The DIGEST Of Equal Employment Opportunity Law

Volume XIII, No. 4

Office of Federal Operations

Fall Quarter 2002

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Inside

Selected EEOC Decisions on:

Article

Recent Findings of Disability Discrimination

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SELECTED EEOC DECISIONS

Abuse of Process

No Abuse Found. The Commission did not find complainant's numerous complaints to be an abuse of the equal employment opportunity (EEO) process. The fact that complainant repeatedly challenged supervisory authority, without more, was not indicative of abuse of process. The Commission found no evidence of an intent to clog the EEO system and reversed the EEOC Administrative Judge's (AJ's) dismissal of complainant's complaint for abuse of process. Jennings v. United States Postal Service, EEOC Appeal No. 01A03885 (August 29, 2002). See also, Black v. Small Business Administration, EEOC Appeal No. 01A10586 (March 19, 2002).

ADEA and Disparate Impact Theory

Claims of Age Discrimination May Use the Disparate Impact Theory. Noting that some Courts have concluded that claims of disparate impact in age discrimination cases are not cognizable, the Commission cited its precedent permitting such complaints to go forward under the ADEA. The Commission directed the agency to investigate the complaint under both the disparate treatment and disparate impact theories of discrimination. Fisher v. Department of Transportation, EEOC Appeal No. 01A14326 (September 6, 2002).

Administrative Judge Orders

Training Warranted Even Absent Discrimination Finding. The Commission reversed the AJ's order, in this non-selection case involving a claim of national origin (Mexican) discrimination. The AJ found no discrimination, but had nevertheless ordered the agency to investigate whether complainant was called "Taco." On appeal, EEOC noted that complainant did not raise a claim of hostile work environment, but presented the insult to show bias instead of harassment. The Commission also affirmed the agency's rejection of the AJ's order to discipline those employees who had used the derogatory term. The Commission declared that, even where discrimination is found, it only recommends discipline. However, EEOC sustained the AJ's order that the agency provide diversity training to staff and management in the absence of an objection by the agency and in light of the record warranting such training. Sandoval v. Department of the Army, Appeal No. 07A10102 (July 23, 2002).

Agency Fails to Provide Full Relief as Ordered. Contrary to the agency's assertion, the Commission found that the agency's final order failed to fully implement the appropriate remedies ordered by the AJ, who found age discrimination in complainant's nonselection for a GS-9/11 Fishery Biologist position in Portland, Oregon. The agency claimed that, prior to receiving the AJ's decision, it had offered complainant a position in Sacramento, California, which roughly equated to a GS-13 level position. Citing 29 C.F.R. § 1614.501(a), the Commission found that the agency had failed to meet its burden of showing that it was unable to provide complainant the position in Portland, which he originally sought, or that it was offering complainant a substantially equivalent position. The Commission ordered, in part, the agency to provide complainant with the position at issue or a substantially equivalent position in the Portland, Oregon, area. Kinnear v. Department of Commerce, EEOC Appeal No. 07A10104 (August 29, 2002).

AJ's Decision Becomes Agency's Decision. The Commission found that the agency's failure to correctly file its appeal within 40 days of the issuance of the AJ's decision precluded it from cross-appealing or challenging any aspect of the AJ's decision. McCue v. United States Postal Service, EEOC Appeal No. 01A13411 (August 8, 2002)

Age and Gender Discrimination

Age and Gender Discrimination Found. The previous decision found age discrimination in complainant's involuntary detail, but found that he had not presented a prima facie case of gender discrimination. On reconsideration, the Commission found that complainant was treated less favorably than a female employee and that all the reasons set forth in the previous decision, justifying a finding of age discrimination, were equally applicable to the basis of sex. The Commission ordered training for the officials involved, consideration of discipline against them by the agency, and notification to complainant as to his claim for compensatory damages. Brown v. United States Postal Service, EEOC Request No. 05A20341 (July 5, 2002).

Attorney's Fees

Across-the-Board Fee Reduction Rejected. The Commission rejected the agency's 40 percent across-the-board reduction as a result of complainant's prevailing on only one of her two complaints. The Commission concluded that the complaints were not fractionable because they each arose from a common set of facts pertaining to complainant's nonselections. Thus, she should be fully reimbursed for all reasonable attorney's fees. Sermeno v. Department of the Army, EEOC Appeal No. 01A13878 (August 7, 2002). But cf. Coard v. Department of Justice, EEOC Appeal No. 01A02439 (August 15, 2002) (allowing a 30 percent reduction in attorney's fees, weighing the overall degree of success against complainant's original goals).

Interest on Attorney's Fees Awarded for Delay in Issuing Final Agency Decision. The Commission ordered interest on the fee award to compensate for the agency's five-month delay in issuing a decision on attorney's fees, for which the agency provided no explanation. Carroll v. United States Postal Service, EEOC Appeal No. 01994040 (May 29, 2002).

Back Pay

Agency Erred In Calculating Petitioner's Back Pay and Interest Awards. In granting her Petition For Enforcement, the Commission found that the agency had understated petitioner's gross pay award, from which her net back pay award was derived, as well as the cash value of annual leave. EEOC found that the agency had failed to account for petitioner's hourly pay rate increase and ordered that the revised back pay award be given petitioner, including the accrued interest on the unpaid balance. Pacheco v. United States Postal Service, EEOC Petition No. 04990043 (August 14, 2002).

