0720100031_finalfinaldocx
04-05-2012
Richard J. Small, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Richard J. Small,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0720100031
Hearing No. 430-2007-00460X
Agency No. 4K-280-0076-07
DECISION
Following its March 5, 2010 final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of 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 Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. Subsequently, Complainant filed a cross appeal.
Following an EEOC administrative hearing, an AJ issued a decision finding that, as of July 24, 2006, the Agency denied Complainant reasonable accommodation based on disability and in reprisal for prior EEO activity. The AJ concluded that the Agency failed to engage Complainant in the interactive process and sought to rely on external processes to address his disability. As remedial relief, the AJ awarded Complainant reinstatement to a mail carrier position at the Agency's Hope Mills, North Carolina facility effective April 14, 2008; back pay, plus interest; non-pecuniary damages in the amount of $100,000; and attorney's fees and costs in the amount of $39,105 and $911.18, respectively. Further, the AJ instructed the Agency to provide appropriate training to its employees and post a notice of the finding of discrimination.
The Commission finds that there is substantial evidence in the record that Complainant requested reasonable accommodation multiple times and the Agency failed to grant it. Further, we find substantial evidence in the record that the Agency subjected Complainant to a hostile work environment. Accordingly, we award Complainant reinstatement to his city carrier position at the Hope Mills, North Carolina postal facility retroactive to April 16, 2008; back pay with interest from July 24, 2006 through July 23, 2007, and from the date of Complainant's recuperation from gastric bypass surgery in Summer 2007 through the date of Complainant's reinstatement; at least 8 hours of EEO training for the involved responsible management officials; consideration of disciplinary action against the involved responsible management officials; $100,000 in non-pecuniary, compensatory damages; $39,105 in attorney's fees and $922.18 in associated costs plus appellate-related attorney's fees and costs; restoration of sick and annual leave; and posting of the notice of the finding of discrimination.
For the reasons that follow, the Commission REVERSES the Agency's final order.
ISSUES PRESENTED
1. Whether there is substantial evidence in the record to support the AJ's finding that the Agency denied Complainant reasonable accommodation in violation of the Rehabilitation Act.
2. Whether there is substantial evidence in the record to support the AJ's finding that the Agency subjected Complainant to unlawful retaliation.
3. Whether the AJ's award of $100,000 in compensatory damages is appropriate.
4. Whether the time period for which the AJ awarded Complainant reinstatement is appropriate; and if awarding reinstatement to the same position is proper.
5. Whether the time period for which the AJ awarded Complainant back pay is appropriate.
BACKGROUND
General Background
Complainant began employment with the Agency in the mid-1990s. In 2002, Complainant transferred to the Agency's St. Paul, North Carolina post office as a part-time flexible city carrier. In May 2003, he filed an EEO complaint in which he named the St. Paul Postmaster (S1) as the responsible management official. The parties entered a settlement agreement, dated June 26, 2003, in which S1 agreed to not provide "personally negative" information about Complainant if he applied for transfer to another post office.
In January 2004, Complainant transferred as a part-time flexible city carrier to the Hope Mills, North Carolina post office. Complainant indicated that he transferred primarily to get away from S1. Later that January, Complainant suffered an on-the-job back injury, for which he received benefits through the Department of Labor Office of Workers' Compensation Programs (OWCP). The record does not reflect Complainant had any permanent restrictions at that time. Also, in January 2004, the Agency detailed S1 to Hope Mills as an officer-in-charge, and, in October 2004, the Agency permanently transferred S1 to Hope Mills as Postmaster.
The following year, in February 2005, the Hope Mills management conducted route count inspections to ensure routes were deliverable within eight hours and made changes within its post office. Following the route inspections, the Agency converted Complainant from a part-time flexible carrier to a full-time regular carrier, assigned Complainant to "Route 3," and changed Route 3 from a "drive and dismount"1 route to a "park and loop"2 route. In this case, the park and loop included a six hour route with a 45-minute (about 45 deliveries) park and loop in a downtown residential area (with some businesses and without sidewalks), a rural route, and a residential "curbside"3 route with houses and apartments. The park and loop required Complainant to walk on one side of a highway, cross the highway, and then walk back on the other side of the highway.
In mid-2005, Complainant complained about the weight of his mail satchel and, on September 28, 2005, he reinjured his neck and back while on the job. Complainant indicated that the re-injury occurred from carrying more mail weight in his satchel and carrying it for a longer distance during the park and loop route. Complainant filed a grievance on the matter, and, in June 2005, Complainant filed a second EEO complaint against S1 regarding why and how she changed Route 3. Complainant did not pursue the matter (citing family issues). During mid-to-late 2005, S1 issued Complainant various disciplinary actions, including two suspensions and a Notice of Removal.
