01974430
05-23-2001
Sylvia S. De Los Santos, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sylvia S. De Los Santos v. United States Postal Service
01974430
May 23, 2001
.
Sylvia S. De Los Santos,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01974430
Agency No. 4F-913-1127-96
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful employment discrimination in
violation of 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.
ISSUE PRESENTED
The issue presented is whether the agency correctly determined that
it did not discriminate against complainant on the basis of disability
(tailbone injury) when on April 24, 1996, she was denied employment as
a Transitional Employee (TE) Clerk due to medical instability.
BACKGROUND
The record reveals that complainant, an applicant at the agency's Agoura,
California facility, filed a formal EEO complaint alleging that the agency
had discriminated against her as referenced above. At the conclusion of
the investigation, complainant was provided a copy of the investigative
report. When complainant failed to respond within the specified time
period, the agency issued a final decision.
In its final decision, the agency concluded that complainant failed to
establish a prima facie case of disability discrimination when she failed
to show that she was treated differently than any other comparative
employee in a similar situation.<1> Further, the final decision found
that the agency stated a legitimate, nondiscriminatory reason for its
action, namely that postal rules were followed when complainant was not
hired due to her medical restrictions which precluded accommodation.
The final decision also found that complainant failed to demonstrate
that the agency's actions were pretext for discrimination.
On appeal, complainant contends that the agency discriminated against her.
In particular, complainant indicates that she was notified on December 15,
1995, that she had been selected for a Clerk position by the agency and
would be contacted when a position became available in an agency office
she indicated as a preference. Complainant was contacted by the agency
informing her that a position became available at the agency's Agoura
Post Office and she was told to go to the facility to begin processing.
At some point while complainant was completing the necessary forms, a
Human Resource Associate asked if she had her military medical records
and questioned her about her tailbone condition. Complainant was asked to
return with copies of her records from the Department of Veterans Affairs
(VA). Complainant provided the agency with the requested documents
which were to be given to an agency Medical Official (MO) who would
determine if she was medically suitable for the position. On April 9,
1996, complainant received a letter from the MO finding her unsuitable
for employment. Complainant provided the agency with a letter from
the VA informing the agency of her current condition and that she was
no longer under a restriction from heavy lifting. Then, on April 24,
1996, complainant received a second letter from the agency again finding
her unsuitable despite the note from her doctor at the VA. The agency
stands on the record and requests that the Commission affirm its FAD.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
Under the Rehabilitation Act,<2> to establish a prima facie case of
disparate treatment based on disability, complainant must show that:
(1) she meets the regulatory definition of a person with a disability,
29 C.F.R. � 1630.2(g); (2) she is a qualified person with a disability,
29 C.F.R. � 1630.2(m); and (3) she was subjected to an adverse employment
action under circumstances giving rise to an inference of discrimination,
i.e. complainant must make a plausible showing that there is a nexus
between the disabling condition and the disputed adverse action.<3> See
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981);
Visage v. Department of the Air Force, EEOC Request No. 05940993
(July 10, 1995). 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). A "qualified"
individual with a disability is one who satisfies the requirements for the
employment position she holds or desires and can perform the essential
functions of that position with or without reasonable accommodation.
29 C.F.R. � 1630.2(m).
The Commission finds that complainant's tailbone condition does not
constitute a disability under the first prong of the definition of an
individual with a disability under the Rehabilitation Act, that is,
complainant does not have an impairment which substantially limits a
major life activity. In a letter, complainant's Physician (Physician)
informed the agency that complainant is no longer symptomatic from her
tailbone injury that occurred in 1989, except after prolonged sitting
for more than four straight hours. Further, the Physician noted that
complainant is able to exercise at a significant level without residual
symptoms.<4> Accordingly, the Commission finds that complainant's
condition does not limit a major life activity.
However, the Commission finds that the agency regarded complainant as
having an impairment which substantially limits a major life activity.
