07a00004
02-02-2001
Gail Cottrell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gail Cottrell v. United States Postal Service
07A00004
February 2, 2001
.
Gail Cottrell,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A00004
Agency No. 1-F-941-0003-97
Hearing No. 370-97-X2549
DECISION
INTRODUCTION
On November 24, 1999, the agency issued a final order rejecting an EEOC
Administrative Judge's (AJ) finding of discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. As required by regulation, the
agency simultaneously appealed the AJ's decision to this Commission.
See 29 C.F.R. � 1614.110(a). For the reasons set forth herein, we
reverse the agency's final order.
Complainant, a Motor Vehicle Operator at the San Francisco Processing
and Distribution Center, filed a formal complaint on September 16,
1996, alleging discrimination on the basis of disability (Attention
Deficit Disorder) when the agency failed to accommodate her disability
and terminated her on July 10, 1996, for failing to follow a �Last
Chance Agreement� (hereinafter �LCA�). On October 16, 1996, the agency
accepted the complaint for investigation. After the investigation,
complainant invoked her right to a hearing before an AJ. The AJ held
the hearing on January 13, 1999, and issued a decision on November 5,
1999, finding that the agency discriminated against complainant when it
failed to reasonably accommodate her disability when she was terminated.
BACKGROUND
Complainant, an agency employee since 1988, struggled with tardiness
her entire career. As a result, the agency repeatedly disciplined her.
Complainant sought to correct her actions with professional help.
Between 1992 and 1994, she sought a variety of treatments from physicians
and psychiatrists with no results. In 1994, she enrolled in the Employee
Assistance Program (EAP). In 1995, complainant sought treatment from
a psychiatrist specializing in Attention Deficit Disorder (ADD).
On May 30, 1995, the agency issued complainant a notice of removal for her
continuing attendance problems. Complainant's psychiatrist informed the
agency that complainant was preliminarily diagnosed with ADD, and her
tardiness was not within her control. In his December 9, 1995 letter,
the psychiatrist explained, �I expect a successful medication trial to
require adjustment over a period of six weeks . . . and will likely
enable [complainant] to reach [her] job on time.� As a result, the
agency decided not to fire complainant, and entered into the LCA with
complainant on December 27, 1995.<1>
In early 1996, complainant was frequently late to work. By letter dated
January 7, 1996, complainant's psychiatrist confirmed the ADD diagnosis,
and informed the agency that complainant had begun her medication trial.
The AJ found that by February, complainant's tardiness improved; from
February 2, 1996, until April 13, 1996, complainant was not late for work.
On April 14, 1996, the agency changed complainant's start-time from 11:00
a.m. to 8:00 a.m. After the schedule change, complainant's tardiness
problems returned. Complainant also took several days approved sick
leave, although the leave was not scheduled in advance.
On June 6, 1996, the agency gave complainant a notice of removal,
effective July 10, 1996. In this notice, the agency cited complainant's
history of tardiness to support its decision. The notice also cited
complainant's unscheduled sick leave and inability to follow the LCA
to justify complainant's termination. Upon receiving this notice,
complainant contacted her psychiatrist, who provided complainant with
a letter dated June 26, 1996. The letter explained that complainant
required a consistent schedule. According to the physician, changing
complainant's schedule �clearly made it more difficult for [her] to be at
work on time.� Complainant provided the agency with this document prior
to her termination; regardless, the agency terminated her employment on
July 10, 1996.
In finding discrimination, the AJ determined that complainant
suffered from an impairment which substantially limited the major life
activities of concentrating and thinking. Specifically, the AJ noted
testimony showing that ADD diminished one's ability to focus, and cited
complainant's long-term concentration problems. The AJ also found that
tardiness was a common symptom of the disorder and that predictability in
schedule, along with an established medication routine, was important to
individuals suffering from ADD. Further, the AJ found that complainant
was a qualified individual with a disability because she could perform
the essential functions of a Motor Vehicle Operator if given a consistent
schedule. In finding no undue hardship, the AJ cited a supervisor's
testimony that although keeping to the schedule was important, he probably
could be flexible while complainant adjusted to her medications.
In conclusion, the AJ found that the agency failed to act in good faith to
accommodate complainant -- the LCA did not allow complainant any absences
or �AWOL� tardiness despite the agency's knowledge that complainant was
late because of her condition and required medication. At the hearing,
complainant explained that she had to discontinue treatment for ADD when
her insurance benefits ended with her termination. She claimed to suffer
frequent headaches, sleeplessness, and lowered self-esteem from looking
for jobs while �figuring I'm going to be late.� Since ending treatment,
complainant explained that she �just couldn't think,� could not keep
her house clean, and started losing teeth from the stress she suffered.
She also claimed that her general health was �messed-up,� and her daughter
was unhappy as a result of joblessness and lack of symptom control.
Given the agency's lack of good faith, the AJ ordered the agency to pay
complainant $18,000.00 in non-pecuniary damages for pain and suffering.