On two occasions in November 2005, Complainant's neurologist asked the Agency to allow Complainant to use a pull cart for carrying mail. Eight months later, on July 24 and 25, 2006, Complainant's family physician restricted Complainant to no lifting over 15 pounds and no bending, prolonged standing, or walking; and he requested that Complainant be allowed to use roller bags when carrying mail. In August 2006, Complainant's physician reiterated the restriction of no lifting over 15 pounds consistently and for no more than 55 minutes per day for park and loop. She also provided a restriction of lifting up to 50 - 70 pounds intermittently for 1 hour per day. On August 30, 2006, Complainant's physician restricted him from returning to work, based upon her concern he might work outside his restrictions.4 The record is unclear as to when Complainant's physician authorized him to return to work.
On November 29, 2006, a neurosurgeon stated that Complainant was restricted to lifting, pushing, pulling or carrying no more than 5 pounds and was limited in climbing, crawling, stooping, and bending. The neurosurgeon indicated that he considered Complainant's restrictions permanent at the time. On January 31, 2007, the same neurosurgeon stated that Complainant's restrictions remained the same. Three months later, on February 27, 2007, the neurosurgeon stated that Complainant was permanently restricted to: sitting no more than 8 hours per day; no reaching overhead or above shoulder level; limited twisting; no bending, stooping, squatting, kneeling or climbing; no operating a motor vehicle for work; and no pushing, pulling, or lifting more than 2 pounds and for no more than 1 - 2 hours per day.5 On June 7, 2007, the neurosurgeon stated similarly that Complainant was totally disabled. Subsequently, the Office of Workers' Compensation Programs scheduled a second opinion examination for July 10, 2007.
In a report dated August 17, 2007, a different neurosurgeon, gave a second opinion based on a July 10 examination of Complainant. The (second opinion) neurosurgeon stated that Complainant is unable to work with or without restrictions for three months with rehabilitation, and then he may only be able to return to sedentary work. The Office of Workers' Compensation Programs subsequently required a "referee" opinion. In a letter dated December 18, 2007, a Department of Labor "referee" neurosurgeon stated: "[Complainant] can return to work with the only restriction required is of no lifting over 40 lbs." On cross-appeal, Complainant stated that he returned to work for the Agency on May 8, 2010.
Based on the above, we find that Complainant requested accommodation - a pull/push cart, return of Route 3 to drive and dismount solely, or modification of his position - and the Agency denied his requests.
Procedural History
Complainant's Claim
On May 17, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (degenerative disc disease, disc herniations, and nerve issues), and reprisal for his prior protected EEO activity (complaints filed May 2003 and November 2005) when S1 denied him reasonable accommodation and subjected him to hostile work environment harassment since January 2007. As to the basis of reprisal, Complainant stated further that he was a union Steward and S1 has anti-union animus toward him. Complainant requested compensatory damages.
Complainant alleged that S1 changed his route, Route 3, to a park and loop because she knew he had residual back issues from his 2004 injury. He added that the Union President sided with management consistently and that the unreasonableness of the "loop" was evidenced by the fact that he had to wear an orange safety vest because he was made to walk in an unsafe area.
As to harassment, Complainant included denial of accommodation (indicating that the Agency failed to find him work within his medical restrictions). Complainant also alleged that, over the years since 2004 that he worked for S1, S1 publicly referred to him as "Hardy," who was the heavy member of the comedy duo "Laurel and Hardy;" S1 tried to get others to dislike Complainant as she did; S1 told a coworker whose workstation was near Complainant's that he could not talk to Complainant as he already worked too slowly; S1 subjected Complainant to greater scrutiny; S1 talked about Complainant to coworkers and, during a standup talk, stated that she planned to conduct a fraud investigation for two employees who are on workers' compensation; when speaking with an Agency clerk, S1 referred to specific language that Complainant used in an EEO complaint; S1 attempted to visit Complainant while he was recuperating in the hospital, although she knew their relationship was tense; S1 and her husband, separately, rode by Complainant's home; S1 controverted Complainant's workers' compensation claim with negative statements about his overall health and extracurricular activities; and S1 contacted Complainant's neighbor inquiring about his whereabouts on a day that he was supposed to be on leave under the Family and Medical Leave Act. In his complaint, Complainant stated "[E]veryday [S1] treated me like I was a disease that she had to get rid of because of our past indifferences[sic]." Evidence of record, including hearing testimony and documentation, supports Complainant's contentions.
