0120064487
03-27-2009
Andrzej J. Rafalski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital-Metro Area), Agency.
Andrzej J. Rafalski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital-Metro Area),
Agency.
Appeal No. 0120064487 (formerly 01A64487)
Hearing No. 100-2006-00196X
Agency No. 4K220006205
DECISION
On July 21, 2006, complainant filed an appeal from the agency's June 23,
2006 final decision concerning his 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., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following
reasons, the Commission REVERSES IN PART the agency's final decision.
ISSUE PRESENTED
Whether the complainant was discriminated against on the bases of age
(d/o/b 12-11-1949), physical disability (on-the-job back injury), and
in retaliation for prior EEO activity when he was not provided with the
accommodation he requested on April 1, 2005 and May 12, 2005. 1
BACKGROUND
The record shows that since approximately 1999, complainant worked in a
permanent rehabilitation assignment as a limited duty Mail Processing
Clerk at the Fairfax, Virginia Main Post Office. Complainant was
placed into this rehabilitation position because of symptoms related
to degenerative disc disease of his lumbar spine. In approximately
March 2005, complainant asked his Customer Service Supervisor (S1) to
purchase an ergonomic chair as an accommodation for his back injury. 2
Complainant restated this request in writing on April 1, 2005. On April
26, 2005, complainant received a letter from the agency's Customer
Service Manager (S2), acknowledging his accommodation request and
requesting supporting documentation. In response to S2's request for
supporting documentation, on April 27, 2005, complainant sent a letter
to the agency's Injury Compensation Specialist (ICS), notifying ICS of
his accommodation request and S2's need for supporting documentation.
Complainant's letter to ICS stated in part:
The specific documentation concerning my medical condition should be part
of my official injury compensation record. This record should include
past request for a chair and my doctor's prescription and reasons given
for proper chair. The record should include past administrative process
decision(s) and settlement concerning this issue. If this information
is no longer part of my injury compensation record please explain what
happened to this information and disposition of supportive medical
records. . . .
My current chair does not provide me with full lumbar support and . . . is
uncomfortable. My position requires that I spend 75% of my daily duties
sitting in this chair. With my latest increased pain level due to my
medical condition and poor posture in current chair a new and properly
spinal supportive chair would lessen aggravation of my condition and
level of pain. Postal officials have full knowledge and documentation of
the limitations of my condition. If for some reason this information is
missing please let me know what supportive additional documentation and
information I need to provide from my physician. My next appointment
is on May 11, 2005.
On May 11, 2005, complainant's physician faxed a prescription indicating
that complainant needed an ergonomic chair because of his low back pain
and left leg pain. On May 16, 2005, complainant sent a letter to his
union representative (U1) requesting that a grievance be filed against
the agency due to the agency's denial of his accommodation request.3
Specifically, complainant explained that he was called by an agency nurse
(N1) who told complainant that he needed to forward his doctor's May
11, 2005 prescription to the Department of Labor, Office of Workers'
Compensation Program (DOL) and it would be up to DOL to process his
accommodation request.
On June 30, 2005, S2 received authorization from DOL to purchase
an ergonomic chair for complainant. On July 6, 2005, S2 received
documentation on various types of ergonomic chairs that could be purchased
from the agency's Safety Specialist (SS).
At some point after complainant's April 2005 accommodation request,
the agency referred complainant to "REHAB AT WORK"4 for a "Functional
Capacity Evaluation" (FCE) to evaluate complainant's "current capabilities
and restrictions." On July 7, 2005, REHAB AT WORK issued its FCE report,
which stated, in relevant part:
This 55 year old postal worker has a greater than 20 year history of
low back pain with progressively increasing symptoms. He also reports
multiple work injury claims over the years, including the 09-08-99
incident that refers him to REHAB AT WORK. X-rays and MRI reveal
degenerative disc disease of the lumbar spine with spinal stenosis at
L4-L5 and L3-L4. The most consistent relief of his left leg symptoms
was received from spinal manipulations that he received from his family
physician, an Osteopath. This treatment is no longer available to him.
