07a40137
12-15-2005
Johanna Iftikar-Khan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Johanna Iftikar-Khan v. United States Postal Service
07A40137
December 15, 2005
.
Johanna Iftikar-Khan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A40137
Agency No. 1C-171-0019-02
Hearing No. 170-A3-8382X
DECISION
INTRODUCTION
Following its September 15, 2004 final order, the agency filed a
timely appeal which the Commission accepts pursuant to 29 C.F.R. �
1614.405. On appeal, the agency requests that the Commission affirm
its rejection of an EEOC Administrative Judge's (AJ) finding that the
agency discriminated against complainant for failing to provide her with
a reasonable accommodation. The agency also requests that the Commission
affirm its rejection of the AJ's corrective orders. For the following
reasons, the Commission reverses the agency's final order.
ISSUE PRESENTED
The issue presented herein is whether the AJ properly determined that
the agency violated the Rehabilitation Act.
BACKGROUND
Complainant, a Mail Handler at the agency's Harrisburg, Pennsylvania
Processing and Distribution Center, began her employment in 1984.
In 1996/1997, she began working light duty assignments in the damaged mail
and other areas due to her limitations due to her chronic sarcoidosis.<1>
Her restrictions included no lifting over 20 pounds and limited bending,
pushing and pulling. Complainant noted that she would also have �flare
ups� of sarcoidosis. She stated that during a flare up, her whole body
would ache and she would be gasping for breath. Every part of her body
would hurt and her joints would ache and swell. Even her optic nerve
would be affected making her eyes sensitive to light. She noted that
she would get about two or three flare ups a year. She noted that she
had flare ups which would last for a year before it abated. Even if
she did not have a flare up, complainant stated that the symptoms would
only �simmer down� and not go away. At the time in 2002, complainant
testified that she was in a continual flare-up.
In October 2001, complainant submitted medical documentation requesting
that she be limited from working in dusty areas in the facility due to
her condition. The Acting Plant Manager (APM) permitted complainant to
work in the union office performing her union steward duties and work in
the flat preparation area of the work floor which complainant believed was
less dusty than the damaged mail area. She noted that the damaged mail
area is right by the automation machinery which processes 45,000 pieces
of mail per hour and generates dust which would settle in the damaged
mail area. Further, the dust that would settle on the tables would get
stirred up by passing machinery or just moving packages or mail around.
The damaged mail area was also in the same area where larger damaged mail
packages are re-wrapped. Complainant noted that some packages contained
gray dusty padding material which would come out of the damaged boxes
and settle on the damaged mail tables as well. Finally, complainant
indicated that the damaged mail area was also close to the doors making
the temperature very cold in the winter and very hot in the summer.
She asserted that the weather would aggravate her condition.
Complainant would, on occasion, repair damaged mail in the box section
of the customer service area (referred as the �cubby hole area�) when
another employee (co-worker, white, male) was on leave.<2> She was
also asked to train various mailhandlers on how to work the damaged
mail/claims and inquiry mail in the cubby hole area. She noted that
the cubby hole area was less dusty and she was away from the dock doors
so she would not be exposed to extreme weather conditions which would
interfere with her compromised immune system.<3>
In January 2002, due to political issues within the union, complainant
was locked out of the union office and was no longer able to perform her
steward duties. On January 8, 2002, complainant sustained an on-the-job
back injury and was out of work until about January 15, 2002. On or
about January 25, 2002, complainant was allowed to return to work and
was offered a limited duty job working damaged mail or loose mail with
the following restrictions due to the back injury: lifting up to five
pounds intermittently, standing, and bending.
On the same date, complainant requested a reasonable accommodation
based on sarcoidosis limiting her exposure to dust. Complainant worked
for a short time in her limited duty job but went home on leave since
she was assigned to work in the damaged mail area on the work floor.
Complainant indicated that working in that area aggravated her sarcoidosis
and breathing condition. On February 9, 2002, complainant re-submitted
her request to the Plant Manager (PM) and the Manager of Distribution
Operations (MDO). Complainant sought to be placed in the cubby hole
area or any other work that fell within her limitations including the
exposure to dust and dust particles.
