01A11938
08-15-2003
Louise S. McCowan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Louise S. McCowan v. United States Postal Service
01A11938
August 15, 2003
.
Louise S. McCowan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11938
Agency No. 4-H-300-1143-96
Hearing No. 110-AO-8327X
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
REVERSES the agency's final order.
BACKGROUND
The record reveals that complainant, a former Distribution Clerk, PS-05,
at the agency's North Metro P & D Center, Duluth, Georgia, facility,
filed a formal EEO complaint on March 21, 1997, alleging that the agency
had discriminated against her on the bases of race (African-American)
and disability (degenerative back disease), when she was denied overtime
from the summer of 1996 until the spring of 1997.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to established a prima facie
case of race discrimination. Specifically, the AJ found that three
individuals similarly situated to complainant received overtime.
The AJ found that one of the three employees is White, and the other
two employees are African-American. Therefore, the AJ concluded that
�one out of three employees identified as a White does not establish a
prima facie case of race discrimination�.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the White
employee received overtime and complainant did not, because the White
employee was able to do her regular cases, in using the regular full-sized
case with a rest bar, whereas complainant could not.
The AJ also concluded that giving complainant the benefit of the doubt,
the AJ found that complainant was a qualified individual with disability
in June 1996, when she was denied overtime. However, she failed to
establish a prima facie of disability discrimination, because she failed
to show a connection between her condition and the denied overtime. The
AJ further concluded that the agency denied complainant overtime because
complainant was not able to work in the 030 area with a regular case,
where the overtime existed. The AJ found that complainant never disputed
this and thus has not shown pretext.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that she established a prima facie
case of race discrimination, she belongs to a protected class, she was
performing her duties in a satisfactory and productive manner, and she
was treated less favorably than White employee working the same type mail
on the same tour under the same supervisor. Complainant contends that
the African-American employees used as a comparator by the AJ, were not
similarly situated to complainant. Specifically, complainant contends
that they worked in a different tour with different supervisor, and that
the White employee worked the same tour as complainant. Complainant also
contends that the proffered reason that complainant was denied overtime
due to not being physically able to work sitting on a rest bar in the
030 cases is pretextual.
Complainant also contends that management used her disability to
deny her overtime. Specifically, complainant contends that testimony
supported the fact that complainant was a good and productive employee,
and that the fact that complainant could not sit on a rest bar in the
030 area due to her disability, and for that reason was denied overtime,
supports the argument that she was subjected to discrimination based on
her disability. Complainant further contends that the agency did not
submit evidence showing that it would create an undue hardship to allow
complainant to work overtime.
ANALYSIS AND FINDINGS
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.
Disability
With regard to complainant's claim based on disability, we note that the
AJ considered complainant's complaint a claim of disparate treatment;
however, we find that the matter is more properly analyzed as a claim for
reasonable accommodation. Under the Commission's regulations, an agency
is required to make reasonable accommodation to the known limitations
of a �qualified individual with disability�, unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R.� 1630.2(0);
29 C.F.R. 1630.2 (p). As a threshold matter, therefore, one claiming
protection under the Rehabilitation Act must show that s/he is a person
with disability.
An �individual with disability� is defined as someone who: (1) has a
physical or mental impairment which substantially limits one or more of
such person's major life activities; (2) has a record of such impairment;
or (3) is regarded as having such impairment. 29 C.F.R. �1630.2
(g)(1)-(3). The Commission has defined �substantially limits� as
�[u]nable to perform a major life activity that the average person in
the general population can perform� or �[s]ignificantly restricted as to
the condition, manner or duration under which an individual can perform
a particular major life activity as compared to the condition , manner,
or duration under which the average person in the general population
can perform that same major life activity.� 29 C.F.R. �� 1630.2 (j)
(1)(i) and (ii).
