05960477
05-14-1999
Lyndia G. Alvarez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lyndia G. Alvarez v. United States Postal Service
05960477
May 14, 1999
Lyndia G. Alvarez, )
Appellant, )
) Request No. 05960477
v. ) Appeal No. 01945258
) Agency No. 3-C-1042-92
William J. Henderson, ) Hearing No. 130-94-8027X
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
GRANTING OF REQUEST TO RECONSIDER
On April 22, 1996, the appellant timely initiated a request to the
Equal Employment Opportunity Commission (Commission) to reconsider
the decision in Alvarez v. United States Postal Service, EEOC Appeal
No. 01945258 (March 18, 1996). The Commission mailed a copy of
the previous decision to the appellant's representative, and not
the appellant. The representative received the decision on March
23, 1996. EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. 1614.407(c)(1); the previous decision involved
an erroneous interpretation of law, regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, the appellant's request is granted.
ISSUE PRESENTED
Whether the previous decision properly found that the appellant was not
discriminated against on the bases of perceived disability (broken wrist),
race-national origin (Hispanic/Native American), color (pale white), sex
(female), age (43), and religion (Southern Baptist) when her transfer
was canceled in September 1991.
BACKGROUND
The appellant filed an EEO complaint alleging the above issue. Following
an investigation, which was supplemented by the agency, the appellant
had a hearing before an Equal Employment Opportunity Commission (EEOC)
Administrative Judge (AJ). The AJ issued a recommended decision finding
that the appellant was discriminated against on the basis of disability
but not on the remaining bases. The agency then issued a final decision
finding no discrimination. The appellant appealed, and the previous
decision affirmed the final agency decision. The appellant then filed
the instant request for reconsideration.
According to the record, the appellant is a computer markup clerk,
(CFS), level 4, stationed in Fresno, California. In March 1991 the
appellant requested a transfer to the CFS unit of the Tupelo, Mississippi
Management Sectional Center (MSC). Pursuant to this, the Director of
Human Resources for the MSC made a request to the Fresno, California
Human Resources unit to send various papers concerning the appellant,
such as her official personnel file. An incomplete set was sent.
Thereafter, on August 19, 1991, the MSC Director of Human Resources
approved the transfer, effective October 5, 1991. He requested that
the papers on the appellant be resent so the action could be processed.
Meanwhile, on July 30, 1991, the appellant fell off a motorcycle and
broke her wrist. She wore an external fixator for six weeks and remained
casted for four more weeks. After the fixator was removed, the appellant
had a limitation on lifting, but not on keying and labeling.
The appellant called the supervisor of the MSC CFS unit on September
16, 1991, notified him about her broken wrist, and said she may need
some light duty. The supervisor of the MSC CFS unit testified that the
essential functions of a CFS clerk were keying and labeling, and that
loading and unloading machines, sacks, and carts were "allied" functions.
The supervisor did not ask the appellant about her limitations,
and assumed that she was unable to key. Upon being told about the
conversation, the MSC Director of City Operations (DCO) went to Human
Resources for the MSC to look at papers on the appellant. They had
arrived that day, and included additional information not previously sent.
This consisted of a request by the appellant for advanced sick leave,
evidence of prior accidents and injuries, and a reference to discussions
and a letter of warning for attendance. Although the DCO did not know
it at the time, the letter of warning, which was for tardiness, should
have been removed from the appellant's official personnel file, and the
appellant had a positive sick leave balance but asked for the advanced
sick leave in case she would need it for her broken wrist.
The DCO stated that he recommended the transfer be denied due to his
belief that the appellant could not perform as a CFS because of her
broken wrist and the information in the above papers. The Director of
the MSC Human Resources unit affirmed that he "simply" agreed with the
recommendation, and denied the transfer.
The DCO testified that he considered the appellant handicapped, and
then modified this by saying he did not know if he considered her so,
but he needed someone ready to work.
