01971051
10-20-1999
Maria Addiss, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region) Agency.
Maria Addiss v. United States Postal Service
01971051
October 20, 1999
Maria Addiss, )
Appellant, )
) Appeal No. 01971051
v. ) Agency No. 1A-118-1011-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Region) )
Agency. )
)
DECISION
Appellant filed a timely appeal from a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on
the bases of reprisal (prior EEO activity), and physical disabilities
(cervical lumbar sprain, bilateral knee injury), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.
Appellant alleges she was discriminated against when she was terminated
on November 13, 1995 from her position as a transitional mail processor.
The appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the agency's decision is REVERSED and REMANDED.
The record reveals that during the relevant time, appellant was employed
as a transitional mail processor at the agency's Melville, New York
station.
Believing she was the victim of discrimination, the appellant sought
EEO counseling and, subsequently, filed a formal complaint on January
23, 1996. At the conclusion of the investigation, the appellant was
provided a copy of the investigative file and informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. The appellant requested that
the agency issue a final agency decision on May 2, 1996.
In its decision, the agency concluded that the appellant failed to
establish a prima facie case of reprisal because it claimed that she
failed to show that management employees involved in her termination
knew of her protected activity.
The agency also concluded that the appellant was not a qualified
individual with a disability because her knee condition was considered
a temporary limitation. It stated that the appellant did not show she
was qualified for the position that she held and therefore, she failed
to establish a prima facie case of disability discrimination.
The agency determined that it had proffered legitimate, nondiscriminatory
reasons for terminating the appellant, namely, that after she had been
cautioned about being absent from her work area without leave (AWOL)
she repeated the infraction by being 15 minutes late returning from
a break. The agency noted that she was not similarly situated to the
career regular mailhandler because she was a transitional employee and
was not entitled to the same privileges. The mailhandler had been issued
a letter of warning which was later reduced to an official discussion.
On appeal, the appellant contends that the agency understated the extent
of her injuries in that she had injured both knees and had a fracture
of the L-5 vertebrae. She also contends that her supervisor knew she
had filed a complaint on October 4, 1995 concerning his harassment of
her relating to her injuries.
The agency objects to the medical evidence submitted on appeal which it
states was not in evidence when the final decision was made. It states,
in response to the appeal, that the appellant had a "penchant for leaving
her assigned work area" and as a result, was terminated. The agency
also claims on appeal that the appellant was not doing the work she was
assigned to do and that her work performance was poor.
After a thorough review of the record, we find that the evidence does
not support the agency's final decision of no discrimination on the
basis of reprisal or disability. Applying the standards set forth in
McDonnell Douglas Corporation v. Green, 411, U.S. 792 (1973), Prewitt
v. United States Postal Service, 662 F.2d 292, 310 (5th Cir. 1981),
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), we find that the appellant
established a prima facie case of reprisal in that she had engaged in
protected EEO activity, her supervisor knew of her protected activity
and she suffered an adverse employment action which was causally related
to her protected activities.
We also find that although the appellant was not disabled within the
meaning of the Rehabilitation Act, she was perceived as disabled by her
supervisors due to her back, neck and knee conditions which led to her
termination.
The record establishes that the appellant was injured from a car accident
in September 1993, and then again in an on the job injury on or about
May 4, 1994 when she fell over plastic bands lying on the workroom
floor. As a result, she suffered from a cervical lumbar sprain,
a condition known as spondylolithesis, and contusions to both knees.
She was restricted from lifting anything over 25 pounds and was put in
a limited duty position at that time.
The record reflects that the appellant took some time off from work due
to these injuries but there is no evidence that the time she took was
not approved. She returned to work in July 1995 from knee surgery and
according to her, began to experience harassment from her supervisors TN
and SG by being closely watched and monitored in her time and attendance.
This caused her to file an EEO complaint on October 4, 1995. There is
no indication that she was not able to perform her duties at that time
only that a co-worker was required to drive her to and from the job site.
The record reflects only one other incident in September 1995, prior to
the incident in question in which the appellant was charged with being
AWOL for one and half hours. This was later reduced to leave without
pay after the appellant filed a grievance and established that she was
working in another area.
The appellant disputed the facts set forth by the agency surrounding the
incident that led to her termination. She contends that she and the other
employee were not late returning from a break but had left later than
the supervisor thought. The time of their departure was corroborated by
the other employee and was argued by the union steward in her grievance.
In any event, at most the incident concerned a 10 minute span of time. The
agency issued only a warning to the other employee and later reduced
the written warning to an official discussion. This tends to support
the conclusion that the alleged lateness was a de minimus violation.
The agency's comparatively light discipline of the mailhandler also
contradicts the agency's supposed intent to crack down on a perceived
abuse of break time. In addition, the agency's much harsher treatment
of the appellant under the same circumstances heightens our suspicion
surrounding her termination.