In determining whether an individual is substantially limited in a
major life activity one must consider �[t]he nature and severity of the
impairment,� �[t]he duration or expected duration of the impairment,� and
�the permanent or long term impact, or the expected permanent or long term
impact of or resulting from the impairment.� 29 C.F.R. ��1630.2(j)(2)(i),
(ii), and (iii). �Major life activities� include functions such as
caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, and working. 29 C.F.R. � 1630.2(i). A �qualified�
individual with a disability is one who satisfies the requirements for
the employment position he holds or desires and can perform the essential
functions of that position with or without reasonable accommodation.
29 C.F.R. � 1630.2(m).
In this matter, we find that during the relevant time period, complainant
was a qualified individual with a disability within the meaning of
the Rehabilitation Act. The record reveals that complainant has a
physical impairment, namely, lower back disease, lumbar disc disease,
osteoarthritis, with a degenerative disc and a diffused, bulging disc
specifically, her lower back, L4 and L5, and she has a problem with
her sciatic nerve and sciatic pain. The record also reveals that such
impairment substantially limits complainant's walking. The record
reveals that complainant always uses a cane to walk, because her back
problem and leg problem, causes her to lose balance. We noted that having
difficulty walking and needing to use a cane, substantially limits a
major life activity. The record further reveals that complainant can
perform the essential functions of her job, as management admitted at the
hearing, complainant was a good employee. Regarding the overtime duty,
that is the issue in this complaint, the record reveals that complainant
worked overtime in September 1996, when her supervisor was on vacation.
The record shows that she was able to perform the duties. For example,
she was able to sort mail, pull mail and was able to dispatch mail.
We noted that complainant performed all of her required duties at
that time. Therefore, we conclude that complainant was a �qualified
individual with disability�.
Reasonable accommodation
The issue in this case is whether, as part of its provision of reasonable
accommodations, the agency was required to provide complainant a chair
with a modified back in order to permit complainant to perform the
overtime duties.
The Rehabilitation Act requires federal agencies to make reasonable
accommodations 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.� 1614.203(c)(1). Reasonable accommodation may include making
facilities accessible, restructuring jobs, modifying work schedules,
reassignment to a vacant position and other similar actions. See 29
C.F.R. �� 1614.203 (c)(2); 1614.203(g). The Commission also notes that
an employee must show a nexus between the disabling condition and the
requested accommodation. See Wiggins v. United States Postal Service,
EEOC Appeal No. 01953715 (April 22, 1997).
The record reveals that the only overtime available at the agency was in
the 030 area, as Manual Letter Distribution. That position requires work
on a restbar, twisting, reaching and turning mail. The record also reveals
that complainant perform these duties only if she utilized a straight-back
chair as a reasonable accommodation. At the hearing complainant testified
that sitting in a straight back chair did not affect her ability in any
kind of way, she testified that she could be as productive as other
clerks working production mail. The record reveals that complainant
performed the overtime duties while sitting on a straight-back chair in
September 1996, when her supervisor was on vacation, and that when her
supervisor came back he denied her the overtime.
It is clear from the record that complainant was unable to perform the
overtime duties without reasonable accommodation. There is no dispute
that complainant needed a straight back chair in order to perform her
overtime duties, and that complainant notified the agency of this need for
accommodation. The question remains whether accommodating complainant's
request would cause an undue hardship to the agency.
Undue Hardship
Undue hardship must be based on an individualized assessment of current
circumstances that show that a specific reasonable accommodation would
cause significant difficulty or expense. EEOC Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act.
We find that the agency failed to prove that using a chair affected
complainant's ability to perform the duties nor prove that complainant's
need for such a chair constituted a undue hardship for the agency.
Specifically, the record reveals that the agency did not rebut
complainant's allegations that she performed the duties in a effective
manner in September 1996, using a straight back chair. We conclude
that the agency did not show that the accommodation would cause an undue
hardship for the agency.
