01A11800
07-18-2003
Cecilia A. Durinzi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Cecilia A. Durinzi v. United States Postal Service
01A11800
July 18, 2003
.
Cecilia A. Durinzi,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A11800
Agency No. 1-C-191-0197-97
Hearing No. 170-A0-8277X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission reverses the agency's final
order.
ISSUES PRESENTED
Whether complainant was entitled to and denied a reasonable accommodation,
in violation of the Rehabilitation Act.<1>
BACKGROUND
The record reveals that complainant worked as a mail handler at the
agency's General Mail Facility in Philadelphia, Pennsylvania. Complainant
has been employed by the agency as a mail handler since November 1986.
In May 1987, complainant incurred an on-the-job injury from lifting heavy
mail sacks, resulting in piriformis syndrome. Complainant's symptoms
included muscle spasms, numbness, and pain from complainant's buttocks
to her toes on her right side, resulting in lifting, bending, twisting,
and pulling restrictions. Complainant was also restricted to the use
of a high-back chair and instructed to avoid adverse weather conditions.
From 1987 until 1997 complainant worked as a mail handler in a limited
duty position re-wrapping and repairing torn or damaged mail on
tour one (night tour) at the facility. At some point, complainant
was also diagnosed with fibromyalgia. Complainant testified that
this impairment causes pains, aches, and burning of her muscles such
that she cannot remain in one position for an extended period of time.
In October 1996 complainant, on the recommendation of one of her doctors,
requested to be moved to the day tour in a facility closer to her home.
Complainant stated, in this initial request, that she was being treated
for her piriformis syndrome with intensive therapy, various medications
and injections, but was still unable to correct the syndrome. The request
indicates that moving to the day tour and to a facility closer to her
home were new efforts suggested by her doctor to try and combat the
negative effects of the syndrome and perhaps improve her response to
therapy and medication.
In 1997, complainant was further diagnosed with interstitial cystitis
(IC), which is a chronic lower urinary tract disorder which results
in inflammation of the bladder lining. This impairment had the effect
of decreasing complainant's ability to retain liquids thereby causing
frequent urination. As a result of her IC, complainant took leave,
under the Family Medical leave Act (FMLA), in April 1997. While on leave
complainant again submitted a request asking to modify her work hours from
the night tour to the day tour. With her request, complainant submitted
letters from her doctors, all of which concurred that complainant should
be permitted to work during the day to control the �sleep disturbance�
she was experiencing, and also to improve both her IC and fibromyalgia.
By letter dated June 6, 1997, an agency official informed complainant
that her tour change request
had been forwarded to the manager (RMO) of the facility. RMO then
responded to complainant that �[i]t is impossible to grant [her] request
due to operational needs.� RMO further suggested to complainant that
she bid for a position with the desired characteristics. While still
on leave, complainant did exactly that, successfully bidding on a mail
handler assignment on the day tour at the facility. The assignment
was to have been made effective on August 16, 1997. This assignment,
however, included duties that exceeded complainant's medical restrictions
on lifting, bending, pushing, pulling, and exposure to adverse weather
conditions. Complainant was informed by a human resources official
with the agency that she was required to submit a medical certification
of her ability to perform the duties of that mail handler position,
pursuant to the bid assignment, within six months of the effective date
of the bid assignment.
Complainant informed the agency that she would be returning from leave
and requested that she be scheduled for a medical examination. By letter
dated August 8, 1997, complainant was notified by an agency official
(RMO2) to report to her limited duty assignment on the night tour and
not to report to the day tour mail handler bid assignment because of
her limited duty status and the lack of limited duty work assignments
within her medical restrictions on the day tour.
Complainant underwent a Return-to-Duty medical evaluation at the agency's
medical unit on August 14, 1997. During the evaluation, the agency
physician documented her various medical impairments and restrictions.
The list of activities complainant was restricted in some manner from
doing, as noted by the agency physician, included lifting, twisting,
bending, pushing, pulling, and kneeling. The restrictions further
instructed that complainant should have use of a high-backed chair, hourly
breaks from sitting to get up and walk, day work, frequent bathroom use
privileges, part-time work for up to six hours per day, and avoid exposure
to adverse weather conditions. All restrictions were recorded on Agency
Form 3956. Record of Investigation (ROI), Affidavit A, Attachment 24.
