0120090617
10-13-2015
Kylee C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kylee C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120090617
Hearing No. 510-2008-00140X
Agency No. 4H-320-0086-07
DECISION
On November 14, 2008, Complainant filed an appeal from the Agency's October 10, 2008, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision.
ISSUES PRESENTED
The issues presented are whether the Agency properly found that Complainant is not a qualified individual with a disability and whether the Agency properly found that Complainant failed to prove that she was denied a reasonable accommodation for her disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Modified Sales and Services Associate at the Palm Coast, Florida Post Office. Complainant was placed into this position in December 2005 pursuant to a permanent rehabilitation job offer. This job featured a work schedule wherein Complainant worked 7:30 a.m. to 4:00 p.m. with Sundays and Mondays off. The assignment also did not require Complainant to push, pull, or push more than 15-20 pounds with her right hand. The same assignment was offered by the Agency and accepted by Complainant on November 1, 2006.
In a permanent rehabilitation job offer dated November 28, 2006, a supervisor offered Complainant the same job duties but with Saturday and Sunday as her scheduled days off. Complainant rejected this offer. Complainant was issued another permanent rehabilitation job offer dated June 19, 2007, that was signed by the Manager of Customer Services (Manager). Complainant's job duties and restrictions were the same as her job offer dated November 1, 2006, and the only change was in her scheduled days off, which were listed as Saturday and Sunday. Complainant also rejected this job offer. On September 6, 2007, Complainant was injured at work while lifting a tub of magazines and did not return to work until September 17, 2007.
On August 28, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her: (1) on the bases of disability (Tendonitis, Arthritis, and Degenerative Disc Disease) when, on June 19, 2007, the Agency denied her a reasonable accommodation when it changed her scheduled days off, and (2) on the bases of disability and reprisal for prior EEO activity in reprisal (prior protected EEO activity under the Rehabilitation Act) when, on October 10, 2007, the Agency denied her request for light duty.
The Investigation
Complainant's Investigative Statement
In an investigative affidavit statement, Complainant stated this complaint is her only EEO activity, and she initiated the informal complaint process on July 2, 2007. Complainant stated that she has experienced pain since the summer of 1997 and has developed tendonitis in both shoulders, arthritis in both wrists and thumbs, and Degenerative Disc Disease in her back. She stated that the tendonitis and arthritis were diagnosed on June 30, 2003, and the Degenerative Disc Disease was diagnosed on May 23, 2005. Complainant further stated that the tendonitis progressed to both shoulders in July 2006, and her conditions will last the remainder of her life.
Complainant stated that her medical restrictions precluded her from lifting more than 15 to 20 pounds with her right hand; standing unsupported for more than 15 minutes at a time; and sitting for more than 30 minutes at a time. Complainant stated that her medical conditions substantially limit her ability to bend, lift, sit, stand, and sleep. She stated that she requires assistance to do home activities such as cleaning, dusting, vacuuming, making beds, shopping, and gardening because of her medical conditions.
Complainant also stated that her job duties included window services, lobby directing, retrieving hold mail, stocking supplies and forms, assisting customers with the Automated Postal Center (APC), and inputting non-revenue transactions into the Point of Services computer. Complainant further stated that, in June 2005, she requested an accommodation by having Sundays and Mondays off work, and the Agency granted the request. Complainant stated that the accommodation was necessary because she made most of her medical appointments for Mondays and having Mondays off would help her avoid using leave for the appointments. Complainant stated that the Agency approved an approved Family Medical Leave Act (FMLA) case for her mother, and therefore, she also made appointments for her mother on Mondays.
Complainant further stated that on November 28, 2006, the Postmaster tried to give her a new job offer that would have changed her scheduled days off to Saturdays and Sundays, but she rejected the offer because it changed her days off and did not include her standing/sitting restrictions. Complainant also stated that, on June 19, 2007, the Agency gave her another job offer that changed her days off to Saturdays and Sundays and did not include her sitting/standing restrictions. Complainant stated that the Manager told her not to report to work on Saturday, June 30, 2007. Complainant stated that the Palm Coast Post Office is open on Saturday, and there is work available for her within her restrictions on Saturdays.