Interest on Back Pay Not Available in Age Claims. The Commission agreed with the agency that interest on back pay is not available as a remedy under the ADEA. Kinnear v. Department of Commerce, EEOC Appeal No. 07A10104 (August 29, 2002).

Class Complaints

Dismissal of Class Complaint Affirmed. Complainant, the putative class agent, sought to represent both current Black postal employees and Black applicants in the Southeast Area allegedly discriminated against regarding various terms and conditions of employment. The agency adopted the AJ's recommendation that the complainant had failed to satisfy the criteria of numerosity, commonality, typicality, and adequacy of representation necessary for class certification. In affirming the agency's final decision, the Commission found, inter alia, that the class complaint constituted an across-the-board attack on alleged discriminatory employment practices, none of which was alleged to affect all class members. Hopkins v. United States Postal Service, EEOC Appeal No. 01A02840 (July 22, 2000). See also, Risner v. United States Postal Service, EEOC Appeal No. 01994323 (September 13, 2002) (claims broad and unspecific); and see, Price, et al. v. Department of the Army, EEOC Appeal Nos. 01A10502, 01A10540, 01A10539, and 01A10503 (August 8, 2002) (complainant failed to meet criteria for certification; claims also dismissed on jurisdictional and timeliness grounds).

Agency Decision Adopting AJ's Per Se Rejection of Class Complaints Based on Disability Vacated. The Commission remanded this matter to an AJ to develop the record and render a determination as to whether complainant's class complaint met the criteria for certification, based on disability. The initial AJ had summarily denied certification, ruling that disability claims were not suited for class treatment. Travis v. United States Postal Service, EEOC Appeal No. 01992222 (October 10, 2002).

Complainant's Complaint Should Have Been Processed as Part of Class Complaint. The Commission found that the previous decision had erred when it addressed complainant's individual complaint. EEOC noted that it had, in a prior decision, certified a class complaint as it pertained to denial of promotions and had remanded the matter for discovery. The Commission ordered the agency to subsume complainant's complaint concerning denial of promotion into the class complaint addressing the issue of promotion denials. Epps v. Department of Agriculture, EEOC Request No. 05A10387 (September 13, 2002).

Complaint Remanded for Development of Record as to Whether Reprisal was Class Pattern. The Commission vacated the agency's final decision adopting the AJ's denial of class certification on the grounds that a claim of retaliation may not lawfully be the basis of a class action. The Commission cited its precedent that reprisal is an appropriate basis for a class complaint when there is a showing that specific reprisal actions were taken against a group of people for challenging agency policies, or where reprisal was routinely visited on class members. EEOC remanded the matter for additional fact finding to determine if the class certification requirements could be satisfied. Grigsby, et al. v. United States Postal Service, EEOC Appeal No. 01A01516 (August 15, 2002).

Compensatory Damages

Awards for Non-Pecuniary Damages. In a series of decisions, the Commission ruled as follows:

• Upheld an AJ's award of $50,000 for harassment. McCoy v. Department of Transportation, EEOC Appeal Nos. 07A10010 and 01A10533 (March 14, 2002).
• Increased an agency's award of $15,000 to $40,000 for age and gender discrimination. Bad Heart Bull v. Department of Health and Human Resources, EEOC Appeal No. 01A12574 (August 28, 2002).
• Increased from $10,000 to $35,000 an award for sexual harassment. Harmon v. United States Postal Service, EEOC Appeal No. 01994179 (August 15, 2002).
• Let stand an AJ's award of $2,000 for retaliation, noting that much of the distress complainant described was caused by non-discriminatory actions of the agency. Wilson v. United States Postal Service, EEOC Appeal No. 01994200 (September 26, 2002).
• Rejected the agency's denial of compensatory damages and awarded $12,000 to compensate complainant for the aggravation of her illness caused by the agency's discriminatory actions. Carroll v. United States Postal Service, EEOC Appeal No. 01994040 (May 29, 2002).

EEO Process

Complainant Entitled to Timely Hearing Notice. The Commission found that the agency's notice of complainant's right to request a hearing before an EEOC AJ, given when it accepted his complaint, did not comport with the regulatory time frame. Accordingly, the Commission remanded the case for the scheduling of a hearing. Armstrong v. United States Postal Service, EEOC Appeal No. 01995376 (March 14, 2002).

Agency Failed to Comply With the Requirements of 29 C.F.R. 1614. The Commission vacated the agency's finding of no discrimination, and ordered the agency to process complainant's claims in the manner mandated by the Commission's regulations. EEOC found the agency deficient in such requirements as failing to inform complainant how to contact an EEO Counselor; failing to timely assign a Counselor; failing to accept issues for investigation until nearly a year after complainant had filed her complainant; and failing to properly investigate her claims. Jansson v. Department of Justice, EEOC Appeal No. 01A22553 (August 23, 2002).

Equal Pay Act

Agency Satisfies Affirmative Defense. Complainant challenged the promotion of two co-workers (CW-1 and CW-2) who purportedly performed duties substantially similar to complainant's, while complainant's promotion by accretion of duties was denied. Affirming the agency's decision of no discrimination, the Commission found that, as to CW-1, complainant could not be promoted from a non-supervisor to a supervisory position by accretion and that the promotion would have to be published and subject to competition, in accordance with the agency's merit system, a valid affirmative defense under the EPA. With regard to CW-2, the Commission found that the position was not comparable to complainant's. Schoch v. Department of Commerce, EEOC Appeal No. 01A13876 (September 25, 2002).

