07a00007
07-13-2000
Emma J. Lee, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Emma J. Lee v. Department of Veterans Affairs
07A00007
July 13, 2000
Emma J. Lee, )
Complainant, )
) Appeal No. 07A00007
v. ) Agency No. 97-1107
) Hearing No. 250-97-8221X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
The agency timely initiated an appeal from its own final action concerning
complainant's equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405). Complainant alleges she was
discriminated against based on race (Black) and physical disability
(asthma, arthritis, knee pain, dyspnea, degenerative joint disease
with deformity of her lower extremities, diabetes, and hypertension,
with complications from medication and obesity) when, on May 21, 1996,
and August 7, 1996, her request for a disability-accessible parking
space was denied. For the following reasons, the Commission AFFIRMS
the agency's final action.
The record reveals that complainant is a GS-3-5 Uniform Clerk in the
Laundry Section at the agency's Medical Center facility in Memphis,
Tennessee. From 1987 through early 1996, the agency allowed her to
use a disability-accessible parking space. However, in 1996, due
to construction at the facility, the agency advised complainant and
various other employees that they would would no longer be afforded
disability-accessible parking spaces.<2>
Complainant filed a formal EEO complaint with the agency on August 21,
1996, alleging that the agency had discriminated against her as referenced
above. 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 race discrimination because she did
not demonstrate that similarly situated employees not in her protected
classes were treated differently under similar circumstances, or adduce
other evidence sufficient to permit an inference of discrimination. With
respect to complainant's disability discrimination claim, the AJ concluded
that complainant was not an "individual with a disability" within the
meaning of the Rehabilitation Act because she was not substantially
limited in a major life activity.<3> The AJ further found, in the
alternative, that even assuming complainant is a qualified individual
with a disability, it would pose an undue hardship for the agency to
provide complainant with a disability-accessible parking space.
On November 19, 1999, the agency issued its final action, stating that
it would not implement the AJ's decision with respect to complainant's
disability discrimination claim, which it now deemed meritorious
notwithstanding that the agency defended against it at the hearing.
The agency concluded that the AJ's decision erred factually and legally in
concluding that complainant is not an individual with a disability within
the meaning of the Rehabilitation Act because she was not substantially
limited in the major life activity of working. The agency concluded
that complainant is substantially limited in the major life activities of
walking and breathing. The agency further concluded that the AJ erred in
finding that it would pose an undue hardship for the agency to provide
complainant with a disability-accessible parking space. Accordingly,
the agency awarded equitable relief, and directed that a supplemental
investigation be conducted with respect to compensatory damages and
attorney's fees and costs. In accordance with 64 Fed. Reg. 37,644,
37,657 (to be codified at 29 C.F.R. � 1614.110(a)), because it was not
implementing the AJ's decision, the agency simultaneously filed its own
notice of appeal with this Commission. Complainant has not filed any
contentions on appeal.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). In the instant case, the AJ made no factual
findings with respect to the ways in which complainant's various
impairments affected her in the performance of any major life activity
other than working, and therefore we review the factual record on these
issues de novo. To the extent the AJ made certain factual findings in
support of his legal conclusion that even assuming arguendo complainant
is a qualified individual with a disability, it would pose an undue
hardship for the agency to accommodate complainant's request for an
parking space, these findings are not supported by substantial evidence,
as reviewed below.
After a careful review of the record, the Commission finds that the AJ's
decision improperly concluded complainant is not an individual with a
disability within the meaning of the Rehabilitation Act.<4>
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
he/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 Supreme Court has held that the determination of whether a person is
an "individual with a disability" must be based on his or her condition
at the time of the alleged discrimination. The positive and negative
effects of mitigating measures used by the individual, such as medication
or an assistive device, must be considered when deciding if he or she
has an impairment that substantially limits a major life activity.
Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United
Parcel Service, Inc., 527 U.S. 516 (1999).
The record evidence establishes that complainant's numerous physical
impairments identified above substantially limited her in the major
life activity of walking. By letter dated May 6, 1996, complainant's
physician advised the agency:
[complainant] is presently being followed for asthma, hypertension and
severe degenerative joint disease with deformity of her lower extremities.
Because of the above medical conditions, her ability to ambulate is
limited.
Please allow [complainant] to use the handicap parking area closest to
the hospital.