On August 16, 1997, complainant reported for duty to her original limited
duty assignment on the night tour, as directed by RMO2. A supervisor
then on duty, however, refused to allow complainant to work because of
the restriction that she work on the day tour. Thus, complainant left
the facility on that date and has not reported to work at the agency
since that date. Complainant's bid assignment on the day tour was
rescinded on September 5, 1997. The letter rescinding the assignment
stated that this rescission was due to complainant's failure to provide
medical certification that she was able to perform the mail handler
duties within six months of the award of the assignment. Given that
the agency purported to provide complainant with six months to provide
such certification, it is notable that the rescission occurred after
less than a month.
By letter dated August 28, 1997, complainant requested again that she
be placed in a bid assignment on the day tour or, in the alternative,
be provided administrative leave retroactive to August 16, 1997.
RMO responded to complainant's request, stating that the agency was
unable to provide any work to meet the recommended restrictions of
both her �occupational� and �non-occupational� medical restrictions
without creating an undue burden on the agency's operation. Further,
in September 1997, the agency's human resources district manager (RMO3)
advised complainant that any further communications from her would not
be addressed unless they contained new factual information.
Thereafter, complainant sought EEO counseling and filed a formal complaint
on October 6, 1997, alleging that the agency denied her reasonable
accommodation request to modify her working hours and transfer her to
a facility closer to her home. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination. Specifically, the AJ found that complainant
failed to adduce evidence that would support a conclusion that she is
significantly restricted in any major life activity as compared to the
general public. The AJ based this conclusion on the fact that she found
the medical evidence to be general and conclusory, failing to detail with
specificity the duration or long-term impact the impairments might have
on complainant's performance of major life activities. Further, the AJ
noted that complainant's testimony of her 15 pound lifting restriction
was inconsistent with the 10 pound lifting restriction indicated on Form
3956, the Return-to-Duty evaluation.
The AJ further found that complainant did not have a record or history
of an impairment which substantially limits a major life activity,
nor was she regarded by the agency as having one. In concluding that
complainant was not regarded as having an impairment which substantially
limits a major life activity, the AJ drew a distinction between having
such an impairment and requiring a limited duty assignment because of
an on-the-job injury.
The AJ went on to conclude that assuming, arguendo, complainant is an
individual with a disability, she nonetheless failed to demonstrate
that she is a qualified individual with a disability. Specifically,
the AJ found that complainant offered no evidence of an accommodation
that would allow her to perform the functions of her limited-duty mail
handler position on the day tour. The AJ further credited the testimony
of agency officials who testified that there was no work available within
complainant's restrictions on the day tour. Both officials testified that
the re-wrapping and repairing of damaged mail work was not �available�
during the day tour.
In concluding that the agency did not discriminate against complainant,
the AJ stated that she did not find the �medical documentation included
with complainant's request[s] for reassignment to the day tour . . . put
the agency on notice as to [a] substantially limiting impairment, which
[would] require a change of complainant's tour as an accommodation.�
Further, while the AJ chastised the agency for failure to engage in
the interactive process, she nonetheless credited the testimony of
an agency doctor who found that complainant's medical documentation
failed to explain the medical rationale behind advising complainant
to seek a day tour and work closer to home. This same agency doctor,
however, failed to ask for follow-up information from complainant's
doctors regarding their recommendations after finding them lacking.
The agency's final action implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when she concluded
that the medical evidence was lacking. Specifically, complainant first
points to a letter from her physical therapist wherein it is noted that
complainant is receiving manual physical therapy that is hampered by
complainant's fatigue. ROI, Affidavit A, Attachment 8. The physical
therapist stated that complainant made significant progress in her
physical therapy while on leave, but when she was working the night shift
her physical therapy goals could not be met. Id. The physical therapist
further noted loss of sleep and fatigue were common with piriformis
syndrome, and are �exacerbated by a night shift job.� Id. Complainant
points secondly to a letter from one of her treating physicians, DRKW,
which gives a detailed description of IC in general and the effects on
complainant in particular. ROI, Affidavit A, Attachment 9. DRKW advised
that complainant's medication caused severe fatigue, and she should thus
be scheduled to work a regular day shift, �so that she can continue to
take her medication as I have prescribed.� Id. DRKW concludes that
she �strongly advise[s] against a work schedule that is overnight as
it causes [complainant] to have sleep deprivation and severe fatigue
which is critical for [IC] patients.� Id. Complainant next points to a
third letter from still another physician, DRMM, who was also treating
complainant for her IC, as well as chronic anemia. ROI, Affidavit A,
Attachment 10. DRMM states that, �the nature of the patient's disease
([IC]) is such that she is unable to account for continuously long
hours without being interrupted by her physical disability,� meaning
that there were not long hours in which complainant's IC did not have an
effect on her. Id. DRMM further stated, �I recommend that she should
not be put on night shift work.� Id. �I would rather have her working
during the daytime.� Id.
