01a03170
07-31-2001
Donna Mitchell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Appeal No. 01A03170 Agency No. 1B-021-0001-99 Hearing No. 160-99-8279X
Donna Mitchell v. USPS
01A03170
July 31, 2001
.
Donna Mitchell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Appeal No. 01A03170
Agency No. 1B-021-0001-99
Hearing No. 160-99-8279X
DECISION
Complainant timely initiated an appeal from a final agency action
concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, we REVERSE the
agency's final action.<1>
BACKGROUND
The record reveals that complainant, a Distribution Clerk, PS-5, at the
agency's Boston, Massachusetts facility, filed a formal EEO complaint with
the agency on October 27, 1998, alleging discrimination based on her sex
(female)<2> and disability (chronic cervical strain) when on August 24,
1998, she was denied a reasonable accommodation when her request for a
Change of Schedule was denied. At the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). The AJ issued a summary decision without a hearing, finding no
discrimination.
The AJ noted that for approximately three years (from 1995-1998)
complainant had Saturdays and Sundays off instead of her regularly
scheduled Wednesdays and Thursdays because her disability (chronic
cervical strain) did not allow her to operate a motor vehicle and thus,
complainant was dependent upon public transportation to commute to work.
The agency granted this accommodation because public transportation did
not run to and from her home on Saturdays and Sundays. In August 1998,
the agency ordered complainant to return to her regularly scheduled
Wednesdays and Thursdays off. At that time, complainant requested to
change her days off to Saturday and Sunday so that she could ride into
work with her roommate. The request had attached to it a statement from
the complainant and two doctors' letters. The complainant's request
was denied by the newly appointed Responsible Management Official (RMO)
who felt that complainant's request circumvented the bidding process.
Complainant suffers from chronic cervical sprain syndrome which affects
her neck and upper back, as well as arms. This condition limits
complainant's ability to lift and restricts the range of motion in
her neck. Consequently, because of the complainant's limited range of
motion in her neck, which would interfere with the safety of her driving,
complainant was advised by her attending physician not to operate a motor
vehicle. Three additional physicians of record affirmed this restriction
and recommended, in addition, that she rely on public transportation.
The Commission previously found complainant to be a qualified individual
with a disability in Donna Mitchel v. United States Postal Service,
EEOC Appeal No. 01953287 (February 15, 1996). Since 1989, complainant
has been in a limited/light duty position working in Outgoing Primary
as a Level 5 Clerk where she can work within her medical restrictions.
For approximately three years the agency has accommodated complainant's
change of schedule with weekends off in order for complainant to be able
to work a full week.
The AJ found that although complainant was a qualified individual with
a disability, accommodating the complainant's work schedule in order to
make it easier for her to commute to work was not the responsibility of
the agency since it did not assist complainant in performing the essential
functions of her position, citing Besler v. United States Postal Service,
EEOC Petition No. 03900064 (July 6, 1990) in support.<3> Furthermore,
the AJ concluded, complainant failed to
identify any similarly-situated individuals, not in complainant's
protected group, who were treated more favorably. The agency's final
action implemented the AJ's decision.
On appeal, complainant contends, among other things, that although
the agency accommodated the complainant's disability in the past, in
or around August of 1998, the agency ordered her to return to a work
schedule with Wednesdays and Thursday off. This made it impossible for
the complainant to work two days a week, namely, Saturday and Sunday.
The complainant alleges that the agency instructed her to file a Change
of Schedule request in order to obtain Saturdays and Sundays off then
denied her request. The complainant also argues that both the agency's
and AJ's reliance on the case Besler v. United States Postal Service,
EEOC Petition No. 03900064 (July 7, 1990) for the proposition that the
agency is not responsible for an accommodation involving an employee's
ability to commute to work arose prior to the Congressional Amendments
to the Rehabilitation Act in 1992 which incorporated the American with
Disabilities Act (ADA) and regulations. As such, the complainant argues
that recent more enlightened decisions acknowledge that individuals
with disabilities are more likely to require time from work and have
required agencies to prove an undue burden to deny accommodations.
Furthermore, the complainant argues that the agency failed to submit
an accurate comparison analysis with regard to her disability claim.
The investigative file contained no comparative analysis of employees
who have submitted Change of Schedule requests to the RMO to determine
whether disparate treatment based on disability occurred. The agency
stands on the record and requests that we affirm its final action
implementing the AJ's decision.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the
evidence is such that a reasonable fact-finder could find in favor of the
non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
Cir. 1988). In the context of an administrative proceeding under Title
VII, summary judgment is appropriate if, after adequate investigation,
complainant has failed to establish the essential elements of his or
her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173
(3d Cir. 1988). In determining whether to grant summary judgment,
the trier of fact's function is not to weigh the evidence and render a
determination as to the truth of the matter, but only to determine whether
there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, we find that although the AJ
was correct in finding this matter suitable for summary judgment, he
nevertheless erred as a matter of law. In finding no discrimination,
the AJ failed to even consider whether the complainant's work schedule
required a reasonable accommodation. Given his finding that the
complainant was a qualified individual with a disability, this was
required as part of the analysis. Moreover, it was error for the AJ
to conclude that there was no obligation on the part of agency to even
consider whether the complainant's work schedule required an adjustment
as a form of reasonable accommodation in order to make it easier for
her to commute to work absent a showing of undue hardship.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. � 1630.2(o);
29 C.F.R. � 1630.2(p).
The AJ found complainant to be a qualified individual with a disability
and the agency adopted the AJ's findings without argument. Thus, we need
not address that issue. By regulation, the Federal government is charged
with becoming "a model employer" of individuals with disabilities. 29
C.F.R. � 1614.203(b). This goal was also expressed by Congress when
it enacted the Rehabilitation Act. Gardner v. Morris, 752 F.2d 1271
(8th Cir. 1985). Reasonable accommodation may include making facilities
accessible, job restructuring, modified work schedules, and other similar
actions. 29 C.F.R. � 1614.203(c)(2).
