01980128
09-19-2001
Audra M. Hamaker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Audra M. Hamaker v. United States Postal Service
01980128
09-19-01
.
Audra M. Hamaker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01980128
Agency No. 4I-680-1110-94
Hearing No. 320-95-8164X
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
her allegation that the agency violated Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Section 2000e et seq., and the
Rehabilitation Act of 1973, as amended, 29 U.S.C. Section 791 et seq.
The appeal is accepted by the Commission in accordance with the provisions
29 C.F.R. � 1614.405.
ISSUES PRESENTED
The issues presented herein are whether complainant has established
that the agency discriminated against her based on physical disability
(respiratory problems) and retaliation (prior EEO activity) when: (1)
the agency failed to reasonably accommodate her disability; (2) she was
subjected to a hostile work environment; (3) she was denied higher level
assignments; and (4) her work hours were reduced.
BACKGROUND
During the period in question, complainant was employed as a part-time
flexible clerk at the Gretna, Nebraska, Post Office (the Facility).
Complainant filed a formal complaint in August 1994 in which she
raised what have been identified as Issues 1 through 4. Following an
investigation, complainant requested an EEO administrative hearing and
the administrative judge (AJ) who heard the case subsequently issued
a recommended decision (RD) finding discrimination with regard to all
four issues. The agency thereafter issued a final agency decision (FAD)
in which it rejected the RD and found no discrimination.<1> It is from
this decision that complainant now appeals.
The record reveals that complainant has several respiratory conditions,
including chronic lung disorder, emphysema, and defective antibody
function. Not only do these conditions render her more susceptible
to respiratory tract infections, but they resulted in the removal
of a portion of her left lung. The AJ found that these conditions
substantially limit complainant's ability to breathe and walk and
concluded that complainant is an �individual with a disability.� The
AJ also found that, insofar as complainant could perform the essential
functions of her position, she is a �qualified individual with a
disability.�<2>
With regard to Issue 1, complainant, at her physician's (the Physician)
recommendation, purchased a clean air machine that was designed to
minimize her exposure to dust and thereby reduce the likelihood of
respiratory infection. In finding discrimination with regard to this
issue, the AJ determined that, although the Postmaster (Responsible
Official 1, RO 1) initially permitted complainant to use the machine,
she subsequently took a number of actions designed to discourage its
use, including turning it off, complaining about the noise, and lobbying
other employees to complain about the noise.<3> When complainant
presented officials with a note from the Physician recommending that the
machine run continuously, she was not permitted to report for work and
was informed that she could not report until she obtained a note from
the Physician stating that she did not need the machine. Complainant
subsequently presented such a note and was allowed to return to work.<4>
The AJ determined that the agency's actions had the effect of �coercing
[complainant] and her medical treatment professionals to eliminate the
request for accommodation in order to allow her to return to work.�
Regarding Issue 2, the AJ found that complainant, as a result of her
attempts to be reasonably accommodated, had been subjected to a hostile
environment. In so finding, the AJ cited a number of actions taken
against complainant, including not being permitted to report for work;
being coerced; having the clean air machine constantly turned off; being
told by RO 1's supervisor (RO 2) that, if she needed to use the clean air
machine to work, she should consider another occupation; being subjected
to derogatory, demeaning comments by RO 1; and being hollered at by RO 1.
With regard to Issue 3, the AJ found that, during the period in question,
RO 1 had stopped using complainant for postmaster relief (PMR) in
favor of a male co-worker (Employee A). The AJ found further that RO
1's articulated reason for that decision, i.e., complainant's attitude,
was pretextual. In so finding, the AJ cited two apparent inconsistencies
in RO 1's testimony regarding the clean air machine, and also found, based
on complainant's demeanor during the hearing, that RO 1's testimony that
complainant had an attitude problem was not believable. In this regard,
the AJ found that, if anyone had an attitude problem, it was RO 1.
In connection with this issue, as well as Issue 4, discussed below,
the AJ found complainant's testimony more credible than that of the
agency witnesses.
During the investigation, Issue 4, i.e., the reduction of complainant's
work hours, was interpreted as referring to her allegation that Employee A
received more hours than she received. In addressing this issue, however,
the AJ found that it pertained to one occasion on which complainant was
sent home early by RO 1, which thereby deprived her of several hours
of work. The AJ found that the reason articulated by RO 1 for sending
complainant home early was her attitude, and that, based on the analysis
regarding Issue 3, this reason was pretextual.
As relief for the discrimination, the AJ initially found that complainant
was entitled to pecuniary and non-pecuniary compensatory damages.
The AJ based this finding on complainant's unrebutted testimony that the
agency's discrimination affected her body's ability to respond to medical
treatment and caused her to physically shake and break down and cry.
The AJ also found that complainant was entitled to back pay, reasonable
accommodation in the form of the clean air machine, reimbursement of
any annual leave taken based on the agency's failure to accommodate her,
and attorney's fees.
ANALYSIS AND FINDINGS
Finding of Discrimination
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 Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb
the AJ's decision. Therefore, 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.