The AJ also ordered the agency to reinstate complainant, restore her
seniority, provide back-pay with interest and benefits retroactive to
her termination, remove all references to complainant's termination from
her personnel files, post a notice to employees regarding their right
to be free from disability discrimination, provide Rehabilitation Act
training to the responsible agency officials, and provide complainant
with attorney's fees and costs.
CONTENTIONS ON APPEAL
On appeal, the agency makes three separate arguments: (1) complainant
was not a qualified individual with a disability because she could not
perform the essential function of keeping to her schedule; (2) the
agency accommodated complainant through the LCA; and (3) any further
accommodation would impose an undue hardship on the agency. The agency
contends that changing complainant's schedule would constitute an
undue hardship because complainant's supervisor experienced significant
difficulty finding someone to cover complainant's �scheduled runs.�
In response, complainant argues, through her attorney, that the LCA merely
�payed lip service� to providing accommodations, but did not include
any useful accommodation such as providing a grace period for tardiness.
Complainant argues that once her start-time was changed, she had to change
her medication schedule to function during the earlier work hours.
ANALYSIS AND FINDINGS
A. Standard of Review
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 as to whether discriminatory
intent existed is a factual finding. See Pullman - Standard Co. v. Swint,
456 U.S. 273, 293 (1982). The Commission reviews all legal conclusions
from the AJ under a de novo standard, regardless of whether the AJ
conducted a hearing.
B. Liability under the Rehabilitation Act<2>
First, complainant must show that she is a �qualified individual with
a disability� entitled to protection under the Rehabilitation Act.
See Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999).
An individual with a disability is one who, inter alia, has a physical
or mental impairment substantially limiting one or more major life
activities. See 29 C.F.R. � 1630.2(g)(1) - (3). Major life activities
include concentrating and thinking. See Fidurski v. Department of
Health and Human Services, EEOC Request No. 05960027 (Feb. 19, 1997)
(citing EEOC Compliance Manual, Volume 2, EEOC Order 915.002, Sec. 902,
at 902.3). Relevant considerations as to whether an individual is
substantially limited in a major life activity include the nature and
severity of the impairment, its duration or expected duration, and
its permanent or long term impact. 29 C.F.R. � 1630.2(j)(2)(i)-(iii).
The Commission also must consider any mitigating measures �both positive
and negative . . . when judging whether [complainant] is �substantially
limited.'� Sutton v. United Airlines, 527 U.S. 471, 482 (1999).
In the present case, complainant provided evidence that she suffers from
an impairment - ADD. The record revealed that complainant's disorder
substantially limited her thinking and concentrating. As the AJ found,
and substantial evidence supports, complainant could not perform household
chores, think clearly at times, or keep to a schedule. She has suffered
from the condition since at least 1988, but was not diagnosed until
1995. Complainant received regular treatment to combat her impairment.
Even with medication, complainant required a predictable schedule and
counseling to keep her symptoms at bay. Further, the medication required
modification every time her schedule was changed. As noted by the AJ,
when complainant's medication was in flux, she often missed appointments,
and arrived late for work. Although the AJ's analysis failed to account
for the effects of complainant's mitigating measures, the Commission finds
that complainant was substantially limited in the major life activities
of thinking and concentrating even in light of her medication regime.
An individual with a disability is �qualified� if she satisfies the
requisite skill, experience, education and other job-related requirements
of the position, and can perform the �essential functions� of the
position with or without reasonable accommodation. 29 C.F.R. � 1630.2(m).
Essential functions include fundamental job duties, but do not include
marginal functions of a position. 29 C.F.R. � 1630.2(n)(1).
Regular attendance is not a fundamental job duty of any position. See
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, EEOC Order No. 915.002, q. 22,
at 33 n. 61, (Mar. 1, 1999) (�Reasonable Accommodation Guidance�).
Therefore, it cannot be considered an essential function. Id.
To consider otherwise would create a circular argument preventing any
employee with frequent disability-caused absences from being considered
a qualified individual with a disability. See McNeil v. United States
Postal Service, EEOC Request No. 05960436 (July 28, 1998) (citing
McCullough v. United States Postal Service, EEOC Request No. 05950539
(Apr. 25, 1996)). In cases involving excessive absences from work, an
employee may prove that she is a qualified individual with a disability
in spite of such absences by first showing a sufficient nexus between
the absences and the purported disability. See McCullough v. United
States Postal Service, EEOC Request No. 05950539 (Apr. 25, 1996)
(citations omitted).
In the present complaint, complainant clearly established a nexus between
her disability and tardiness. Further, the agency was aware of this
cause for complainant's tardiness. The record provides no evidence of
any other job function that complainant could not perform, or has not
been able to perform during her years as a Motor Vehicles Operator.
Accordingly, the Commission finds that complainant was a qualified
individual with a disability.