Investigation
During the Agency's investigation of Complainant's claims, Complainant stated that he was diagnosed with herniated discs in his neck, thoracic and lumbar problems, nerve damage to upper and lower extremities, and Degenerative Disc Disease. He stated that he was absent from work from August 28, 2005 to December 2005, and then again as of July 25, 2006. Complainant stated that he was still absent from work at the time of the Agency's investigation.
Also during the Agency investigation, S1 stated that a push cart was not safe for the park and loop segment of Complainant's route because the route did not have sidewalks, which required Complainant to cross customers' lawns to deliver mail and would require him to leave the cart in the roadway. S1 stated that the Agency installed a relay box at the midpoint of Complainant's route to reduce the weight of Complainant's satchel from its 35 pound capacity to 12 - 15 pounds.
Following completion of its investigation, the Agency provided Complainant with a copy of the report of investigation, and notice of his right to request a hearing before an EEOC AJ or an immediate final agency decision. Complainant requested the former.
Hearing
During the hearing held on February 11, 2009 and June 15, 2009, Complainant testified that he requested a push cart as an accommodation and S1's failure to provide one caused his condition to worsen and become permanent. Complainant stated that he has been out of work since July 2006, and that he remained out of work at the time of the hearing. Complainant stated that his depression and stress resulted in him gaining weight, which placed additional burden on his back. Complainant stated that he thought he had a cardiac condition (chest pains), but after doctors' visits, he learned it was anxiety and panic attacks due to job-related stress. Complainant stated that he would vomit from his work-related stress.
Complainant stated that S1 tried to get him to work outside his restrictions (carrying greater than 15 pounds) and that, on July 24, 2006, S1 stated that she would not provide accommodation and gave him workers' compensation forms. Complainant stated that, on August 30, 2006, his physician would not allow him to return to work due to the possibility of him working outside his restrictions. He said that he applied for disability retirement as a precaution for fear of not being able to return to work and losing workers' compensation benefits. Complainant reiterated that he felt he should be able to provide for his family and had to seek counseling because he and his wife argued about money constantly. He ultimately filed for bankruptcy.
The Agency stated that it engaged in the interactive process with Complainant, provided an accommodation, and that Complainant stopped working due to his doctor's instructions. S1 stated, "[Complainant] went out on his own." S1 noted that she communicated information to Complainant through the Union President because she and Complainant were no longer communicating. The Agency stated that Complainant applied for disability retirement and retired from the Agency when his application was approved.6
The Union President averred that the only problem with Complainant's route was the walking segment. He stated that a push cart would not be unsafe, but would be "an inconvenience" based on the uneven terrain on Route 3. The Union Representative testified that the Safety Officer assessed Complainant's route based on a union grievance regarding Complainant walking toward oncoming traffic on the route, and that the Safety Officer did not address the safety aspect of a push cart. He added that the Safety Officer concluded that Complainant should wear a reflective orange safety vest when delivering mail on the park and loop. One of Complainant's coworkers stated that he carried Complainant's route using a pushcart, but he was unsure of the exact time he did so.
The Union Representative stated further that S1 discussed getting Complainant off Agency rolls so that she could post his position, stating that he would be covered by OWCP benefits. The Injury Compensation Manager stated that she gave recommendations for potential accommodations to S1, such as lowering a table for Complainant to sit and case (separate) mail or allowing him to serve as a lobby customer service representative, but she was unsure what S1 did with her recommendations.
S1 acknowledged that Complainant requested a push cart several times between mid-2005 and 2006, but she reiterated that she denied Complainant's request for a push cart due to safety issues based on the area to which he delivered. S1 acknowledged that she was the decision-maker and stated that she sought advice from the Agency Safety Officer and Union President, both of whom walked the park and loop route. S1 referred again to a relay box7 (installed in November 2005) as an accommodation and added that Complainant was given authorization to dismount to deliver to an eye clinic and medical clinic that received many packages.
S1 stated that Complainant's physician stated that his impairment was permanent, and because she could only address temporary restrictions, she sent an email to the persons who had authority to offer Complainant a permanent modified position - the acting Post Office Operations Manager, plant manager in Fayetteville, Eastern Area Shared Services offices, and the Manager of Human Resources in Charlotte. S1 indicated that she never heard back from the aforementioned managers regarding 8 hours of work for Complainant. Further, S1 stated that she determined that casing mail, which was suggested by the Injury Compensation Manager, would not be feasible for Complainant based on his doctor's restrictions. S1 acknowledged that she did not try to figure 8 hours of daily work for Complainant. S1 stated that she did not attempt to allow Complainant to use "roller bags" on his route and that Hope Mills did not have push carts.