The agency's MO reviewed complainant's medical documentation including
medical examinations from May 1994 and determined that complainant had a
mild limitation in the range of motion relating to her back and suggested
that complainant not lift over forty pounds below knee level and up to
seventy pounds at the waist level. The MO also noted that complainant
had a moderate risk of incurring a job-related injury or illness, within
the next six months, due to existing or past medical conditions.<5>
Based on the MO's evaluation, the agency determined that complainant's
restriction was �not compatible with the strenuous activities required
for this position, which includes heavy lifting, pushing, pulling,
repetitive stretching, reaching, and bending, prolonged standing of
[eight hours], and time restraints.� The Commission finds that the
agency regarded complainant as an individual with a disability who is
substantially limited in the major life activity of working. The duties
and responsibilities of a Distribution and Window Clerk include primary
and secondary distribution of incoming and outgoing mail; sales of postage
stamps, stamped paper, postal cards, and money orders; accepting forms
and making window delivery; verification of mailings; assign special
delivery and registered mail for delivery; check and set post office
vending machines; issue and cash foreign and domestic money orders;
rent post office boxes; provide information to customers; and perform
various clerical and administrative duties of the office. Based upon
the position description, the Commission finds that the Clerk position
is similar in nature to clerical or administrative positions as well as
retail or sales positions. These positions include similar functions
such as filing, movement of mail and packages, and movement of inventory.
Accordingly, the Commission finds that complainant established that agency
regarded her as an individual with a disability who is substantially
limited in working in a broad range of jobs in various classes.
The next step in a prima facie case of disability discrimination is that
complainant must show that she is a qualified person with a disability. 29
C.F.R. � 1630.2(m). A qualified individual with a disability is an
individual who satisfies the requisite skill, experience, education, and
other job-related requirements of the employment position and who, with
or without reasonable accommodation, can perform the essential functions
of such position. Id. Based upon the facts in the record and for the
purposes of further analysis, we find that complainant has demonstrated
that she is a qualified person in as much as she was selected for the
position at issue. The agency, however, found, based upon her tailbone
injury in 1989, that complainant posed a �direct threat� and, therefore,
was unsuitable for employment. 29 C.F.R. � 1630.2(r).
In order to exclude an individual on the basis of possible future injury,
the agency must show there is a significant risk, i.e., high probability
of substantial harm; a speculative or remote risk is insufficient.
It must show more than that an individual with a disability seeking
employment stands some slightly increased risk of harm. Id. The burden
of showing a significant risk is on the agency. Selix v.United States
Postal Service, EEOC Appeal No. 01970153 (March 16, 2000). Moreover, such
a finding must be based on an individualized assessment of the individual
that takes into account: (1) the duration of the risk, (2) the nature
and severity of the potential harm, (3) the likelihood that the potential
harm will occur, and (4) the imminence of the potential harm. Appendix
to 29 C.F.R. Part 1630, � 1630.2 (r). A determination of significant
risk cannot be based merely on an employer's subjective evaluation, or,
except in cases of a most apparent nature, merely on medical reports.
Rather, this requires that the employer gather and base its decision
on substantial information regarding the individual's work and medical
histories. Mantolete v. Bolger, 767 F.2d 1416, 1422-1423 (9th Cir. 1985).
The agency made its decision to find complainant unsuitable for employment
based on the MO's finding that complainant posed a risk of potential
injury. The MO found that complainant's tailbone condition restricted her
from lifting as found in a medical examination performed by complainant's
orthopedist on May 17, 1994. The medical examination also indicated that
complainant had slight discomfort in her range of motion of her spine
but was otherwise considered a �well developed, well nourished female
appearing in no acute distress.� Orthopedic Medical Record Report (May
17, 1994).<6> Furthermore, the agency's letter dated April 9, 1996,
indicated that due to the nature of the position and complainant's
restrictions, complainant was medically unsuitable for employment.
The letter intimated that the strenuous activities required for this
position, which includes heavy lifting, pushing, pulling, repetitive
stretching, reaching, and bending, prolonged standing of eight hours,
and time restraints were incompatible with complainant's restrictions.
Based on the MO's conclusion, the agency found that complainant was not
qualified for employment.
Having carefully considered the evidence of record, the Commission
finds that the agency failed to meet its burden of showing a high
probability of substantial harm. The agency's findings of unsuitability
was not explained in any detail, nor did it include a specific statement
addressing the nature and severity of the risk posed by complainant's
condition. The Commission finds that the medical evidence within the
record does not support the agency's conclusion. As a matter of fact,
complainant's medical evidence from her treating physician who has
first-hand knowledge of her injury, directly disputes the agency's
findings. In particular, the Commission notes that complainant's
own physician indicated that complainant was no longer suffering from
any residual symptoms. As a matter of fact, complainant's physician,
in a letter dated April 16, 1996, indicated that complainant can walk
five miles a day without resting and climb stairs for thirty minutes.
