01994200
09-26-2002
Karalynn Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Karalynn Wilson v. United States Postal Service
01994200
September 26, 2002
.
Karalynn Wilson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 01994200
Agency Nos. 4G-752-0022-97; 4G-752-0296-97; 4G-752-0111-97; 4G752-0544-97
Hearing Nos. 310-98-5552x; 310-98-5553x; 310-98-5476x; 310-98-5435x
DECISION
Karalynn Wilson (complainant) timely initiated an appeal from the
agency's final order concerning her equal employment opportunity (EEO)
complaints of unlawful discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges she was discriminated against on the
basis of disability (bilateral carpal tunnel syndrome, stress/severe
depression) when:
(1) on or about September 3, 1996,<1> she was denied limited duty work
and instructed to seek light duty from her supervisor;
on December 4 and 5, 1996, the Postmaster advised her that she was
being sent for a fitness for duty examination (FFDE) and she was not
allowed to have her attorney attend a pre-disciplinary meeting; and
as of April 2, 1997, she had not been issued a decision regarding her
FFDE and had received no action or response to her requests to return
to work.
Complainant also alleges she was discriminated against on the basis
of disability and subjected to reprisal for prior EEO activity (EEO
complaints filed under Rehabilitation Act) when:
on July 25, 1997, she was placed in absent without leave (AWOL) status
for failing to keep an appointment with the Postmaster.
For the following reasons, the Commission AFFIRMS, in part, and REVERSES,
in part, the agency's final order.
BACKGROUND
The record reveals that complainant, a City Letter Carrier at the
agency's Richardson, Texas facility, filed formal EEO complaints with
the agency on December 23, 1996, February 24, 1997, May 1, 1997, and
September 25, 1997, alleging that the agency had discriminated against
her as referenced above.
At the conclusion of the investigations, complainant was provided a
copy of the investigative reports and requested a hearing before an
EEOC Administrative Judge (AJ). The AJ consolidated the complaints and
conducted a hearing. Following the hearing, the AJ issued a decision
finding that complainant had not been discriminated against on the basis
of disability, but that she was retaliated against when she was placed
in AWOL status.
The AJ concluded that although complainant was an individual with a
disability within the meaning of the Rehabilitation Act, she failed
to establish that she was a qualified individual with a disability.
In so finding, the AJ concluded that complainant could not perform any
duties requiring repetitive manipulation of mail or standing and noted
that even repeatedly picking up the phone would probably cause pain and
swelling in complainant's hands.
The AJ then noted that complainant was not discriminated against when her
attorney was denied attendance at the December 5, 1996 pre-disciplinary
meeting, noting that the meeting did not concern complainant's EEO
complaints. The AJ further found that because the Postmaster (PM)
had recently learned that complainant's Office of Workers' Compensation
(OWCP) claim had been disallowed, he was within his rights to order her to
attend a fitness for duty exam to ascertain what duties she could perform.
Finally, the AJ concluded that complainant was subjected to retaliation
when she was placed on AWOL on July 25, 1997. The AJ found that, despite
PM's testimony to the contrary, PM was well aware of complainant's prior
EEO activity, as he was one of the named responsible management officials
in one of her recent complaints. The AJ also noted that although PM
testified that he placed her on AWOL because of her failure to respond to
his request for medical evidence of her incapacity to perform her duties,
the record established that PM had, in fact, received this information in
the form of a FFDE report. The AJ concluded that the AWOL was motivated
by complainant's prior EEO activity.
As relief, the AJ ordered, among other things, that complainant receive
$2,000.00 in compensatory damages for the stress she suffered due to
the agency's retaliatory action.
The agency's final order adopted the AJ's finding of no disability-based
discrimination, but rejected the AJ's finding of retaliation. The agency
noted that although complainant established a prima facie case of
retaliation, she failed to meet her burden of showing that �but for�
her prior protected activity she would have been treated differently.