On February 25, 2002, based on requests by the Supervisor of Distribution
Operations (SDO), complainant returned to work and was directed to work
damaged mail in the cubby hole area. The co-worker normally assigned
to that area retired in January 2002. Complainant reported to the cubby
hole area and requested a table and chairs used to repair damaged mail
from the Manager of Customer Service (MCS). The MCS told her that he
had not authorized her nor anyone else to work in the cubby hole area
since the co-worker retired. Complainant left work after being told
that she would only be allowed to work damaged mail on the work floor
in the damaged mail area. She believed that the area was too dusty for
her sarcoidosis. By letter dated the same day, the Acting Senior MDO
informed complainant that her limited duty job offer of working in the
damaged or loose mail area met her physical restrictions and that they
would have a mask available for complainant's use.
By letter dated April 8, 2002, complainant's physician (P) requested
that the agency reconsider placing complainant in a more favorable
place in light of her breathing problems. In a letter dated April 24,
2002, the PM responded to the P stating that his assertion that the work
floor environment would adversely effect complainant was not supported
by the facts. She noted that the air quality of the facility was
measured as well within OSHA standards and that complainant would be
provided with a dust mask.<4> The PM invited the P to tour the area.
Complainant remained off work after February 25, 2002, until her
disability retirement became effective on May 13, 2003.
Complainant filed an EEO compliant alleging discrimination on the
basis of disability (sarcoidosis, anemia, history of pulmonary emboli
and menorrhagia), when the agency denied her reasonable accommodation
request in 2002. The matter was investigated. During the investigation,
complainant added the bases of race (African-American), national origin
(Hispanic),<5> color (black), sex (female), and reprisal (prior EEO
activity), when on or about March 19, 2002, the agency denied her request
to work in a limited or light duty position outside the damaged mail
work area.
Following the investigation, complainant requested a hearing before an AJ.
The AJ conducted a hearing on the matters. Following the hearing, the AJ
issued a decision finding that the agency violated the Rehabilitation Act.
AJ DECISION
The AJ found that complainant is an individual with a disability. The AJ
focused on complainant's sarcoidosis which primarily affects her lungs and
heart. Complainant testified that the sarcoidosis causes granulomas which
leave scar tissue which become fibroids. The fibroids limit complainant's
ability to expand her lungs. The AJ noted that complainant testified and
provided evidence that her condition, sarcoidosis with pulmonary emboli,
interferes with the major life activities of breathing and walking.
The AJ pointed to complainant's testimony that exposure to dust makes
it harder for her to breathe and that, because of breathing problems,
she cannot walk more than half a block without having to stop to rest
and to catch her breath for a few minutes. Complainant also noted that
she has her children dust her house while she stays in her bedroom with
the door closed. In addition, she would walk at night for exercise
to avoid humidity. Complainant has been taking Predisone since 1997
to help control her condition, however she testified that she still
had to stop and take breaths for two to three minutes when walking.
Complainant also brought to the hearing her other medications she used
such as: an Albuteral inhaler, Lovenox injections (an anti-coagulant),
Cumadin (an oral anti-coagulant), Oxycontin, and Essettifidemin (both
for pain associated with her sarcoidosis). Despite these medications,
the AJ observed complainant's breathing difficulties at the hearing.
The AJ also indicated that complainant's breathing became more labored
with walking. In addition, the AJ found that complainant was limited
in her ability to perform daily activities in her home including cleaning.
Finding that complainant was an individual with a disability, the AJ then
determined that complainant was qualified in that she could perform the
essential functions of her duties working damaged mail with or without
reasonable accommodation. The AJ noted that complainant worked the
essential duties of her light duty position for several years prior to
January 2002. Further, the AJ noted that management permitted complainant
to work various locations such as: in the union office, work floor area
closer to the elevators and away from machinery, and in the cubby hole
area when the co-worker was away.