Failure to Cooperate

Agency Dismissal Reversed. The Commission found that the agency never made a written request to complainant for information and thus could not dismiss her complainant pursuant to 29 C.F.R. § 1614.107(a)(7). Holbourn v. United States Postal Service, EEOC Appeal No. 01A01134 (August 29, 2002).

Failure to State a Claim

Privacy Act Not Within Commission's Purview. Affirming the agency's dismissal, EEOC noted that the Privacy Act provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of records and jurisdiction is vested solely in the United States District Courts for Privacy Act matters. Aylward v. United States Postal Service, EEOC Appeal No. 01A20942 (March 7, 2002), request to reconsider (RTR), denied, EEOC Request No. 05A20619 (July 3, 2002).

Official Discussion Memorialized Can State a Claim. Reversing the agency's dismissal, the Commission noted that, while it has consistently held that discussions with supervisors advising subordinates that unacceptable conduct may result in discipline are not cognizable, a written record memorializing such a warning can state a claim. Curry v. Department of Health and Human Services, EEOC Appeal No. 01A05004 (March 7, 2002).

Proposed Discipline Merges With Ultimate Action and States Cognizable Claim. The Commission noted that, where an individual has received EEO counseling on a proposed action, in this case a suspension, which becomes an effective action, the otherwise premature claim merges with the effective action, even if complainant has not filed a formal complaint on the effective or ultimate action. Robert, III, v. United States Postal Service, EEOC Appeal No. 01A21360 (March 14, 2002).

Complainant Has a Cause of Action Based on His Wife's Disability. In reversing the agency's dismissal of complainant's complaint, the Commission declared that complainant stated a claim where he alleged disability discrimination based on his association with a person with a disability. In this case, the agency repeatedly denied complainant dependent care leave under the Family Medical Leave Act (FMLA) and complainant claimed discrimination with regard to his wife's disability. Kirkland v. United States Postal Service, EEOC Appeal No. 01A10621 (March 14, 2002).

Delay in Processing OWCP Claim Not Cognizable. The Commission found that a claim asserting a delay of a few weeks in processing paperwork for an Office of Workers' Compensation Claims Programs (OWCP) constituted an impermissible collateral attack on the OWCP decision-making process. The Commission noted that there was no evidence that the delay was part of a pattern and practice of discrimination, or part of a claim of hostile work environment. Schneider v. United States Postal Service, EEOC Request No. 05A01065 (August 15, 2002).

Single Incident Sufficiently Severe to State Claim of Harassment. Reversing the agency's dismissal, the Commission found that complainant credibly claimed that he endured severe humiliation when two Federal Police officers confronted him in the presence of his co-workers and questioned him about his purportedly threatening another co-worker. Complainant had claimed that he had successfully filed EEO complaints against the two managers who had the police summoned and that they were also named in current EEO actions. EEOC concluded that the claim in the present case was sufficiently severe to constitute an actionable claim of harassment. Miller v. Department of the Treasury, EEOC Request No. 05A10338 (August 15, 2002).

Husband's Claim of Retaliation Based on Adverse Action Against Wife Viable. Denying the agency's reconsideration request, the Commission noted that the previous decision's erroneous factual conclusion that complainant's wife was an agency employee when she was a contractor employee, did not prevent the decision from being legally correct. The Commission held that the agency's purported role in the firing of complainant's spouse was an action reasonably likely to deter protected activity by complainant and, thus, the complainant stated a claim. Cantrell v. Department of Transportation. EEOC Request No. 05990538 (September 9, 2002).

Gender-Based Dress Code Not Actionable. Citing Commission precedent, EEOC held that an employer may establish a different dress code for men and women to create a professional atmosphere without violating Title VII. Coates v. Small Business Administration, EEOC Appeal No. 01A22569 (July 26, 2002).

Fragmentation

Improper Fragmentation of Claims. The Commission found that the agency improperly fragmented and dismissed complainant's claims, treating eight incidents in a piecemeal manner and ignoring the pattern aspect of her claim. The Commission found that complainant had raised a single, actionable, claim of harassment, as evidenced by all the incidents set forth in her complaint. ___________ v. Department of the Treasury, EEOC Appeal No. 01A11137 (August 27, 2002).

Grievances

Complainant Could Not Raise Same Claims in Grievance and EEO Complaint. Affirming the agency's dismissal of complainant's complaint, the Commission noted that, when a person is employed by an agency subject to 5 U.S.C. § 7121(d), and is covered by a collective bargaining agreement (CBA), which permits claims of discrimination to be raised in a negotiated grievance procedure, the individual must, if s/he wishes to also file an EEO complaint on the same claims, elect to file the matter in one forum or the other, but not both. Gorelick v. Department of the Treasury, EEOC Appeal No. 01A21398 (March 19, 2002). Cf. Smith v. Department of the Navy, EEOC Appeal No. 01A11709 (June 26, 2002), RTR denied, EEOC Request No. 05A21034 (September 26, 2002) (dismissal reversed: no evidence complainant raised same issue in EEO complaint process that was also raised in negotiated grievance procedure).