Complainant stated that management did not discuss any alternative accommodations with her, and she was forced to use her leave and take leave without pay in order to attend medical appointments for herself and her mother. Complainant stated that she sustained an injury on September 6, 2007, which resulted in additional pain and swelling, loss of work, and new physical restrictions. Complainant stated that, on September 6, 2007, she went back to the carrier cases to retrieve hold mail for a customer. She stated that a carrier left a tub of magazines on her stool which was in front of the mail. Complainant stated she lifted the tub of magazines, which she believed to be within her lifting restrictions, and then bent forward to put the tub on the carrier's desk. Complainant stated that the tub was 16 pounds and was within her 15 to 20 pound weight restriction, but she felt sharp pain go down her spine and spread across her hips. Complainant stated that she informed the union steward and Manager of her accident and demonstrated for them what happened. Complainant stated she told management she was not seeking medical attention at that time, even though she knew she was injured. Complainant stated that she was off of work until September 17, 2007, because of her injury.
Complainant stated that she returned to work with restrictions that precluded her from lifting, pushing, or pulling more than 10 pounds; bending more than one hour per day; and walking more than 30 minutes. Additionally, Complainant stated that she was advised to change positions frequently when sitting and standing and to take precautionary measures in grasping, fine manipulation, and reaching above the shoulder. Complainant stated that when she returned to work, she was able to perform her job duties, although she did require a little more help than before with some of her duties.
Complainant further stated that, in late September 2007, the Supervisor of Customer Service (S1) told her that the Postmaster did not recognize her lower back injury as work-related. Complainant stated she was told to request light duty, but it took management a few days to get her all the proper forms and procedures needed to request light duty. Complainant stated that she submitted her first request for light duty to the Manager on October 2, 2007, along with a Form CA-17 outlining her restrictions. Complainant stated that she continued to work under her modified job offer until October 9, 2007.
Complainant stated that on October 9, 2007, she asked S1 to cover her on the window because she had been standing and walking for over an hour. Complainant stated that she sat down and began writing second notices, which was part of her previous limited-duty job offer. Complainant stated that the Postmaster then ordered her to return to the lobby, Complainant told him that she needed to sit for a few minutes, and the Postmaster replied that she should go home if she could not do her job. Complainant stated she asked the Postmaster about her light-duty request, and he responded that he did not have time to take care of it, and she should speak to her immediate supervisor.
Complainant stated that when she returned to work on October 10, 2007, S1 informed her that her light-duty request was denied. She stated that she went back to her physician and submitted a new request for light duty on October 25, 2007. Complainant stated that her October 25, 2007, request for light duty contained her new restrictions and a copy of her old ones so that the Postmaster could compare the changes. Complainant stated that this request for light duty was denied because the Postmaster stated that there were no changes in her condition and there was no work available. Complainant stated that on November 6, 2007, she submitted a third request for light duty that indicated her updated restrictions, but the Postmaster again denied her light-duty request on the basis that there were no updates to her limitations.
Complainant stated that she contacted her congressman about the situation and filed a union grievance, which finally sparked the Postmaster to let her come back to work light-duty on November 24, 2007. Complainant stated that the Postmaster's excuse that no work was available for her was not true because she had already been doing parts of her ultimate modified job offer after she returned to work after her September 6, 2007, injury. Complainant stated that the Postmaster was the sole decision-maker regarding her light-duty requests.
The Manager's Investigative Statement
The Manager stated that the Postmaster changed Complainant's work schedule. He stated that he was fine with Complainant working Saturdays because lobby duties and paperwork had to be done, and there was plenty of desk work Complainant could perform on Saturdays. The Manager stated that he did not believe Complainant's accommodation request to have Mondays off created a major obstacle for the Agency because the Agency already had been working around her being off on Mondays. He stated that he believed that another employee could have been scheduled to help in the lobby with Complainant's duties on Mondays. The Manager stated that he prepared the new modified job offer dated June 19, 2007, for Complainant that indicated that Saturday and Sunday were her days off. He stated that the offer listed pushing/pulling/lifting over 15-20 pounds with her right hand as Complainant's only restriction. However, the Manager stated that, even though Complainant's standing and sitting restrictions were not job-related and listed on the form, he worked around those restrictions.