An epidural injection in the lumbar spine many years ago was not
successful and reportedly increased his symptoms. In 2005, he had an
orthopedic evaluation indicating that he is a candidate for back surgery
to include lumbar decompression and fusion. [Complainant] is trying
to avoid this option. He has had Physical Therapy and Chiropractic
treatments off and on through the years, with varying degrees of episodic
relief. His work has been SEDENTARY since 1984 and, on the whole he has
continued to work full time for the postal service as an office clerk.
He was out of work for 3 months immediately following the 1999 incident.
He is referred to REHAB AT WORK for this Functional Capacity Evaluation
to determine his current capabilities and restrictions. . . .
. . . In summary, the objective deficits noted upon examination do
correlate with his diagnosis and subjective complaints. He is currently
employable at the SEDENTARY Physical Demand Level of Work for 8 hours
per day. Restrictions include no lifting, carrying, pushing or pulling
greater than 10 lbs. He needs an Ergonomic computer work station with
an adjustable chair.
He meets the PHYSICAL Demand Level of Work of his current SEDENTARY
position. He will need to continue to exercise the freedom to
rotate positions between sitting, standing and walking tasks, at will.
His standing and walking tolerances today are limited by acute pain.
His sitting tolerance is currently limited to 30 minutes followed by
change of position. He should not perform forward bending or lifting
tasks as mentioned above.
On July 20, 2005, S2 and ICS attempted to obtain an ergonomic chair
for complainant. ICS contacted SS to see if the Safety Office had any
ergonomic chairs in their inventory. The Safety Office advised ICS
that they were out of chairs and that funding to purchase additional
chairs would not be granted until the beginning of the next fiscal year
(FY2006). Nevertheless, complainant was referred to a manufacturer of
ergonomic chairs to obtain a proper fitting of a future chair.
Some time after the July 7, 2005 FCE, complainant requested an ergonomic
work station, in addition to an ergonomic chair.5 ICS testified that she
submitted a request for an ergonomic work station to DOL in September
2005. Also, on September 22, 2005, ICS contacted DOL to advise them
that complainant's authorization for the ergonomic chair had expired on
September 19, 2005, and a new authorization would need to be issued.
ICS, however, suggested to DOL that the agency's Safety Office may
be better able to purchase the work station since as of the beginning
of FY2006 it would have the funds to make the purchase. Accordingly,
it was agreed between DOL and ICS to let SS make the purchase upon his
return from leave.
Despite ICS's efforts to provide complainant with the requested
accommodations, none were provided. ICS summarized the reasons why
complainant had not been accommodated. ICS specifically stated that
complainant was not accommodated because the DOL Claims Examiner assigned
to complainant's case changed and the ergonomic office furniture company
which had been providing furniture no longer would do business with DOL.
Lastly, ICS testified that the new request from complainant and his
physician for an ergonomic work station had to be approved by DOL.
Complainant filed the complaint at bar on August 16, 2005. The undisputed
record shows that as of the date of this appeal, complainant had not
received an ergonomic work station or chair.
AGENCY DECISION
On December 2, 2005, complainant requested a hearing before an EEOC
Administrative Judge (AJ). However, on June 1, 2006, the AJ dismissed
the hearing request as a sanction for complainant's failure to provide
the AJ with a Prehearing Report. The AJ returned the complaint to the
agency for the issuance of an agency decision.
Although the complaint as accepted by the agency was generally
defined as involving the agency's alleged failure to provide reasonable
accommodation, the complaint as remanded by the AJ was defined as follows:
whether the complainant was discriminated against on the bases of age
(55), physical disability (back injury), and in reprisal for prior EEO
activity when (1) on April 1, 2005 and May 12, 2005, the agency failed
to respond to his request for an ergonomic chair; (2) on July 13, 2005,
he learned that the Manager, Labor Relations had instructed the Injury
Compensation Office to delay processing his requests; (3) on February
25, 2005, the agency did not respond to his request for an ergonomic
computer work station; and (4) a continuing violation of being ordered
to perform duties outside of his medical restrictions. The agency
decision addressed the complaint generally as it had been accepted,
i.e., whether it had failed to provide reasonable accommodation.
