01992277
05-15-2001
Angela Benton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.
Angela Benton v. United States Postal Service
01992277
5/15/01
.
Angela Benton,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(S.E./S.W. Areas),
Agency.
Appeal No. 01992277
Agency No. 4H-300-0026-97
Hearing No. 110-98-8158X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleges she was discriminated against
on the bases of disability (back condition), and reprisal (prior EEO
activity),when: (1) on October 31, 1996, the Acting Station Manager told
her to do whatever duties he asked her to do, or be terminated; and (2)
on November 9, 1996, the Acting Station Manager issued her a fourteen
day suspension. For the following reasons, the Commission REVERSES the
agency's final decision.
The record reveals that complainant, a Carrier at the agency's Parkaire
facility, Marietta, Georgia, filed a formal EEO complaint with the agency
on February 18, 1997, alleging that the agency had discriminated against
her as referenced above. The relevant facts of the case are as follows:
because of an on-the-job back injury, complainant worked in a limited
duty position where she was assigned a variety of tasks within her
medical restrictions. However, on October 31, 1996, the complainant's
Acting Supervisor, who was aware of complainant's medical restrictions,
directed complainant to �street the mail,� which means to separate mail by
street name. This task required complainant to work in a seated position,
bend over, lift a bundle of mail, and separate the mail by street.
Complainant refused to complete the task since it required her to work
outside of her medical restrictions, which included no lifting over 10
pounds, and little or no twisting and bending.
Complainant and the Acting Supervisor then met with the Acting Station
Manager. Complainant requested that the Acting Station Manager provide
her with the phone number for an EEO Counselor, which the Acting
Station Manager stated he did not have. During a heated discussion,
the Acting Station Manager informed complainant that she would do the
duties instructed of her, or else she would be fired. As a result of
complainant's refusal to �street the mail,� the Acting Station Manager
issued complainant a 14 day suspension for (1) failure to follow
instructions, disobeying a direct order; and (2) conduct unbecoming a
postal employee. The Acting Station Manager testified that he understood
complainant's restriction of �limited or no� bending to allow her to
bend one hour per day. He testified he did not know whether the task
assigned to complainant in this instance would take an hour or longer.
Furthermore, he testified he had asked complainant to street mail for
more than one hour in the past. This complaint followed.
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). Following a hearing, the AJ issued a decision
finding disability discrimination.
The AJ concluded that complainant established a prima facie case of
reprisal discrimination because she engaged in prior EEO activity of
which the Acting Station Manager was aware. Specifically, the Acting
Station Manager was called at the hearing for the prior complaint.
Further, the agency's investigation of complainant's prior EEO complaint
ended just two months before the actions at issue herein. Finding that
this constituted the requisite causal connection between the protected
activity and the adverse actions alleged herein, the AJ found complainant
established an inference of retaliation.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ found
that the agency issued the disciplinary action because complainant
disobeyed orders and was disrespectful to the Acting Supervisor and Acting
Station Manager. Although the AJ was concerned that the supervisor did
not provide the EEO Counselor's phone number, she did not believe that
the agency issued the discipline in retaliation for prior EEO activity.
As for complainant's claim of disability discrimination, the AJ
likewise found complainant established a prima facie case of disability
discrimination. The AJ found complainant established she was a qualified
person with a disability since her back impairment restricted her to
lifting no more than 10 pounds, as well as performing little or no
bending, twisting, pushing or pulling.
Furthermore, the AJ noted that although the agency had provided
complainant with a reasonable accommodation when it provided her the
limited duty position, it abandoned that accommodation on the day in
question when it ignored her physical limitations and assigned her duties
outside her restrictions. The AJ found the agency acted arbitrarily when
it forced complainant to work outside of her restrictions, without first
establishing that to continue to provide her with an accommodation posed
an undue hardship. Indeed, the agency never claimed complainant could
not perform the essential function of her job, or that the provision
of accommodation constituted an undue hardship. Thus, the AJ found the
agency violated the Rehabilitation Act.
The agency's final decision rejected the AJ's decision. Instead,
the agency determined that in light of complainant's failure to raise
disability as a basis of her complaint until the hearing, the record
was not sufficiently developed on the issue of complainant's disability.