The Manager stated that on September 6, 2007, Complainant informed him that she hurt her back lifting a tub of mail off of a stool onto the carrier case while retrieving mail for a customer. He stated that that he asked Complainant if she wanted medical attention, and she responded that she just wanted to go home. The Manager stated that when Complainant returned to work from her on-the-job injury, she worked the same duties under her modified job offer, although she had new restrictions that required her to sit more often. The Manager stated that Complainant previously had these restrictions and sat intermittently writing second notices and entering non-revenue transactions. The Manager further stated that Complainant requested light duty on three occasions.
The Manager stated that he and S1 believed that there was work Complainant could perform within her light-duty job offer, but the Postmaster indicated that he believed there no work for her and denied her light-duty requests. The Manager stated that Complainant's first request for light duty was denied because the Postmaster believed there was no work available for her. The Manager further stated that after the union became involved and submitted more recent documentation, Complainant returned to work on light duty on November 24, 2007, although her condition and restrictions were essentially the same as when her October 2007 requests were denied.
Additionally, the Manager stated that he believed that Complainant's request for light duty would have been granted prior to the Postmaster's arrival, but he has seen things done at Palm Coast that are not done anywhere else. The Manager stated that he did not know if Complainant was being treated differently because of her medical conditions or her EEO activity, but some rules were "not being enforced evenly across the board."
S1's Investigative Statement
S1 stated that after Complainant's September 2007 accident, Complainant told her that she could not perform her window duties because she could not stand in one spot for any amount of time. S1 stated that Complainant informed her that she could not stand in one spot for any amount of time or sit on the stool because she had to bend and reach or get up in order to serve the customer. S1 stated that Complainant was able to perform other tasks that were listed within her modified job offer, such as assisting customers in the lobby, entering information into the computer, and writing second notices. S1 stated that although Complainant performed these duties after her accident, her request for light duty was not officially approved at that time. S1 stated that Complainant could perform lobby director duties, but she had to sit down intermittently.
S1 stated that she asked Complainant to go to the window one day, but Complainant responded that she could not. S1 stated that she told Complainant she must ask for light duty if she could not do her work. S1 stated that Complainant directed her request for light duty to the Manager and the Postmaster, and she believed the Postmaster would give Complainant some hours each day working on second notices, lobby director duties, and computer inputting. S1 stated that the Postmaster changed his mind the next day and denied Complainant's request, but she did not know why the Postmaster changed his mind.
S1 stated that she believed there was work Complainant could have done on light duty and that this work included the same activities Complainant already had been performing in her modified job offer after the September 6, 2007, accident. S1 stated that, although she was not the decision-maker, she was the one who had to tell Complainant that her request for light duty was denied. S1 stated that Complainant was ultimately granted light-duty work and returned on November 24, 2007. She stated that Complainant's light-duty assignments included writing second notices, performing lobby director duties, and inputting information into the computer, which were some of the same duties that were a part of the modified job offer that Complainant was able to perform both before and after her September 6, 2007, accident.
The Postmaster's Investigative Statement
The Postmaster stated that Complainant was very upset when he issued her a new limited-duty job offer on June 19, 2007, that changed her days off from Sundays and Mondays to Saturdays and Sundays. The Postmaster stated that Complainant told him she had two FMLA cases and needed Mondays off for appointments. He stated that when he checked leave records, he found that Complainant used FMLA time a lot on Tuesdays with no reasonable explanation, and Complainant's pattern of using FMLA leave on Tuesdays resulted in her getting a three-day weekend while still missing work and using leave.
