be let
out of her overseas employment agreement, the supervisor accommodated her
further by letting one of her subordinates take over her job and giving
her special projects to accomplish while her request was being processed.
Consequently, we agree with the AJ that the supervisor did everything he
could to accommodate complainant. We now address the remaining incidents.
Incidents (2) through (6)
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we
apply the burden-shifting method of proof set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens
Village Committee for Mental Health for Jamaica Community Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C.Cir. 1999). Under this analysis, in order to establish
a prima facie case, complainant must demonstrate that: (1) she is an
"individual with a disability"; (2) she is "qualified" for the position
held or desired; (3) she was subjected to an adverse employment action;
and (4) the circumstances surrounding the adverse action give rise
to an inference of discrimination. Lawson v. CSX Transportation,
Inc., 245 F.3d 916 (7th Cir. 2001). Where reprisal is at issue,
complainant may establish a prima facie case with a showing that:
(1) she engaged in a protected activity; (2) the agency was aware of
her protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse action. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000); Coffman v. Department of
Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997); Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
Once complainant establishes a prima facie case, the burden of production
shifts to the agency to articulate a legitimate, non-discriminatory reason
for the adverse employment action. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). In order to satisfy her burden
of proof, complainant must then demonstrate by a preponderance of the
evidence that the agency's proffered reason is a pretext for disability
discrimination or reprisal. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 140 (2000); St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993).
In this case, the record establishes that, as previously determined,
complainant is a qualified individual with a disability. She was
subjected to a series of adverse actions between December of 1992 and
June of 1993, after informing her supervisor of her conditions and
attempting to seek medical treatment for her conditions. We find that
the circumstances are sufficient to raise an inference of discriminatory
animus on the part of the supervisor. Regarding her reprisal claim,
complainant filed an appeal to the MSPB in January 1993, and again in June
1993. Both of those appeals raised issues of employment discrimination.
The supervisor admitted that he knew about those appeals. With the
exception of incident (1), all of the incidents at issue in this complaint
took place right after she filed the first appeal. This is sufficient
to establish a prima facie case of reprisal with respect to incidents
(2) through (6).
The agency articulated a reason for each of the actions it took
in connection with incidents (2) through (6). Regarding incident
(2), the supervisor stated that he delayed giving complainant her
evaluation because of concerns he had regarding her emotional state.
As to incident (3), the supervisor said that he was waiting until he
received medical documentation before he signed off on complainant's
workers compensation claim form, but that he eventually signed the form
without ever having seen the necessary documentation. With respect to
incident (4), the commander's response to complainant's grievance was
that the delay in processing her request to be let out of her overseas
employment agreement was attributable to bureaucratic delay rather
than bad faith on the part of any management official. Regarding
incident (5), the supervisor's memorandum to complainant dated June
11, 1995, indicated that complainant's request to be released from her
overseas employment agreement was a voluntary separation, for which the
appropriate personnel action was resignation. Finally, as to incident
(6), the terminal leave that Colonel V had approved was subsequently
disallowed because of a policy in effect at Aviano which banned the use
of terminal leave. Colonel V was unaware of this policy at the time
he approved complainant's use of annual leave. The foregoing reasons
are legitimate, nondiscriminatory, and fully supported by the record.
Complainant must now show that they are a pretext designed to mask a
discriminatory motivation on the part of the supervisor.
While disbelief of the agency's articulated reasons does not compel a
finding of discrimination as a matter of law, disbelief of the reasons put
forward by the agency, together with the elements of the prima facie case,
may suffice to show intentional discrimination. Hicks, 509 U.S. at 511;
EEOC Enforcement Guidance on St. Mary's Honor Center v. Hicks (April 12,
1994); Huerta v. Department of the Air Force, EEOC Request No. 05930802
(April 1, 1994). After reviewing the record in the entirety, we agree
with the AJ that complainant has not presented evidence sufficient to
show that any of these articulated reasons were pretextual. She has
not impeached the credibility of the supervisor or any other agency
witness. We therefore find that the record does not support a finding
of discrimination or reprisal.
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, the Commission finds that the AJ
erred in concluding that complainant was not a qualified individual with
a disability. The substantial evidence in the record establishes that,
although complainant is a qualified individual with a disability, the
agency's attempts to accommodate her were reasonable. Complainant failed
to present evidence that any of the agency's actions were motivated by
discriminatory animus based on complainant's disability or previous
EEO activity. We therefore affirm the agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not
extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the
paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
____03-08-02______________
Date
1The AJ's recommended decision was issued before November 9, 1999,
the effective date of the regulations at 29 C.F.R. Part 1614.
2Complainant retired on disability on September 19, 1995. CHE 53.
3The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
4In an appeal brief submitted before the Supreme Court issued its opinion
in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), complainant
stated that the determination of one as an individual with a disability
must be made without regard to mitigating measures. In light of the
Supreme Court's holding in Sutton, the positive and negative effects
of mitigating measures used by the individual, such as medication or
an assistive device, must be considered when deciding if he or she has
an impairment that substantially limits a major life activity. Id.;
Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999).