Appeal Dismissed: Grievances are Not Appealable from the Postal Service. Citing 29 C.F.R. § 1614.401(c), the Commission held that a grievant may not appeal a grievance decision to the Commission if the agency involved is not covered by 5 U.S.C. § 7121(d). Since that statute does not apply to the Postal Service, the Commission stated that grievances by Postal Service employees are not within the EEOC's appellate jurisdiction. Pickett v. United States Postal Service, EEOC Appeal No. 01A22538 (July 12, 2002).

Harassment/Hostile Work Environment

History of National Origin Harassment Dated Back to 1992. EEOC Appeal No. 01A04389 (May 14, 2002). The Commission found that complainant had been harassed based on national origin since 1992, and that the agency had failed to take preventive and corrective action against a co-worker who had stated that he disliked foreign doctors and threatened complainant by racing a car engine in a parking lot. The agency, aware of the harassment, had permitted the co-worker to enter the clinic where complainant worked, despite the existence of notice of restricted contact. The matter was remanded on the issue of damages. Raney v. Department of Veterans Affairs, EEOC Appeal No. 01A13039 (August 27, 2002).

Pretext

Pretext Found. Finding that complainant's qualifications were superior to that of a selectee, the Commission found that the agency's reasons for not promoting complainant were a pretext for discrimination against complainant based on national origin and color. The Commission ordered the agency to retroactively promote complainant and award him back pay, seniority, and other benefits, as well as consider compensatory damages. Olivas v. Department of the Navy, EEOC Appeal No. 01A04026 (July 30, 2002).

Retaliation Discrimination

Retaliation Found in the Absence of a Legitimate, Non-Discriminatory Reason. The Commission found that the agency had retaliated against complainant for his prior EEO activity when it repeatedly changed his days off, even though most supervisors had fixed days off. The Commission, after finding that the agency had failed to offer a legitimate justification for its action, ordered the agency to reinstate complainant's set days off. Sandhu v. United States Postal Service, EEOC Appeal No. 01A21514 (July 30, 2002).

Removal Proposal Based on Retaliation. The Commission concluded that the AJ's finding that complainant's removal was proposed because of her having raised a claim of sexual harassment was supported by substantial evidence. The Commission also agreed that this type of activity was actionable because it could have a chilling effect on complainant's desire to engage in protected activity. As part of the relief awarded, the Commission ordered a remand on the issues of compensatory damages and attorney's fees and costs. Riojas v. United States Postal Service, EEOC Appeal No. 01994212 (August 15, 2002).

Sanctions

EEOC Reaffirms AJ's Authority to Impose Sanctions on an Agency. The sole issue in the agency's reconsideration request was the authority of the AJ to impose payment of attorney's fees as a sanction for failing to abide by an order of the AJ. In affirming the AJ's authority to impose such sanctions, the Commission referred to its regulation at 29 C.F.R. § 1614.109(f)(3), permitting an AJ to issue sanctions during the conduct of a hearing, as well as to EEOC's recent rulemaking authorizing the imposition of sanctions for failure to produce information during the appeal process. 29 C.F.R. § 1614.404(c). Johnson v. Department of the Navy, EEOC Request No. 05A20655 (September 25, 2002).

AJ's Sanction Improper. Complainant failed to respond to an AJ's order to answer her Notice of Summary Judgment within a certain time period. The AJ then recommended that the agency dismiss the complaints. However, the agency issued a decision on the merits, finding no discrimination. On appeal, the Commission vacated the agency's final decision and the AJ's dismissal order, finding that complainant's conduct was not the type of conduct that merited sanctions. Cosley-Jordan v. Department of the Army, EEOC Appeal No. 01A01933 (September 19, 2002).

Settlement Agreements

Settlement Agreement Breached But No Remedial Relief Available. While complainant had entered into a settlement agreement where the agency had agreed to pay the tuition fees, mileage and per diem for complainant and his wife to attend a federal retirement seminar, the agency's breach of the provision would not entitle him to specific performance because complainant had since retired and the seminar at issue no longer addressed a viable interest. Peterson v. Department of the Interior, EEOC Appeal No. 01A10289 (March 7, 2002), RTR denied, EEOC Request No. 05A20530 (June 14, 2002).

Settlement Agreement Void for Lack of Consideration. The agency agreed to allow complainant to file a grievance pertaining to her claims and to treat her with dignity and respect, and not retaliate against her. The Commission found that these provisions did not provide complainant with anything that she was not entitled to receive as an agency employee in exchange for her withdrawing the underlying complaint. Tamura-Wageman v. Department of the Army, EEOC Appeal No. 01A11459 (March 7, 2002).

Substantial Compliance Found. The Commission found that the agency was in substantial compliance with a settlement agreement, even though complainant received a required payment approximately three months late. EEOC noted that failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial compliance, especially when all required actions were subsequently completed. Gilmore v. United States Postal Service, EEOC Appeal No. 01A10815 (March 14, 2002).

Specific Performance Ordered. The Commission found that the agency had breached a settlement agreement when it failed to conduct the third of three Conflict Resolution Sessions, in which complainant was to have had an opportunity to participate. The third session was to be held within 15 days of the second; however, the agency had made no attempt to conduct the third session. EEOC ordered the agency to hold the third session within 15 days of its order. McMillen v. Department of the Treasury, EEOC Appeal No. 01A21067 (March 19, 2002).

