01A10943
03-18-2003
Diana F. Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Diana F. Jones v. United States Postal Service
01A10943
March 18, 2003
.
Diana F. Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01A10943
Agency No. 4E-990-0003-99
Hearing No. 380-99-8135X
DECISION
On November 17, 2000, complainant filed an appeal in connection with
a final action issued by the agency on October 16, 2000, concerning
complainant's 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. In her complaint, complainant claimed
that she was discriminated against on the basis of disability (Grave's
Disease) when the agency failed to accommodate her between August 6,
1998, and January 1999. The Commission accepts complainant's appeal
pursuant to 29 C.F.R. � 1614.504.<1>
The record reflects that complainant began her career with the agency
in 1980, when she was hired as a city letter carrier. Complainant was
diagnosed with Grave's Disease in 1993. Complainant continues to
suffer from Grave's Ophthalmopathy, resulting from Grave's Disease,
which affects her vision, and limits her ability to participate in any
activities that put pressure on her eyes, including lifting and bending,
as such activities can cause permanent optic nerve damage and blindness.
Pursuant to a January 22, 1998 doctor's report, complainant was allowed to
engage in intermittent pushing/pulling, and intermittent bending/stooping.
Complainant filed a union grievance on May 30, 1998, when the agency
began reducing her hours. Through the grievance process, the parties
agreed that the agency would assign complainant clerk duties, also known
as mail handler work, pending a medical review. On June 26, 1998, the
agency began assigning complainant mail handler duties that exceeded her
physical limitations. On July 8, 1998, complainant's physician modified
her medical limitations, limiting complainant to 25 pounds of lifting,
no climbing stairs, no pushing/pulling, no bending/stooping, and no truck
driving. On August 6, 1998, the agency informed complainant that they no
longer had work for complainant within her limitations, and sent her home.
After December 7, 1998, the agency allowed complainant to return and do
casing work. Pursuant to a union grievance settlement on December 29,
1998, complainant transferred to a distribution clerk craft position,
effective February 1999. Complainant currently works in the clerk craft
position at the agency, doing work within her physical limitations.
On September 13, 2000, following a hearing, the EEOC Administrative Judge
(AJ) issued a decision finding that complainant had been discriminated
against on the basis of disability when, between August 6, 1998
and December 7, 1998, the agency did not give complainant any work,
and therefore, did not accommodate her. The AJ's order directed the
agency to take the following remedial actions: (A) The agency shall
provide to complainant retroactive pay and benefits for the full-time
work she would have performed between August 8, 1998 and December 7,
1998.<2> Complainant's other pay during the retroactive pay period
that she received through the union grievance must be deducted from
this retroactive pay. The agency shall pay interest on the amount due.
(B) The agency shall pay the complainant all costs to which she may
be entitled under federal law in connection with this complaint.
Complainant submitted costs for $154.89, and these are allowed.
The agency shall pay the complainant's reasonable attorney's fees.
Complainant submitted bills for work done by attorneys prior to the
hearing totaling $1,415.85. These are allowed. (C) The agency shall
take no retaliatory action against the complainant for having filed
and prosecuted this discrimination complaint. (D) The agency shall
pay complainant $40,000.00 in compensatory damages for her emotional
distress. (E) Complainant's representative, a co-worker and non-attorney,
requested approval of 75 hours of official or administrative time for her
preparation and work on the instant case. Complainant's representative
must submit a request in writing to the agency, pursuant to the rules
and regulations in EEOC Management Directive 110 (MD-110). (F) The
agency shall ensure that in the future, the complainant and all other
disabled employees at the agency's Walla Walla, Washington office, are
not subjected to the same or similar acts, or any acts of disability
discrimination. (G) The agency shall conduct EEO training for the
responsible management official to ensure that she becomes aware and
continues to be aware of her obligations, responsibilities, and rights
under EEO law and the Rehabilitation Act, including the right to work
in an environment free from disability discrimination and to use the
EEO system to remedy perceived violations of EEO laws. (H) The agency
shall post at all facilities within the authority of the Walla Walla
Post Office a copy of a notice sufficient under Commission standards
advising employees of this finding of discrimination. The notice should
advise employees and applicants of their rights to be free of employment
discrimination and their EEO remedies.
In the agency's notice of final action (final order), dated October 16,
2000, the agency adopted the AJ's decision and granted the ordered remedy.
In a letter dated October 31, 2000, the agency expressed its desire to
have complainant assist in developing her hours and leave history in order
for the agency to provide retroactive pay and benefits. The agency also
asked complainant to identify the matters to which the expressed costs
pertain and how they were to be allocated, as well as the Tax ID number
of any involved attorneys. Regarding the $40,000.00 in compensatory
damages, the agency's Manager, Labor Relations (M1) stated, �I will be
processing a different adjustment (PS Form 2240 or 7381) for payment of
her nonpecuniary damages.� Furthermore, M1 concluded that the 75 hours
of official/administrative time for representative fees were excessive,
that the representative did not provide sufficient evidence to account for
75 hours of her time, and that the agency did not approve this request.
The agency stated that it would process the necessary forms to compensate
complainant and move forward to implement the other remedies outlined
in the AJ's decision and the agency's final order, once M1 received the
requested information from complainant.
