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.