By letter dated June 17, 1996, the same physician further advised the
agency that "[i]t is very difficult for [complainant] to ambulate
even with mechanical assistance," referring to complainant's use
of a cane. Based on this evidence, we conclude that complainant's
physical impairments, in combination, substantially limit her in the
major life activity of walking, and accordingly she is an individual
with a disability within the meaning of the statute. We further find
that complainant is a "qualified" individual with a disability because,
according to hearing testimony by both complainant and her supervisor,
she is able to perform the essential functions of her position. Therefore,
irrespective of the parking space distribution criteria established by
agency or facility policy, the agency had a duty under the Rehabilitation
Act to provide complainant with a reasonable accommodation absent,
inter alia, a showing of undue hardship.
Based on a careful review of the record, we find the AJ incorrectly
concluded that it would pose an undue hardship on the agency to
accommodate complainant's request for an accessible parking space.
The factual findings made by the AJ regarding the undue hardship defense
are not supported by substantial evidence in the record. Specifically,
the AJ concluded that providing complainant with an accessible parking
space would require termination of a necessary building expansion.
To the contrary, in its "Memorandum For the Record" setting forth its
reasons for not implementing the AJ's decision, the agency itself notes,
and the record demonstrates, that twelve parking spaces were created
as a result of reconstruction and only eight were filled. See Record
of Investigation, Affidavit B9(b) at 7. Accordingly, complainant could
have been placed in an existing vacant parking space without jeopardizing
the planned building expansion. In addition, as the agency itself notes,
the fact that other employees may file or have filed complaints regarding
the proposed accommodation is in and of itself insufficient to demonstrate
undue hardship on the agency's operations.
Where a discriminatory practice involves the provision of a reasonable
accommodation, compensatory damages may not be awarded where the employer
demonstrates good faith efforts to make a reasonable accommodation.
See 42 U.S.C. � 1981a(a)(3). In the instant case, the agency denied
complainant's request for accommodation largely on the ground that she
did not possess one of the physical conditions given priority under the
facility's parking policy, without regard to the requirements of the
Rehabilitation Act. Accordingly, we will not disturb the agency's final
action, which finds compensatory damages to be available to complainant,
and orders a supplemental investigation on the appropriate amount,
if any, to be awarded.
Therefore, after a careful review of the record, including the agency's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final action and
ORDER the agency to take remedial action as specified in the order which
follows.
ORDER
To the extent it has not yet done so, the agency is ORDERED to take the
following remedial action:
(1) The agency shall provide complainant with a disability-accessible
parking space.
(2) The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as a result of
the agency's failure to provide her with an parking space. 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.
(3) The agency shall provide training regarding the obligations and duties
imposed by the Rehabilitation Act to the personnel responsible for the
agency's actions in this matter. Such training shall include, but not
be limited to, the information set forth in the foregoing decision as
well as the EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans With Disabilities Act, No. 915.002
(March 1, 1999).
(4) The agency shall disseminate, to personnel responsible for allocating
disability-accessible parking spaces at any of its facilities, appropriate
information regarding application of the Rehabilitation Act, as set
forth in the foregoing decision.
(5) The agency shall post at its Medical Center facility in Memphis,
Tennessee 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.
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 (G1092)
The agency is ORDERED to post at its Memphis, Tennessee Medical Center
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 (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
July 13, 2000
_______________ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Prior to this time, the facility had implemented a policy which permitted
such parking spaces to be assigned to "employees who, because of permanent
disability, experience difficulty in walking." Record of Investigation
(ROI) Exhibit C-6. Complainant was advised by memorandum dated April
16, 1996 that due to the effect of facility construction on available
parking space, "[r]eserved handicapped parking has been re-evaluated
to be more in line with the Department of Veterans Affairs' established
guidelines for reserved handicapped parking." ROI Exhibit C-10 at 1.
The referenced agency guidelines provide that "employees eligible
for" such parking spaces include: (a) those who use wheelchairs; (b)
"single or double lower limb amputees"; and (c) those with "lower limb
impairments which require the use of assistor devices for ambulation."
ROI Exhibit C1 at 1.
3The AJ's decision incorrectly states that in addition to demonstrating
that she has an impairment which substantially limits a major life
activity, complainant must demonstrate that she is substantially limited
in her ability to perform either a class of jobs or a broad range of
jobs in various classes compared to the average person with comparable
training, skills, and abilities. To the contrary, the latter standard
only applies if complainant claims that her impairment substantially
limits her in the major life activity of working. Complainant need only
establish that her impairment substantially limits her in one major life
activity, and it need not be working. In the instant case, the AJ did
not specifically address whether or not complainant is substantially
limited in other major life activities, such as walking or breathing.
4We also find that the AJ's decision properly concluded that complainant
has not established a prima facie case of race discrimination in violation
of Title VII.