Finally, a fourth physician, DRSH, treating complainant for her
fibromyalgia stated,
[i]n my opinion as a rheumatologist, many of [complainant's] problems
are related to sleep disturbance from working the night shift. It is my
opinion and recommendation to her that she try and switch to a day shift
so that we can better control her sleep disturbance. It is my opinion
that her fibromyalgia will improve if her sleep is more appropriate.
I think that it would be medically in her best interest not to work
anything other than a routine day shift given her other medical problems.
ROI, Affidavit A, Attachment 11. Complainant points out that two of
the three doctors mentioned above and complainant's physical therapist
all specifically invited the agency to call with any questions regarding
their diagnoses and recommendations.
Complainant also argues that the AJ placed undue significance on
her new job's location and its distance from her home in order to
find that she was not substantially limited in a major life activity.
Although the record demonstrates that complainant did ask for a change
not only in her duty hours but also in facility, so that she would not
have to drive such a long distance to work, complainant argues that the
medical evidence supported her requests for a reasonable accommodation of
day tour work regardless of whether a position at a different facility
could be located. See ROI, Affidavit A, Attachment 1, 2, 12, 13, 18,
19, 23, and 24. The agency filed an untimely response to the appeal.
The brief, a reiteration of the AJ's decision, restates the position
the agency took in its FAD, and requests that we affirm its final order.
ANALYSIS AND FINDINGS
We are charged here with reviewing any legal conclusions reached by the
AJ de novo. See 29 C.F.R. � 1614.405(a). Post-hearing factual findings
by the AJ are to be upheld so long as they are supported by substantial
evidence in the record. Id.; see also Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO
MD-110�), at 9-16. 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].<2> On appeal to this
Commission, �the burden is squarely on the party challenging the [AJ's]
decision to demonstrate that the [AJ's] factual determinations are not
supported by substantial evidence.� EEO MD-110, at 9-17.
As a initial matter, we note that the agency and the AJ couched
complainant's complaint as follows: 1) did the agency fail to provide
complainant with a reasonable accommodation when it rescinded her bid
assignment to a mail handler position on the day tour in September 1997?;
and 2) did the agency retaliate against complainant because of her request
for a reasonable accommodation when it rescinded her bid assignment in
September 1997? We find that a more accurate statement of complainant's
chief complaint is that she was unjustly denied a reasonable accommodation
in the form of a modification of her duty hours. There is no need to
demonstrate that retaliation occurred. See supra n.1.
As previously stated, this dispute is about whether complainant was
entitled to a reasonable accommodation � and if so, whether the agency
met its burden under the law to provide her with one. There is no doubt
that the federal government, including, of course, the agency, is charged
with being a �model employer� of individuals with disabilities. See 29
C.F.R. � 1614.203(a). Inherent in this duty is an obligation to break
down artificial barriers which preclude individuals with disabilities
from participating on an equal footing in the work force. Accordingly,
the Rehabilitation Act requires federal agencies to make various types
of reasonable accommodation to federal employees who have disabilities.
This requirement helps ensure that such federal employees will be able
to perform the essential functions of their positions, and enjoy all the
benefits and privileges of employment enjoyed by non-disabled employees.
See Appendix to Part 1630 � Interpretive Guidance on Title I of the
Americans with Disabilities Act (�Appendix to Part 1630�), at Section
1630.2(o): Reasonable Accommodation.
Compliance with this duty to provide reasonable accommodate is itself
a form of non-discrimination. See id. at Section 1630.9: Not Making
Reasonable Accommodation. Consequently, this Commission's regulations
provide that:
[i]t is unlawful for a covered entity [such as the agency] not to make
reasonable accommodation to the known physical or mental limitations of
an otherwise qualified applicant or employee with a disability, unless
such covered entity can demonstrate that the accommodation would impose
an undue hardship on the operation of its business . . . . [In addition]
[i]t is unlawful for a covered entity [like the agency] to deny employment
opportunities to an otherwise qualified job applicant or employee with
a disability based on the need of such covered entity to make reasonable
accommodation to such individual's physical or mental impairments.