Next the AJ found that the agency failed to provide complainant with a
reasonable accommodation when they did not allow her to work damaged
mail or loose mail in the cubby hole are or any other area which was
less dusty and less irritating to complainant's condition.<6> The AJ
found that the agency's argument that the air quality was good enough
for complainant because it met OSHA standards to be without merit.
Specifically, the AJ noted that the OSHA standard was irrelevant as it
related to complainant and her condition.
The AJ observed the areas and heard testimony from employees who
all indicated that the damaged mail area was closer to machinery and,
therefore, was more dusty than other areas. The AJ viewed the mimeo room.
She also noted that witnesses testified that this room had been used
by limited and light duty employees to repair damaged mail. Further,
to the extent the agency argued that the machinery was run outside of
complainant's work hours, the AJ found inconsistency within the record.
The AJ noted that complainant and other witnesses including a supervisor
testified that the machinery did operate during complainant's work hours
and did generate dust while complainant was working. She found regardless
of whether the machinery was run during complainant's hours, the flat
preparation area, the cubby hole and the mimeo room were less dusty.
Further, the AJ determined that the agency failed to show that allowing
complainant to work damaged mail in another location was an undue
hardship. The agency argued that allowing complainant to work in an area
where no mailhandler position existed was a violation of the collective
bargaining agreement (CBA). The AJ found no support for the argument.
In fact, the AJ noted that the record indicated several instances where
mailhandler employees including complainant worked in the cubby area
for years.
As to the agency's argument that complainant could have used a mask while
working, complainant testified that she could not use them because they
made her feel as if she was suffocating. Additionally, complainant
noted that masks were in the workplace following September 11, 2001.
At that time, she read the warnings on the side of the box of masks.
The warnings stated that individuals with breathing conditions should not
use the masks. Therefore, the AJ found that the mask to be ineffective.
As to complainant's claims of disparate treatment, the AJ found that
complainant established her claim of race, color, and sex based
discrimination.<7> In particular, the AJ noted evidence that the
co-worker (white, male) was permitted to work in the cubby hole area and
another co-worker (co-worker2, white, female) had damaged mail brought to
her in the clerk's office so that she would work away from chemicals and
dust. Additionally, the AJ indicated that the comparators and complainant
were under the same MDO and SDO, thus similarly situated. The AJ
determined that the agency offered its legitimate, nondiscriminatory
reason for denying the requested reasonable accommodation, namely that
there was no vacant funded mail handler position in the cubby hole,
the mimeo room, or the flat preparation area. The AJ found that
complainant demonstrated pretext for race and color as noted before,
that others were permitted to work in those areas for years. The AJ
found no pretext on the basis of sex for complainant and co-worker2
were of the same protected group. Therefore, the AJ concluded that
complainant was discriminated against on the bases of race and color.
The AJ ordered the agency to provide complainant with back pay and
benefits from the last day of work in January 2002 to the effective
date of her disability retirement. The AJ also ordered the agency to
provide training on reasonable accommodation and its obligations under the
Rehabilitation Act to management. The AJ also determined that complainant
was entitled to compensatory damages in the amount of $9,000. The AJ
based this amount on complainant's testimony indicating that she would
enter the agency's facility and would have anxiety attacks.<8> She feared
what the agency would do to her or she would lose her job. Complainant
also indicated that after the incidents in January and February 2002,
she became more depressed and anxious with crying all the time.<9>
Complainant testified that she felt humiliated, embarrassed and cornered
by management. She also noted that because of the discrimination, her
relationship with her husband became strained.<10> Based on the nature
and severity of the harm incurred by complainant and the Commission's
case precedent, the AJ determined that an award of $9,000 was appropriate.
AGENCY FINAL ACTION/APPEAL
The agency issued its final action and simultaneously appealed the AJ's
decision to the Commission. The final action implemented the AJ's finding
of no discrimination on the bases of reprisal and sex. The final action
stated that the record did not support the AJ's findings and conclusion
of discrimination on the bases of disability, race, and color.