On November 17, 2000, complainant contacted M1 regarding the agency's
October 31, 2000 letter. It appears that complainant produced a good
faith response to the agency's requests for information to assist it
in implementing the ordered remedies. The record does not contain any
documents from the agency which follow-up on these issues.
Complainant filed her appeal with the Commission on December 16, 2000;
however, there is no evidence that she complied with 29 C.F.R. �
1614.504(a), which states, �If the complainant believes that the
agency has failed to comply with the terms of a settlement agreement or
decision, the complainant shall notify the EEO Director, in writing,
of the alleged noncompliance within 30 days of when the complainant
knew or should have known of the alleged noncompliance.� The record
does not contain sufficient evidence for the Commission to determine
whether the agency complied with its final order. The Commission is
unable to determine whether the agency granted complainant all back pay,
interests and benefits lost between August 6, 1998, and December 7,
1998, or whether the payment of any ordered costs, attorney's fees,
compensatory damages, or official or administrative leave time for
complainant's representative, occurred. The record also
does not indicate whether the agency has taken the necessary steps to
ensure that future discrimination against complainant and all other
disabled employees at the Walla Walla, Washington Post Office, does not
occur, and further, the record does not indicate whether the ordered
training of the responsible management official took place, or whether
the ordered notice was posted.
Rather than dismissing the appeal and instructing complainant to comply
with 29 C.F.R. � 1614.504(a), in the interests of judicial economy,
we direct the agency to take action consistent with the order below,
retroactive to August 6, 1998, the date on which the agency failed to
accommodate complainant by denying her work, as a result of disability
discrimination. Compliance will not be considered complete unless the
agency sets forth its reasoning for each portion of corrective action
granted, or not granted to complainant, as it pertains to the following
Order below, as well as to any relief requested by complainant on appeal.
ORDER
The agency is ordered to take the following remedial action:
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, from August
6, 1998, through December 7, 1998, no later than sixty (60) calendar days
after the date this decision becomes final. See 29 C.F.R. � 1614.501.
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." from
this retroactive pay. The agency shall pay interest on the amount due.
The agency shall pay the complainant all costs to which she may be
entitled under federal law in connection with this complaint. 28 U.S.C. �
1920; 29 C.F.R. � 1614.501. Complainant submitted costs for $154.89,
and these are allowed. The agency shall pay the complainant's reasonable
attorney's fees. Complainant submitted bills for work done by attorneys
prior to the hearing totaling $1,415.85. These are allowed.
The agency shall take no retaliatory reaction against the complainant
for having filed and prosecuted this discrimination complaint.
The agency shall pay compensatory damages as follows: One, regarding
pecuniary damages, complainant submitted doctor bills having to do with
her Grave's Disease. These are not allowed. Two, regarding nonpecuniary
damages, the postal service should pay complainant $40,000.00 for her
emotional distress.
Complainant's representative, a co-worker and non-attorney, requested
approval of 75 hours of official or administrative time for her
preparation and work on this case. The representative said that she would
meet the postal service half way on this. The representative must submit
a request in writing to the agency, pursuant to the rules and regulations
in the EEOC Management Directive 110, November 9, 1999 (EEO MD-110).
The agency shall ensure that in the future the complainant and all other
disabled employees at the Walla Walla Post Office are not subjected to
the same, similar, or any acts of disability discrimination.
The agency shall conduct EEO training for the manager who engaged in the
discriminatory conduct (assuming she still works for the agency) to ensure
that she becomes aware and continues to be aware of her obligations,
responsibilities, and rights under EEO law and the Rehabilitation Act,
including the rights to work in an environment free from disability
discrimination and to use the EEO system to remedy perceived violations
of EEO laws.
POSTING ORDER (G0900)
The agency is ordered to post at its Walla Walla Post Office facility
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 18, 2003
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ___________ which found that a
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., has occurred at the agency's
Walla Walla Post Office facility (hereinafter this facility), in Walla
Walla, Washington.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have discriminated against the complainant
on the basis of her disability. The facility was ordered to provide
the complainant retroactive pay and benefits; all costs to which she
may be entitled under federal law in connection with her complaint,
including attorney's fees; and compensatory damages. The facility was
also ordered to conduct EEO training for the management official who
engaged in disability discrimination against the complainant, and to
take no retaliatory action against the complainant. This facility 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.
This facility will comply with federal law and 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 16141Complainant states that her appeal is filed pursuant
to 29 C.F.R. � 1614.503, and that she requests clarification on issues
that pertain to the EEOC Administrative Judge's (AJ's) remedial order.
We find, however, that the dominant issue is the agency's alleged failure
to comply with its own final order, and such appeal is accepted pursuant
to 29 C.F.R. � 1614.504. There is no provision in the relevant regulation
pertaining to clarification of an AJ's order. See 29 C.F.R. � 1614.504.
2We find that the August 8, 1998 date contained in the AJ's remedial
order is a typographical error. The dates intended to be covered by the
remedial order appear to be from August 6, 1998, through December 7, 1998.
We note that in complainant's brief on appeal, dated December 16, 2000,
complainant argues that she was removed on August 6, 1998, and had to
take leave on August 7, 1998. Additionally, the AJ refers to August 6,
1998, as the date that complainant was denied work throughout most of
his decision.