0120120265
06-28-2013
Arlene V. Kimble, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Arlene V. Kimble,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120120265
Agency No. 4J-460-0016-11
DECISION
Complainant filed an appeal from the Agency's final decision concerning her equal employment opportunity (EEO) complaint alleging employment 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the record is sufficient for an adjudication of the merits of Complainant's denial of reasonable accommodation claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a full-time Sales, SVCS/Distribution Associate at the Agency's Nora Branch facility in Indianapolis, Indiana. Report of Investigation (ROI), at 2. On October 5, 2010, Complainant submitted a routing slip to her union and management officials. Id. at 56. In the routing slip, Complainant noted that she had requested reasonable accommodation regarding back pain, aggravated by long-term standing and lifting. Id. Complainant also noted that she had been denied reasonable accommodation and wanted her Union Steward to file a grievance regarding the matter. Id. On October 8, 2010, Complainant submitted a second routing slip to her union and management officials. Id. at 57. Therein, Complainant noted that she has problems with her feet that affect her running, walking, and standing. Id. In the second routing slip, Complainant also noted that her supervisor previously was made aware of her disability pertaining to her feet through her handicapped parking application and her Family and Medical Leave Act (FMLA) leave request. Id.
On November 3, 2010, Complainant followed orders and went to work in the window station cubical area known as the Passport Window. Id. at 53-54. On November 30, 2010, Complainant wrote letter to the Postmaster of the Greater Indiana District. Therein, Complainant noted that as reasonable accommodation for her disability, she requested to continue working in the window station/cubicle that she had previously been working in. Id. Complainant noted that the Passport Window is taller in height and longer in length than her previous work station. Id. Complainant noted that the Passport Window requires extensive reaching, repetitive walking, and bending. Id. Complainant noted that the taller height of the Passport Window makes it impossible for an employee to rest his or her feet while waiting on customers. Id.
On March 11, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), disability, and reprisal for prior protected EEO activity. On May 3, 2011, the Agency issued a Partial Acceptance/Partial Dismissal with respect to the instant matter. Therein, the Agency determined that Complainant's complaint was comprised of the following claims:
1. on October 8, 2010, she received notification of a change in her reporting time;
2. on November 3, 2010, she was denied reasonable accommodation; and
3. effective November 17, 2010, she was placed on Emergency Placement in Off- Duty Status (without pay) until January 25, 2011.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Specifically, the Agency found, with regard to disparate treatment, that Complainant failed to establish a prima facie of discrimination on her protected bases. The Agency noted that Complainant failed to show that she was treated less favorably then other similarly-situated employees outside of her protected groups. The Agency noted that responsible management officials had no knowledge of Complainant's prior protected EEO activity. The Agency found that it articulated legitimate, nondiscriminatory reasons for its actions. The Agency noted that Complainant's schedule was changed because of service needs. The Agency also noted that Complainant was placed on Emergency Placement in Off-Duty Status based on a report that she had been arrested and charged with check deception. The Agency noted that based on Complainant's position, management determined that keeping her on duty could result in a loss of funds. The Agency found that Complainant failed to establish that its legitimate, nondiscriminatory reasons were pretext for discrimination.
The Agency further found that Complainant established that she was a qualified individual with a disability under the Rehabilitation Act. The Agency noted that Complainant had a substantially limiting impairment from back pain and right shoulder joint pain. The Agency noted that Complainant's condition resulted in pain and discomfort, which affected her ability to stand and walk. The Agency also noted that Complainant was experiencing feet and leg pain due to swelling and arthritis. The Agency noted that Complainant had pain in her ankles that required intermittent sitting while standing at the window serving customers. The Agency noted, with regard to reasonable accommodation, that Complainant felt that working in the Passport Window did not provide her with ample room to move around comfortably while sitting. The Agency noted that Complainant was not required to do passports at the Passport Window. The Agency noted that other employees worked in a sitting position in the Passport Window with no problem.
CONTENTIONS ON APPEAL
Complainant has not filed a statement or brief on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Reasonable Accommodation (Claim 2)
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(c) and (p). Here, the Agency does not dispute that Complainant is a qualified individual with a disability.
Upon review, we find that the record is deficient regarding Complainant's request for reasonable accommodation. We find there is insufficient evidence in the record to determine whether Complainant established that she was denied reasonable accommodation because the record is unclear regarding the circumstances surrounding the request. In particular, the record is unclear when Complainant requested accommodation, to whom she addressed her request for reasonable accommodation, and what response was given to her request. Complainant noted that she requested accommodation to continue working in the window station/cubicle where she had previously worked instead of the Passport Window. Complainant noted that the Passport Window is taller in height and longer in length than her present work station. Complainant noted that the Passport Window requires extensive reaching, repetitive walking, and bending. Complainant noted that the taller height of the Passport Window makes it impossible for an employee to rest their feet while waiting on customers. We note that the Supervisor of Customer Service only testified that Complainant is not required to "do passports" at the Passport Window. Other management officials testified that they were not aware that Complainant had requested accommodation. We note that the record is almost entirely devoid of information regarding Complainant's work and assignment to the Passport Window. As such, we are unable to determine whether Complainant was provided with an effective accommodation regarding her assignment to the Passport Window.
Based on the above, the Commission concludes that the present record lacks the necessary information upon which to adequately determine if the Agency's actions were lawful under the Rehabilitation Act. See 29 C.F.R. � 1614.404. Therefore, the Commission remands this case to the Agency to conduct a supplemental investigation. Finally, in light of the Commission's remand of Complainant's reasonable accommodation claim, the Commission declines to fragment the complaint by addressing Complainant's disparate treatment claims with respect to claims 1 and 3 on appeal. Accordingly, the Commission remands the entire complaint for further processing.
CONCLUSION
Based on a thorough review of the record, the Commission VACATES the Agency's final decision and REMANDS the entire complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ORDERED to take the following actions:
1. The Agency shall conduct a supplemental investigation to develop an adequate factual record regarding Complainant's request(s) for reasonable accommodation, including her claim that she requested not to work the Passport Window as it was not a reasonable accommodation. The Agency shall ensure that the investigator obtains all pertinent evidence needed to address Complainant's reasonable accommodation claim including, but not limited to, sworn affidavits from responsible management officials and other documentary evidence regarding how management responded to Complainant's request for accommodation.
2. The Agency shall ensure that the investigator completes a supplemental investigation within sixty (60) calendar days of the date this decision becomes final, and shall thereafter issue a new final decision.
3. The Agency shall submit a compliance report as referenced immediately below. This report must include a copy of the supplemental investigative report and either Complainant's request for a hearing or the Agency's final action.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 28, 2013
Date
1 On appeal, Complainant does not challenge the May 3, 2011, partial dismissal regarding five additional claims. Therefore, we have not addressed the dismissal of these claims in our decision.
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0120120265
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120265