01996211
08-23-2002
Mary Stewart, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Mary Stewart v. United States Postal Service
01996211
August 23, 2002
.
Mary Stewart,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01996211
Agency Nos. 1F-906-1055-96; 4F-900-0007-98
Hearing Nos. 340-98-3124X; 340-98-3523X
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges she was discriminated against based on disability
(thoracolumbar strain syndrome with arthropathy, asthma with chronic
lung disease, congestive heart failure (compensated), Type II diabetes,
and schizo-affective disorder) and in retaliation for prior protected
activity (EEO complaints filed under the Rehabilitation Act) when:
(1) she was not provided with the accommodation of a high-back chair
on August 23, 1996; and (2) she was not accommodated in September 1997.
For the following reasons, the Commission AFFIRMS IN PART AND REVERSES
IN PART the agency's final decision.
The record reveals that complainant, a distribution clerk at the agency's
Worldway Airmail Center in Los Angeles, California, filed formal EEO
complaints with the agency on October 10, 1996 and October 27, 1997,
alleging that the agency had discriminated against her as referenced
above. At the conclusion of the investigation, complainant was provided
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding disability discrimination based on denial of reasonable
accommodation, but finding no retaliation. By final decision dated
July 21, 1999, the agency adopted the AJ's finding of no retaliation,
but declined to adopt the AJ's finding of disability discrimination.
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).
After a careful review of the record, the Commission finds no basis
to disturb the AJ's ultimate finding of disability discrimination.
With respect to the issue of whether or not complainant is an individual
with a disability under the Rehabilitation Act, we do not reach whether or
not the AJ was correct in finding that complainant satisfied the relevant
standard based on her schizo-affective disorder or her diabetes, both
of which the AJ, writing before issuance of Sutton v. United Airlines,
Inc., 527 U.S. 471, 483 (1999), analyzed without regard to the effects of
mitigating measures. Rather, we find that the AJ correctly concluded
that based on her thoracolumbular strain syndrome, complainant had
long-term restrictions which included not lifting more than 10 pounds,
and thus was substantially limited in the major life activity of lifting.
With respect to whether complainant is a �qualified� individual with a
disability, the AJ's finding that complainant could perform the position
at issue with the accommodation of a high-backed chair is supported by
substantial evidence in the record.<2>
For the reasons set forth in detail in the AJ's decision, the AJ properly
found that complainant was denied reasonable accommodation when she was
disallowed use of a high-backed chair during the time periods in question,
pursuant to her medical restrictions. The AJ found that as a result,
complainant was directed by the agency to remain at home from August 26,
1996 until she was notified she could return to work on August 27, 1997,
and was thereafter still denied use of the
chair as needed when she returned to work until April 14, 1998.
The AJ found that the agency's only justification for not providing
complainant with such a chair during these periods pursuant to her
personal physician's instructions was that the Injury Compensation office
had not designated complainant to be a permanent limited duty employee.
This finding is supported by substantial evidence in the record.
Specifically, the evidence established that the Manager, Distribution
Operations (MDO), advised complainant that she was not entitled to this
accommodation because she was not on worker's compensation. Neither the
MDO nor the Plant Manager deny that high-back chairs were only provided
to Mailing Primary employees who had been determined by the agency's
Injury Compensation office to be permanent limited duty employees,
and they concede that it is for this reason they denied complainant's
requested accommodation and instead advised her that if she needed such
a chair she would have to go home. HT at 15, 17, 31, 61-62. 137, 139,
182, 190, 236. To the extent the agency contends that complainant
was offered but declined assignment to a letter sorting machine for
which high back chairs were available, the AJ specifically found, and
the substantial evidence in the record supports, that the managers'
testimony on this point was not credible, and that complainant credibly
denied having been offered this reassignment as an accommodation.
�An employer may not avoid its obligation to accommodate an individual
with a disability simply by asserting that the disability did not
derive from occupational injury." Bradley v. United States Postal
Service, EEOC Appeal No. 01962747 (October 22, 1998). A worker's
compensation determination, though potentially relevant evidence,
is never dispositive regarding an individual's rights or the agency's
obligations under the Rehabilitation Act. See EEOC Enforcement Guidance
on Workers' Compensation and the ADA (September 3, 1996) at question 15.
The obligation to accommodate a qualified individual with a disability
absent undue hardship exists under the Rehabilitation Act separate and
apart from whether or not the individual is on light or limited duty,
or has been designated to have a particular status for purposes of the
worker's compensation statute or deemed eligible for compensation. Id.
Based on the foregoing, we discern no basis to disturb the AJ's finding
that complainant was discriminated against based on disability when she
was denied the reasonable accommodation of using a high-backed chair in
the time periods claimed. We further find that during the relevant time
period, the agency did not act in good faith to accommodate complainant.
In reaching this conclusion, we note in particular that the evidence
revealed that the agency in fact had such chairs available within the
facility at the time in question, but would not allow complainant to use
one. Accordingly, the agency is not relieved of its obligation to pay any
appropriate proven compensatory damages. See Teshima v. United States
Postal Service, EEOC Appeal No. 01961997 (May 5, 1998). Additionally,
for the reasons set forth in the AJ's decision, we find that complainant
has not proven retaliation by a preponderance of the evidence.
Therefore, after a careful review of the record, including arguments on
appeal, the Commission AFFIRMS IN PART AND REVERSES IN PART the agency's
final decision. The final decision is affirmed with respect to the
finding of no retaliation, and reversed with respect to the finding of
no disability discrimination. The agency is ORDERED to take remedial
action in accordance with this decision and the Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
(1) The issues of compensatory damages and attorney's fees and costs are
REMANDED to the Hearings Unit of the appropriate EEOC District Office.
The agency is directed to submit a copy of the complaint file to the
EEOC Hearings Unit within fifteen (15) calendar days of the date this
decision becomes final. The agency shall provide written notification
to the Compliance Officer at the address set forth below that the
complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge must be assigned in an expeditious manner to
further process the issue of compensatory damages, and attorney's fees
and costs if applicable, in accordance with the regulations.
(2) The agency shall restore to complainant any sick and/or annual
leave she used for any days during the period August 23, 1996 to August
26, 1997. For days during this period when complainant did not use
either sick and/or annual leave to cover such absences, but instead used
leave without pay, the agency shall remit to complainant all back pay
and benefits she would have received had she remained working during
this period. 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 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."
(3) The agency shall restore to complainant any sick and/or annual leave
she used as a result of not being provided a high-backed chair for any
days during the period August 27, 1997 to April 14, 1998. For days during
this period when complainant did not use either sick and/or annual leave
to cover such absences, but instead used leave without pay as a result
of not being provided with a high-backed chair, the agency shall remit
to complainant all back pay and benefits she would have received had
she worked on those days. 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 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."
(4) The agency will provide training to the responsible management
officials at the Worldway Airmail Center regarding their obligations
and complainant's rights under the Rehabilitation Act.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Worldway Airmail Center, Los Angeles,
California, 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 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 (T0900)
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 (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 23, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2With respect to difference of opinion by the agency physician versus
complainant's personal physician regarding whether complainant had
medical restrictions or necessitated the high-backed chair, we do not
adopt the AJ's finding, decision at 21, that the agency was legally
obligated in 1997 to provide complainant an opportunity to rebut the
agency physician's conclusions before the agency made a determination
of coverage under the Rehabilitation Act. Rather, since there is
substantial evidence in the record to support the Administrative Judge's
crediting of complainant's physician's statements that complainant had
medical restrictions necessitating the accommodation at issue, we will
uphold that finding of fact.