Specifically, the agency concluded that complainant was placed on AWOL
because of her failure to comply with PM's instructions to meet with
him as scheduled and provide proof of her continued inability to report
for duty.
In response, complainant contends that the AJ's decision correctly
summarized the facts and reached the appropriate conclusions of law in
regard to the AWOL issue. She reiterates her previous arguments on this
point, noting once again that PM knew exactly what her limitations were,
based on the several CA-17 forms she had provided and the FFDE report.
Complainant then argues that, contrary to the AJ's finding, she is
a qualified individual with a disability. She argues that she was a
letter carrier for many years and that she can perform the essential
functions of some jobs at the agency, with a reasonable accommodation.
Specifically, she notes that she can do certain types of work and refers
to the FFDE report which indicates that the only type of work she cannot
do is repetitive work. She notes that there are numerous jobs at the
agency that she can do, including bulk mail intake, back-up window clerk
duties, and answering the phone.
ANALYSIS AND FINDINGS
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 regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). As always, legal determinations are reviewed
de novo. See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), as revised, November 9, 1999, at 9-16.
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb the AJ's
decision. In so finding, we first note that the AJ correctly determined
that although complainant is an individual with a disability within the
meaning of the Rehabilitation Act, complainant failed to establish that
she is a qualified individual with a disability.
As a threshold matter, complainant must establish that she is an
�individual with disability� within the meaning of the Rehabilitation
Act.<2> An "individual with a disability" is one who: (1) has a physical
or mental impairment that substantially limits one or more major life
activities; (2) has a record of such impairment; or (3) is regarded
as having such an impairment. 29 C.F.R. � 1630.2(g). Major life
activities include caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. �
1630.2(i). Other major life activities include, but are not limited to,
sitting, standing, lifting and reaching. See Appendix to Part 1630 -
Interpretive Guidance on Title I of the Americans with Disabilities Act
(Interpretive Guidance), 1630.2(i).
Here, the AJ correctly determined that complainant is an individual with
a disability. Medical documents establish that as early as June 1995,
complainant was diagnosed with bilateral carpal tunnel syndrome and was
restricted to lifting no more than 5 pounds, in addition to having other
limitations. A doctor to whom complainant was referred by the Department
of Labor noted, in March 1996, that although complainant was hoping
for relief through surgery, he was doubtful that this would provide any
significant, lasting relief. Moreover, the lifting limitation was still
in existence in January 1997. Complainant is therefore substantially
limited in the major life activity of lifting. See Selix v. United
States Postal Service, EEOC Appeal No. 01970153 (complainant substantially
limited in lifting where permanently restricted from lifting more than 10
pounds); Tran v. United States Postal Service, EEOC Appeal No. 01971505
(May 18, 2000) (complainant substantially limited in lifting where, at
time request for accommodation made, complainant remained subject to a
2-pound lifting restriction which had been in effect 8 months).<3>
A "qualified" individual with a disability is one who satisfies the
requirements for the employment position she holds or desires and
can perform the essential functions of that position with or without
reasonable accommodation. 29 C.F.R. � 1630.2(m). There is no dispute
that complainant was unable to perform the essential functions of the City
Carrier position, even with an accommodation. However, the discussion
of �qualified� does not end at complainant's carrier position. The term
"position" is not limited to the position held by the employee, but
also includes positions that the employee could have held as a result
of reassignment. Therefore, in determining whether an employee is
"qualified," an agency must look beyond the position which the employee
presently encumbers. Accordingly, the agency should have considered
reassignment in this case. See Hampton v. United States Postal Service,
EEOC Appeal No. 01986308 (August 1, 2002).
We note that because this case arose prior to June 20, 2002, the
Commission will apply 29 C.F.R. � 1614.203(g), its prior regulation
regarding reassignment.<4>
The record indicates that the agency did not conduct a search to ascertain
whether there were any vacant funded positions for which complainant
was qualified. We note, however, that liability is not established
simply by the agency's failure to engage in the interactive process.