The AJ found that the DCO's statement that he considered the appellant
handicapped was direct evidence that he perceived the appellant to have
a disability. The AJ found that the appellant was qualified to perform
the CSF clerk position. Based on the DCO's testimony, the AJ found that
the DCO would not have reviewed the appellant's papers if he was not
told that the appellant said she broke her wrist and might need light
duty. Noting that the appellant's request for a transfer was initially
approved, and was only denied after the discovery of the appellant's
broken wrist, the AJ found that the agency discriminated against the
appellant when it denied her the transfer because it perceived her as
having a disability.
The AJ found that the agency failed to establish by clear and convincing
evidence that it would have denied the appellant's transfer to Tupelo
even absent the broken wrist. The AJ noted that the DCO would not have
looked at the papers regarding the appellant's leave, attendance and
safety record but for learning about the broken wrist. The AJ also found
that there was no evidence that the MSC Director of the Human Resources
would have denied the transfer as a result of receiving the additional
papers in September 1991.
The AJ found a prima facie case of discrimination on the bases of
race/national origin, color, religion, sex, and age. In so doing,
the AJ drew an adverse inference against the agency for its failure
to gather comparative data in its supplemental investigation and its
failure to explain why it was unavailable. The AJ found, however, that
the transfer was denied due to the appellant's broken wrist and the papers
on her request for advanced sick leave, discipline, and accidents.
The previous decision found that the appellant's broken wrist did
not constitute a disability, nor did the appellant have a record of a
disability. It disagreed with the AJ's finding that the DCO perceived
the appellant to be an individual with a disability. It reasoned
that the mere fact that the DCO used the word "handicapped" did not
mean he considered her to be substantially limited in a major life
activity. It also found that even if the appellant was protected by
the Rehabilitation Act, the record showed that the transfer would have
been denied even absent the appellant's physical condition because
of unfavorable information that was in the papers on the appellant.
It adopted the AJ's finding of no discrimination on the bases of
race/national origin, color, religion, sex, and age.
In her request for reconsideration, the appellant argues that the
Commission should find in her favor. She contends that an adverse
inference should be drawn due to the agency's failure to gather
comparative data. She also argues that there was a conflict of
interest because the agency representative (Representative 2) was also
an EEO Manager. Previously, the appellant filed a motion to disqualify
Representative 2, arguing that he had a conflict of interest. In his
March 1994 response, Representative 2 averred that the Manager of EEO
Complaints Processing in San Jose, California mistakenly forwarded the
appellant's request for counseling to him, then Manager of EEO Complaints
Processing for the Jackson, Mississippi Division. Representative 2
explained that he forwarded the request to the Memphis, Tennessee
Division, which had geographic jurisdiction over Tupelo, Mississippi.
These correspondences are in the record. Representative 2 averred that he
did not conduct counseling, take affidavits or gather documents relative
to the appellant's case. The record reflects that the appellant's
EEO counselor was in the Memphis Division, and the appellant filed her
complaint with that division. Representative 2 further averred that on
January 11, 1993 the agency asked that the appellant's case be remanded
for a supplemental investigation, which was completed in October 1993
by the Jackson, Mississippi office, and he had been reassigned to the
position of Labor Relations Specialist on January 9, 1993.
The AJ denied the motion on the grounds that there was no conflict of
interest because Representative 2's only involvement in the appellant's
case prior to her request for a hearing was to transfer the file from
his office to another office for counseling and investigation, and he was
not involved in the counseling or investigation of the appellant's claim.
In her request for reconsideration, the appellant argues that there was
a conflict of interest. In support thereof, she submits a letter by the
agency's Jackson District dated January 11, 1993 to a prior AJ requesting
the return of the appellant's file for a supplemental investigation.
The typewritten signature line on the letter is Representative 2's
name, but it was signed "for" him by another individual. The letter
was copied to the appellant. The AJ's response of January 14, 1993,
which the appellant submits, refers to Representative 1 as the agency's
representative, not Representative 2. The AJ granted the request.