In its decision, the agency stated that the record is devoid of
evidence that complainant's age or prior EEO activity played any role in
management's decisions regarding his reasonable accommodation request.
In addition, the agency asserted that the evidence in the record does not
support a finding that management's legitimate, non-discriminatory reasons
for its failure to provide complainant with the requested accommodation
was pretext for age discrimination or reprisal.
With respect to complainant's reasonable accommodation claim, the agency
asserted, inter alia, that complainant failed to present sufficient
medical documentation to show that he is an individual with a disability
within the meaning of the Rehabilitation Act. The agency also asserted
that complainant did not present sufficient evidence to show that
management officials were aware of his disability.
CONTENTIONS ON APPEAL
On appeal, complainant contends, inter alia, that the AJ abused his
discretion by remanding complainant's case for a final agency decision
without holding a hearing. Complainant argues that the AJ failed to rule
on complainant's motion for sanctions against the agency relative to his
allegation that the agency failed to grant him adequate official time
to meet with his representative in person to prepare for the pre-hearing
conference. Complainant also asserts that the agency failed to address
each issue as framed by the AJ.
The agency did not reply to the appeal.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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
As a preliminary matter, we address the AJ's decision to dismiss
complainant's request for a hearing and remand the case for an agency
decision. In his dismissal notice, the AJ notes that complainant's
explanation for failing to submit a Prehearing Report was because
"he forgot and he is not an attorney." In addition, the AJ noted that
complainant was provided an opportunity on May 8, 2006, to receive two
hours of official time to prepare for the Prehearing Conference. The AJ
also noted that complainant and his former representative attempted,
but failed, to use this time to prepare a Prehearing Report and did not
attempt to use non-work hours to prepare the Prehearing Report at any
time between February 16, 2006 and May 31, 2006. Although on appeal,
complainant strenuously asserts that the AJ erred in his dismissal
of the hearing request, we find that complainant failed to present
sufficient evidence to support his assertions that the AJ abused his
discretion by dismissing the hearing request. Accordingly, we find
that the AJ's dismissal of the hearing request was not inappropriate.
See Sanders v. United States Postal Service, EEOC Appeal No. 01A00214
(February 10, 2000).
Qualified Individual with a Disability
In order to prove a violation of the Rehabilitation Act, complainant must
establish that he is a "qualified individual with a disability" within the
meaning of the Rehabilitation Act. An "individual with a disability" is
one who: (1) has a physical or mental impairment that substantially limits
one or more 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).
Major life activities include, but are not limited to, caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, 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).
Complainant refers to the July 7, 2005 FCE in his affidavit to support his
claim that he is an individual with a substantially limiting impairment.
The FCE provides a comprehensive history and description of complainant's
back impairment, noting that complainant has a 20-year history of
degenerative disc disease which has progressively worsened over the
years. According to the FCE report, complainant has had physical therapy
periodically throughout the years with varying degrees of episodic relief.
Moreover, the FCE states that complainant's restrictions include "no
lifting, carrying, pushing or pulling greater than 10 lbs." In addition,
the FCE states that complainant's "sitting tolerance is currently limited
to 30 minutes followed by change of position." Lastly, the FCE states
that complainant should not perform any forward bending or floor-to-waist
lifting tasks.
We find sufficient evidence in the record to support the finding that
complainant's physical impairment, at a minimum, substantially limited his
ability to lift and that complainant is an individual with a disability,
within the meaning of the Rehabilitation Act. See McCutcheon v. United
States Postal Service, EEOC Appeal No. 01A00408 (January 8, 2001)
(complainant with maximum ten-pound lifting restriction found to be
individual with disability); Haygood v. United States Postal Service,
EEOC Appeal No. 01976371 (April 25, 2000) (complainant with maximum
fifteen-pound lifting restriction and restriction on reaching above
shoulder found to be individual with disability).
We find the agency's assertion that complainant failed to present
sufficient medical documentation unpersuasive, especially in light of
the fact that the agency's own injury compensation office processed
previous injury claims and placed complainant into his current permanent
rehabilitation position. In addition, the undisputed evidence in the
record shows that REHAB AT WORK was hired by the agency to provide
periodic evaluations of complainant's back impairment.
