Edith M. Thomas, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 17, 2006
0120054135 (E.E.O.C. Nov. 17, 2006)

0120054135

11-17-2006

Edith M. Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Edith M. Thomas,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200541351

Agency No. 4-H-310-0133-03

Hearing No. 110-A4-0183X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's April 22, 2005 final order in the above-entitled

matter.

In the captioned complaint, complainant claimed that the agency

discriminated against her on the bases of race (African-American),

disability (stress/depression), and in reprisal for prior protected

EEO activity when:

1. On August 20, 2003, management denied part of her light duty request;

and

2. From September 7-14, 2003, management required her to work eight days

without a day off.

Regarding claim 1, at the time this matter arose, complainant had recently

(June 30, 2003) begun work as a part-time flexible clerk, on Tour 1,

at the agency's Columbus, Georgia postal facility. On August 18, 2003,

complainant submitted a request for light duty, for a 90-day period,

consisting of several physical restrictions, and the following: "May

expect limits in ability of fine motor coordination and memory recall."

Management granted the request, but did not excuse complainant from

completing "scheme" training. Scheme training involves memorizing zones

and streets. Complainant claimed that the agency improperly required her

to undergo scheme training, especially after she submitted her request

for light duty, averring that this action was motivated by discrimination

and retaliation.

Regarding claim 2, complainant claimed that management improperly required

her to work for eight consecutive days. Complainant claims that this

action was also motivated by discrimination and retaliation.

The agency accepted the complaint for investigation. An EEOC

Administrative Judge (AJ) conducted a hearing on the issue of liability

on September 1, 2004, and another hearing on the issue of damages on

March 23, 2005. The AJ issued a decision on March 30, 2005. The AJ

found that complainant prevailed on only one claim--that the agency

retaliated against her when it denied her light duty request to be

excused from scheme training. Specifically, the AJ determined that

the responsible management officials did not provide credible testimony

as to their reasons. The AJ noted in particular that complainant alone

was required to learn the largest and most difficult schemes on Tour 1.

The AJ also noted that the agency did not amend the scheme training

in light of the possible memory problems referenced in complainant's

request for light duty, and ultimately issued complainant a letter of

removal when she failed the scheme training. The AJ found that although

the agency later rescinded the notice of removal, ostensibly because it

was an administrative error, its failure to modify the scheme training,

and issuance of the letter of removal nonetheless constituted further

evidence of retaliatory animus.

As make-whole relief, the AJ ordered the agency to pay complainant

$15,000.00 in compensatory damages, and $2,500.00 as an award of

attorney's fees. The AJ also ordered the agency to provide EEO training

for the responsible management officials, and to post a notice at the

Columbus, Georgia postal facility regarding her finding of retaliation

against the agency.

In its final action, the agency adopted the AJ's decision, and notified

complainant that it would implement the remedies as ordered. Complainant

now appeals this determination.

In a lengthy appeal statement, complainant contends in pertinent part

that the AJ erred in failing to find that the agency also discriminated

against her on the basis of disability regarding claim 1. Specifically,

complainant contends that the agency violated the Rehabilitation Act

when it failed to process her request for light duty as a request

for a reasonable accommodation, and when it failed to excuse her from

scheme training, and/or reassign her to a suitable position. Therefore,

complainant argues that her make-whole relief should additionally include

reinstatement. Complainant avers that the agency's discriminatory actions

ultimately forced her to retire early. Complainant also asserts that

the award of compensatory damages should be increased to $150,000.00.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding of whether or not discriminatory intent

existed is a factual finding. See Pullman-Standard Co. v. Swint, 456

U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de

novo standard of review, whether or not a hearing was held.

An agency is required to make "reasonable accommodation of 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. � 1614.203(c). However, an agency's

duty to provide a reasonable accommodation does not arise until the

disabled employee requests accommodation. See EEOC Enforcement Guidance

on Reasonable Accommodation and Undue Hardship Under the Americans with

Disabilities Act (March 1, 1999) ("When an individual decides to request

accommodation, the individual or his/her representative must let the

employer know that s/he needs an adjustment or change at work for a

reason related to a medical condition.").

In reviewing the AJ's decision, we find that she concluded, that

even assuming arguendo that complainant is a qualified individual

with a disability, as defined by the Rehabilitation Act, her request

for temporary light duty would not have placed the agency on notice

that she was asking to be excused from scheme training as a reasonable

accommodation for a cognitive disability. In particular, the AJ noted

that complainant's physician listed multiple physical restrictions, and

only then indicated that she "may" have problems with "memory recall." The

AJ determined, in effect, that in the context of the record as a whole,

this language was too vague and equivocal to trigger the agency's duties

under the Rehabilitation Act. We concur with this determination.

Moreover, notwithstanding complainant's arguments to the contrary, we

find that even if complainant prevailed on her reasonable accommodation

claim, reinstatement to her former position would not be part of

her make-whole relief. Specifically, although complainant argues

that reassignment to another position would have been the reasonable

accommodation she received but for the discrimination, we find that this

is speculative, and unsupported by the record.2 The record reflects

that after complainant failed scheme training, in October 2003, she

continued to work her clerk position, performing non-scheme duties.

This circumstance suggests that her current position might have been

modified as a reasonable accommodation, as opposed to a reassignment.

Although complainant also contends that reinstatement should be part

of her make-whole relief because she was eventually forced to retire, we

note that the matter before us does not include a claim of constructive

discharge.

Therefore, even with a finding of disability discrimination regarding

claim 1, we conclude that complainant's make-whole relief would entitled

her to no greater remedy than what she has already been awarded by the

AJ.

Furthermore, although we have carefully considered complainant's

arguments that her award of compensatory damages should be enlarged

to $150,000.00, we find that the AJ's decision awarding complainant

$15,000.00 is well-reasoned, and supported by substantial evidence.

We concur in this determination.

Finally, we note that complainant that the agency did not post a notice

at the Columbus, Georgia facility regarding the finding of retaliation

in her case. If complainant desires to pursue a non-compliance claim,

we advise her to follow the procedure set forth in 29 C.F.R. � 1614.504.

In conclusion, after a review of the record in its entirety, including

consideration of all statements submitted on appeal, it is the decision

of the Equal Employment Opportunity Commission to AFFIRM the final agency

order because the AJ's ultimate findings are supported by the record.

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

November 17, 2006

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

2 When an individual with a disability cannot be accommodated in

their current position, an agency is then obligated to consider the

availability of a reassignment as a reasonable accommodation. When

provided as a reasonable accommodation, a reassignment must be to a vacant

position equivalent in terms of pay, status, and other related factors,

including benefits, if the employee is qualified for the position. See

EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship

Under the American with Disabilities Act, No. 915.002 (rev. October 17,

2002)

??

??

??

??

2

0120054135

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120054135