Violation of OWBPA Requires Partial Vacation of Agreement. On a petition from a Merit Systems Protection Board (MSPB) final order, the Commission found that a settlement agreement resolving petitioner's mixed case appeal should be set aside because ADEA-related retaliation claims were protected under the Older Workers Benefit Protection Act of 1990 (OWBPA), and the agreement did not satisfy the specific OWBPA requirements that must be met for a waiver of an ADEA claim to be valid. EEOC also concluded, however, that portions of the agreement attempting to settle reprisal claims raised under Title VII and/or the Rehabilitation Act should be allowed to stand, since petitioner raised no arguments suggesting that these particular waivers were invalid. The Commission noted, however, that the agency may have a simultaneous claim for a reduction of petitioner's award if petitioner ultimately prevails on his retaliation claim and is awarded relief for this claim. Campo v. United States Postal Service, EEOC Petition No. 03A20012 (August 23, 2002).

Hearing Transcript Evinced the Intent of the Parties. The Commission found that the parties had entered into a legally binding settlement agreement, which the agency breached, even though the agreement had not been reduced to a writing after a hearing. EEOC found that the hearing transcript evidenced the intent of the parties, and that the terms of the agreement were clearly ascertainable and agreed to by both parties before the AJ. The Commission ordered specific performance. Opfer, Jr. v. Department of Commerce, EEOC Appeal No. 01A11610 (September 10, 2002).

Timeliness

Agency Failed to Meet Its Burden of Obtaining Sufficient Information Regarding Timeliness of Complainant's EEO Counselor Contact. Rejecting the agency's assertion that complainant was made aware of her nonselection by an agency letter sent well beyond the applicable 45-day period for Counselor contact, the Commission found no evidence reflecting whether and when complainant received the purported letter. Cross v. United States Postal Service, EEOC Appeal No. 01A20914 (March 7, 2002).

Applicant Not Aware of 45-day Requirement, Dismissal Reversed. The Commission found no evidence that complainant, not a federal employee, had actual or constructive knowledge of EEO regulations or procedures. Michaud v. United States Postal Service, EEOC Appeal No. 01A03448 (September 18, 2002).

EEO Contact on Removal Timely. Complainant's March 8, 2002 EEO contact was within 45 days of February 9, 2002, the date of the arbitrator's decision sustaining the removal and was thus timely. Scott v. United States Postal Service, EEOC Appeal No. 01A23284 (September 9, 2002)

Untimely Request for Reconsideration. In denying complainant's request for reconsideration on timeliness grounds, the Commission noted its precedent that a complainant was deemed to have constructively received a prior appellate decision that had been mailed to her last known address when she failed to notify the Commission of her address change. In this case, EEOC rejected the argument of complainant, who had moved twice since initiating the appellate process, and his attorney, that they did not receive a copy of the previous appellate decision. Guerard v. Department of Health and Human Services, EEOC Request No. 05A11141 (March 14, 2002).

SELECTED RECENT FINDINGS OF DISABILITY DISCRIMINATION

AJ Erred in Finding Undue Hardship Under the Collective Bargaining Agreement

Complainant, a PS-6 Letter Sorting/Machine Distribution Clerk (LSM), filed a complaint based, in relevant part, on disability discrimination when she was denied a reasonable accommodation by requiring her to return to her bid position in May 1994; and was terminated from her position. An AJ found no discrimination. The AJ found that complainant was an individual with a disability in that she had asthma and allergic rhinitis which substantially limited her ability to breathe. He further found that the complainant could not perform the essential functions of her position as an LSM Clerk because exposure to the smallest allergens such as perfumed mail could cause her significant harm. The AJ concluded that the agency was unable to offer any accommodation which would allow complainant to continue to be employed in her original bid position. In determining that complainant was able to perform the essential duties of several other positions in locations away from the sorting area, the AJ noted that the agency provided such reassignment accommodations for approximately two years.

The AJ further concluded that the agency proved that reassigning complainant would violate the Collective Bargaining Agreement's (CBA) requirement that vacant positions be posted for bid and, thus, found that the agency had proven that reassignment would cause the agency undue hardship. The AJ found not controlling an arbitration award which sustained complainant's grievance and upheld her right to reassignment. Finally, the AJ concluded that complainant had failed to show any alternative available accommodation that would not pose an undue hardship. The agency's final decision accepted the AJ's finding of no discrimination.

On appeal, the Commission reversed the agency, As the Commission interpreted the AJ's finding, reassignment was the proper accommodation in this case but was not an option because of the requirement that positions be posted and opened for bids. The Commission concluded that the CBA did not bar reassignment of individuals with disabilities and that complainant identified vacant funded positions to which she could have been assigned and which would have effectively accommodated her request to minimize her exposure to allergens concentrated in the letter sorting area. In this regard, the Commission noted the Supreme Court's decision in U.S. Airways v. Barnett, 122 S.Ct. 1516 (2002), wherein the Court held that normally the employers' seniority system will prevail over the disabled employee's right to reassignment absent a showing of special circumstances, e.g., where an employee shows that the system already contains exceptions such that further exceptions are unlikely to make a difference. In the present case, the Commission found that complainant had demonstrated that reassignment was a reasonable accommodation and that the parties had specifically bargained for and had agreed to an exception to the posting requirement and thus no conflict existed. In addition, the Commission found the existence of special circumstances of the kind contemplated by Barnett supra. The agency had in place a detailed procedure for placing employees with impairments and disabilities, both temporary and permanent, into light and limited duty positions. Therefore, the Commission concluded that the agency's process for granting permanent light duty requests operated outside the bid process and reassignment was a reasonable accommodation. In this regard, the Commission noted that 29 C.F.R. 1614.203(g), which governed and limited the obligation of reassignment in the federal sector, had been superseded, and would be codified under 29 C.F.R. 1614.203(b). The Americans With Disabilities Act standards apply to all conduct on or after June 20, 2002, emphasizing a broader search for a vacancy.

