01992460
06-27-2002
Kim M. LaPointe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area) Agency.
Kim M. LaPointe v. United States Postal Service
01992460
June 27, 2002
.
Kim M. LaPointe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area)
Agency.
Appeal No. 01992460
Agency No. 4B-030-1041-94
Hearing No. 160-97-8002X
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 Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission reverses
the agency's final order.
The record reveals that complainant, a City Carrier at the agency's Dover,
New Hampshire, Post Office, filed a formal EEO complaint on October 28,
1994, alleging that the agency had discriminated against her on the bases
of sex (female) and disability (hip pain, low back strain, Spondylolysis,
and Piriformis Syndrome) when:
her leave requests were routinely denied or delayed;
management officials failed to process and mishandled her worker's
compensation claims;
management officials required her to exceed her medical restrictions;
management officials failed to abide by her agreed limited duty
assignment and refused to revise her assignment, including the scheduling
of her lunch break;
her supervisor made direct contact with her physician without her
knowledge or consent;
her postmaster accused her of filing a false injury claim;
she was treated in a contemptuous manner; and
on or about April 3, 1995, her limited duty letter carrier assignment
was changed to a limited duty clerical office assignment.
BACKGROUND
Complainant became a letter carrier with the agency on January 30, 1988.
On March 29, 1991, she filed a Notice of Occupational Disease and Claim
for Compensation for hip pain which she first became aware of on April
12, 1990. On May 4, 1992, her claim was accepted for low back strain.
On July 17, 1992, complainant filed a Federal Employee's Notice of
Recurrence of Disability and Claim for Continuation Pay/Compensation.
On February 4, 1994, this additional claim was accepted for �Aggravation
of Piriformis Syndrome and Spondylolysis.� As a result, complainant
was offered and accepted four (4) limited duty assignments in succession
of one another. The offer dated April 22, 1994, was in effect at the
time of her EEO complaint. In this assignment, complainant's lunch hour
was to be 2:00-3:00 p.m. Complainant had many medical restrictions in
operation at the time, including the requirement that she be permitted
to take lunch earlier, so that she would not be required to sit, stand,
bend, or walk for longer than four hours at a time before permitted to
take a break. Complainant had specific restrictions which included not
lifting more than 20 pounds and not standing for more than three hours.
The agency does not dispute that, until April 1994, complainant was
permitted to take the necessary breaks.
At the conclusion of the investigation, complainant was provided 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 discrimination as to incident four above. The AJ concluded
that complainant was a qualified individual with a disability and had
established that the agency denied her reasonable accommodation by not
permitting her to take her lunch break at an earlier time than typically
scheduled for her position. With respect to the remaining incidents,
the AJ found that complainant did not establish by a preponderance of
the evidence that discrimination occurred.
The agency's final decision rejected the AJ's decision as to the
finding of discrimination and adopted the remainder of the decision as
to incidents (1)-(3) and (5)-(8), finding no discrimination. In her
timely appeal, the complainant argues that the AJ was wrong in finding
no discrimination as to incidents (1)-(3) and (5)-(8), and the agency was
incorrect in rejecting the finding relative to incident four. The agency
argues on appeal that complainant is not a qualified individual with
a disability because she cannot perform the essential functions of her
position as a city carrier.
ANALYSIS
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.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. With respect to incidents
(1)-(3) and (5)-(8) specifically, we find that the conclusions drawn by
the AJ were proper, supported by the record and in accordance with law.
Moreover, we concur with the finding of no discrimination on the basis of
sex as to any of the incidents above. The agency articulated legitimate,
non-discriminatory reasons for its actions in each instance which are not
rebutted by the complainant. Further, there is no evidence to support
that the agency's actions were motivated by discriminatory animus.
The record demonstrates that complainant's leave requests were approved
or denied in accordance with office policy; only one of her worker's
compensation claims was not processed in a timely fashion, but this
mishandling was more likely than not the result of simple human error; and
she was never required to exceed her medical restrictions. Regarding her
supervisor contacting her physician without her knowledge or consent,
the supervisor did so in his capacity as the �control point officer'
wherein he coordinated the injury compensation claims at the facility.
Part of that responsibility included being a conduit between the agency
and the complainant's physician(s) and we find no violation of the ADA.<2>
As to the sixth incident, the record does not establish that complainant
was accused of filing a false injury claim, or that she was treated in a
contemptuous manner. Finally, with respect to the change in position,
this change was made as a reasonable accommodation of complainant's
medical restrictions. Although the position was not to complainant's
liking, a complainant is not entitled to the accommodation of his or
her choice, only to an effective accommodation. We concur with the
conclusion of the AJ that this accommodation was effective.
With regard to incident four, we agree both with the finding of
the AJ that complainant is a qualified individual with a disability
and that the agency unreasonably failed to accommodate complainant.
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. Major life activities include, but are not limited to,
caring for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. Sitting, standing, lifting,
and reaching are also recognized as major life activities. Interpretive
Guidance on Title I of the Americans With Disabilities Act, Appendix to
29 C.F.R. � 1630.2(i); see also Haygood v. United States Postal Service,
EEOC Appeal No. 01976371 (April 25, 2000); Selix v. United States Postal
Service, EEOC Appeal No. 01970153 (March 16, 2000). A "qualified"
individual with a disability is one who satisfies the requirements for
the employment position he holds or desires and can perform the essential
functions of that position with or without reasonable accommodation.