Administrative Judge's Decision8
In a decision dated January 20, 2010, the EEOC AJ found that the Agency discriminated against Complainant on the basis of disability and reprisal when it failed to engage him in the interactive process to determine reasonable accommodation and failed to provide a reasonable accommodation to Complainant. Further, the AJ found that the Agency retaliated against Complainant based on prior EEO activity when his supervisor subjected him to a hostile work environment.
Specifically, the AJ found that the Agency did not have an obligation to accommodate Complainant under the Rehabilitation Act until July 24, 2006, when he had long term restrictions. The AJ stated, "As of July 24, 2006, Complainant suffered from chronic back pain and (per his physician's restrictions) could not lift more than fifteen pounds." The AJ found Complainant substantially limited in the major life activities of lifting, walking, and reaching; and, hence, an individual with a disability, as of July 24.
The AJ held that "[F]rom July 24, 2006 through August 29, 2006, Complainant was willing and able to work within his restrictions . . . as well as, from September 30, 2006, through July 23, 2007." The AJ noted that Complainant had gastric bypass surgery on July 25, 2007 and required several weeks of subsequent recuperation; and that OWCP doctors restricted Complainant from working between August 27, 2007 and December 17, 2007.
The EEOC AJ found that Complainant could not perform the essential functions of his carrier position because "[h]e was not able to lift 70 pounds, walk or bend." However, the AJ found further that "accommodations such as job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, or reassignment to a vacant position would have worked with [Complainant's] restrictions." Specifically as to the push cart, the AJ noted in her facts that, contrary to S1's testimony, the Safety Officer did not access Complainant's route for the purpose of a push cart. She noted further that the Union Representative found a push cart inconvenient rather than unsafe, and that the Agency does not have any rules regarding the use of a push cart.
Further, the AJ concluded that the Agency failed to engage in the interactive process and failed to appropriately address in good faith Complainant's accommodation requests. Specifically, the AJ found that the Agency looked to processes other than accommodation, such as the grievance process and OWCP process, to address Complainant's disability. Further, the AJ found that the Agency denied Complainant accommodation following receipt of his February 27, 2007 restrictions.
The AJ also held that S1's actions were retaliatory, stating that her reasons for denying accommodation were "unworthy of credence for a seasoned supervisor." Further, the AJ noted that, in an email to the Agency Injury Compensation Manager, S1 asked her to "help stop the bleeding," referring to any potential settlement Complainant may seek for grieving no placement in a modified position. The AJ also found notable that, in a different email to the Injury Compensation Manager, S1 referred to Complainant's EEO activity, stating she "just finished [going through] an extensive EEO [from Complainant.]" The AJ found that S1's focus was on union grievances and on removing Complainant from the carrier craft and the Agency overall.
The AJ awarded back-pay from July 24, 2006 (the date of the discriminatory act) through April 16, 2008 (the date that Complainant began to receive disability retirement payments), and found that the back-pay should be offset by the earnings Complainant received from OWCP (at the 3/4 compensation rate). Further, effective April 14, 2008, the AJ awarded reinstatement (with seniority and other employment benefits) to a mail carrier position in the facility at Hope Mills, North Carolina or the surrounding area. The AJ awarded Complainant $100,000 in non-pecuniary compensatory damages; $39,105.00 ($275.00/hour x 136.2 hours and $137.50/hour x 12 hours) in attorney's fees and $922.18 in legal expenses.
Final Agency Action and Appeals
The Agency issued a Notice of Final Action rejecting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged. The Agency simultaneously filed an appeal of the AJ decision with this office. Complainant filed a cross appeal with this Commission.
CONTENTIONS ON APPEAL
The Agency filed a brief stating that the AJ erroneously interpreted the law when she found that (1) the Agency failed to engage in the interactive process by speaking to Complainant's union representative rather than Complainant, (2) Complainant was a qualified individual with a disability, stating that Complainant admitted that he had difficulty performing the essential functions of casing and delivering the mail and (3) the legitimate, nondiscriminatory reasons articulated by the Agency for its actions were pretext. Further, the Agency contended that the AJ erred when she (4) granted an excessive amount of compensatory damages, stating that Complainant failed to show a nexus between damages requested and Agency actions, (5) awarded back-pay during a time period when Complainant was unavailable for work, and (6) placed Complainant in the position he occupied prior to the alleged discrimination although he had already "voluntarily applied and accepted" disability retirement.