In addition to meeting the threshold requirement entitling him to the
protection of the Rehabilitation Act, the record shows that complainant
is a "qualified" individual with a disability within the meaning of 29
C.F.R. � 1614.203(a)(6). There is no dispute that complainant can and
has been satisfactorily performing the essential functions of his position
since the agency placed him into such position (in approximately 1999).
Regarding complainant's assertion that the Manager, Labor Relations
had instructed the Injury Compensation Office to delay processing his
requests, and that he was required to perform duties outside of his
medical restrictions, we find that these claims are subsumed within the
larger question of whether the agency failed to provide complainant with
a reasonable accommodation for his claimed disability.6 Accordingly,
we address these matters within the context of the failure to accommodate
claim, discussed below.7
A federal agency must "make reasonable accommodation for the known
physical or mental limitations" of a qualified employee unless the agency
can demonstrate that the accommodation would impose an undue hardship
on the operation of its program. 29 C.F.R. � 1630.9(a). Reasonable
accommodation includes, inter alia, "acquisition or modification
of equipment." 29 C.F.R. � 1613.704(b); see also Lowery v. United
States Postal Service, EEOC Appeal No. 01961852 (October 31, 1997)
(agency carries burden to explore alternative accommodations).
The medical evidence in the record (i.e., the May 11, 2005 prescription
and the July 7, 2005 FCE) supports the finding that a reasonable
accommodation of complainant's disability would have been the provision
of an ergonomic chair and work station as requested. See Mungaray
v. United States Postal Service, EEOC Appeal No. 01904243 (February 15,
1991); Ortiz v. United States Postal Service, EEOC Appeal No. 01893360
(April 11, 1990); See also Spence v. Nuclear Regulatory Commission,
EEOC Appeal No. 0120041082 (August 2, 2007) (provision of reasonable
accommodation is ongoing obligation; agency must keep equipment in
good repair). It is also undisputed that complainant has not received
the requested accommodations.8
Because the question of undue hardship arises where an employer asserts
that it is unable to provide reasonable accommodations, and because the
agency does not make such an assertion in the instant case, an analysis
of undue hardship is unnecessary. Nevertheless, we note that the record
is devoid of evidence to support a finding that providing complainant
with an ergonomic work station and chair would have caused the agency
significant difficulty or expense. See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act (October 17, 2002). We note that any assertion by
a management official that he or she lacked the authority to approve
complainant's accommodation request or purchase the workstation and chair,
does not relieve the agency of its continuing responsibility to provide
complainant with a reasonable accommodation in an expeditious fashion.
See Mungaray v. United States Postal Service, EEOC Appeal No. 01904243
(February 15, 1991).
We find that the agency is in violation of the Rehabilitation Act for
failure to provide complainant with a reasonable accommodation as of
July 7, 2005 (i.e., the date that the agency first possessed sufficient
medical documentation supporting complainant's need for an ergonomic
chair and an ergonomic work station), and the agency's decision in this
regard is REVERSED.
We further find, however, that complainant has failed to establish
that he was subjected to age and reprisal discrimination, as alleged.
Specifically, we find that complainant failed to show that the agency's
actions were pretext for discrimination based on age or in reprisal for
prior protected EEO activity. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 134 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Relief
Having found disability discrimination, we note that complainant is
entitled to an award of relief. To the extent that the agency asserts
that complainant is not entitled to compensatory damages because it
acted in good faith, we disagree.
As recently noted in Guilbeaux v. United States Postal Service, EEOC
Appeal No. 0720050094 (August 6, 2008), "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
[citation omitted]." In Guilbeaux, the agency, while not immediately
successful in providing reasonable accommodation, nonetheless was
conscientious in its efforts to do so.
In the instant case, the agency failed to recognize the nature of the
situation, i.e., that reasonable accommodation had been requested, and
further failed to promptly pursue a resolution to that request. The
agency, rather, attempted to place responsibility for the accommodation
on the Department of Labor, and justified its delay by various excuses
of lacking the authority to purchase the needed equipment or having
no funds with which to do so; both excuses being without merit.