See Key v. United States Postal Service, EEOC Appeal No. 07A20001
(August 2, 2002); Barnard v. United States Postal Service, EEOC Appeal
No. 07A10002 (August 2, 2002). In the reassignment context, this
means that the agency's failure to conduct either any search at all,
or a broad enough search, for a new position for complainant does not,
by itself, result in a finding of discrimination. Rather, the record
must be examined for evidence that, had the search been conducted,
there would have been an appropriate vacancy available.
Complainant has an evidentiary burden in such reassignment cases
to establish that it is more likely than not (preponderance of the
evidence) that there were vacancies during the relevant time period into
which complainant could have been reassigned. Clearly, complainant can
establish this by producing evidence of particular vacancies. However,
this is not the only way of meeting complainant's evidentiary burden.
In the alternative, complainant need only show that: (1) he or she was
qualified to perform a job or jobs which existed at the agency, and (2)
that there were trends or patterns of turnover in the relevant jobs so
as to make a vacancy likely during the time period. See Hampton, supra.
Here, complainant failed to meet this burden. During the investigation,
complainant argued that she should be �retrained into another craft
position,� but offered nothing to suggest that there were vacant positions
for which she was qualified. At the hearing, she testified that she could
perform certain duties, such as answering the phone, but did not allege
that there any jobs to which she could have been reassigned. On appeal,
complainant contends that she can do certain types of work and that
limited duty work is available at the agency. In so arguing, she notes
that she can do jobs that do not involve repetitive work, naming several
duties that she could perform that allegedly fall into this category.
At no point, however, does complainant allege that there was a vacant
funded position for which she was qualified during the relevant time.
Nor does she suggest that there were trends or patterns of turnover in
the relevant jobs so as to make a vacancy likely during the time period.
Complainant therefore failed to provide evidence to support an assertion
that, had the agency searched at the relevant time, it would have found
a vacant position to which she could have been reassigned. Based upon
our review, we conclude that complainant was not a qualified individual
with a disability.
Accordingly, as complainant failed to establish that she is a qualified
individual with a disability, the agency's finding that she was not
subjected to disability-based discrimination in regard to Issues 1, 3 and
4, as well as that portion of Issue 2 dealing with the agency's refusal
to allow complainant's attorney to attend a pre-disciplinary meeting,
is AFFIRMED.
That portion of Issue 2 dealing with the agency's decision to send
complainant for an FFDE must be addressed separately, however, because
any employee, regardless of whether he or she is a qualified individual
with a disability under the Rehabilitation Act, has a right to challenge a
disability-related inquiry or medical examination that is not job-related
and consistent with business necessity. See EEOC Enforcement Guidance:
Disability-Related Inquiries and Medical Examinations of Employees Under
the Americans with Disabilities Act, General Principles, (July 24, 2000).
The AJ correctly determined that complainant was not discriminated
against when, on December 4 and 5, 1996 she was ordered to undergo
a FFDE. Commission guidance holds that a disability-related inquiry or
medical examination of an employee, such as a fitness for duty exam,
must be job-related and consistent with business necessity. See EEOC
Enforcement Guidance on Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act
(Inquiries) (July 21, 2000), General Principles. This standard is met
when an employer has a reasonable belief based on objective evidence
that an employee's ability to perform the essential job functions will be
impaired by a medical condition or an employee will pose a direct threat
due to a medical condition. See id, question 5. Furthermore, medical
examinations that follow up on a request for reasonable accommodation
when the disability or need for accommodation is not known or obvious,
may also be job-related and consistent with business necessity. See id.
In the case at hand, complainant had been out of work due to an injury
for more than a year, although she had worked for several hours as a
Modified City Carrier in June 1995. Since that time, she indicated that
she was unable to case or carry mail, in addition to having a number of
other work restrictions. Given that complainant herself acknowledged
that she could not case or carry mail due to her impairment and that
she was unable to perform in the position of a Modified City Carrier
due to her impairment, we find that the agency had a reasonable belief
based on objective evidence that complainant's ability to perform the
essential job functions of the City Carrier position was impaired.
