01982486
06-08-2000
Rochelle K. Schwartz, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Rochelle K. Schwartz v. Department of Commerce
01982486
June 8, 2000
Rochelle K. Schwartz, )
Complainant, )
) Appeal No. 01982486
v. ) Agency No. 95-59-0016
) Hearing No. 160-95-8651X
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning her equal employment opportunity 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.<1> The
appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). Complainant alleges she was
discriminated against on the basis of physical disability (breast cancer)
when the agency failed to implement several of the accommodations she had
requested in April 1994.<2> For the following reasons, the Commission
vacates the agency's final decision and remands this complaint for
further action consistent with this opinion.
The record reveals that complainant, a Business Development Specialist
in the agency's Boston District Office of Minority Business Development,
filed a formal EEO complaint on November 13, 1994, alleging that the
agency had discriminated against her as referenced above. At the
conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). During the hearing and at the invitation
of the AJ, the parties stipulated that the complainant was a qualified
individual with a disability within the meaning of the Rehabilitation Act.
See Hearing Transcript at 102-05. In his recommended decision, despite
this purported stipulation, the AJ found that complainant failed to
establish a prima facie case of disability discrimination because she
failed to show that her cancer substantially limited one or more her
major life activities. Accordingly, the AJ issued a recommended decision
finding no discrimination which the agency adopted as its final decision.
It is from that final agency decision which complainant now appeals.
On appeal, complainant contends that the AJ erred when he invited the
parties to stipulate that complainant was a "qualified individual with
a disability" and then, in his decision, nullified the stipulation upon
which complainant had relied. Complainant requests that the Commission
find, based on either the stipulation or sufficient evidence in the
record, that complainant is a qualified individual with a disability, or,
in the alternative, remand the complaint to the AJ for further development
of the record on this issue. In response, the agency does not concede
that complainant is a qualified individual with a disability but argues
that nonetheless, the agency reasonably accommodated her.
The threshold question in a case of disability discrimination is
whether complainant is an individual with a disability as set forth at
29 C.F.R. � 1630.2(g).<3> Upon review, the Commission finds that the
record lacks sufficient evidence regarding complainant's status under the
Rehabilitation Act. In October 1998, complainant began to informally
request accommodations because she was experiencing extreme fatigue
and weakness as a result of treatment for breast cancer in addition to
stress and anxiety due to her fear of its recurrence. We are unable to
determine, based on the evidence presently in the record, whether these
conditions substantially limited complainant's ability to perform the
major life activities of walking, standing, performing manual tasks or
working as alleged on appeal.
The Commission notes that parties may stipulate to findings of fact,
not to conclusions of law. See McDonald v. Secretary of Health and Human
Services, EEOC Appeal No. 01952343 (August 7, 1996), aff'd, EEOC Request
No. 05960788 (February 5, 1998). We find, in the instant case, that the
parties stipulated to a conclusion of law which effectively operated to
prevent complainant from proffering evidence establishing her coverage
under the Rehabilitation Act. Accordingly, we find it appropriate to
remand this complaint for further development of the record on this issue.
See Cobb v. Department of the Treasury, EEOC Appeal No. 01965074 (April
3, 2000).
We remind the parties that pursuant to 64 Fed. Reg 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405(a)), all post-hearing factual
findings by an Administrative Judge will be upheld if supported by
substantial evidence in the record. 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).
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to vacate the agency's final decision and remand this matter to
the Hearings Unit of the New York District Office for further development
of the record as outlined in the ORDER below.
ORDER
The Commission remands this complaint to the Hearings Unit of the
New York District Office for assignment to an Administrative Judge.
The Commission orders the following:
(1) The Administrative Judge shall hold a hearing on the issue of
whether complainant is a qualified individual with a disability within
the meaning of the Rehabilitation Act. 29 C.F.R. � 1630.2(m). The
Administrative Judge shall require complainant to submit medical evidence
of complainant's condition at the time of the alleged discrimination
which is relevant to the determination of whether she was substantially
limited in a major life activity. The medical evidence shall also
address the duration and severity of complainant's condition, and what
effects, if any, complainant experienced as a result of medication
or treatment taken to reduce the risk of recurrence. See Sutton
v. United Airlines, Inc. 527 U.S. 471 (June 22,1999). Both the agency
and complainant shall cooperate to assist the Administrative Judge in the
expeditious completion of discovery and in the scheduling of the hearing.
(2) Following the hearing, the Administrative Judge shall issue a
decision on this complaint in accordance with 64 Fed. Reg. 37,644,
37,657 (1999) (to be codified at 29 C.F.R. � 1614.109).
Should the Administrative Judge find that complainant is a qualified
individual with a disability, the Administrative Judge shall then
determine whether the agency satisfied its obligation to offer complainant
a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans With Disabilities
Act, No. 915.002 (March 1, 1999).
(3) The agency shall issue a final action in accordance with 64
Fed. Reg. 37,644, 37,657-58 (1999) (to be codified at 29 C.F.R. �
1614.110) within forty (40) days of receipt of the Administrative
Judge's decision. The agency shall submit copies of the Administrative
Judge's decision and the final agency action to the Compliance Officer
at the address set forth below.
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 (M0300)
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); 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 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).
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:
June 8, 2000
_______________ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 On 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.
2 In a letter dated April 20, 1994, complainant requested the following
accommodations: (1) modification of her work schedules and assignments;
(2) flexible rest breaks; (3) elimination of smoking in District Office;
(4) parking space in the Boston Federal Building; (5) reduced stress in
the work place; (6) modified time frames for travel and for completion of
monitoring reviews; (7) authorization to work at home; (8) flexible work
hours with compensatory time; and (9) continued approval for participation
in the agency's donated leave program. Complainant withdrew requests
numbers (2) and (7) at the hearing.
3 The 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website at www.eeoc.gov.