The agency submitted its brief in support of its final action on October
5, 2004. It argued that complainant was not a qualified individual
with a disability for she could not and had not performed the essential
functions of her mailhandler position for quite some time. As such, the
agency asserted that complainant failed to establish a prima facie case
of disability-based discrimination. The agency then contended that it
provided legitimate, nondiscriminatory reasons for its action and, thus,
it was not a matter of discriminating against complainant. In addition,
the agency argued that it did not create a hostile work environment and
should not be held responsible for causing complainant's depression
and anxiety. Finally, even if the agency was found to have violated
the Rehabilitation Act, it had a good faith and reasonable belief that
it proposed appropriate accommodations in compliance with complainant's
medical restrictions. Hence, the agency requested that the Commission
reduce the award of compensatory damages awarded by the AJ.
COMPLAINANT'S RESPONSE TO APPEAL
In response to the agency's appeal brief, complainant asserted
that regardless of the agency's arguments, she is still a qualified
individual with a disability who was denied a reasonable accommodation.
Despite being provided with evidence for the need for a reasonable
accommodation, the agency failed to provide an effective accommodation.
As such, complainant requested that the Commission enforce the decision
issued by the AJ.
STANDARD OF REVIEW
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
ANALYSIS AND FINDINGS
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. �1630.9.
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, complainant must demonstrate that she is an
"individual with a disability." EEOC Regulation 29 C.F.R. � 1630.2(g)
defines an individual with a disability as one who has a physical or
mental impairment that substantially limits one or more of that person's
major life activities or has a record of such impairment. EEOC Regulation
29 C.F.R. � 1630.2(h)(2)(i) defines "major life activities" as including
the functions of caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working.
After a careful review of the record, we discern no basis to disturb
the AJ's finding that complainant is an individual with a disability.
As noted above, complainant has been diagnosed with sarcoidosis which
primarily affects her lungs and heart. Complainant testified that
the sarcoidosis causes granulomas which leave scar tissue which become
fibroids. The fibroids limit complainant's ability to expand her lungs.
She testified that her condition makes it hard for her to breathe and
that she has to gasp for extra breath. As a result, she coughs which
again interferes with her breathing. Complainant also testified at the
hearing that she can only walk half a block, then she must stop to catch
her breath. Due to her lung condition, she has been limited in lifting
objects over 20 pounds. Based on complainant's restrictions, we find
that the AJ correctly applied the appropriate regulations, policies, and
laws in concluding that complainant is an individual with a disability.
See Brown v. United States Postal Serv., EEOC Petition No. 03990073
(November 9, 2000) (finding that petitioner was an individual with a
disability for, due to his condition, he could not walk more than a
block at a time); see also Higgins v. United States Postal Serv., EEOC
Appeal No. 07A30086 (September 14, 2005) (finding, among other things,
that complainant was limited in the major life activity of lifting based
on a restriction of twenty pounds).
The Commission notes that the agency is obligated to provide reasonable
accommodation for any limitations resulting from a disability.
Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under
the Americans With Disabilities Act (Enforcement Guidance), EEOC Notice
No. 915.002 at Question 39 (October 17, 2002). The limitation which is
the basis for the accommodation request need not itself be substantially
limiting. As long as the limitation is a consequence of a disability
covered under the Rehabilitation Act, the request must be granted
absent undue hardship. Id. In the case at hand, the record clearly
demonstrates that complainant's breathing restriction is a consequence
of her disability.
Complainant also must show that she is a "qualified" individual
with a disability within the meaning of 29 C.F.R. � 1630.2(m).
The agency argued that complainant was not qualified for she could
not and had not performed the duties of her mailhandler position for
some years prior to her reasonable accommodation request in 2002.
We are not persuaded by the agency's argument that complainant was
not qualified. The record clearly indicated and the AJ properly found
that complainant could and had been performing her modified mailhandler
position with accommodation. Therefore, we find that complainant was
qualified for she could perform the essential functions of her modified
mail handler position. 29 C.F.R. � 1630.2(m). See Durinzi v. United
States Postal Serv., EEOC Appeal No. 01A11800 (July 18, 2003), request
for reconsideration denied, EEOC Request No. 05A31158 (September 24,
2003); see also Dellinger v. United States Postal Serv., EEOC Appeal
No. 07A40040 (September 29, 2005). As such, unless undue hardship can
be shown, we find that the agency is obligated to provide complainant
with a reasonable accommodation.