Moreover, the agency was unable to ascertain from the medical information
provided by complainant what type of accommodations might enable her to
perform the essential functions of a different job within the agency.
Although complainant alleged that she had provided PM with several
versions of the CA-17 Duty Status Form indicating what her limitations
were, the documents of record indicate that the agency was not aware
of what type of duties complainant could perform within her medical
restrictions. As noted above, complainant informed the agency that
the modified job provided in June 1995 was outside of her restrictions.
In March 15, 1996, a doctor who examined complainant at the behest of the
Department of Labor determined that, as of that time, complainant might
have been capable of performing in a modified capacity as a city carrier
on a limited basis, but noted that it would be difficult to determine the
�the endpoints� of those limitations. In May and August 1996, complainant
sent letters to various management officials asking to return to work,
with accommodations, but she did not indicate what accommodations
would enable her to return to work. Under these circumstances, we
find that PM's decision to send complainant for a FFDE was job-related
and consistent with business necessity and the agency's finding of no
discrimination on this issue is therefore AFFIRMED.
Turning to complainant's claim of retaliation, we find that the AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. In so finding, we note
that complainant engaged in prior protected EEO activity of which PM,
despite his testimony to the contrary, was aware, shortly before PM's
decision to put her in AWOL status for failing to attend a meeting.
PM noted that he took this action because complainant failed to meet
with him as instructed and failed to provide him with medical evidence
of her incapacity to perform her duties, as he requested. The AJ's
determination that this explanation was untrue and a pretext for
retaliation is supported by substantial evidence. As the AJ noted,
documents in the record establish that PM was already in possession
of the FFDE report which described complainant's limitations, as well
as a January 1, 1997 Duty Status report which also indicated what
complainant's restrictions were. Moreover, although PM testified
that he needed more information because complainant would not return
to work, and that this was his reason for scheduling the meeting,
the record establishes that complainant had been attempting to arrange
an accommodation that would permit her to return to work for at least
a year. Accordingly, we discern no reason to disturb the AJ's finding
of retaliation. The agency's finding that complainant was not subjected
to retaliation in regard to Issue 4 is therefore REVERSED.
Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes her claim of unlawful discrimination may receive, in
addition to equitable remedies, compensatory damages for past and future
pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses
(i.e., pain and suffering, mental anguish). 42 U.S.C. � 1981a(b)(3).
For an employer with more than 500 employees, such as the agency, the
limit of liability for future pecuniary and non-pecuniary damages is
$300,000. Id. The Supreme Court has confirmed that the Commission
possesses the legal authority to require federal agencies to pay
compensatory damages. See West v. Gibson, 527 U.S. 212 (1999).
Here, the AJ awarded complainant $2,000.00 in compensatory damages.
Neither complainant in her appeal statement, nor the agency in its FAD
or in response to complainant's appeal, raises the issue of compensatory
damages. The AJ's finding that complainant suffered emotional distress
due to the agency's retaliation is supported by substantial evidence.
Complainant noted that the agency's retaliatory actions caused her stress
and, at very stressful times, led to vomiting, as well as depression.
There are no definitive rules governing the amount of non-pecuniary
damages to be awarded. Non-pecuniary damages must be limited, however,
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible. The existence, nature, and severity
of emotional harm must be proved. See Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. N-915.002 (July 14, 1992) at 11. Emotional harm may manifest itself,
for example, as sleepiness, anxiety, stress, depression, marital strain,
humiliation, emotional distress, loss of self esteem, excessive fatigue,
or a nervous breakdown. Id. A proper award should take into account
the severity of the harm and the length of time that the injured party
suffered the harm. See Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995). Finally, the amount of the award
should not be �monstrously excessive� standing alone, should not be the
product of passion or prejudice, and should be consistent with the amount
awarded in similar cases. See Jackson v. United States Postal Service,
EEOC Appeal No. 01972555 (April 15, 1999), citing Cygnar v. City of
Chicago, 865 F. 2d 827, 848 (7th Cir. 1989).