The union steward for postal service clerks, KZ, appealed the appellant's
dismissal through the grievance process on the grounds that the
appellant had a clean record and there was a disparity in treatment
of the two employees involved. He also asserted that past practice
allowed employees to take 30 minutes for breaks which meant that by
management's calculations the appellant had not been late. Finally,
the union steward reported a statement made by supervisor AH that
three supervisory employees, BW, FB and DH were waiting to "pounce"
on the appellant. Union steward RF who represented the mailhandler
involved in the incident, also reported direct statements made to him by
supervisors DH and AH that they were out to get the appellant supposedly
for violating break time. The absence of any record of the appellant's
abuse of the break time, however, raises serious questions regarding
the real aims of these supervisors. Their statements coupled with the
close proximity to her filing of a complaint, lends substantial credence
to her claims of reprisal.
Finally, we do not find any credibility in supervisor SG's denial
that he knew the appellant had filed an EEO complaint against him
and another supervisor. His contention that he did not know of the
complaint until he was approached by the EEO Counselor with a settlement
agreement two days after the appellant was fired cannot be believed.
It is not likely that he would be presented with a settlement agreement
without having first spoken to the EEO Counselor on a prior occasion.
In fact, union steward KZ, indicates that he was present with the EEO
Counselor and the appellant on November 9, 1995, four days prior to her
firing, when the EEO Counselor called supervisor SG about a settlement
of the appellant's complaint. With his knowledge that the appellant had
filed an EEO complaint against him along with the lack of a credible
reason for the appellant's termination, and the unrebutted statements
of supervisors that the appellant was being targeted, we are persuaded
that the termination was in retaliation for filing an EEO complaint.
We are also persuaded that the appellant's supervisors targeted her
because she was perceived as disabled as explained below.
EEOC Regulation 29 C.F.R. �1614.203(a)(2) defines a person who is disabled
as one who has a physical or mental impairment which substantially limits
one or more major life activities. A physical impairment includes, any
physiological disorder or anatomical loss affecting one or more of the
body systems such as the musculoskeletal or cardiovascular systems. 29
C.F.R.�1614.203(a)(2)(i). Major life activities means functions such as
caring for oneself, performing manual tasks, walking, seeing, hearing
speaking, breathing, learning and working. 29 C.F.R.�1614.203(a)(3).
Given these parameters, we find that the record does not establish that
the appellant is disabled within the meaning of the law because she was
not substantially limited in a major life activity at the time of her
termination.
We do find that the appellant was perceived as disabled under 29
C.F.R.�1614.203(a)(5) due to the injuries she sustained prior to
her termination. Even though the appellant was able to perform the
essential duties of her job, her supervisors perceived her as a problem
employee because she had back and knee injuries. By their statements and
actions toward her it was clear their motivations to end her employment
were related to her physical condition and not because she was a poor
employee. For example, the appellant stated that when she attempted to
ice her knee at work, her supervisor became hostile and would not allow
her to. Supervisor TN claimed not to know that the appellant had lifting
restrictions even though she had already been placed in a light duty job
prior to her surgery. As a result, he required her to lift trays which
she had not done before the knee surgery. On the other hand, the agency
claimed that the appellant was a poor performer and did not do the job
she was asked to do, but failed to produce any concrete evidence of her
failures.
For the foregoing reasons, we REVERSE the agency's final decision and
REMAND the case back to the agency for further action as noted below.
ORDER
The agency is ORDERED to take the following remedial action:
(1) Within thirty (30) calendar days of the date this decision becomes
final, the agency is directed to offer appellant the option of either
reinstatement into her transitional mail processor position or of having
her records credited to reflect that she served to the completion of
her appointment.
(2) The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. The appellant 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 appellant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. The appellant 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."
(3) The agency shall expunge from appellant's personnel file the the
notice of removal issued in November 1995, as well as any references to
this document.
(4) The agency shall post at the Melville, New York Post Office copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material. The
original signed notice is to be submitted to the Compliance officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
(5) The agency shall provide training to the RO in the obligations and
duties imposed by the Rehabilitation Act and Title VII.
(6) 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 that the
corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by 29
C.F.R. s1614.501(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. s1614.501(e). The award of attorney's fees shall be paid by the
agency. The attorney shall submit a verified statement of fees to the
agency - not to the Equal Employment Opportunity Commission, Office of
Federal Operations-within thirty (30) calendar days of this decision
becoming final. The agency shall then process the claim for attorney's
fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory. The
agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report
shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. s1614.503(a). The appellant also has the right to
file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See
29 C.F.R. ss1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ss1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. s2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See
29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. � 1614.604(c).
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision 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 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. It is the position of the Commission that you have the
right to file a civil action in an appropriate United States District
Court WITHIN NINETY (90) CALENDAR DAYS from the date you receive this
decision. You should be aware, however, that courts in some jurisdictions
have interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED 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 (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court
appoint an attorney to represent you and that the Court permit you to
file the action without payment of fees, costs, or other security. See
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. s2000e
et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. ss791,
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:
10/20/99
Date Carlton M. Hadden, Acting Director,
Office of Federal Operations