Since the Commission finds that there is no evidence to support the
agency's conclusion that complainant posed a direct threat, we conclude
that the agency's denial of employment to complainant was discriminatory
in violation of the Rehabilitation Act.
The Commission also finds that although complainant did not specifically
state on her formal complaint that she requested compensatory damages, in
her narrative explaining the discriminatory event, complainant noted that
she had to return to the VA in order to get another physical examination
following the agency's finding of unsuitability. Further, complainant
states that she was distraught and disappointed by the agency's decision
and the agency's action destroyed �her healthy self concepts� and �eroded
the human spirit.� Accordingly, the Commission finds that the agency
shall conduct a supplemental investigation as to complainant's claim of
compensatory damages.
CONCLUSION
After a careful review of the record, including complainant's arguments on
appeal, the agency's response, and arguments and evidence not specifically
discussed in this decision, the Commission REVERSES the agency's final
decision of no discrimination.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall award complainant back pay with interest and other
benefits due complainant, for the period from April 24, 1996 to April 24,
1997; and
2. The agency shall determine whether other temporary employees were
converted to full- time status in 1997. If so, complainant should
be reinstated in a permanent position and given backpay with interest
and other benefits due complainant. If no other temporary employees
were converted to full-time status, then complainant is only entitled
to backpay for one year, as outlined above, and shall be offered an
unconditional assignment as a TE Clerk, or a substantially equal position.
3. The agency shall determine the appropriate amount of backpay with
interest and other benefits due complainant , pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) days after the date this decision
becomes final. The complainant shall cooperate in the agency's efforts to
compute the amount of backpay and benefits due, and shall provide relevant
information requested by the agency. If there is a dispute regarding the
exact amount of backpay and/or benefits, the agency shall issue a check
to the complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
The complainant may petition for enforcement or clarification of the
amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled �Implementation of the Commission's Decision.�
4. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of her right to
submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993))
in support of her claim for compensatory damages within forty-five (45)
calendar days of the date complainant receives the agency's notice. The
agency shall complete the investigation on the claim for compensatory
damages within forty-five (45) calendar days of the date the agency
receives complainant's claim for compensatory damages. Thereafter, the
agency shall process the claim in accordance with 29 C.F.R. � 1614.108(f).
5. 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 Agoura, California Post Office
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
May 23, 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 Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of 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 United States Postal Service, Agoura, California Post Office, supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The United States Postal Service, Agoura, California Post Office,
has been ordered to remedy an applicant for employment affected by the
Commission's finding that she was discriminated against because of her
perceived disability when the United States Postal Service, Agoura,
California Post Office denied her employment because of a prior injury.
As a remedy for the discrimination, the United States Postal Service,
Agoura, California Post Office was ordered, among other things, to
reappoint complainant as a transitional employee. In addition, the
facility was ordered to submit a compliance report to the Commission
verifying the completion of all ordered corrective action. The United
States Postal Service, Agoura, California Post Office will ensure that
officials responsible for personnel decisions and terms and conditions of
employment will abide by the requirements of all Federal equal employment
opportunity laws.
The United States Postal Service, Agoura, California Post Office, 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: _____________
1The agency did not determine whether complainant is an individual with
a disability as defined by the Rehabilitation Act.
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.
3We find that the agency erred to the extent that it found that
complainant had not established a prima facie case of disability
discrimination because she was unable to demonstrate that she was treated
less favorably than any similarly situated employee. We note that to
establish a prima facie case, complainant must only present evidence
which, if unrebutted, would support an inference that the agency's
actions resulted from discrimination. Furnco, 438 U.S. at 576. It is not
necessary for the complainant to rely strictly on comparative evidence in
order to establish an inference of discriminatory motivation necessary to
support a prima facie case. O'Connor v. Consolidated Coin Caterers Corp.,
116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caterers Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).
4The Physician's note indicates that complainant can walk five miles
without resting and climb stairs for 30 minutes.
5The Commission notes that the MO did not initially examine complainant.
Further, upon receiving letters provided to the agency by complainant's
Physician, dated April 1996, the MO still did not conduct a physical
examination in an effort to resolve the different medical opinions.
6The Commission also notes that the Orthopedic Report contained no
limitations regarding complainant's abilities, including lifting.