29 C.F.R. �� 1630.9(a), (b) [emphasis added]; see also 42 U.S.C. ��
12112(b)(5)(A), (B) (containing the statutory directive mandating
reasonable accommodation for �otherwise qualified individual[s] with
a disability�).
Thus, to establish a prima facie case of disability discrimination
under a disparate treatment and/or a failure to accommodate theory,
the complainant must demonstrate that: 1) she is an �individual with a
disability� as defined in 29 C.F.R. � 1630.2(g); 2) she is a �qualified
individual with a disability� as defined in 29 C.F.R. � 1630.2(m); and
3) she was subjected to an adverse personnel action under circumstances
giving rise to an inference of disability discrimination and/or denied
an accommodation. Carney v. Federal Deposit Insurance Corporation,
EEOC Appeal No. 01986113 (August 3, 2000) (citing Prewitt v. United
States Postal Service, 662 F.2d 292 (5th Cir. 1981)).
EEOC Regulation 29 C.F.R. � 1630.2(g) defines an individual with a
disability as one who: (1) has a physical or mental impairment that
substantially limits one or more of the major life activities of such
individual; (2) has a record of such impairment; or (3) is regarded as
having such an impairment. Major life activities include, but are not
limited to, �functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.� EEOC Regulation 29 C.F.R. � 1630.2(i). The Interpretive
Guidance to the regulations further notes that �other major life
activities include, but are not limited to, sitting, standing, lifting,
[and] reaching.� 29 C.F.R. Part 1630 Appendix � 1630.2(i).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner or duration under which an individual can perform
a major life activity, compared to the average person in the general
population. 29 C.F.R. � 1630.2(j). �An impairment is substantially
limiting if it lasts for more than several months and significantly
restricts the performance of one or more major life activities during
that time . . . . In addition, some conditions may be long-term,
or potentially long-term, in that their duration is indefinite and
unknowable or is expected to be at least several months. Such conditions,
if severe, may constitute disabilities.� EEOC Enforcement Guidance on
the Americans With Disabilities Act and Psychiatric Disabilities (March
25, 1997) at question 7.
Based on a careful review of the record, we find that complainant has
established she is an �individual with a disability.� The conclusion
drawn by the AJ that the medical evidence was lacking is not supported by
the record. The overwhelming medical evidence, consisting of qualified
physicians and specialists who treated complainant, in some instances,
for more than 10 years, makes clear that complainant is significantly
restricted in the major life activity of lifting, as a result of her
piriformis syndrome. See LaPointe v. United States Postal Service,
EEOC Appeal No. 01992460 (June 27, 2002) (complainant with a permanent
20 pound lifting restriction is significantly limited in the major life
activity of lifting). The evidence further makes clear that complainant
is additionally substantially limited in the major life activity of
sleeping. HT at 64; ROI, Affidavit A, Attachment 1; see also EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, No. 915.002, at Question 39
(rev. Oct. 17, 2002). As stated above, complainant's physical therapist
noted loss of sleep and fatigue were common with piriformis syndrome, and
are �exacerbated by a night shift job.� ROI, Affidavit A, Attachment 8.
Further, DRKW also noted that the medications complainant was prescribed
for her IC �counteract with [a night work] schedule,� and that complainant
�experiences sleep deprivation, drowsiness and fatigue as a result of
working the night shift.� ROI, Affidavit A, Attachment 46. See Palfy
v. United States Postal Service, EEOC Appeal Nos. 07A10087 and 01993950
(June 17, 2002) (where record reflected that interrelated impairments and
their overlapping effects required complainant to carefully adhere to
a regularized schedule of day-time work to regulate his sleep, we held
that complainant's impairments substantially limited the complainant in
the major life activity of sleeping, and thus rendered him an �individual
with a disability�). Therefore, based on a careful review of the record,
we find that complainant has established she is an �individual with
a disability.�
We next determine whether complainant has met her burden of proof to
establish that she is a �qualified� individual with a disability within
the meaning of the Rehabilitation Act. �An individual with a disability
is �qualified' if she satisfies the requisite skill, experience, education
and other job-related requirements of the employment position such
individual holds or desires, and who, with or without accommodation,
can perform the essential functions of such position.� 29 C.F.R. �
1630.2(m); see also 29 C.F.R. � 1630.3 (exceptions to definition).
