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)
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0120054135
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120054135