Mae Henry, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionJul 17, 2001
01972312 (E.E.O.C. Jul. 17, 2001)

01972312

07-17-2001

Mae Henry, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific Area), Agency.


Mae Henry v. United States Postal Service

01972312

July 17, 2001

.

Mae Henry,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(Pacific Area),

Agency.

Appeal No. 01972312

Agency No. 1F903102396

DECISION

Mae Henry (complainant) timely initiated an appeal from a final

agency decision (FAD) concerning her complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. � 2000e et seq., and Section 501 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant

alleged that she was discriminated against on the bases of race/color

(Black), sex (female) and disability (lumbar strain) when she was not

allowed to work a full eight hour day on January 27, 1996 and ongoing.

The record reveals that during the relevant time, complainant was employed

as a Mail Processor, PS-4, at the agency's Marina, California Processing

and Distribution Center. Believing she was a victim of discrimination,

complainant sought EEO counseling and subsequently filed a formal

complaint on March 29, 1996. At the conclusion of the investigation,

complainant was informed of her right to request a hearing before an EEOC

Administrative Judge or alternatively, to receive a final decision by

the agency. When complainant failed to respond within the time period

specified in 29 C.F.R. � 1614, the agency issued a final decision.

In its FAD, the agency concluded that complainant failed to establish

a prima facie case of race/color, sex or disability discrimination

because she failed to establish that she was treated differently than

any other comparable employee in a similar situation. The agency then

articulated a legitimate nondiscriminatory reason for its actions, noting

that complainant was given work when there was work available within her

light duty limitations. When no work was available, she was sent home and

told to use leave. The agency also noted that when complainant's status

changed to limited duty, she was provided eight hours of work per day.

The agency concluded that complainant failed to satisfy her burden of

proving discrimination by a preponderance of the evidence.

As an initial matter, we find that the agency correctly determined

that complainant failed to establish a prima facie case of race/color

or sex discrimination. Although she alleged that various individuals

who were on light duty, as she was, were provided with eight hours of

work every day, the record indicates that the individuals she named were

on limited duty and were therefore not similarly situated to her.<1>

Moreover, the one individual named by complainant who was on light duty,

was also provided less than eight hours of work per day. Accordingly,

the agency's finding that it did not discriminate against complainant

due to her race/color or sex is AFFIRMED.

Turning to complainant's claim of disability discrimination, we note that

the agency improperly analyzed this claim as one of disparate treatment.

It is clear from the record that complainant alleged that the agency

failed to provide her with a reasonable accommodation when it did not

provide her with eight hours of work per day. Under the Commission's

regulations, an agency is required to make reasonable accommodations to

the known physical and mental limitations of a qualified individual with

a disability unless the agency can show that accommodation would cause

an undue hardship. See 29 C.F.R. � 1630.2(o); 29 C.F.R. � 1630.2(p).

An "individual with a disability" is one who: (1) has a physical or mental

impairment that substantially limits one or more major life activities;

(2) has a record of such impairment; or (3) is regarded as having such

an impairment. 29 C.F.R. � 1630.2(g). Major life activities include,

but are not limited to, caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working.

29 C.F.R. � 1630.2(i).

In the case at hand, it is undisputed that complainant is an individual

with a disability within the meaning of the Rehabilitation Act.<2>

At the time in question, complainant's medical limitations included a

10-pound lifting restriction. She was therefore substantially limited

in the major life

activity of lifting. See Orosz v. Department of Commerce, EEOC Appeal

No. 01970955 (October 20, 2000); Breen v. Department of Transportation,

EEOC Petition No. 03970016 (March 20, 1997).

We next consider whether complainant is a �qualified individual with a

disability� under the Rehabilitation Act. A "qualified individual with

a disability� is one who satisfies the requirements for the position she

holds or desires and can perform the essential functions of that position

with or without reasonable accommodation. See 29 C.F.R. � 1630.2(m).

This inquiry is not limited to the position actually held by the

employee, but also includes positions that the employee could have held

as a result of job restructuring or reassignment. See Mees v. United

States Postal Service, EEOC Appeal No. 01971964 (September 11, 2000).

When an employee cannot perform the essential functions of her current

position because of a disability and no accommodation is possible

in that position, the agency's duty to reasonably accommodate that

individual includes an attempt to reassign her to a suitable position.

See 29 C.F.R. � 1630.2(o); Reagins v. United States Postal Service, EEOC

Appeal No. 01974481 (April 6, 2000). While an agency need not create a

new position for a disabled individual or �bump� another employee from a

job in order to create a vacancy, the agency must reassign complainant

to a vacant position if she is qualified for it. See Reagins, supra;

Schuetter v. Department of Defense, EEOC Petition No. 03970140 (January

15, 1999). Accordingly, the Rehabilitation Act permits the agency to

conclude that an individual with a disability is not �qualified,� only

after a determination is made that reassignment to a vacant position is

not possible or would result in an undue hardship. See Mees, supra.

In the case at hand, the record establishes that the agency failed to make

a good faith effort in searching for a position to which complainant could

have been reassigned. This is clearly demonstrated by the fact that when

the agency had the financial incentive to conduct a thorough assessment of

available positions for complainant, i.e., when her status changed to that

of a limited duty employee, it immediately located one which allowed her

to work eight hours per day. See Reagins, supra. The agency presented

no evidence to suggest that providing complainant with a reassignment when

she was on light duty would have been an undue hardship. Accordingly, we

find that the agency discriminated against complainant when it failed to

provide her with a reasonable accommodation. The FAD, as it pertains to

complainant's claim of disability discrimination, is therefore REVERSED.

In order to remedy complainant for its discriminatory actions, the agency

shall comply with the following Order.

ORDER

The agency is ORDERED to take the following remedial actions:

1. Within sixty (60) calendar days of the date this decision becomes

final, the agency is directed to restore to complainant any wages lost

(with interest), leave used and/or other benefits lost due the agency's

discriminatory actions.

2. The agency shall provide immediate training to officials responsible

for its actions in this matter regarding their obligations and

responsibilities under the Rehabilitation Act.

3. Complainant shall be awarded attorney's fees, as set forth below,

if appropriate.

4. 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 Marina, California Processing and

Distribution Center 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 (T0900)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

If you file a civil action, you must name as the defendant in the

complaint the person who is the official agency head or department head,

identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. If you file

a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to

file a civil action. Both the request and the civil action must be

filed within the time limits as stated in the paragraph above ("Right

to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

July 17, 2001

Date

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 Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. � 2000e et seq. has occurred at the United States Postal Service,

Marina, California Processing and Distribution Center (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 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 was found to have discriminate against the individual

affected by the Commission's finding on the basis of her disability when

it failed to provide her with a reasonable accommodation. The agency

was ordered to (1) restore any wages lost (with interest), leave used,

and/or other benefits lost due to its discriminatory actions; (2)

provide immediate training to the management officials responsible for

the denial of reasonable accommodation; (3) award reasonable attorney's

fees, if appropriate, and (4) 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

1 �Light duty� is provided to employees who suffer off-the-job injuries,

whereas �limited duty� is provided to those who suffer on-the-job

injuries. Agency policy requires that those on limited duty be provided

with eight hours of work per day, but those on light duty are sent home

if there is no work available within their medical restrictions.

2The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.