Absent further objective evidence of complainant's alleged disability,
the agency argued, complainant could not establish she was a qualified
individual with a disability. The agency also argued that on only one
other occasion did the responsible officials assign complainant a duty
that was outside of her medical restrictions. In that regard, the agency
argued it was unlikely that the officials would accommodate complainant
the majority of the time, only to assign her the duty in question herein
in order to discriminate against her. Instead, the agency maintained that
it assigned complainant the mail sorting job alleged herein by �mistake.�
In response, complainant contends that the AJ's decision correctly
summarized the facts and reached the appropriate conclusions of law.
Complainant argues that she added disability as a basis of her complaint
prior to the onset of the hearing. She cites to testimony in the record
where the responsible officials admit they were aware of complainant's
limitations. In response to complainant's appeal, the agency argues that
the responsible officials mistakenly believed complainant could bend and
twist for an hour each day. The agency argues that despite this mistake,
there is no evidence of intentional discrimination. The agency maintains
that complainant was accommodated when she was assigned duties within
her medical restrictions after her on the job injury.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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).
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb the AJ's
decision. We find that complainant's back impairment substantially limits
the major life activity of lifting since complainant is restricted from
lifting over 10 pounds, and that, therefore, she is an individual with a
disability pursuant to the Rehabilitation Act. We also find complainant
is a qualified individual with a disability. Complainant testified, and
the agency did not dispute, that she successfully performed her limited
duty position, which included �Return to Writer� functions, as well as
the delivery of express mail consistent with her lifting limitations.
At no time during the hearing did the agency claim that complainant was
unable to perform the essential functions of her position. We disagree
with the agency's argument that the record lacked sufficient evidence
as to complainant's disability. In addition to complainant's testimony,
the record contains complainant's restrictions from her physician which
establish that she is substantially limited in lifting, and should
perform little or no pushing, pulling, twisting or bending.
Although the agency argues that the responsible officials mistakenly
misunderstood complainant's restrictions, we find their testimony
not credible. When asked what he relied upon when he determined that
complainant was capable of performing the �streeting� duty, the Acting
Station Manager testified that, �well, it's just that we had duties that
had to be done. We had stuff to be done. [Complainant] was on the clock.�
Hearing Transcript at p. 70. We agree with the AJ's finding that the
responsible officials ignored complainant's medical restrictions in this
instance, and issued her disciplinary action when she refused to perform
the task. The agency failed to show that to provide complainant with
work that was consistent with her medical restrictions was unreasonable
or would cause an undue hardship on the agency.
In her decision, the AJ found complainant failed to provide any
evidence in support of her request for compensatory damages, and thus,
she recommended that complainant not be awarded compensatory damages.
On appeal, complainant requested $50,000 in compensatory damages, but
failed to provide any evidence in support of her entitlement to such.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission REVERSES
the agency's final decision and REMANDS the matter to the agency to take
remedial actions in accordance with this decision and the ORDER below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
The agency shall provide complainant with back pay, including overtime
pay and all other benefits that complainant lost as a result of the
fourteen day suspension.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. The complainant shall cooperate
in the agency's efforts to compute the amount of back pay and benefits
due, and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
Within thirty (30) days from the date this decision becomes final,
the agency shall remove the Notice of Suspension and other negative
information in complainant's Official Personnel File related to this
incident.
Within thirty (30) days from the date this decision becomes final,
the agency shall provide training to the Acting Supervisor and Acting
Station Manager regarding their duties and obligations pursuant to the
Rehabilitation Act, including the provision of reasonable accommodation.
The agency shall pay complainant's reasonable attorney's fees in
accordance with the paragraph below.
The agency shall post a notice in accordance with the paragraph below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Parkaire Post Office, Marietta,
Georgia facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (R0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
5/15/01
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that a
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The U.S. Postal Service, Marietta, Georgia Post Office, (hereinafter
referred to as �facility�) supports and will comply with such federal
law and will not take action against individuals because they have
exercised their rights under law.
The facility has been found to have violated the Rehabilitation Act when
it required an individual to work outside of her medical restrictions and
issued her a fourteen day suspension. The facility was ordered to award
the individual back pay and associated benefits, remove the suspension
from her official personnel file, conduct training, pay the individual
reasonable attorney's fees incurred in the processing of the complaint,
and post this notice.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614