Summarily, the Agency stated that the AJ found, in error, that it discriminated against Complainant based on disability and reprisal. Further, the Agency stated that the AJ erred when she awarded excessive remedies based on the harassing incidents alleged by Complainant.
In his cross appeal, Complainant challenged the end date for back-pay calculations provided by the AJ. Complainant asked that the back-pay calculation period be July 24, 2006 to May 8, 2010, the latter of which is the date Complainant stated he returned to work at the Agency. Further, Complainant asks the Commission to change his reinstatement date to February 19, 2008, the date his disability retirement was approved and he was removed from Agency rolls. Complainant stated that, in December 2007 and January 2008, prior to his retirement, he contacted the Agency injury compensation manager about returning to work but did not get a response. He added that throughout 2008 he requested his job back but the Agency did not respond.
The Agency responded that it could not return Complainant to work until it had definitive medical results from Complainant and that Complainant did not request reemployment within 30 days of the end of his OWCP compensation, as is required by Office of Personnel Management regulations.
ANALYSIS AND FINDINGS
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 v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, regardless of whether there was a hearing.
An AJ's credibility determination based on a witness's demeanor or tone of voice will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
After a careful review of the record, including arguments and evidence not specifically discussed in this decision, we discern no basis to disturb the AJ's finding of discrimination based on disability and reprisal. We find that the Agency discriminated against Complainant based on disability when it denied reasonable accommodation to Complainant and based on reprisal for prior EEO activity when it subjected Complainant to harassment.
Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that the Agency denied Complainant a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). Under the Commission's regulations, an agency is required to make reasonable accommodation 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) and (p).
The Agency contends that Complainant is not a qualified individual with a disability and, accordingly, that he is not entitled to coverage under the Rehabilitation Act. We are not persuaded by its contentions.
The AJ found Complainant to be an individual with a disability because he is substantially limited in his ability to lift, walk, and reach. Based on record evidence, Complainant was unable to lift more than 15 pounds, had difficulty walking, and could not reach above his head, all of which he states was due to pain when he tried to do so. Consistent with Commission precedent, we find that Complainant is an individual with a disability. See Haygood v. U. S. Postal Service, EEOC Appeal No. 01976371 (April 25, 2000) (Complainant with maximum 15-pound lifting restriction and restriction on reaching above shoulder found to be individual with disability).
Further, we find that Complainant was qualified, but we adopt a different analysis than that used by the AJ. A "qualified individual" is an individual who, "with or without reasonable accommodation, can perform the essential functions of [the employment position that such individual holds or desires.]" See 29 C.F.R. � 1630.2(m). The Interpretive Guidance to the regulations in question further define "essential functions" as "those functions that the individual who holds the position must be able to perform unaided or with the assistance of a reasonable accommodation." See Interpretive Guidance to 29 C.F.R. � 1630.2(n). Accurate identification of the essential functions of a position by the AJ and, conversely, accurate articulation of the essential functions by an agency, is critical as an inquiry into essential functions is "not intended to second guess an employer's [or covered entity's] business judgment with regard to production standards, whether qualitative or quantitative, nor to require employers [or covered entities] to lower such standards." Id.
The "essential function" of a carrier is, as the Agency noted in an appellate brief, "casing and delivering the mail." The factors listed by the AJ as essential functions - the ability to lift 70 pounds, walk, and bend - are better characterized as skills or abilities that are useful (and may sometimes be necessary) in performing the essential function of delivering the mail. They are not, in and of themselves, the essential functions of the carrier position. The record clearly indicates that Complainant was able to perform the essential function of "casing and delivering the mail" with the assistance of the requested reasonable accommodations, which the Agency did not provide. Complainant's doctors requested a pull/push cart for Complainant and no lifting over 15 pounds, but the Agency did not oblige Complainant's request. It continued to require Complainant to deliver and collect mail by park and loop and without a pull/push cart. A finding of Complainant as a "qualified individual with a disability" triggers the Agency's obligation to provide reasonable accommodation or show undue hardship.