The Postmaster stated that Monday is the busiest day in the post office lobby, and therefore, he needed Complainant to work Mondays. He stated that even when the window is fully staffed on Mondays, he was still short-handed because Complainant was off work. The Postmaster stated that Complainant was not needed as much on Saturdays because the lobby was slower and closed at 1:00 p.m. The Postmaster further stated that although he has trained all 30 clerks in his office to assist customers with the APC machines, Complainant is the only one with a permanent modified job offer to work as a lobby director. He stated that other clerks had responsibilities in other areas of their bid positions, such as box mail or scheme distribution. The Postmaster stated that moving these other clerks hindered his ability to get the mail ready for the letter carriers and box customers. He added that the Palm Coast area has doubled its population in the previous three years, and the facility has continuously failed the Mystery Shopper program with regards the waiting time.
The Postmaster stated that that in August 2007, he told his management staff to be on the alert for an alleged injury from Complainant because her leave was running out. Affidavit D. The Postmaster stated that Complainant claimed she injured herself on September 6, 2007, when she went to pick up hold mail from a carrier's case. He stated that the carrier had a bucket of mail on top of a stool blocking the hold mail, and he believed Complainant moved the stool and the bucket of mail together, which was beyond her physical restrictions, although he is not sure of this. He stated that Complainant told S1 about her injury, refused to fill out an injury form, went home the day of the incident, and was out of work for the next few days.
The Postmaster stated that when Complainant returned to work, her restrictions were even more severe than before. He stated he informed Complainant that if she could not perform the duties of her modified position, she should request light duty. The Postmaster stated that Complainant first requested light duty on October 2, 2007, but he declined her request. The Postmaster stated that Complainant submitted another request for light duty on October 25, 2007, with same forms she had submitted earlier. He stated that there was no new information and no difference in her medical condition, so he declined Complainant's request again.
The Postmaster stated that, in October and November 2007, he declined Complainant's first, second, and third light-duty requests because there was no work available within her restrictions. He stated that the lobby duties Complainant had been performing involved a lot of walking and standing intermittently, which her new September 2007 restrictions indicated she could no longer do. The Postmaster also stated Complainant initially requested light duty by submitting medical forms dated September 6, 2007, and a CA-17 form dated September 18, 2007, that reflected that she could not bend, twist, stoop, or grab, and had a limited ability to stand. "Based on what these forms said she couldn't do, I declined her light duty," the Postmaster stated. The Postmaster stated that Complainant submitted a second light-duty request on October 25, 2007, that contained the "exact same forms" from her previous request. "With no difference in her medical condition, I declined her light duty again," the Postmaster stated.
The Postmaster further stated that Complainant submitted a third request for light duty on November 6, 2007, with copies of her original documentation. He stated that he denied the request again because there were no recent medical updates on her condition. The Postmaster stated that he informed the union steward that Complainant needed to submit updated restrictions, which Complainant provided on November 20, 2007. He stated that Complainant submitted a note describing her restrictions and asking to work light duty Tuesday through Saturday, from 8:30 a.m. to 3:00 p.m. The Postmaster stated that he approved this light-duty request and offered Complainant 30 hours of work per week and Mondays off so that she could obtain treatment for her back. He stated that Complainant began her light-duty assignment on November 24, 2007.
Documentary Evidence
The record contains documentation from Complainant's physician dated August 22, 2006. The documentation reveals that, at that time, Complainant was restricted from standing without support for more than 10 to 15 minutes and sitting more than 30 minutes at a time because of her Degenerative Joint Disease.
The record also contains Complainant's first request for light duty dated October 2, 2007, in which she requested light-duty work from October 2 through 31, 2007. With this request, Complainant included a form CA-17 dated September 18, 2007. On the CA-17 form, Complainant's physician indicated that she could not lift more than 10 pounds intermittently, sit/stand/walk more than one to three hours per day, kneel more than a half hour per day, or grasp more than one hour per day. The form also indicated that Complainant could not bend/stoop, twist, or pull/push at all.