Recently the Supreme Court in construing the terms "reasonable
accommodation" and "undue hardship" explain that, �a plaintiff/employee
(to defeat a defendant/employer's summary judgment motion) need only show
that an "accommodation" seems reasonable on its face, i.e., ordinarily
or in the run of cases. The defendant/employer then must show special
(typically case- specific) circumstances demonstrating undue hardship
in the particular circumstances�. U.S Airways, Inc. v. Barnett, 122
S. Ct. 1516 (2002). We note that complainant's position�requesting sitting
in a straight back chair as reasonable accommodation, seems reasonable
on its face. We also note that the agency failed to demonstrate undue
hardship in these specific circumstances. It is the employer's burden
to demonstrate that the accommodation would impose an undue hardship on
the operation of [its] business. 29 C.F.R.� 1630.9 (a)
Compensatory damages
Under Section 102 of the Civil Rights Act of 1991 (CRA), compensatory
damages may be awarded for pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, and loss of enjoyment of life. However,
Section 102 of the CRA also provides that an agency is not liable
for compensatory damages in cases of disability discrimination where
it demonstrates that it made a good faith effort to accommodate the
complainant's disability. A good faith effort can be demonstrated by
proof that the agency, in consultation with the disabled individual,
attempted to identify and make a reasonable accommodation. Compare
Luellen v. United States Postal Service, EEOC Appeal No. 01951340
(December 23, 1996) (agency demonstrated good faith effort where it
consulted with complainant and her physicians in attempting to identify
a reasonable accommodation, despite the fact that these efforts were
not sufficient to afford complainant a reasonable accommodation) with
Morris v. Department of Defense, EEOC Appeal No. 01962984 (October 1,
1998) (agency did not make a good faith effort to identify and provide
a reasonable accommodation for complainant where it did not make any
attempt to find an available office position for complainant in spite
of his repeated requests.)
We find that the agency did not fulfill its obligation to make a good
faith effort to reasonably accommodate complainant in her Distribution
Clerk position because although she was accommodated during her regular
shift, she was automatically denied any possibility of overtime.
Cf. Joch v. United States Postal Service, EEOC Request No. 05971044
(June 29, 2000) (complainant was denied reasonable accommodation where
agency failed to consider whether she could perform certain positions on
which bid, instead applying a policy of automatically excluding modified
duty employees from biding on unrestricted positions ).
CONCLUSION
Based on our findings that the agency did not act in good faith to
reasonably accommodate complainant in her Distribution Clerk position,
the agency is not relieved of its liability to pay appropriate
compensatory damages. See Teshima v. United States Postal Service,
EEOC Appeal No. 01961997 (May 5, 1998). We find that complainant has
raised a cognizable claim for compensatory damages in her complaints.
In light of this finding, we decline to address whether complainant was
subjected to disparate treatment based on her race. In conclusion, we
reverse the agency's final decisions and remand the case in accordance
with the Order below.
ORDER
1. The agency shall determine the appropriate amount of back pay
(with interest, if applicable) and other benefits due complainant,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days
after the date this decision becomes final. The agency shall make this
determination by calculating the amount representing the average overtime
pay received by the facility's Distribution Clerks between June 1996
until the day of complainant's resignation. See Adesanya v. United
States Postal Service, Petition No. 04980016 (February 19, 1999).
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."
2. The issues of compensatory damages and attorneys fees are remanded
to the AJ. The agency shall conduct a supplemental investigation of the
compensatory damages issue. No later than sixty (60) days after this
decision becomes final, the agency shall issue a final agency decision
addressing the issue of compensatory damages. The agency shall submit
a copy of the final decision to the Compliance Officer at the address
set forth below.
3. The agency shall re-examine its policy to ensure that its overtime
allocation practices do not preclude members of a protected class, i.e.,
individuals with disabilities within the meaning of the Rehabilitation
Act from receiving overtime opportunities available to non-disabled
individuals.
4. The agency shall provide training to all managers and supervisors
in its North Metro P & D Center, Duluth, Georgia, facility regarding
their obligations under the Rehabilitation Act to provide reasonable
accommodation in accordance with the standards and authorities set forth
in the foregoing decision.
5. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its North Metro P & D Center, Duluth,
Georgia, 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.
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 cir-cumstances
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
August 15, 2003
__________________
Date