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. 29 C.F.R. � 1630.2(j). The individual's ability
to perform the major life activity must be restricted as compared
to the ability of the average person in the general population to
perform the activity. Id. The record evidence makes clear that
complainant is substantially limited in the major life activity of
lifting, and can perform the essential functions of her position with an
accommodation.<3> Two of complainant's doctors stated that she could not
lift over 20 pounds, and that this condition was going to extend into the
foreseeable future. See Gil v. United States Postal Service, EEOC Appeal
No. 01990675 (September 14, 2001). Complainant's physician submitted a
duty status report in May of 1995 and May of 1996. Both reports state
that complainant's limitations are permanent. The reports also state
that complainant was not to sit, stand, walk, climb, bend, or twist
continuously, but rather was limited in the number of hours per day she
could engage in these activities, and could only do them intermittently.
The agency has not rebutted this evidence.
As stated above, we further concur with the AJ that the agency failed to
grant complainant reasonable accommodation by not allowing her to take an
early lunch hour between April 1994 and October 1994, in accordance with
her medical restrictions. Although, as the agency argues, complainant
signed a Limited Duty Offer (LDO), which detailed that she would be
assigned a lunch hour of 2:00-3:00 p.m., complainant testified that she
nonetheless had a verbal agreement with her direct supervisor in effect
at the time she signed the LDO. Further, the signing of the LDO did not
constitute a waiver of complainant's right to a reasonable accommodation.
The record supports that prior to signing the April LDO, complainant was,
in fact, taking her lunch hour earlier, in accordance with her medical
restrictions. More importantly, however, complainant requested an earlier
lunch hour due to her medical restrictions, which was a request for an
accommodation of her disability. Complainant stated that the earlier
lunch hour was necessary so that she would not be sitting longer than
four hours at a time.
The agency did not provide such accommodation until October 1994,
six months after the request was made. The agency explains, through
complainant's supervisor, that there were certain duties specific
to complainant's position that had to be done by 2 p.m. There is no
indication, however, that the agency considered alternatives, such
as swapping duties with another employee, to accommodate complainant's
request. Further, the agency did not provide evidence that to accommodate
complainant would have been an undue hardship.
Thus, we discern no basis to disturb the AJ's decision. Therefore, after
a careful review of the record, including complainant's arguments on
appeal, the agency's response, and arguments and evidence not specifically
discussed in this decision, the Commission reverses the agency's final
order and directs the agency to take remedial actions in accordance with
this decision and the Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
If it has not already done so, the agency shall assign complainant a
specific lunch period and breaks consistent with her current medical
requirements. Those specifications shall not be altered, regardless
of new Limited Duty Assignments, unless complainant specifically agrees
to the alteration, with the changing of duty assignments;
The agency shall conduct training of all supervisors and mangers at the
Dover Post Office on their responsibilities under the Rehabilitation
Act to provide reasonable accommodations to persons with a disability;<4>
To the extent complainant has made a claim for compensatory damages,
the agency shall conduct a supplemental investigation pertaining 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.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Dover Post Office 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
June 27, 2002
__________________
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 Rehabilitation Act, has occurred at the United States
Postal Service facility in Dover, New Hampshire (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
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 1614
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 EEOC Enforcement Guidance on Disability-Related Inquiries and Medical
Examiniations of Employees Under the Americans with Disabilities Act,
Number 915.002 (July, 26, 2000), Note 57, states that: �Since a doctor
cannot disclose information about a patient without his/her permission,
an employer must obtain a release from the employee that will permit
the doctor to answer questions. The release should be clear as to what
information will be requested. See Reasonable Accommodation Under the
ADA, supra note 6, at 13-14, 8 FEP at 405:7607.� Although the record is
unclear as to whether complainant signed such a release in connection
with her compensation claim, we are not persuaded by complainant's
contentions that her supervisor's actions constituted discrimination.
3 The agency cites Storman v. United States Postal Service, EEOC Appeal
No. 01964122, (October 16, 1998), request for reconsideration denied,
EEOC Request No. 05990112 (September 7, 2000) for the proposition that
complainant is not a qualified individual with a disability because she
cannot perform the essential functions of her position because she cannot
work an entire shift. This is a distortion of the holding in Storman.
It can be more accurately read that where one of a job's essential
functions include being able to work an entire shift, whatever the
duration, then an individual applicant who cannot do so is not otherwise
qualified to do the job. The Commission has maintained that providing
employees with alternative work schedules, including working part-time,
can be a reasonable accommodation. See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, Number 915.002 (March 01, 1999), Question 22.
4 For further guidance regarding reasonable accommodation, the parties
may wish to review the following Commission guidance: Preemployment
Disability-Related Questions and Medical Examinations (October 10, 1995);
The Americans with Disabilities Act and Psychiatric Disabilities (March
25, 1997); Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act (March 1, 1999); Disability-Related Inquiries and
Medical Examinations Of Employees Under the Americans with Disabilities
Act (July 27, 2000); and EEOC Procedures for Providing Reasonable
Accommodation for Individuals with Disabilities, Order No. 560.003
(February 7, 2001).