The duty to provide reasonable accommodation is an ongoing one. See
Notice No. 915.002 (March 1, 1999), EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, at 20 (citing Ralph v. Lucent Technologies, Inc.,
135 F.3d 166, 171, 7 AD Cas. (BNA) 1345, 1349 (1st Cir. 1998). Certain
individuals require only one reasonable accommodation, while others may
need more than one. Still others may need one reasonable accommodation
for a period of time, and then at a later date, require another type of
reasonable accommodation. If an individual requests multiple reasonable
accommodations, s/he is entitled only to those accommodations that are
necessitated by a disability and that will provide an equal employment
opportunity. Id. "[T]he appropriate reasonable accommodation is best
determined through a flexible, interactive process that involves both
the employer and the qualified individual with a disability." Appendix
to 29 C.F.R. Part 1630 -- Interpretative Guidance on Title I of the
Americans with Disabilities Act, Section 1630.9. In other words, once an
accommodation is properly requested, the responsibility for fashioning a
reasonable accommodation is shared between the employer and employee. Id.
A modified work schedule has been held as a form of a reasonable
accommodation. EEOC Enforcement Guidance at 16-17 (citing Ralph v. Lucent
Technologies, Inc., 135 F.3d at 171). A modified schedule may involve
adjusting arrival or departure times, providing periodic breaks,
altering when certain functions are performed, allowing an employee
to use accrued paid leave, or providing additional unpaid leave. An
employer must provide a modified or part-time schedule when required as
a reasonable accommodation, absent undue hardship, even if it does not
provide such schedules for other employees. See, e.g., Cotrell v. United
States Postal Service, EEOC Appeal No. 07A00004 (February 2, 2001)
(the agency was held not to have reasonably accommodated complainant
where it required complainant to maintain regular attendance with no
further considerations. When complainant was terminated, the agency
justified its decision by citing complainant's entire history of
attendance irregularities despite knowledge that her tardiness was due
to disability).
The facts herein indicate that after three years of accommodating
complainant's disability, the agency flatly declined to continue that
accommodation despite the complainant's request and supporting medical
documentation. As noted above, the process of identifying a reasonable
accommodation is intended to be interactive and ongoing; here, however,
the agency wholly failed to participate. As the agency failed to raise
or show undue hardship, especially in light of the fact that it was able
to accommodate complainant for three years, the Commission finds that
complainant met her burden of establishing discrimination on the basis
of failure to provide a reasonable accommodation.<4>
Therefore, after a careful review of the record, and arguments and
evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final decision and REMANDS the matter to the agency
in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
(1) The agency shall restore complainant's previous schedule that she
has held for the last three years (Saturdays and Sundays off) or adjust
her schedule so that she is able to take public transportation to work.
(2) The agency shall restore any annual or sick leave complainant utilized
because of the refusal to adjust her schedule.
(3) Complainant shall be provided with back pay, interest, and all
other benefits to which she would have been entitled to, including
but not limited to, annual and sick leave that she would have earned
if the agency had accommodated complainant's disability accordingly.
Complainant shall cooperate in the agency's efforts to compute the
amount of back pay and benefits due, if any, 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 complainant for the undisputed amount and restore such
sick and annual leave as may be undisputed within sixty (60) calendar
days of the date the agency determines the amounts it believes are due.
Complainant may petition for enforcement or clarification of the amount
in dispute. The petition for clarification or enforcement must be filed
with Compliance Officer, at the address referenced in the statement
entitled �Implementation of the Commission's Decision.
(4) Consider taking disciplinary action against the Responsible
Management Official. 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 of the
agency's calculation of backpay 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 Boston, Massachusetts 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.
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.
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.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
July 31, 2001
_______________________________
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 the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. has occurred at the United States Postal Service in Boston,
Massachusetts (hereinafter �agency�).
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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The agency supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The agency was found to have unlawfully discriminated against the
individual affected by the Commission's findings on the basis of
disability when the agency failed to reasonably accommodate her
disability with regard to a Change of Schedule. The agency shall
therefore remedy the discrimination by restoring her previous
work schedule or adjusting her schedule so that she is able to
take public transportation to work. The agency 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.
The agency 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
1 The 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.
2 On appeal, complainant withdrew her sex discrimination claim.
3In Besler v. United States Postal Service, EEOC Petition No. 03900064
(July 6, 1990), the Commission concurred the AJ's finding that, �while
driving himself [the petitioner] to and from work may be the most
desirable or convenient choice from petitioner's view point, he was
not precluded from using alternative commuting means which would allow
him to work his assigned night shift.�
4 Having found discrimination based on the agency's failure to reasonably
accommodate complainant, the Commission will not address complainant's
disparate treatment disability claim.