The agency must provide reasonable accommodations for known physical or
mental limitations of an otherwise qualified individual with a disability,
unless the accommodation would impose an undue hardship. See 29 C.F.R. �
1630.9. Such reasonable accommodations may include a modified schedule.
See Reasonable Accommodation Guidance, q. 22, 35 at 32, 48-49 (employee
disciplined for tardiness who later discloses a disability affecting her
ability to arrive at work must be considered for a modified schedule with
later working hours). Such accommodations also may include leave for a
few hours at a time. See EEOC Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities, EEOC Order No. 915.002,
q. 23, at 24 (Mar. 25, 1997) (�Psychiatric Disabilities Guidance�).
An undue hardship exists when an accommodation would require significant
difficulty or expense. See 29 C.F.R. � 1630.2(p)(1). For a schedule
adjustment to constitute an undue hardship, the agency must show that
timely completion of the essential functions �is integral to [their]
successful completion.� See Reasonable Accommodation Guidance, at n.61.
The LCA did not reasonably accommodate complainant's disability --
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.<3> Further, the LCA required complainant to waive her right
to raise subsequent agency action in the EEO process. The Commission
has repeatedly found such prospective waivers void as violations of
public policy. See Morris v. United States Postal Service, EEOC Request
No. 05900060 (May 31, 1990); Clay v. United States Postal Service, EEOC
Appeal No. 01952668 (Apr. 5, 1996); Royal v. Department of Health and
Human Services, EEOC Appeal No. 01903626 (Sept. 5, 1990). Therefore,
the Commission finds that the agency did not provide complainant with
a reasonable accommodation.
The agency argues that undue hardship would result from modifying
complainant's attendance. To support its argument, the agency cited the
supervisor's testimony that it was difficult to cover complainant's route
when she did not arrive on time, and could result in mail delays. These
statements conflict with his concession that he could allow complainant
to arrive late while she adjusted to medication, and admission that he
knew complainant's attendance would not be perfect. With such reasonable
accommodations, complainant could timely complete the essential functions
of the position. Therefore, the agency failed to meet its burden to
prove undue hardship. The Commission affirms the AJ's conclusion that
the agency discriminated against complainant by failing to provide a
reasonable accommodation for her disability. Further, the Commission
finds that the AJ's damage awards were appropriate, and notes that the
agency never disputed damages. Accordingly, the Commission adopts the
AJ's order, with minor changes and time limitations as provided below.
CONCLUSION
Accordingly, the Commission REVERSES the agency's final action which
rejected the AJ's finding of disability discrimination and orders the
agency to take remedial action in accordance with this decision and the
ORDER herein.
ORDER
The agency is ordered to perform the following:
Within thirty (30) calendar days of the date this decision becomes final,
offer complainant reinstatement to the position of Motor Vehicle Operator
at the San Francisco Processing and Distribution Center, with restored
seniority, benefits, leave, and compensation (including Thrift Savings
Plan contributions).
Within sixty (60) calendar days of the date this decision becomes final,
award complainant back pay, with interest, less interim earnings, and all
benefits due in accordance with 29 C.F.R. � 1614.501(c) retroactive to
the date of complainant's termination. Complainant must cooperate in the
agency's efforts to compute the amount of back pay due, and provide all
relevant information requested by the agency to make this determination.
Within thirty (30) calendar days of the date this decision becomes final,
remove all references to complainant's 1996 termination from complainant's
employment records, whether official or unofficial.
Provide training to the responsible officials at the San Francisco
Processing and Distribution Center of their obligations under the
Rehabilitation Act.
Award reasonable attorney's fees and costs, if proven, in accordance
with the �Attorney's Fees� order provided below.
Within thirty (30) calendar days of the date this decision becomes final,
pay complainant $18,000.00 in compensatory damages.
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 to verify
that the corrective action has been implemented.
INTERIM RELIEF (F0900)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 29 C.F.R. � 1614.502(b).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0900)
The agency is ordered to post at its San Francisco Processing and
Distribution Center 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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
February 2, 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 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 Processing and Distribution Center in San Francisco,
California (hereinafter this facility).
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.
This facility was found to have denied an employee a reasonable
accommodation for her disability. The facility was ordered to reinstate
this employee to her former position; to award her equitable relief,
proven compensatory damages, and reasonable attorney fees and costs
incurred in the processing of the complaint. This facility was also
ordered to provide training to 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: _________________
1The LCA required complainant to continue her treatment for ADD,
and to provide progress reports concerning her treatment. It stated,
�[complainant] understand[s] that failure to be regular in attendance or
being AWOL will result in [complainant's] removal from the [agency].�
Any absence or tardiness not approved by management in advance was �a
violation of the [LCA]� and grounds for dismissal. The agreement also
prohibited complainant from proceeding with an EEO complaint concerning
any removal for violation of the LCA itself. The AJ found the waiver
provision invalid, and the agency fails to argue otherwise on appeal.
2The 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.
3The agency claimed to have accommodated complainant by charging her sick
leave for several unexcused absences from the period after her schedule
was changed; however, it later relied in part on these same absences to
justify her termination. Such actions are not �accommodations.