Complainant's second request for light duty dated October 25, 2007, requested light-duty work from October 30, 2007 to November 29, 2007. This request included a "Descriptive Restrictions Chart" that indicated that Complainant could return to work on October 30, 2007. The chart also stated that Complainant could occasionally lift and carry up to ten pounds; sit, stand, and walk for one half hour at a time or a total or two to three hours per day; bend and squat up to one hour per day; reach above her shoulders for one to two hours per day. The chart also stated that Complainant could not climb or crawl. Complainant submitted a third request for light-duty work from November 6 through 29, 2007. A "Descriptive Restrictions Chart" dated November 6, 2007, was attached to the form and contained the same restrictions identified with her previous light-duty request.
Complainant submitted an undated handwritten note to support her fourth request for light duty. The note was received by the Agency on November 20, 2007. In that note, Complainant relayed that she could only work six hours a day, five days a week for the next 12 weeks with a Tuesday through Saturday schedule of 8:30 a.m. to 3:00 p.m. Complainant wrote that she could not lift more than 10 pounds; could not sit/stand/walk for more than one half hour at time or more than two to three hours total per day; could not bend or squat more than one hour per day; and could not reach above her shoulders more than one to two hours per day. Complainant also stated she could assist customers with the APC machines and perform lobby director duties in the mornings when carriers were available to help retrieve hold mail, stock supplies, write second notices, input non-revenue transactions, and help with the receipt and distribution of stamp stock.
The record contains a letter from the Postmaster dated November 21, 2007, notifying Complainant of the approval of her fourth request for light duty. The letter stated that Complainant would work Tuesday through Saturday from 8:30 a.m. to 3:00 p.m. The duties of her assignment included APC/Lobby Director assisting customers to use the APC; maintain post supply; restocking lobby of all shipping supplies and customer forms; writing notices, entering transactions; entering post office box payments; entering/updating customer information; verifying financial paperwork; and any other assistance with our other window clerks within your restrictions.
Additionally, the record contains a letter dated September 13, 2007, to the Office of Workers' Compensation Programs (OWCP) from the Postmaster in which the Postmaster controverted Complainant's OWCP claim. In the letter, the Postmaster stated the following, in pertinent part:
[Complainant] was very upset with this schedule and filed an EEO against me as the Postmaster due to this change. The EEO is still in the informal stage.
Report of Investigation, Miscellaneous Correspondence, p. 19.
The Final Agency Decision
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency found that Complainant was not an individual with a disability. Regarding claim 1, the Agency determined that Complainant was not denied a reasonable accommodation because she failed to show that she could not perform the duties of the rejected job offers, which she had previously accepted, or that having Mondays off was related to her medical condition. With respect to claim 2, the Agency found that there was no prima facie case of reprisal because there was no nexus between Complainant's EEO activity and the Agency's denial of light duty. The Agency further found that Complainant failed to prove that the Agency's articulated non-discriminatory reasons explanation for its actions were pretext for unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency improperly found that she was not subjected to unlawful discrimination. Specifically, Complainant contends that she is an individual with a disability because she cannot lift, push, or pull more than ten pounds and cannot walk more than 30 minutes at a time. Complainant further contends that the Agency's claim that it needed her to work on Mondays is contradicted by its ultimate approval of her request to have Mondays off. Regarding claim 2, Complainant contends that work was available within her restrictions because she had performed the same job within her restrictions since 2005, and if no work was available within her restrictions, as the Agency claims, it would not have ultimately approved her for light duty in late November 2007. The Agency contends that its final decision should be affirmed because the Agency provided legitimate non-discriminatory reasons for all of its actions that Complainant failed to show were pretextual.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Disability Discrimination
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that the Agency denied Complainant a reasonable accommodation, a complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Enforcement Guidance).
Further, under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p). Appropriate accommodations might include job restructuring, reassignment to a vacant position, acquisition or modifications of equipment or devices, appropriate adjustment or modification of examinations, training materials, or policies, the provision of qualified readers or interpreters, and/or part-time or modified work schedules. See 29 C.F.R. � 1630.2(o)(ii).