Several Commission decisions have awarded compensatory damages in cases
somewhat similar to complainant's. See, e.g., Pailin v. Department
of Defense, EEOC Appeal No. 01954350 (January 26, 1998) (Commission
awarded $2,500 in nonpecuniary damages where complainant testified that
supervisor's constant criticism caused depression to worsen, as well as
other emotional distress); Simmons v. Department of Veterans Affairs,
EEOC Appeal No. 01A02306 (May 29, 2002) ($2,500 in nonpecuniary damages
where harassment played a role in complainant's emotional distress); White
v. Department of Veterans Affairs, EEOC Appeal No. 01950342 (June 13,
1997) ($5,000.00 in non-pecuniary damages based on emotional distress).
After analyzing the evidence which establishes the harm sustained
by complainant and upon consideration of damage awards reached in
comparable cases, the Commission finds no basis on which to alter
the AJ's award of $2,000.00. In so finding, we note that much of the
distress complainant described was caused by non-discriminatory actions
of the agency. Moreover, we note that this award is not motivated by
passion or prejudice, is not monstrously excessive standing alone, and
is consistent with the amounts awarded in similar cases. See Cygnar,
ORDER
The agency is ORDERED to take the following remedial action:
1. Within fifteen (15) days of the date this decision becomes final,
the agency shall expunge the AWOL from all agency files, including
complainant's official personnel file.
2. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue a check to complainant in the amount of
$2,000.00 for compensatory damages.
3. The agency shall provide at least 8 hours of training to all
management officials responsible for this matter in their duties and
responsibilities under the Rehabilitation Act, including the requirement
that they not retaliate against employees for engaging in EEO activity.
4. Within thirty (30) days from the date this decision becomes final,
the agency shall consider taking disciplinary action against PM as
being responsible for the discriminatory treatment perpetrated against
complainant. 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 shall post the attached notice, as described below.
6. The agency shall award attorney's fees and costs, if applicable,
as described below.
POSTING ORDER (G0900)
The agency is ordered to post at its Richardson, Texas 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 26, 2002
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 United States Postal Service, Richardson, Texas facility (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 DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility has been found to have retaliated against an employee
due to her prior EEO activity when it placed her in Absent Without
Official Leave status. As a result, the agency has been ordered by
the EEOC to: (1) expunge the AWOL charge from all agency records;
(2) award appropriate compensatory damages; (3) consider disciplinary
action and provide EEO training to the responsible management officials;
(4) award attorney's fees, if applicable; and (5) post this notice.
The 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.
The facility 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:
1 The AJ's decision cites to September 13, 1996 as the date complainant
was denied limited duty. A review of the file reveals that the
correct date is September 3, 1996, which is the date of a letter sent
to complainant by the District Manager in response to her request to
return to work with an accommodation.
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.
3 Because we have found that complainant is substantially limited in the
major life activity of lifting, we do not address the issue of whether
she is substantially limited in the major life activities of manual
tasks or standing.
4 The agency is advised that 29 C.F.R. � 1614.203(g), which governed
and limited the obligation of reassignment in the federal sector, has
been superseded and no longer applies. 67 Fed. Reg. 35732 (5/21/02), to
be codified as 29 C.F.R. � 1614.203(b). The ADA standards apply to all
conduct on or after June 20, 2002, and emphasize, among other things, a
broader search for a vacancy. The ADA regulations regarding reassignment
can be found at 29 C.F.R. �� 1630.2(o) and 1630.9. Additional information
can be found in the Appendix to the ADA regulations and in the EEOC's
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act (March 1, 1999) at Questions 25-30.
These documents are available on the EEOC's website at www.eeoc.gov.