We therefore find that the agency failed to demonstrate that it
made a good faith effort to provide complainant with the reasonable
accommodations noted herein. See Mees v. United States Postal Service,
EEOC Appeal No. 01971964 (September 11, 2000); EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, No. 915.002, at 13, fn. 24 (October 17, 2002).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE in part
the final agency decision, and remand the complaint for further action
consistent with this decision and the Order of the Commission, below.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days from the date this decision becomes
final, the agency shall provide complainant with an ergonomic workstation
and ergonomic chair;
2. Within thirty (30) calendar days of the date this decision
becomes final, the agency shall give complainant a notice of his
right to submit objective evidence (pursuant to the guidance given in
Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993)) in support of his claim for compensatory damages, relevant to
the denial of an ergonomic chair and workstation as of July 7, 2005.
Complainant shall have forty-five (45) calendar days from the date of
receipt of said notice to submit such objective evidence. 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).
3. With one hundred eighty (180) calendar days of the date this
decision becomes final, the agency shall train all employees in the
Fairfax, Virginia Main Post Office responsible for the denial of a
reasonable accommodation to complainant. The training shall concern the
Rehabilitation Act with an emphasis on reasonable accommodation and the
agency's duties to ensure that similar violations do not occur.
4. The agency shall consider taking disciplinary action against
the management officials identified as being responsible for the
discrimination perpetrated against complainant. 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.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post copies of the attached notice at the
Fairfax, Virginia Main Post Office. 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 (K1208)
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 (M1208)
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 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 (T0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
March 27, 2009
Date
1 Initially, complaint raised an allegation that the agency had breached
a prior EEO Settlement Agreement dated December 27, 2000 (Agency
No. IK-221-0017-00, misidentified in the agency's June 23, 2006 final
decision as Agency No. IK-221-1017-00), and sought reinstatement of that
case. The agency remanded the breach claim to the Manager EEO/Alternative
Dispute Resolution, Northern Virginia District, for appropriate action
in accordance with 29 C.F.R. �1614.504. Subsequently, the Commission
affirmed the agency's determination that it was not in breach in Andrzej
J. Rafalski v. United States Postal Service, EEOC Appeal No. 0120063005
(July 17, 2007).
2 Although the Administrative Judge included in his statement of the
issues a claim that the agency did not respond to complainant's request
for an ergonomic computer work station in February 2005, the record
is silent with regard to such a request. Rather, it appears (1) that
the earliest accommodation request from complainant, relevant herein,
occurred in March 2005, and (2) that complainant did not request an
ergonomic computer work station until at least July 2005.
3 There is no indication in the record as to whether a grievance was
ever filed.
4 We take notice that "REHAB AT WORK" is a rehabilitation clinic that
provides employers with pre-injury and post-injury rehabilitation
services to facilitate an injured employee's return to work. The record
shows that the agency had been using REHAB AT WORK to evaluate and treat
complainant's back impairment since complainant sustained a work-related
injury in 1999.
5 Although the agency attempts to assert that complainant requested
an ergonomic work station instead of a chair, the preponderance of the
evidence in the record supports the conclusion that complainant requested
both, as evidenced by ICS's Affidavit and Complainant's letter to S2
dated September 23, 2005.
6 We note that complainant has not submitted any evidence in support
of his assertion that he was made to work outside of his medical
restrictions.
7 While the AJ framed the issue differently from the manner in which
the agency defined the issue, the claim before the Commission has not
been enlarged or changed. The issue herein remains whether complainant
was denied the reasonable accommodation that he requested on April 1,
2005 and May 12, 2005.
8 S2 states in her affidavit that the agency offered complainant a
"newer office chair purchased in 2004" but that he refused. However,
the record contains no documentary or testimonial corroboration of
this assertion. In addition, S2 provides no additional information
regarding her assertion. For example, there is no statement as to when
the alleged offer was made and whether the chair that was allegedly
offered was an ergonomic chair or otherwise met complainant's medical
requirements. Lastly, we note that the agency does not assert in its
FAD that complainant refused any offer of accommodation.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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