As an initial matter, we note that this case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006 and 2007, the Commission applies the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant was an "individual with a disability."
In this case, the Agency found that Complainant was not an individual with a disability. We disagree. According to record evidence, Complainant has tendonitis in both shoulders, arthritis in both wrists and thumbs, and Degenerative Disc Disease in her back. The record further reveals that Complainant had long-term restrictions that precluded her from lifting more than 15 to 20 pounds with her right hand. Moreover, the record reveals that after Complainant was injured at work in September 2007, she could not lift more than 10 pounds intermittently. Therefore, consistent with Commission precedent, we find that Complainant is substantially limited in the major life activity of lifting, and therefore is an individual with a disability. See Higgins v. U.S. Postal Serv., EEOC Appeal No. 07A30086 (Sept. 14, 2005) (complainant was limited in the major life activity of lifting based on a restriction of twenty pounds); Haygood v. U. S. Postal Service, EEOC Appeal No. 01976371 (Apr. 25, 2000) (complainant with maximum 15-pound lifting restriction and restriction on reaching above shoulder found to be individual with disability); Millsap v. Dep't of Homeland Security, EEOC Appeal No. 07A30113 (Mar. 3, 2005) (complainant's 10 pound lifting restriction is a physical impairment that substantially limits the major life activity of lifting).
Claim 1
Complainant requested a reasonable accommodation when she rejected the Agency's job offers in November 2006 and June 2007 and informed the Agency that she could not work on Mondays because she and her mother had medical appointments on Mondays. We note that, while an agency is required to make reasonable accommodation for its employees' medical conditions under the Rehabilitation Act, it has no such obligation for non-employees. Therefore, notwithstanding the Agency's obligations under the FMLA, the Agency was not obligated to give Complainant Mondays off to take her mother to medical appointments under the Rehabilitation Act.
With respect to Complainant's asserted need to have Mondays off to attend her personal medical appointments, we note that a complainant has the burden to show a nexus between the disabling condition and the requested accommodation. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002) (citing Wiggins v. U.S. Postal Serv., EEOC Appeal No. 01953715 (Apr. 22, 1997)). Upon review of the record in this case, we determine that Complainant failed to show why Monday was the specific day of the week she needed to attend her medical appointments instead of other days of the week. Wojtila v. U. S. Postal Serv., 01995705 (Jan. 16, 2002) (complainant did not meet burden of establishing a nexus when she failed to assert with particularity that she required sick leave on any given day because of her disability). As such, we find that Complainant failed to establish a nexus between her requested accommodation and her medical condition. Additionally, we note that Complainant acknowledges that she did not work on any Monday after the November 28, 2006 and June 19, 2007, job offers.
Complainant also contends that she rejected the November 28, 2006 and June 19, 2007 job offers because the written offers did not include her standing and sitting restrictions. However, we note that Complainant has not shown that the Agency assigned her job duties outside her restrictions with respect to claim 1. In fact, Complainant affirmed that she worked within her medical restrictions until the Postmaster denied her first light-duty request on October 10, 2007. Further, the November 28, 2006, and June 19, 2007, job offers featured medical restrictions that were identical to the job offer Complainant accepted on November 1, 2006. Consequently, we find that Complainant failed to prove that the Agency failed to reasonably accommodate her disability with respect to claim 1.
Claim 2
Complainant also contends that the Agency denied her a reasonable accommodation when it failed to give her light-duty work after she injured herself on the job. The Postmaster maintains that he denied Complainant light duty from October 10, 2007 until November 24, 2007, because Complainant did not submit updated medical documentation about her condition until she made a fourth request for light duty. The Postmaster further maintains that he denied her light duty because there was no work available within her restrictions after her September 2007 injury.