Supplemental investigative affidavits were taken in July and September
of 1993.
ANALYSIS AND FINDINGS
In order to prompt the Commission to reconsider its previous decision,
a party must present evidence or argument that satisfies one of the
criteria of 29 C.F.R. �1614.407(c). After considering the appellant's
request, we find she has satisfied the criteria for reconsideration.
The threshold question in a claim of discrimination based on disability
is whether an individual is a disabled person within the meaning of the
Rehabilitation Act. We agree, for the reasons stated in the previous
decision, that at the time the appellant's transfer request was denied,
she did not have a substantial impairment that limited a major life
activity or a record of one.
Under 29 C.F.R. �1614.203(a)(1)(iii), the definition of an individual with
a disability includes a person who is regarded as having a physical or
mental impairment which substantially limits one or more of such person's
major life activities. One who is regarded as having a disability means
having a physical or mental impairment that does not substantially limit
major life activities but is treated by an employer as constituting such
a limitation; has a physical or mental impairment that substantially
limits major life activities only as a result of the attitude of an
employer toward such impairment; or does not have an impairment but is
treated by an employer as having a substantially limiting impairment.
29 C.F.R. �1614.203(b)(5).
We disagree with the finding in the previous decision that the DCO did
not regard the appellant as having a disability. The counselor's report
stated that in response to the appellant's allegations, the DCO stated,
among other things, that since the CSF work involved extensive use of
the hand and wrist, he believed the injury to the appellant's wrist
could keep her out of CSF work for months, and perhaps permanently.
An individual is substantially limited in the ability to work if the
record demonstrates that an impairment significantly restricts the
individual's ability to perform a class of jobs or a broad range of jobs
in various classes and that many employers have or would exclude the
individual from working in that class or a broad range of jobs because
of the impairment. E.E. Black, 497 F. Supp. at 1101; 29 C.F.R. �1630,
App. at �1630.2(j).<1>
The appellant started working as a CFS clerk in February 1985. At the
hearing in March 1994, she testified that she was still employed as
a CFS clerk, and had always done that job with the agency. When the
appellant's reassignment was denied, her chosen field was clerical
work. We find that the DCO regarded the appellant as having a physical
impairment which substantially limited her major life activity of working.
29 C.F.R. �1614.203(a)(3). See Johnson v. University of Pennsylvania,
6 AD Cases 1885 (E.D. Penn. 1997) (The complainant was allegedly told
that she would not be referred for any data entry positions because
"that's how you messed up your hand in the first place." In determining
that a reasonable fact-finder could infer that the employer regarded
the complainant as having a disabling impairment, the court explained
that if an employer precludes an individual from consideration for data
entry positions because of her carpel tunnel syndrome, the individual
is restricted from performing a class of jobs, which constitutes a
substantial limitation in the major life activity of working); Mueller
v. United States Postal Service, EEOC Appeal No. 01942929 (August 24,
1995) (The complainant's request for reinstatement about 1� years after
he stopped working for the agency was denied. Based on evidence that the
deciding official falsely denied that he knew the complainant had failed
to qualify for his keying position because of a wrist injury, and this was
the reason the complainant was not reinstated, the EEOC Administrative
Judge found that the agency perceived the complainant as being disabled
and unable to compete for any employment. The Commission ruled that
the agency regarded the complainant as having a disability as evidenced
by its belief that the complainant was not able to perform in a field
of work which involved manual tasks due to his prior wrist injury, and
hence the complainant was excluded from a class of jobs involving manual
tasks); Kahout v. United States Postal Service, EEOC Appeal No. 01954900
(June 19, 1997) (The complainant, who was employed with the agency as
a letter sorting machine (LSM) operator, was permanently restricted
from continuous and/or repetitive motion of his hand. The Commission
found that the complainant was significantly restricted in his ability
to perform either a class of jobs or a broad range of jobs in various
classes requiring repetitive and/or continuous motion and thereby was
substantially limited in the major life activity of working).