Therefore, in order to determine whether complainant is �qualified,�
the fact finder must assess whether, with or without accommodation,
complainant could perform the essential functions of her job or any
position which she could have held as a result of job restructuring or
reassignment. See Barnard v. United States Postal Service, EEOC Appeal
No. 07A10002 (August 2, 2002); Hawkins v. United States Postal Service,
EEOC Petition No. 03990006 (February 11, 1999); Van Horn v. United States
Postal Service, EEOC Appeal No. 01960159 (October 23, 1998).
Construing complainant's accommodation request as one of requesting
a modification, we find that complainant has established that she
is qualified for the job of mail handler on permanent limited duty,
in that she performed in the position for ten years.<3> HT at 16.
There is no dispute as to whether complainant has satisfactorily
performed in the position since 1987. Further, there is no evidence
that complainant was not performing or could not perform the essential
functions of her permanent limited duty mail handler position with
reasonable accommodations. Hence, we find that complainant is a qualified
individual with a disability within the meaning of the Rehabilitation Act.
The analysis now turns to whether or not the requested accommodation,
that of a modification to allow complainant to perform her assigned
functions during the day instead of at night, would have imposed and
undue hardship on the agency. Absent a showing that an accommodation
is an undue hardship by the agency, an accommodation must be provided.
Id.; 29 C.F.R. � 1614.203(c). The evidence makes clear that a day
shift is an accommodation that is effective and does not aggravate
complainant's conditions.<4> Indeed, the reasonable accommodation
complainant requested, that of a modification to her duty hours, is of
the very nature contemplated by the Act. See EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act, No. 915.002, at 2 (rev. Oct. 17, 2002) (a type
of reasonable accommodation includes �modifications or adjustments to
the work environment, or to the manner or circumstances under which
the position held or desired is customarily performed, that enable a
qualified individual with a disability to perform the essential functions
of that position�).
The agency, however, failed to demonstrate that providing complainant
with the accommodation of working during the day would impose an undue
hardship on the operations of its program. The record contains a letter
from RMO stating that, due to �operational needs� at the facility,
complainant's request for day tour work could not be granted. This is
the only record evidence offered by the agency to demonstrate that
granting complainant's request would be an undue hardship. In his direct
testimony, RMO was further provided with an opportunity to substantiate
the denial of complainant's request and the �operational needs� reasoning
he cited in the denial. He stated only that 1) it is not within his
authority to detail someone to tour two; and 2) the agency does not have
re-wrapping operations on the day tour. HT at 192, 196. RMO offered
no testimony to explain why having re-wrapping operations during the
day tour would significantly disrupt the operations of the day tour or
of the delivery of the mail. RMO did state that there was no operation
to which he could assign complainant, and that he would have to �make
work� for her; HT at 206; however, there is no indication why the work and
operation complainant was already doing could not be done during the day.
The agency offered no evidence as to the nature of complainant's duties
that would specifically require her to perform those duties at night.
Thus, the agency has not produced evidence to sufficiently demonstrate
undue hardship. See also LaPointe v. United States Postal Service, EEOC
Appeal No. 01992460 (June 27, 2002) (agency explanation that it did not
change complainant's lunch hour in accordance with her accommodation
request because �there were certain duties specific to complainant's
position that had to be done by 2 p.m.� not enough to demonstrate undue
hardship). Thus, it is liable for its failure to provide complainant
a reasonable accommodation under the Rehabilitation Act.
CONCLUSION
We conclude that the agency violated the Rehabilitation Act by failing
to provide a reasonable accommodation to complainant, and that it must
make complainant whole for this illegal discrimination. Accordingly,
based on arguments and evidence not addressed herein, it is the decision
of the Commission that the agency's final order is REVERSED. The agency
is ORDERED to provide the relief specified below. Further, compensatory
damage relief is REMANDED to the agency for processing, in accordance
with the order below. The Commission notes that this is not a case
where the agency made a �good faith effort� to reasonably accommodate
complainant, and thus the agency is not insulated from an obligation to
award appropriate compensatory damages, to the extent proven, based on
the instant finding of discrimination under the Rehabilitation Act.<5>
See Teshima v. United States Postal Service, EEOC Appeal No. 01961997
(May 5, 1998).