Upon review, we note that, although the Postmaster claimed that Complainant did not submit updated medical restrictions to the Agency until her fourth light-duty request, the record reveals that Complainant submitted updated medical restrictions from her physician on a CA-17 form dated September 18, 2007, with her first light-duty request on October 2, 2007. Likewise, Complainant resubmitted the same CA-17 form when she made her second and third light-duty requests. Additionally, Complainant submitted a "Descriptive Restrictions Chart" dated November 6, 2007, to the Agency that contained updated restrictions with her second and third light-duty requests. Therefore, the Postmaster's assertions are clearly contradicted by the documentary evidence that reflects that Complainant submitted updated medical restrictions with her first, second, and third light-duty requests. Moreover, we note that the record reflects that the only additional medical restrictions documentation Complainant submitted with her fourth request was a handwritten note in which Complainant identified the same restrictions contained on the previously-submitted "Descriptive Restrictions Chart." As such, there is no substantive difference between the documentation submitted with requests that were denied and documentation submitted with the request the Postmaster approved.
The Postmaster further claims that there was no work within Complainant's restrictions until he approved her light-duty request on or about November 24, 2007. However, the Manager stated that Complainant was already performing work within her restrictions after the September 6, 2007, incident, there was work Complainant could continue to perform within her light-duty job offer, and Complainant's light-duty request would probably have been approved before the Postmaster arrived at Palm Coast.
Likewise, S1 stated that that she believed there was work Complainant could have done on light duty and that this work included the same activities Complainant already had been performing after the September 6, 2007, accident. Interestingly, S1 suggested that the Postmaster initially agreed to give Complainant work within her restrictions processing second notices, lobby director duties, and computer inputting, but the Postmaster changed his mind the next day and denied Complainant's request. In light of the statements by S1 and the Manager, we find that the Postmaster's statements about the availability of work within Complainant's restrictions are unworthy of belief. We are persuaded that there was work within Complainant's restrictions from the time she requested and was denied light duty (October 10, 2007) until the date the Postmaster finally granted her request for work within her restrictions (November 24, 2007). As such, we find that the Agency denied Complainant a reasonable accommodation for her disability.
Reprisal
Finally, Complainant contends that the Postmaster retaliated against her when he denied her light duty in October and November 2007. To establish a prima facie case of reprisal, Complainant must show that: (1) she engaged in prior protected activity; (2) the Agency was aware of the protected activity; (3) she was subsequently subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. McMillen v. U.S. Postal Serv., EEOC Appeal No. 0120072556 (Feb. 26, 2009); Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). Generally, the Commission has held that a nexus may be established if events occurred within one year of each other. See Patton v. Dep't of the Navy, EEOC Request No. 05950124 (June 27, 1996).
Once an employee has established a prima facie case, the Agency has the burden of "producing evidence" that an adverse employment action was taken "for a legitimate, non-discriminatory reason." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-507 (1993) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). When the Agency produces evidence of a legitimate, non-retaliatory reason for a challenged action, a violation will still be found if this explanation is a pretext designed to hide the true retaliatory motive. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-19 (May 20, 1998).
In this case, Complainant stated that her prior EEO activity occurred when she initiated EEO counselor contact for this complaint on July 2, 2007. The Postmaster stated that he was notified of Complainant's EEO activity by an EEO Dispute Resolution Specialist in June 2007. The Counselor's Report reflects that the Postmaster responded to Complainant's claims on July 30, 2007, which we will construe as the date by which the Postmaster was aware of Complainant's EEO activity. Complainant was denied light duty beginning on October 9, 2007, which establishes a close temporal nexus of less than two and a half months between the Postmaster's awareness of Complainant's EEO activity and the denial of light duty. Consequently, we find that Complainant established a prima facie case of reprisal.
We further find that the Agency provided legitimate, non-discriminatory reasons for denying Complainant's light-duty requests. As detailed above, the Postmaster stated that he denied Complainant's light-duty requests because she did not submit updated medical documentation until her fourth request, and there was no work available within her medical restrictions.
However, as explained above, the Postmaster's assertions on this matter are contradicted by other management officials and Complainant. Moreover, the Postmaster's sudden ability to find work within Complainant's restrictions only after she notified her congressman is inexplicable and highly suspicious. Thus, we find that the Postmaster's explanation is unworthy of belief.