We find that Complainant's route did not formerly contain a "park and loop" and that the accommodations the Agency provided (a relay case with a satchel weighing no more than 20 pounds each way and a limited dismount exception) were not effective. Moreover, the Agency would not provide the push/pull cart, stating that Complainant's park and loop route did not have sidewalks and was on a highway with a good amount of traffic so a pull/push cart was not safe. However, it is noteworthy that the Agency allowed Complainant to walk the same route wearing simply an orange safety vest as a precaution and that a coworker testified that he carried Complainant's route using a pushcart at some time. S1 testified that the Safety Officer agreed that the push cart would not be safe on the route; however, the Union Representative testified that the Safety Officer did not make a determination about the safety of a push cart on the route. The AJ made note of the same disparity in testimony. Further, the AJ did not credit S1's explanation regarding accommodation of Complainant and the circumstances of Complainant's route.
Based on substantial evidence in the record, we find that the Agency failed to present credible evidence that it would have imposed an undue burden to its operations to provide Complainant an effective accommodation. Complainant's doctor recommended a push cart to address Complainant's disability. The AJ further found that return of the park and loop portion of Complainant's route to drive and dismount, reassignment to a vacant position, schedule modification, or changes to equipment or devices may have also been effective accommodations for Complainant.
We find that the Agency violated the Rehabilitation Act when it denied Complainant reasonable accommodation. Because we find that Complainant made multiple requests for accommodation and that the Agency denied reasonable accommodation, we need not address the AJ's finding with respect to the interactive process.
Retaliation
Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005).
We find substantial evidence in the record to support the AJ's finding of reprisal. Complainant filed prior complaints against S1, S1 was aware Complainant had prior EEO activity as evidenced by the fact that she signed the June 2003 settlement agreement with Complainant, S1 agreed not to provide negative information if Complainant sought transfer to another facility and then followed Complainant to the new facility within a month of his transfer. Then, S1 failed to satisfy the Agency's obligation to provide reasonable accommodation. We agree with the AJ that S1's contentions for failing to provide accommodation are "unworthy of credence for a seasoned supervisor." We conclude that the timeline here, the history between Complainant and S1, and the adverse actions S1 took against Complainant support such a finding.
Complainant testified that, over several years since 2004, S1 publicly referred to him as an overweight television character, tried to isolate him from his coworkers, subjected Complainant to greater scrutiny than other workers, sought a fraud investigation against Complainant regarding his workers' compensation absences, talked about Complainant and his EEO matters to others, made an unwanted visit to him while he recuperated at a hospital, rode by Complainant's house and had her husband do the same, controverted his workers' compensation claim with derogatory statements about his health and personal activities, and contacted Complainant's neighbor inquiring about his whereabouts. We find that hearing testimony, most notably testimony from S1 and other Agency officials, as well as documentary evidence support Complainant's contentions. Further, the record shows that S1 sought to remove Complainant from the carrier craft and Agency rolls. Consistent with the AJ, we consider these harassing incidents as background evidence for S1's retaliatory motive and agree that such motive was the basis of her denial of reasonable accommodation. In sum, we find that substantial evidence of record supports a finding of hostile work environment harassment based on reprisal.
Remedies
When discrimination is found, the agency must provide the complainant with an equitable remedy that constitutes full, make-whole relief to restore him/her as nearly as possible to the position s/he would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395 (July 21, 1994). The Commission recognizes that precise measurement cannot always be used to reduce the wrong inflicted; nonetheless, we believe that the burden of limiting the remedy rests with the agency. See Davis v. U. S. Postal Service, EEOC Petition No. 04900010 (November 29, 1990).
Compensatory Damages
We find $100,000 in non-pecuniary, compensatory damages awarded by the AJ appropriate. Complainant stated that, due to back pain, he can no longer pick up his toddler daughter and now she mimics his complaints of back and neck pain; he had to stop playing his favorite sports of 18 years - golf and softball; he can not walk around as he did; he has difficulty writing or typing for any length of time, and he had to pass on many household duties to his wife. He stated that he is depressed and stressed about his inability to work and pay bills, and receives counseling. He stated that S1 denied him accommodation when she would not allow him to use a pull/push cart to deliver mail. Complainant added that he now has permanent back damage and has had panic attacks due to the stress imposed upon him and stomach problems; and that he received psychological counseling through a private practice and the Employee Assistance Program (EAP). Complainant provided a letter from an EAP counselor stating that he sought counseling on four occasions between April 2006 and February 2007, at which time he cited emotional distress related to his job.