ORDER (D0900)
The agency is ordered to take the following remedial action within sixty
calendar (60) days, unless otherwise specified, of the date this decision
becomes final:
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall retroactively reinstate complainant to a day shift,
performing her former position of permanent limited duty mail handler
at the 30th Street facility, with modifications consistent with her
medical restrictions. Complainant shall be given a minimum of fifteen
days from receipt of the offer of placement within which to accept or
decline the offer. Failure to accept the offer within the time period
set by the agency will be considered a rejection of the offer, unless
complainant can show that circumstances beyond her control prevented
a response within the time limit.
The agency is directed to award complainant back pay, with interest,
for all wages and benefits lost between the date she was denied
reasonable accommodation, August 16, 1997, and the date she returns
to duty, declines the offer of reinstatement, or is otherwise unable
to return to duty. The agency shall determine the appropriate amount
of back pay, interest, and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501(c). The complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back 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 clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
�Implementation of the Commission's Decision;�
The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as a result
of the agency's discriminatory actions in this matter. The agency
shall afford complainant sixty (60) days to submit additional evidence
in support of her claim for compensatory damages. Within thirty (30)
days of its receipt of complainant's evidence, the agency shall issue
a final decision determining complainant's entitlement to compensatory
damages, together with appropriate appeal rights; and
The agency shall provide training to all the management officials
responsible for this matter in their duties and obligations under the
Rehabilitation Act.
The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. 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. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
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 Philadelphia General Mail 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 (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
July 18, 2003
__________________
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 the Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. has occurred at
the United States Postal Service General Mail Facility in Philadelphia,
Pennsylvania (hereinafter �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 facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against
the individual affected by the Commission's findings on the basis
of disability, when the agency denied her request for reasonable
accommodation. The agency shall therefore remedy the discrimination by
providing this individual with the requested reasonable accommodation
if available, applicable back pay, proven compensatory damages and
attorney's fees, and providing agency management officials with relevant
EEO training. The 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.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 16141 Complainant also asserts that she was subjected
to reprisal, based on her prior protected activity (the record does
not establish under what statute such activity occurred), when she was
denied a reasonable accommodation. Generally speaking, a finding of
discrimination on the theory of being denied a reasonable accommodation
does not require an additional basis upon which a complainant theorizes
as to why they were denied the reasonable accommodation. The Commission
recognizes, however, that in some circumstances a complainant may be able
to prove, by a preponderance of the evidence, that an agency's action or
failure to act in processing his/her request for reasonable accommodation
is motivated by retaliatory animus. Scearce v. Environmental Protection
Agency, EEOC Appeal No. 01A21014 (January 28, 2003). It does not appear
that such circumstance is present herein.
2The United States Supreme Court has explained that �substantial
evidence� is �more than a mere scintilla . . . . It �must do more
than create a suspicion of the existence of the fact to be established.
[I]t must be enough to justify, if the trial were to a jury, a refusal to
direct a verdict when the conclusion sought to be drawn from it is one
of fact for the jury . . . .'� Universal Camera Corp., 340 U.S. at 477
[citations omitted].
3 Testimony of RMO, HT at 200, reveals that, despite being on permanent
limited duty, complainant was still considered a mail handler by
the agency. RMO further testified that there are differing positions
with the position title known as mail handler; HT at 208; one of which
complainant was performing. Thus, we must assume that complainant held
a viable position with the agency, as she worked for 10 years in the
permanent limited duty capacity, complete with expectations, essential
functions, and evaluations.
4 Complainant testified that the need to work during the day arose
in 1996, when she was re-evaluated by one of her physicians, DRA, who
was looking for a way to lessen her pain associated with the piriformis
syndrome. HT at 64; ROI, Affidavit A, Attachment 1. A side-effect of
piriformis syndrome, according to complainant's physical therapist, is
loss of sleep and fatigue. ROI, Affidavit A, Attachment 8. Complainant's
physical therapist also stated that these side-effects are �exacerbated
by a night shift job.� Id. Additionally, the medications complainant
takes for her various impairments results in severe sleep disturbance.
DRSH, at ROI, Affidavit A, Attachment 30, details why working a day tour
is necessary to complainant's treatment and recovery. DRSH states that
working at night was impeding progress in the treatment of complainant's
fibromyalgia, and that the night shift specifically counteracted several
of complainant's medications. Id. DRSH explained that, �in order for
the medicines to work properly with [complainant], she will really need
a normal work schedule during the day.� ROI, Affidavit A, Attachment 30.
5 Based on this finding, it is not necessary to address complainant's
claim of reprisal because she would not be entitled to further relief.