The agency asserted that there was no discriminatory intent in its
attempts to accommodate complainant. The agency failed to argue the
issue of providing the reasonable accommodation. Upon review, we find
that the record supports the AJ's conclusion that the agency failed to
provide complainant with a reasonable accommodation.
On appeal, the agency essentially argued that complainant was unhappy
because she did not get the accommodation of her choice, namely the
assignment worked by the co-worker. It is the Commission's position
that if more than one accommodation is effective, "the preference of
the individual with a disability should be given primary consideration;
however, the employer providing the accommodation has the ultimate
discretion to choose between effective accommodations." 29 C.F.R. �
1630.9; see also Enforcement Guidance, at Question 9; Polen v. Department
of Defense, EEOC Appeal No. 01970984 (January 16, 2001). Thus the
agency is correct in stating that, while complainant may be entitled
to an effective reasonable accommodation under the Rehabilitation Act,
she is not entitled to the accommodation of her choice. However, we
note that the relevant issue herein is complainant is entitled to an
effective accommodation.
We find that the agency had not provided an effective accommodation. The
agency's assertion that it provided complainant with a work environment
within OSHA standards is not sufficient to show that the workroom floor
would have been an effective accommodation for complainant. The OSHA
requirements do not take into consideration complainant's specific medical
needs and limitations. As such, we concur with the AJ's finding that
the OSHA standard is irrelevant as to complainant's environmental needs.
Further, as to the agency's claim that complainant could have worked
with a mask, the AJ's decision correctly refutes that as effective.
As complainant pointed out, the mask is not to be used by someone with a
breathing problem. As such, a mask would not have been effective either.
Therefore, the only effective accommodation would have been to allow
complainant to perform her modified mailhandler duties in the cubby hole,
the mimeo room, or the flat preparation area.
Accordingly, the agency now bears the burden of demonstrating that
allowing complainant to perform her duties in the cubby hole, the
mimeo room, or the flat preparation area would pose an undue hardship.
EEOC Regulation 29 C.F.R. � 1630.2(p) enumerates some of the factors
that should be considered in determining whether an accommodation poses
an undue hardship�such things as the impact of the accommodation upon the
other employees to perform their duties or the cost of the accommodation.
See also Enforcement Guidance, at Question 44.
A review of the record reveals, however, that the agency failed to meet
this burden. The agency asserted that it would have been a violation
of the CBA to assign complainant to work in those spaces. However, the
record clearly demonstrated that the agency consistently placed modified
mailhandlers, including complainant, in those work stations for years
prior to complainant's request. Therefore, we find that the agency
has not shown how assigning complainant to the cubby hole, the mimeo
room or the flat preparation area would have been an undue hardship.
Accordingly, the Commission concludes that the AJ correctly determined
that the agency violated the Rehabilitation Act for failing to provide
complainant with a reasonable accommodation.
Disparate Treatment
As to complainant's claim of discrimination on the bases of race, national
origin, sex, color, and reprisal, since the Commission has found that
the agency violated the Rehabilitation Act, we find it unnecessary to
address these bases.<11>
Compensatory Damages
The Commission finds that the agency did not provide any evidence or
argument to demonstrate good faith efforts to reasonably accommodate
complainant. Therefore, the agency cannot deny complainant compensatory
damages based on good faith. Civil Rights Act of 1991, Sec. 102; 42
U.S.C. 1981a(a)(3).
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). The Commission finds that the AJ properly
determined that complainant established a nexus between the alleged harm
and discrimination.
Complainant testified that her anxiety attacks worsened thinking about
what the agency was going to do to her, say to her, or come at her
in connection with the denial of reasonable accommodation. She said
that agency officials would set her in tears. She became emotionally
distressed because she felt she was going to lose her job.