After considering Complainant's testimony, the amount of medical evidence, the duration of his ailments, and Commission precedent, we find $100,000 in nonpecuniary compensatory damages proper. See Villanueva v. Dep't of Homeland Security, EEOC Appeal No. Appeal No. 01A34968 (August 10, 2006)(The Commission awarded complainant $90,000 in non-pecuniary damages for sleeplessness, high stress and anxiety, loss of concentration and memory, and low self esteem, as evidenced by complainant's testimony and psychotherapist visits.); Dildy v. Dep't of Veterans Affairs, EEOC Appeal No. 07A40115 (March 24, 2005), request for reconsideration denied, EEOC Request No. 05A50787 (July 22, 2005)(The Commission awarded $100,000 in non-pecuniary damages for continued failure to provide a reasonable accommodation for more than 18 months, resulting in extreme distress, gastrointestinal issues, depression, and deteriorating health.)
Reinstatement and Back-pay
On appeal, the Agency claims the AJ erred by ordering Complainant reinstated to his former position at the Hope Mills facility although he applied for disability retirement. We disagree. We find that the Agency discriminated when it failed to accommodate Complainant in his position as carrier at Hope Mills and that there is a causal connection between its denial of accommodation and actions Complainant took to sustain his livelihood, e.g., filing for OWCP and disability retirement. Accordingly, we find reinstatement to said position consistent with the make whole relief required by Albemarle Paper Co. v. Moody, 422 U.S. at 418-23.
As the Agency's failure to provide reasonable accommodation resulted in Complainant's inability to work, we find back-pay appropriate from July 24, 2006 (date Complainant went out on leave) through July 23, 2007 (date Complainant had gastric bypass surgery). We find further that back-pay calculations should also include from the end date of Complainant's recuperation from gastric bypass surgery the Summer of 2007 through the date Complainant was reinstated. We note that it is unclear from the record when Complainant recuperated from gastric bypass surgery or if and when the Agency reinstated Complainant.
The back-pay calculations should consider offsets and deductions set forth in 5 CFR � 550.805. Further, we find restoration of all sick and annual leave used due to the discriminatory actions here appropriate. According to the record, Complainant may have exhausted annual and sick leave accruals by the date we find a violation began (July 24, 2006); however, if such is not the case, the leave used shall be restored. We add that compensation for leave without pay used in relation to the discriminatory actions here is also proper. The record shows that, between July 25, 2006 and June 19, 2007, Complainant used approximately 400 hours of leave without pay since exhausting his sick and annual leave accruals.
Regarding attorney's fees and costs, we find $39,105.00 in attorney's fees and $922.18 in legal costs proper. See generally, 29 C.F.R. 1614.501(e)(2)(ii)(B). Also, we find that complainant is entitled to attorney's fees for work performed at the appellate stage. EEO Management Directive 110, Chapter 11, VI(A)(3) (November 9, 1999).
Based on the above, we REVERSE the Agency's finding of no discrimination. Further, consistent with this decision and the Order set forth below, we direct the agency to take remedial action.
ORDER
The Agency is ordered to take the following remedial actions within ninety (90) calendar days of receipt of this decision, unless otherwise noted:
(1) Within thirty (30) calendar days of receipt of this decision, the Agency shall offer Complainant reinstatement to his position of city carrier at its Hope Mills, North Carolina facility, or a substantially equivalent position, retroactive to April 16, 2008 (the effective date of Complainant's disability retirement). The offer shall be made in writing and include a written position description. Complainant shall have fifteen calendar (15) days from receipt of the offer to accept or decline the offer. Failure to accept the offer within fifteen (15) days will be considered a declination of the offer, unless the individual can show that circumstances beyond his control prevented a response within the time limit.
(2) Within sixty (60) calendar days of receipt of this decision, the Agency shall determine and award to Complainant the appropriate amount of back pay with interest; overtime pay, if any, with interest; and/or other benefits due complainant, consistent with 5 C.F.R. � 550.805, less any appropriate offsets. Said pay and benefits shall be awarded from July 24, 2006 through July 23, 2007, and from the end date of Complainant's recuperation from gastric bypass surgery in Summer 2007 through the date of Complainant's reinstatement. For overtime pay, the average number of hours assigned or worked (whichever is greater) to/by persons holding the same position as complainant, on the same tour as complainant, at the same facility at issue herein, and during the aforementioned time periods, shall be used for the calculations.
The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay, overtime pay and/or benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay, overtime 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 enforcement or clarification must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
(3) The Agency is directed to provide at least eight (8) hours of EEO training for the responsible management official(s), addressing their responsibilities with respect to eliminating discrimination in the workplace with an emphasis on Rehabilitation Act discrimination, reasonable accommodation, and the current state of law on employment discrimination.