In the present case, the Commission concluded that the agency was aware of vacant funded positions, but unreasonably assumed that complainant would be exposed to allergens in any of these positions. The Commission further concluded that complainant had made reasonable efforts to identify vacant positions for which she was qualified and in which her exposure to allergens was minimized. Accordingly, the Commission found that the agency had failed to meet its burden of demonstrating that reassigning complainant would have posed an undue hardship and found that the agency's termination of complainant violated the Rehabilitation Act. As part of the remedy in this case, the Commission ordered the agency to retroactively reinstate complainant as of the effective date of her termination and provide her with a vacant position which accommodated her disability. Burnett v. United States Postal Service, EEOC Appeal No. 01981618 (September 26, 2002).

Agency Improperly Regarded Complainant as Substantially Limited in Working and as a Direct Threat, and Thus Unsuitable for Employment

Complainant applied and was selected for the position of Cleaner/Custodian. Subsequent to a an agency medical examination and assessment In June 1998, the contract physician (TCP) found that complainant had a history of coronary artery disease since 1993; that he twice underwent coronary angioplasty in 1994, which resulted in a history of angina requiring nitroglycerin; and that his heart was normal on evaluation. TCP further found that complainant had "gouty arthritis-right foot primarily with infrequent attacks"; degenerative disc disease of the cervical spine with mild, intermittent pain; right elbow cubital tunnel syndrome; and epicondylitis. TCP opined that: (1) absent more definitive information from stress EKG or angiopathy, it would be "hard to dismiss the notion that the exertion associated with the job functional requirements will cause chest pain or worse"; (2) "heavy lifting, carrying, pushing and pulling are likely to cause right elbow and entrapment neuropathy signs and symptoms"; and (3) "neck symptoms could flare up with heavy lifting and carrying." TCP also found that recent clinic records evidenced a history of excessive ethanol intake described as weekly binge drinking; high blood lipids and elevated blood pressure, conditions which "are not prognostically favorable for a young man with coronary heart disease." TCP concluded that complainant was a high risk candidate.

The agency also reviewed a 1996 rating decision from the Department of Veterans Affairs (VA) which found that complainant's coronary artery disease was service connected and 30 percent disabling and that his degenerative disc disease was service connected and 10 percent disabling.

The VA also provided the agency with 1998 diagnoses of coronary heart disease, hypertension, hyperlipidemia, elevated ALT of 88, and thoracic disc disease. Based on this evidence, the agency determined that complainant's conditions were "serious" and caused him to have limitations against repetitive heavy lifting, carrying, pushing, pulling, prolonged standing and walking. Accordingly, the agency concluded that employing him as a Cleaner/Custodian would not be in complainant's "best interest."

Complainant filed a complaint of disability discrimination and requested a final agency decision without a hearing. The agency found no discrimination. On appeal, complainant argued that the agency did not acknowledge his physician's progress note, dated June 23, 1998, which stated that complainant had "good exercise tolerance and should be able to continue janitorial job without any problems." His physician also described complainant's coronary artery disease as "stable."

The Commission found complainant to be a qualified person with a disability, in that the agency regarded complainant as having an impairment which substantially limited the major life activity of working, in this case performing a class of jobs: custodial and cleaner positions, and had initially selected him for the position at issue pending the outcome of a medical suitability determination.

In reversing the agency's decision, the Commission found that the agency had failed to meet its burden of showing that complainant posed a significant risk, i.e., high probability of substantial harm. The Commission found no evidence that the agency considered the opinion of complainant's own physician or any evidence regarding complainant's work history since he was diagnosed with coronary artery disease in 1993. The Commission further found that TCP's report was characterized by speculation in the absence of definitive information from a stress EKG or angiopathy with regard to complainant's having "chest pain or worse." TCP also stated that heavy lifting, carrying, pushing and pulling were likely to cause symptoms, but there was no explanation as to what the nature and severity of those symptoms might be.

The Commission additionally found that the agency's finding of unsuitability was not explained in detail, nor did it address the duration of the risk posed by complainant's coronary artery and degenerative disc, the nature and severity of the potential harm, and the imminence of the potential harm. Accordingly, finding no evidence to support the agency's conclusion that complainant posed a direct threat, the Commission found that the agency's denial of employment to complainant violated the Rehabilitation Act. As part of the remedy ordered, the Commission directed the agency to offer the position of Cleaner/Custodian or a substantially equivalent position to complainant at an agency facility within 30 miles of his home, back pay with interest and other benefits, and investigate complainant's claim for compensatory damages. Asuncion v. United States Postal Service, EEOC Appeal No. 01993435 (August 23, 2002). See also, McManaway v. United States Postal Service, EEOC Appeal No. 01993233 (August 23, 2002) (hiring denial based on direct threat unsupported by the evidence; Commission awards $10,000 in non-pecuniary compensatory damages); and see Jones v. United States Postal Service, EEOC Appeal No. 01995775 (September 26, 2002) (denial of employment based on direct threat determination was contrary to the medical evidence; matter remanded on the issues of compensatory damages and attorney's fees).