Upon review, we find that the AJ appropriately determined that
complainant incurred these losses due to the discriminatory action
and that she is entitled to an award. We must also review whether or
not the AJ's award of non-pecuniary damages was appropriate. The AJ
determined that complainant was entitled to $ 9,000 based on the
agency's failure to provide a reasonable accommodation. Upon review,
we find that this award is supported by the substantial evidence of
the record and is consistent with case precedent. See e.g., Burchfield
v. Department of the Treasury, EEOC Appeal No. 01A20021 (March 19, 2003)
($12,000 in non-pecuniary damages based on evidence of embarrassment,
and humiliation, and statements of family members noting complainant's
refusal to leave the house based on denial of reasonable accommodation);
Totten v. Department of the Interior, EEOC Appeal No. 01A21880 (April
24, 2003) (awarding $10,000 for complainant who was treated for major
depression and had suicidal thoughts);Wimberly v. USPS, EEOC Appeal
No. 01A23646 (May 29, 2003), request for reconsideration denied, EEOC
Request No. 05A30980 (September 22, 2003) (awarding $ 8,500 where evidence
showed that complainant experienced stress, embarrassment, humiliation,
and financial difficulties and that there were other contributing
factors). Accordingly, we discern no basis to disturb the AJ's finding
that complainant is entitled to $ 9,000.00 in compensatory damages.
CONCLUSION
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
reverses the agency's final order and remands the matter to the agency
to take corrective action in accordance with this decision and the
Order below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant from January 2002 to the
effective date of her disability retirement, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. 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 pay complainant $ 9,000.00 in compensatory damages.
The agency is directed to conduct training for those management officials
who were found to have denied complainant reasonable accommodation.
The agency shall address these employees' responsibilities with respect
to the Rehabilitation Act.
The agency shall consider taking disciplinary action against the
management officials identified as being responsible for the denial
of reasonable accommodation. 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 supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
The agency shall complete all of the above actions within 120 calendar
days from the date on which the decision becomes final.
POSTING ORDER (G0900)
The agency is ordered to post at its Harrisburg, Pennsylvania Processing
and Distribution Center 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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
December 15, 2005
__________________
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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The United States Postal Service, Harrisburg, Pennsylvania Processing
and Distribution Center, 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, Harrisburg, Pennsylvania Processing and
Distribution Center, has been ordered to remedy an employee affected by
the Commission's finding that the agency failed to provide a reasonable
accommodation. As a remedy for the discrimination, the agency was
ordered, among other things, to provide the affected employee compensatory
damages. The United States Postal Service, Harrisburg, Pennsylvania
Processing and Distribution Center, 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 United States Postal Service, Harrisburg, Pennsylvania Processing and
Distribution Center, 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
1Sarcoidosis is an inflammatory disease that affects multiple organs in
the body, but mostly the lungs and lymph glands. Complainant's condition
has also affected her liver, spleen, and heart.
2The record indicates that the co-worker was also a mailhandler who
worked on damaged mail due to his various restrictions.
3Complainant was also on immuno-suppressant medication which predisposes
her to germs such as the flu.
4The record indicates that air quality tests were conducted on July 11,
2002, nearly three months after the PM issued her letter.
5Although complainant also alleged discrimination on the basis of race
(Hispanic-American), the Commission notes that it considers the term
"Hispanic" to be a national origin rather than a racial group.
6This included the mimeo room and the flat preparation area. The record
indicated that complainant requested to work in these areas as well.
7The AJ found no prima facie case of reprisal for management was unaware
of prior EEO activity nor did complainant establish any causal connection
between prior EEO activity and the alleged incidents of discrimination.
8The record showed that complainant's anxiety and panic attacks were
pre-existing conditions and began around July or August 2001, in
conjunction with the hearing of her prior EEO activity.
9Complainant testified that she was taking anti-depressants and
anti-anxiety medications since the beginning of 2001.
10Commission cannot compensate complainant for her husband's harm
allegedly caused by the agency's actions. See Carpenter v. Department
of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
11 We note that the AJ found that complainant failed to establish a
claim of reprisal for the agency was not aware of complainant's prior
EEO activity. We note that complainant, prior to the instant matter,
had requested reasonable accommodation which is considered EEO activity.