(4) The Agency shall consider taking disciplinary action against the management officials identified as being responsible for the discrimination perpetrated against Complainant. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
(5) The Agency shall provide a detailed statement of all of its calculations pertaining to the instant matter and a copy of correspondence sent to the various appropriate government agencies regarding such calculations, e.g., Office of Personnel Management and the Department of Labor (Office of Workers' Compensation) to Complainant, Complainant's representative, if applicable, and the Commission's Compliance Officer.
(6) The Agency shall pay to Complainant $100,000 in non-pecuniary, compensatory damages.
(7) The Agency shall pay attorney's fees in the amount of $39,105 for professional services rendered and $922.18 in associated costs; and calculate attorney's fees and costs related to the instant appeal in accordance with the "Attorney's Fees" paragraph below.
(8) The Agency shall restore all sick leave and annual leave used as a result of the discrimination here and pay complainant back-pay for any leave without pay not covered in Back-pay ordered in (1) infra.
(9) The Agency shall post copies of the attached notice in accordance with the statement entitled "Posting Order."
(10) 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 verifying that the corrective action has been implemented.
INTERIM RELIEF (F0610)
When the Agency requests reconsideration and the case involves a finding of discrimination regarding a removal, separation, or suspension continuing beyond the date of the request for reconsideration, and when the decision orders retroactive restoration, the Agency shall comply with the decision to the extent of the temporary or conditional restoration of the Complainant to duty status in the position specified by the Commission, pending the outcome of the Agency request for reconsideration. See 29 C.F.R. � 1614.502(b).
The Agency shall notify the Commission and the Complainant in writing at the same time it requests reconsideration that the relief it provides is temporary or conditional and, if applicable, that it will delay the payment of any amounts owed but will pay interest from the date of the original appellate decision until payment is made. Failure of the Agency to provide notification will result in the dismissal of the Agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0900)
The agency is ordered to post at its Hope Mills, North Carolina 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 (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 (K0610)
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 77960, Washington, DC 20013. 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) (1994 & Supp. IV 1999). 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
04/05/2012
__________________
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 Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. has occurred at the United States Postal Service's Hope Mills, NC facility (hereinafter 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 DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment.
The Hope Mills facility was found to have discriminated against an individual based on disability and reprisal. The facility was ordered to allow the individual to return to a mail carrier position at the Hope Mills facility, award back pay and other appropriate benefits, pay attorney's fees, and provide training and consider discipline for the responsible management officials. This facility 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 and will not retaliate against employees who file EEO complaints.
This facility will comply with federal law and 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 A "drive and dismount" route is "[a] city delivery route on which 50 percent or more of the possible deliveries are made by dismount delivery to the door [from the mail vehicle]." Handbook M-39 - Management of Delivery Services (Handbook M-39), 113.5 (March 1998).
2 A "park and loop" route is "[a] route that uses a motor vehicle for transporting all classes of mail to the route. The vehicle is used as a moveable container as it is driven to designated park points. The carrier then loops segments of the route on foot." Handbook M-39, 113.4.
3 According to Complainant, a "curbside" route is where a carrier drives to a mailbox at the curb, stops, and places or withdraws mail through his vehicle window. Based on Section 113.2 of Handbook M-39, at least 50 percent of the possible deliveries are made to customer mailboxes at the curb.
4 According to an Agency Certification of Reassignment and Accommodation Efforts dated September 11, 2006, for "apparent medical reasons since [December 15, 2005]," Complainant used 69 hours of annual leave, 43 hours of sick leave, and 263 hours of leave without pay.
5 According to a Supervisor's Statement in Connection with Disability Retirement dated June 19, 2007, "for apparent medical reasons since [July 25, 2006]," Complainant used zero hours of annual leave or sick leave and "392?" hours of leave without pay.
6 The record indicates that Complainant filed for disability retirement in February 2008 and benefits began in April 2008. Initially, Complainant's OWCP benefits ended April 16, 2008. On June 19, 2009, the Employees' Compensation Appeals Board reversed the termination of Complainant's OWCP benefits and provided benefits from April 16, 2008 forward.
7 According to S1, a relay box is a box with a key in which a carrier places mail for half his route in order to lighten the weight of his mail satchel. S1 stated that a carrier delivers the first half of his route and then returns to the relay box to retrieve mail for the second half of the route for delivery.
8 The AJ stated that she would not adjudicate any matter prior to April 2006. The AJ stated that April 2006 is the date that she accepted as the start date for Complainant's reasonable accommodation claim, and that she would accept other incidents prior to January 1, 2007 only as background evidence for Complainant's harassment claim.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
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