Compensatory Damages
Legal Standards for an Award of Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S. C. �1981a(b)(3). For an employer with more than 500 employees,
such as the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000. Id.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in EEOC Notice No. N
915.002, Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the
complainant must submit evidence to show that the agency's discriminatory
conduct directly or proximately caused the losses for which damages
are sought. Id. at 11-12, 14; Rivera v. Dept. of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994). The amount awarded should reflect the
extent to which the agency's discriminatory action directly or proximately
caused harm to the complainant and the extent to which other factors may
have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of
non-pecuniary damages should also reflect the nature and severity of
the harm to the complainant, and the duration or expected duration of
the harm. Id. at 14.
In Carle v. Dept. of the Navy, the Commission explained that �objective
evidence� of non-pecuniary damages could include a statement by the
complainant explaining how he or she was affected by the discrimination.
EEOC Appeal No. 01922369 (January 5, 1993). Statements from others,
including family members, friends, and health care providers could
address the outward manifestations of the impact of the discrimination on
the complainant. Id. The complainant could also submit documentation
of medical or psychiatric treatment related to the effects of the
discrimination, but such documentation is not required. Id.
Pecuniary Damages
Although the AJ found that complainant was entitled to pecuniary damages,
she has never requested such damages. Therefore, we find complainant
has not established an entitlement to pecuniary damages.
Non-Pecuniary Damages
In this case, complainant opined that the stress she experienced
minimized the effectiveness of medication she was taking for her physical
ailments. Absent medical evidence to that effect, however, complainant's
opinion is merely speculative and entitled to little, if any, weight.
Complainant also offered unrebutted testimony that, as a result of RO
1's discrimination, she would shake uncontrollably and go home and cry.
We agree with the AJ's determination that complainant has established a
causal connection between the agency's discrimination and these problems.
The amount of compensatory damages awarded by the Commission has varied
accordingly to the injury sustained by the complainant in each case:
Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (April
18, 1996) ($3,000 in non-pecuniary damages for sexual harassment
where complainant presented primarily non-medical evidence that she
was irritable, experienced anxiety attacks, and was shunned by her
co-workers); Benson v. Dept. of Agriculture, EEOC Appeal No. 01952854
(June 27, 1996) ($5,000 non-pecuniary damages where complainant was
denied promotional opportunities on the bases of race and reprisal, and
consequently experienced stress, skin rashes, withdrawal, and isolation);
Rountree v. Dept. of Agriculture, EEOC Appeal No. 01941906 (July 7,
1995) ($8,000 in non-pecuniary damages where complainant received a
low performance appraisal and was denied bonus pay because of race and
reprisal; medical evidence testimony was provided regarding complainant's
emotional distress, but the majority of complainant's emotional problems
were caused by factors other than the discrimination). Based upon our
review of complainant's testimony as to the effects of the discrimination,
we find that an award of $5,000 in non-pecuniary damages is appropriate
in this case.
CONCLUSION
It is the decision of the Commission to REVERSE the FAD, and to remand
the case for further proceedings consistent with the Order of the
Commission, below.
ORDER
The agency is ORDERED to take the following remedial actions:
1. The agency shall restore and credit to complainant all the leave
used as a result of not allowing her to report for work in July 1994.
2. Within thirty (30) days of the date on which this decision becomes
final, the agency shall tender to complainant non-pecuniary compensatory
damages in the amount of $5,000.
3. The agency shall reasonably accommodate complainant by permitting
her to operate the clean air machine on a continuous basis.
4. The agency shall provide training to the managers at the Facility.
This training shall cover the officials' responsibilities with respect
to eliminating discrimination and retaliation in the Federal workplace
and all other supervisory and managerial responsibilities under EEO law.
5. The agency shall consider taking disciplinary action against the
employees identified herein as RO 1 and RO 2. 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.
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 evidence that the corrective actions
have been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Gretna, Nebraska, 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 (K0501)
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)
(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 (M0701)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_09-19-01_________________
Date
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., and 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 that 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, Gretna, Nebraska 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, Gretna, Nebraska Post Office has
been found to have discriminated against the individual affected by
the Commission's finding. The United States Postal Service, Gretna,
Nebraska Post Office shall afford reasonable accommodation of the
affected individual's disability; restore leave used by the affected
individual on account of its past failure to provide accommodation;
provide EEO training to the managers found to have discriminated against
the affected individual; shall pay the affected individual compensatory
damages; and shall pay the affected individual's attorney's fees
and costs. The United States Postal Service, Gretna, Nebraska 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 and will not retaliate
against employees who file EEO complaints.
The United States Postal Service, Gretna, Nebraska 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: _________________
29 C.F.R. Part 1614
1Under the Commission's regulations then in effect, the agency could
accept, reject, or modify the AJ's decision. Under the Commission's
present regulations, the decision of the AJ is binding on both parties,
subject to the right to appeal to the Commission by either party.
See 29 C.F.R. � 1614.109(i).
2The AJ also noted that in its closing argument, the agency conceded
that complainant was a �qualified individual with a disability.�
3The clean air machine was demonstrated during the hearing and the AJ
found that it was similar in noise level to a fan. In finding that
the noise created by the machine did not cause an �undue hardship,� the
AJ noted that the �semi-industrial atmosphere of the postal service is
filled with louder, more distracting machinery, and sounds.�
4Notwithstanding that note, complainant was still permitted to use the
machine at work. RO 1's opposition to it continued, however, and she
ultimately took it home.