We find that agency management at the Tupelo MSC denied the appellant's
transfer because it incorrectly regarded her as having a disability
which would prevent her from performing either a class of jobs or a
broad range of jobs in various classes that require substantial keying,
and this violated the Rehabilitation Act.
Next, we find, for the reasons set forth by the AJ, that the agency did
not discriminate against the appellant on the bases of race/national
origin, color, religion, sex, and age. The appellant argues that the
investigation did not gather sufficient comparative data, but the AJ
addressed this by drawing an adverse inference to find a prima facie
case of discrimination on these bases.
The appellant argues that the agency's use of Representative 2 created
a conflict of interest. The documentation submitted by the appellant
on request, however, fails to meet the criteria for reconsideration
because it is not new evidence that was not readily available when the
prior decision was issued. Moreover, it does not demonstrate a conflict
since Representative 2 was not actually the Manager of EEO Complaints
Processing for the Jackson District when the appellant's complaint was
remanded back to that District for a supplemental investigation.
The appellant requested punitive damages, as well as compensatory
damages for preparing for a move that was canceled. Complainants are
not entitled to compensatory damages for alleged acts of discrimination
which occurred before enactment of the Civil Rights Act of 1991 (CRA)
on November 21, 1991. See Goodwin v. United States Postal Service,
EEOC Request No. 05930664 (July 20, 1994) (citing Landgraf v. USI Film
Products, 114 S.Ct. 1483 (1994). The alleged act of discrimination
in this case occurred in September 1991. Further, the CRA does not
authorize the award of punitive damages against the Federal government.
CONCLUSION
After a review of the appellant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the appellant's request meets the criteria of 29 C.F.R. �1614.407(c).
The finding in EEOC Appeal No. 01945258 that the appellant was not
discriminated against on the basis of disability is REVERSED, and the
finding in that decision that the appellant was not discriminated against
on the bases of race/national origin, religion, sex, color, and age is
AFFIRMED.
ORDER
The agency is ORDERED to offer a transfer to the appellant to the position
of CFS clerk, or a substantially equivalent position, to the Tupelo,
Mississippi MSC.<2> The appellant's effective seniority date shall be
the same as if she had been transferred to the Tupelo, Mississippi MSC
on October 5, 1991 to the position of CFS clerk. The agency shall give
the appellant any step increases and career ladder promotions she would
have received had she been transferred on October 5, 1991.
The agency shall complete this action within 60 calender days after it
receives this decision.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include evidence that the corrective action
has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Management Sectional Center in
Tupelo, Mississippi, 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 60 calendar days of its receipt
of this decision, and shall remain posted for 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 10 calendar days of the expiration of
the posting period.
ATTORNEY'S FEES (H1092)
If appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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
May 14, 1999
_________ _________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ________________ which found
that a violation of �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 the 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 Management Section Center
(MSC) in Tupelo, Mississippi reaffirms its commitment to comply with
these statutory provisions.
The MSC supports and will comply with such Federal law and will not take
action against individuals because they have exercised their rights
under law. The EEOC found that an employee was discriminated against
in violation of the Rehabilitation Act when she was denied a transfer
to the MSC.
The MSC is remedying the employee affected by the Commission's finding.
The ordered remedies include offering the employee a transfer to the MSC.
The MSC will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws.
The MSC 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
1Although this regulation explicitly applies to the Americans with
Disabilities Act of 1990, it also applies to nonaffirmative action
employment discrimination arising under �501 of the Rehabilitation Act of
1973. 29 U.S.C. �791(g).
2While the facility the appellant sought a transfer to was referred
to as the Tupelo, Mississippi MSC in the agency's final decision, at
least one management official referred to the facility as the Main Post
Office in Tupelo, Mississippi. If these two names are not referring to
the same facility, the agency shall construe the use of either one of
these names in this decision to mean the facility the appellant would
have worked in had the transfer not been denied.