Agency Improperly Perceived Complainant's Limitations as Being Long Term

Complainant, an Aircraft Ordinance Systems Mechanic, dislocated his shoulder in November 1996. According to his treating physician (Dr. J), in January 1997, complainant should perform no heavy lifting or overhead work for one year. No further treatment or visits was required. A Work Restriction Evaluation form limited complainant to lifting a maximum of 10 pounds until January 8, 1998. Complainant was then given a light duty assignment.

Although he was never placed on enforced leave, complainant, on April 22, 1997, was issued a notice proposing to place him on enforced leave for an indefinite period due to his inability to perform the essential functions of his position (lifting up to 75 pounds). On April 30, 1997, complainant's physician (Dr. P) reported that complainant was able to return to work without restrictions. The agency's physician (Dr. M) concurred with Dr. P. Dr. M described Dr. J's recommendation as being "very cautious" as to the expected time of recovery. Nevertheless, the Unit Foreman continued to assign complainant light duty work until January 1998.

The Commission reversed the agency's finding of no disability discrimination, finding that the agency regarded complainant as being significantly restricted in his ability to lift, continuing his limitations for more than a year without medical justification. The Commission noted that if the agency believed that the documentation was insufficient to determine whether complainant posed a direct threat or was unable to perform the essential functions of the position, then the agency had the option of arranging for complainant to be examined by a second specialist. As part of the remedies ordered, the Commission directed the agency to restore any lost seniority and leave used for its failure to restore complainant to his Mechanic position in April 1997. The Commission also ordered the agency to consider complainant's claim for compensatory damages, conduct EEO training of the responsible management officials, including the Unit Chief, and consider appropriate disciplinary action against the Unit Chief. Shobert v. Department of the Air Force, EEOC Appeal No. 01991157 (August 28, 2002).

Agency Unduly Delayed Satisfying Request for Reasonable Accommodation

Complainant, an agency Program Assistant, injured his back in April 1997. Complainant's physician indicated that, in connection with his herniated disc, complainant had a complete drop foot and experienced severe weakness and numbness in his left leg. The physician placed complainant under the following restrictions: no lifting over 10 pounds; no sitting for more than 30 minutes without a 5-minute break; no standing for more than 15 minutes without a 5-minute break; no repetitive bending, squatting, kneeling, and crawling. In August 1998, the physician released complainant to return to work on a part-time basis (4 hours a day) under the above restrictions. The physician also asserted that complainant could not return to the Program Assistant position. On December 7, 1998, the physician, by letter, advised the agency of complainant's continued profound neurological deficit in his left foot and leg and mechanical back pain. The letter also listed the same previous restrictions.

In December 1998, due to a reduction in force (RIF), the agency reassigned complainant to a vacant position as a Transportation Assistant. The position was designed to accommodate his restrictions. On February 12, 1999, complainant reported for duty and found that his work station was on the second floor in a building without an elevator, no access ramp into the building, and restrooms on the first floor. Complainant determined that he would have difficulty climbing the stairs due to his condition and informed his Second Line Supervisor (SLS) accordingly. SLS took complainant to the Supervisory Program Analyst (SPA) who informed complainant that she had been unaware of his limitations. SPA requested medical documentation to support his request.

Until complainant produced such documentation, he continued to report to the second floor work site in a building without a ramp, without an elevator, and restrooms on the first floor. Complainant averred that he had to climb the stairs 10-12 times a day during his 4 duty hours in order to use the restrooms. As a result of this climbing, complainant's condition worsened. Four weeks after informing SPA of his request, complainant provided medical documentation from his physician explicitly stating that he could not climb stairs. Complainant was then detailed to another building while his work site was physically changed.

Complainant filed an EEO complaint based on the request for additional medical information and subsequently requested a final agency decision, which found no disability discrimination. Reversing the agency, the Commission found that the agency should not have required complainant to provide additional medical documentation regarding his climbing limitation. The Commission found that the agency had clearly been provided sufficient information to substantiate complainant's disability. Furthermore, based on the medical documentation and a leg brace, complainant had provided sufficient information to substantiate the need for accommodation. Therefore, the Commission concluded that the agency had unduly delayed complainant's reasonable accommodation. As remedies, the Commission ordered, in part, that complainant be advised of his right to submit objective evidence in support of his claim for compensatory damages and that the agency provide Rehabilitation Act training for its management officials, including those involved in this matter. In addition, the Commission directed the agency to consider disciplining the management officials identified as having discriminated against complainant and report its decision on discipline to the Commission. McDonnell v. Department of the Navy, EEOC Appeal No. 01A04036 (September 13, 2002).

Agency Unreasonably Failed to Provide Reasonable Accommodation

In reversing the agency's final order, the Commission upheld the findings of an AJ that management officials had failed to abide by complainant's agreed upon limited duty assignment (LDA) and refused to revise her assignment, including the scheduling of her lunch break. The Commission found that complainant was substantially limited in the major life activity of lifting and could perform the essential functions of her position with an accommodation.

