01986792
06-06-1999
Jane Pastva, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic), Agency.
Jane Pastva, )
Appellant, )
)
v. ) Appeal No. 01986792
) Agency No. 4C-442-0107-97
William J. Henderson, ) Hearing No. 220-98-5075X
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic), )
Agency. )
______________________________)
DECISION
On September 10, 1998, Jane Pastva (appellant) timely appealed the final
decision of the United States Postal Service (agency), dated August 10,
1998, which concluded that she had not been unlawfully discriminated
against in violation of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. In her complaint, appellant had alleged that
officials at the agency's Warren, Ohio, Post Office failed in their
legal obligation to reasonably accommodate her physical disability
(impairment of the right knee)<1> when: (1) they failed to provide
her with an appropriate "handicapped" parking space, resulting in her
slipping on ice in January 1997, and further injuring her knee; (2) she
was instructed to tear up a PS Form 1767 (Safety Hazard Report) by the
Postmaster; and (3) on January 14, 1997, she was instructed to report
to the Parcel Post Annex, with a one-half hour change in reporting time.
This appeal is accepted in accordance with the provisions of EEOC Order
No. 960.001.
The record reflects that appellant was initially employed by the agency
in 1983, and has worked continuously since then at the Warren, Ohio,
Post Office. Since 1990, she has worked in the maintenance craft.
In 1994, appellant sustained an on-the-job injury to her right knee,
requiring surgery. At that time, she was permanently assigned a
"handicapped" parking space at the back of the loading dock by the
then-Postmaster. In 1996, appellant's knee required further surgery.
At that time, she was informed that she had a deteriorating knee joint
which affected the stability of her knee, and there was little hope
of the knee ever healing properly. Appellant was fitted with a knee
brace and was medically restricted from lifting more than 20 lbs.,
working for more than six hours per shift, standing for more than four
hours with breaks as needed, and no outside walking on uneven terrain.
Upon her return to work from the second surgery, appellant continued to
park in the back of the loading dock.
In May 1996, a new Postmaster arrived at the Warren Post Office. The new
Postmaster told appellant that she could no longer park by the loading
dock and had the "handicapped" parking sign removed from the space.
Appellant began parking on the side of the building, where there were
approximately twelve parking spaces. However, in October 1996, the
Postmaster told her that she could no longer park on the side of the
building because it was no longer for employee parking. Appellant alleged
that the Postmaster told her that she did not have to accommodate her
need for special parking, and that her "handicapped" parking sticker
for her car was for shopping malls and other facilities and not for work.
As a result, appellant was forced to park on the street. In November
1996, appellant's physician write the agency stating that due to her
knee condition, it was essential that she park within fifty feet of the
building she worked in, especially during bad weather. Although appellant
met with management on several occasions to discuss her doctor's request,
she never received a parking space close to the building. On January
13, 1997, appellant parked her car on the street as required, slipped on
ice and reinjured her right knee. When she went in to work she filled
out a PS Form 1767 (Safety Hazard Form), but was told to tear it up by
the Postmaster. The Postmaster admitted this was correct, explaining
she told appellant to do so because it was the incorrect form to file
for an accident. At the end of the meeting, the Postmaster informed
appellant that she was reassigning her to work at the Parcel Post Annex
and that the first parking space at the bottom of the stairs would be
reserved for her. In April 1997, appellant required further surgery on
her knee as a result of the January injury. She was out of work until
approximately October 7, 1997, rehabilitating her knee after the surgery.
On April 17, 1997, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against her as
referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On June 10, 1998, following a hearing at which five witnesses
testified, the AJ issued a decision concluding appellant had proven,
by a preponderance of the evidence, that the agency failed to reasonably
accommodate appellant's disability when she was denied a parking space
close to the building in which she worked. In reaching this decision,
the AJ found that the agency failed to meet its burden of showing that
the requested accommodation would have caused an undue hardship on its
operations. With regard to the issues concerning the Form 1767 and the
reassignment to the annex building, the AJ concluded no violation of the
Rehabilitation Act was established. The agency provided a legitimate
explanation for the form incident and appellant's reassignment was a
legitimate alternative method of accommodating appellant's need to park
close to the building in which she worked.
On August 10, 1998, the agency issued its final decision, rejecting
that portion of the AJ's recommended decision which found disability
discrimination with regard to the failure to provide appellant with an
appropriate parking space from October 1996 through January 17, 1997. It
is from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
Despite the agency's argument to the contrary, the record supports the
AJ's finding that appellant is an individual with a disability within the
meaning of the Rehabilitation Act, and, as such, entitled to reasonable
accommodation from the agency. Based on the evidence of record, the
Commission discerns no basis to disturb the AJ's finding that the agency
failed in its duty to provide such accommodation when appellant was denied
a parking space close to the building she worked in from October 1996
through January 17, 1997. The agency failed to provide any evidence
that the granting of such an accommodation would have caused an undue
hardship on its operations. The Commission notes that nothing proffered
by agency in its final decision or on appeal differs significantly from
the arguments raised before, and given full consideration by, the AJ.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE that portion of the agency's final decision
which rejected the AJ's partial finding of disability discrimination.
In order to remedy appellant for its discriminatory actions, the agency
shall comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) days of the date this decision becomes final, the
agency shall award appellant any wages and/or reimburse any benefits she
lost between January 13, 1997 and October 7, 1997, as a result of the
agency's discriminatory actions in denying her a parking space close
to the building.
(B) Based on the AJ's finding of the agency's demonstrated lack of a good
faith effort to reasonably accommodate appellant's physical disability
by granting her request for a parking space close to the building
she worked in, the agency shall conduct a supplemental investigation
pertaining to appellant's entitlement to compensatory damages incurred
as result of the agency's discriminatory actions. See the Civil Rights
Act of 1991, as amended, 42 U.S.C. �1981a et seq.; Feris v. Environmental
Protection Agency, EEOC Appeal No. 01934828 (August 10, 1995), request
to reopen denied, EEOC Request No. 05950936 (July 19, 1996); Rivera
v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994);
Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January
5, 1993). See also, Cobey Turner v. Department of the Interior, EEOC
Appeal Nos. 01956390 and 01960518 (April 27, 1998); Jackson v. United
States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992),
request for reconsideration denied, EEOC Request No. 05930306 (February
1, 1993). The agency shall afford appellant sixty (60) days to submit
additional evidence in support of her claim for compensatory damages.
Within thirty (30) days of its receipt of appellant's evidence, the
agency shall issue a final decision determining appellant's entitlement
to compensatory damages, together with appropriate appeal rights.
(C) The agency shall provide training to the officials responsible
for its actions in this matter in their responsibilities under all the
Federal equal employment opportunity statutes.
(D) The agency shall post at the Warren, Ohio, 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.
(E) 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 appellant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that you have the right to file a civil action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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:
June 6, 1999
_________________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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 Rehabilitation Act of 1973, as amended, 29
U.S.C. �791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Warren, Ohio, 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 Warren, Ohio, Post Office has been found to have discriminated
against the individual affected by the Commission's finding on the
basis of her physical disability by failing to provide her with a
necessary reasonable accommodation. The Commission has ordered that
this individual be provided with an appropriate back pay award, as
well as an investigation into her claim for compensatory damages.
The Warren, Ohio, 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 Warren, Ohio, 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: _________________
1 During pre-complaint EEO counseling, appellant also alleged she
had been discriminated against on the basis of her race (white) with
regard to these same issues. Although she did not raise this basis
again in her formal complaint, the administrative judge considered it
and found no prima facie case of race discrimination. Appellant has not
challenged this finding on appeal and it will no longer be addressed in
this decision.