01A24423
04-01-2004
Sylvia Tate, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sylvia Tate v. United States Postal Service
01A24423
April 1, 2004
.
Sylvia Tate,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24423
Agency No. 1-J603-0053-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. For the following reasons, the
Commission AFFIRMS in part and REVERSES in part the agency's final
decision.
The record reveals that during the relevant time, complainant was employed
as a Full-Time Distribution Clerk (Modified), PS-06, at the agency's South
Suburban, Illinois Processing and Distribution Center. Complainant sought
EEO counseling and subsequently filed a formal complaint on May 30, 2001,
alleging that she was discriminated against on the basis of disability
(work-related back, leg, knee, hip, and neck injury) when from April 25,
2001 and continuing the agency failed to accommodate her disability,
and when on September 18, 2001 she received an updated job offer
changing her scheduled days off from Sunday/Monday to Thursday/Friday.
Complainant requested relief including reasonable accommodation, back pay,
and compensation for �mental anguish and pain and suffering.�
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive an immediate final agency decision
(FAD). Complainant initially requested a hearing, but subsequently
withdrew her request. The case was returned to the agency for issuance
of a FAD.
In its FAD, the agency concluded that complainant is not a �qualified
individual with a disability� within the meaning of the Rehabilitation
Act. The agency nonetheless went on to find that complainant had not
established a causal connection between her claimed disability and the
agency's actions, nor had she produced evidence of disparate treatment.
The agency further found that it had provided complainant with reasonable
accommodation, and had proffered a legitimate, non-discriminatory
explanation for its actions, which complainant had not shown to be
pretextual.
At the outset, the Commission finds that complainant is entitled to
protection under the Rehabilitation Act. The record reflects that
complainant is subject to a 10-pound lifting restriction, and that
complainant is able to perform the duties of her Modified Clerk position
with reasonable accommodation. Complainant therefore is a �qualified
individual with a disability� within the meaning of the Rehabilitation
Act. See Selix v. United States Postal Service, EEOC Appeal No. 01970153
(March 16, 2000).
With respect to the claim regarding complainant's scheduled days off,
the Commission finds that complainant has not established her claim of
discrimination. The agency explained that complainant's bidded scheduled
days off (SDOs) were Thursday/Friday, and that she had been permitted
a temporary schedule change having SDOs of Sunday/Monday. Further,
the agency noted that subsequent to being advised that she would have
to return to her bidded SDOs, complainant requested and was granted
another temporary schedule change. Complainant adduced no evidence to
show that this explanation was a pretext for unlawful discrimination.<2>
The FAD therefore is affirmed with regard to this claim.
With regard to complainant's request for reasonable accommodation,
the Commission finds that the agency failed to meet its obligations.
It is noted that complainant alleged failure to accommodate from April
25, 2001 with regard to her work assignments. However, a review of
the record reveals that for most of the period at issue, complainant
remained off work because OWCP would not pay for physical therapy.
To the extent that complainant's inability to work was caused by
OWCP's failure to provide physical therapy rather than the agency's
failure to provide reasonable accommodation, this matter is outside
of the Commission's purview. See Hogan v. Department of the Army,
EEOC Request No. 05940407 (September 29, 1994); Gray v. Department of
the Army, EEOC Appeal No. 01944944 (August 8, 1995).
The record reflects that when complainant returned to work September
8, 2001, her physician advised the agency that complainant could
return to work with restrictions of no lifting more than 10 pounds; no
pushing or pulling more than 5 pounds; no climbing, kneeling, bending,
stooping, or twisting; standing and walking no more than 30 minutes per
hour; and reaching above the shoulder no more than one hour per day.
Complainant's physician also advised the agency that complainant �needs
to have back support on chair.� The physician subsequently clarified
that complainant required a �lumbar chair with armrest.� The record
reflects that complainant was provided with a sedentary work assignment
which met her restrictions, except for the requested chair.
The agency asserts that complainant was provided with a �back supported
chair,� i.e., a chair with a back, contending that �any back supported
chair� is a �lumbar chair.� However, complainant has provided a
detailed account, unrebutted by the agency, explaining how she was made
by management to locate a chair suitable for her use on an ad hoc basis,
and how on at least one occasion, the chair she located was taken away
from her and given to another employee. Complainant further states
that she was advised that a special chair had been ordered for her,
but it was never provided.