Moreover, we note that in a letter to the Injury Compensation Office dated September 12, 2007, the Postmaster wrote that Complainant was "very upset with this schedule and filed an EEO against me as the Postmaster due to this change." While the Postmaster was entitled to controvert Complainant's OWCP claim, we find it was inappropriate to cite Complainant's EEO activity while doing so. By referring to Complainant's EEO activity in a letter challenging her OWCP claim, the Postmaster impermissibly insinuated that her claim should be denied because she engaged in EEO activity. We find that the Postmaster's unnecessary mention of Complainant's EEO activity is not only evidence of his retaliatory motive, but is itself an action that is reasonably likely to deter employees from engaging in EEO activity, and as such, violates EEO regulations. See Webster v. Dep't of Defense, EEOC Appeal No. 0120080665 (Nov. 4, 2009).
In summary, the Commission concludes that, for claim 2, the Postmaster's explanations are unworthy of belief. We note that the Supreme Court has held that the fact-finder may find pretext where she determines that the Agency's articulated reason is unworthy of belief. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). The Commission is persuaded that reprisal was the true reason the Postmaster denied Complainant a reasonable accommodation in October and November 2007. Consequently, we find that the Agency improperly found that Complainant was not subjected to reprisal with respect to claim 2.
Compensatory Damages
In her formal complaint and investigatory statement, Complainant requested compensatory damages. Failing to make a good faith effort to accommodate a complainant exposes an agency to liability for compensatory damages. See Reasonable Accommodation Guidance at 11, footnote 24, (Oct. 17, 2002). In this case, the Agency failed to provide Complainant with work within her restrictions although the evidence reflects that work was available within her restrictions. Moreover, we find that the Agency was motivated by reprisal when it denied her a reasonable accommodation. Therefore, Complainant is entitled to compensatory damages because we find that the Agency failed to make a good faith effort to accommodate Complainant for her disability from October 10, 2007, until November 24, 2007.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding that Complainant was not subjected to unlawful discrimination with respect to claim 1. The Commission REVERSES the Agency's finding that Complainant was not denied a reasonable accommodation and subjected to unlawful reprisal with respect to claim 2 and REMANDS this matter to the Agency to take remedial actions in accordance with this decision and the ORDER below.
ORDER
The Agency is ordered to take the following remedial actions:
1. Within 60 days of the date this decision becomes final, the Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages incurred as a result of the Agency's discriminatory action from October 10, 2007 until November 24, 2007. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later man 60 days after the Agency's receipt of all information. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein.
2. The Agency shall ensure that Complainant is provided with a reasonable accommodation for her disabilities, consistent with this decision and EEO regulations.
3. The Agency shall restore any leave Complainant used from October 10, 2007, through November 24, 2007, and reimburse Complainant for any Leave without Pay used because of its unlawful failure to provide her with a reasonable accommodation.
4. Complainant shall be awarded back pay for any pay she lost that is attributable to the unlawful denial of a reasonable accommodation. The Agency shall calculate the back pay and interest owed to Complainant in accordance with 29 C.F.R. � 1614.501. In doing so, the Agency shall take into account the average salary earned by the Aviation Security Officers during the relevant time period. The Agency shall provide Complainant with a detailed statement clarifying how Complainant's back pay award was reached. The statement shall consist of a clear and concise, "plain language" statement of the methods of calculations used for the instant matter and actual calculations applying said formulas and methods. If there is still a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within thirty (30) days of the date the Agency determines the amount it believes to be due.
5. 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 Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. 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 Com mission's Decision;"
6. Within 120 days of the date this decision becomes final, the Agency shall provide training to all management officials at its Palm Coast facilities their obligations in providing reasonable accommodation under the Rehabilitation Act.
7. The Agency shall consider taking disciplinary action against all responsible managements officials in this case. 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.
8. 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 (G0914)
The Agency is ordered to post at its Palm Coast, Florida 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 both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carl
Carlton M. Hadden, Director
Office of Federal Operations
October 13, 2015
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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