Complainant, a City Carrier, had filed her formal EEO complaint on October 28, 1994, claiming discrimination based on disability (hip pain, low back strain, Spondylolysis, and Piriformis Syndrome). Up until then, complainant had been offered and had accepted 4 LDA's in succession. The LDA of April 22, 1994, in effect at the time of the complaint, provided that complainant take lunch from 2:00-3:00 p.m. Complainant had many medical restrictions in operation at the time, including the requirement that she be permitted to take lunch earlier, so that she would not be required to sit, stand, bend, or walk for longer than 4 hours at a time before permitted to take a break. Complainant was restricted from lifting more than 20 pounds and standing for more than 3 hours. She was permitted to take the necessary breaks until April 1994. The AJ concluded that complainant was not permitted to take her lunch break at an earlier time than typically scheduled for her position, between April and October 1994, in accordance with her medical restrictions.

The Commission rejected the agency's argument that complainant had signed a Limited Duty Offer (LDO), in April 1994, which detailed that she would be assigned a lunch hour from 2:00-3:00 p.m. The Commission stated that the signing of the LDO did not constitute a waiver of complainant's right to reasonable accommodation. The Commission noted that complainant had been taking her lunch hour earlier, in accordance with her medical restrictions, prior to signing the April LDO. The Commission stated that, more importantly, complainant had requested an earlier lunch hour due to her medical restrictions, which was a request for accommodation of her disability. Complainant had stated that the earlier lunch hour was necessary so that she would not be sitting longer than 4 hours at a time. The agency did not provide such accommodation until October 1994, 6 months after the request was made. The Commission rejected the agency's explanation that there were certain duties specific to complainant's position that had to be done by 2 p.m. The Commission stated that there was no evidence that the agency considered alternatives, such as swapping duties with another employee, to accommodate complainant's request. Nor did the agency show that accommodating complainant would have been an undue hardship. The Commission ordered the agency to assign complainant a specific lunch break period and breaks consistent with her current medical requirements and not alter them, regardless of new LDAs, absent complainant's consent, with the changing of duty assignments. LaPointe v. United States Postal Service, EEOC Appeal No. 01992460 (June 27, 2002).

Pre-Offer Disability-Related Questions Violated the Rehabilitation Act

Complainant claimed disability discrimination when the agency required him to submit medical documentation when he applied for a position, and when the agency cancelled the position vacancy announcement. The Commission found that the agency's pre-offer questions were improper "disability-related questions," as defined by the Rehabilitation Act. However, the Commission further determined that complainant had failed to meet his burden of showing the agency's reasons for withdrawing the vacancy announcement were pretextual. With regard to its finding of disability discrimination, based on the pre-offer questions, and by way of remedy, the Commission ordered the agency to investigate complainant's entitlement to compensatory damages; review its pre-employment hiring processes (especially regarding application forms, interview guidelines, and pre-hire medical examination procedures), revising them as necessary consistent with Commission regulations and Guidance; and to provide EEO training to the officials responsible for personnel decisions, with special emphasis on the agency's obligations under the Rehabilitation Act and implementing regulations with respect to pre-employment inquiries. Smallcanyon v. Department of Health and Human Services, EEOC Appeal No. 01997060 (August 21, 2002).

Requirement of Psychiatric Examination Violated the Rehabilitation Act

Complainant was sent to two different agency doctors (a psychiatrist and a psychologist) for fitness for duty examinations. Both indicated that complainant was fit for duty, but expressed concerns about complainant's "feelings of persecution." A letter from the psychiatrist recommended that complainant be referred to a psychiatrist for further treatment and be re-evaluated in one year. The agency directed complainant to obtain professional counseling at his own expense. Complainant refused and was subsequently terminated, along with his benefits. In the interim, complainant had been placed in non-duty status, then administrative leave, and been given an "unsatisfactory" annual evaluation, although he was eligible to receive a "not rated" evaluation because he did not work during the rating period.

The Commission reversed both the AJ's and agency's decisions, first determining the complainant's argument was more appropriately construed as an opposition to further medical inquiries. The Commission then found that the agency had violated the Rehabilitation Act because it could not demonstrate that its requirement that complainant seek psychiatric services was job-related and consistent with business necessity. Additionally, based on statements made by complainant's supervisor at the hearing, the Commission found that the agency subjected complainant to retaliation discrimination when it issued him an unacceptable rating, instead of a "not rated" performance evaluation. Meeker v. United States Postal Service, EEOC Appeal No. 01A12137 (August 23, 2002).

Improper Disclosure of Medical Condition Unlawful

The Commission found that the agency violated the Rehabilitation Act's prohibition against the improper disclosure of confidential medical information, when it sent a letter to other Postal installations disclosing complainant's medical diagnosis and symptoms. The agency had sent the letter in an attempt to find complainant a job that could be performed during a particular shift as a reasonable accommodation. Noting that the Rehabilitation Act permits managers to be informed of necessary restrictions on the work or duties of the employee and necessary accommodations, the Commission found the disclosure to be a violation of the Rehabilitation Act. The Commission stated that the disclosure was not necessary to alert managers to restrictions on complainant's work or duties and his need for accommodation. The Commission reiterated to the agency that the Rehabilitation Act does not limit the prohibitions against improper disclosure of confidential medical information, and improper medical inquiries, to individuals with disabilities. The Commission remanded the matter on the issues of compensatory damages and attorney's fees and costs. Tyson v. United States Postal Service, EEOC Appeal No. 01992086 (August 23, 2002).