An agency must make reasonable accommodation for the known physical or
mental limitations of a qualified disabled employee, unless the agency
can demonstrate that accommodation would work an undue hardship on
its operations. 29 C.F.R. �1614.203(c); see McCullough v. U.S. Postal
Service, EEOC Request No. 05950539 (April 25, 1996). The Commission
notes in this regard that an agency is not required to provide a disabled
employee with every desired accommodation. Belser v. U.S. Postal Service,
EEOC Petition No. 03900064 (July 6, 1990). The employee must show a
nexus between the disabling condition and the requested accommodation.
See Wiggins v. U.S. Postal Service, EEOC Appeal No. 01953715 (April
22, 1997).
Here, complainant requested, via a note from her physician, a �lumbar
chair with arm rest� to accommodate the disabling effects of an injury
affecting her leg, knee, hip, back, and neck. The agency was aware of
complainant's limitations and of the need for accommodation, but neither
provided the requested chair nor established a defense to doing so, e.g.,
that providing the chair would entail undue hardship. The Commission
therefore finds that the agency failed to provide complainant with
reasonable accommodation. Further, because it appears that the agency
did not make a good faith effort to provide complainant with reasonable
accommodation, complainant may be entitled to compensatory damages.
See Stewart v. U.S. Postal Service, EEOC Appeal No. 01996211 (June 17,
2002).
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, the Commission
affirms in part and reverses in part the agency's final decision, and
remands this case to the agency to take remedial actions in accordance
with this decision and Order below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
Within twenty (20) days of the date this decision becomes final, the
agency shall provide, and designate for complainant's use, a chair that
is sufficient to meet her work needs, as specified by her physician.
The agency shall take whatever steps are necessary to ensure that the
chair is available for complainant's use whenever she is on duty.
If complainant has lost time from work after September 8, 2001 on account
of the agency's failure to provide her with a suitable chair, the agency
shall tender back pay and benefits as set forth in the paragraph below.
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of her right to submit
objective evidence (pursuant to the guidance given in Carle v. Dept. of
the Navy, EEOC Appeal No. 01922369 (January 5, 1993) in support of
his/her claim for compensatory damages within forty-five (45) calendar
days of the date complainant receives the agency's notice. The agency
shall complete the investigation on the claim for compensatory damages
within forty-five (45) calendar days of the date the agency receives
complainant's claim for compensatory damages. Thereafter, the agency
shall process the claim in accordance with 29 C.F.R. � 1614.108(f).
The agency shall consider taking disciplinary action against the
agency personnel responsible for the failure to provide complainant
with reasonable accommodation. 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.
Within ninety (90) days of the date on which this decision becomes final,
the agency shall provide EEO training on rights and responsibilities
under the Rehabilitation Act to the agency personnel responsible for
the failure to provide complainant with reasonable accommodation.<3>
The agency shall determine the appropriate amount of back pay, with
interest, 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.�
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 South Suburban, Illinois Processing
and Distribution Center copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled �Implementation of the Commission's Decision,� within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
�Right to File a Civil Action.� 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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
April 1, 2004
__________________
Date
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The United States Postal Service South Suburban, Illinois Processing
and Distribution Center supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under law.
The United States Postal Service South Suburban, Illinois Processing
and Distribution Center has been found to have discriminated against
the individual affected by the Commission's finding. The United
States Postal Service South Suburban, Illinois Processing and
Distribution Center shall provide the affected individual with
reasonable accommodation, tender back pay and benefits, pay proven
compensatory damages, and pay reasonable attorney's fees and costs.
The United States Postal Service South Suburban, Illinois Processing
and Distribution Center will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws
and will not retaliate against employees who file EEO complaints.
The United States Postal Service South Suburban, Illinois Processing and
Distribution Center will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1On appeal, complainant argued the timeliness of her formal complaint.
In its final decision, however, the agency addressed the complaint on
its merits. There does not appear to be, in fact, any dispute as to
the timeliness of the complaint.
2 Complainant also adduced no evidence to show that she requested
or required Sunday/Monday SDOs as a reasonable accommodation of her
claimed disability.
3The Commission notes that training is not considered to be disciplinary
in nature.