Martha T. Pitchford, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 13, 2000
01973982 (E.E.O.C. Dec. 13, 2000)

01973982

12-13-2000

Martha T. Pitchford, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Martha T. Pitchford v. United States Postal Service

01973982

12-13-00

.

Martha T. Pitchford,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01973982

Agency No. 1D-231-1021-96

DECISION

On April 8, 1997, Martha T. Pitchford (hereinafter referred to as

complainant) filed a timely appeal from the March 13, 1997, final decision

of the United States Postal Service (hereinafter referred to as the

agency) 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 the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c).<1> The appeal is timely filed (see 29 C.F.R. �

1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.

For the reasons that follow, the agency's decision is REVERSED.

The issue presented in this appeal is whether the complainant has proven,

by a preponderance of the evidence, that the agency discriminated against

her on the bases of race (black), disability (Carpal Tunnel Syndrome),

sex, and reprisal for prior EEO activity alleging a violation of the

Rehabilitation Act, when she was assigned to work in an area in violation

of her medical restrictions in October 1995.

Complainant filed her formal complaint on December 20, 1995. Initially,

the agency dismissed the complaint but later reinstated it, conducted an

investigation, and addressed the complaint on its merits. Complainant was

advised of her right to request a hearing before an EEOC Administrative

Judge or an immediate final agency decision (FAD), but she did not respond

to the notice. The agency issued its FAD finding no discrimination.

According to medical reports in the record dated beginning August 1994,

complainant was diagnosed with carpel tunnel syndrome and restrictions

were placed on her work activities. Among other things, the reports

stated that complainant could not lift more than ten pounds and had no

tolerance to temperature changes and that fluctuations in temperature

tended to exacerbate her condition. Letters from her doctor dated

December 1994 and January 1995 stated that complainant should not

be exposed to cold or drafty conditions. Complainant was assigned

light duty work in the Postage Due Unit (PDU). The PDU, however, was

located near a freight elevator, and, when both doors of the elevator

were opened at the same time, powerful drafts blew into the facility.

Complainant sought EEO counseling with regard to the location of the PDU.

On March 21, 1995, she entered into a settlement agreement (SA) with

the agency, whereby the Manager, Distribution Operations (MDO), agreed

to locate the PDU away from the drafty area.

In the late summer of 1995, complainant was off work for surgery on her

hands. In October 1995, she accepted a permanent light duty position in

the PDU. The agency's offer letter stated that the job was within her

medical limitations and identified her medical restrictions as, inter

alia: lifting no more than ten pounds, simple grasping, operation of the

U-cart to twice per shift, occasional walking on a level surface, and the

"work environment inside [and at a] comfortable temperature level."<2>

Upon her return to work, however, she found that the PDU had been moved

back to its original location near the freight elevator and was subject

to constant drafts.

Thereafter, complainant sought EEO counseling and filed the instant

complainant.<3> In her complaint, she alleged that she was assigned to

work in a cold and drafty work area outside of her medical restrictions.

The agency's response was a brief statement by the MDO, who denied

that complainant was assigned to an area that was outside her medical

restrictions, but without further elucidation. The MDO acknowledged

that the PDU had been relocated when complainant left for her surgery,

contending that space constraints occasioned by new equipment required

its move. She also stated that she was aware of complainant's earlier

EEO activity, having signed the SA.<4> In its FAD, the agency found that

complainant was not assigned to work outside of her medical limitations,

but does not offer further explanation or a description of efforts it

took to address complainant's concerns.

Disability Discrimination. Based on the record before us, we find that

the agency miscast complainant's claim based on disability discrimination

and that its investigation did not address her claim that the agency

failed to afford her a reasonable accommodation for her medical condition

and place her work site in an area free from drafts. Further, we note

that the agency's FAD is limited to a statement of boilerplate law and

its conclusions. In general, a summary FAD addressing the merits of

a complaint that does not explain the agency's reason for its action

does not respond to the Commission's requirement that the agency issue

a decision containing findings and, if appropriate, a rationale on

each issue(s) in the complaint. See 64 Fed. Reg. 37,644, 37,657 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. �1614.110(b)).

The agency is advised of its obligation under this provision.

A person with a disability is defined as one who has, has a record

of having, or is regarded as having an impairment that substantially

limits one or more major life activities. 29 C.F.R. �1630.2(g).<5>

Major life activities include caring for one's self, performing manual

tasks, walking, seeing, hearing, speaking, breathing, learning, and

working. 29 C.F.R. �1630.2(i). Based on the record before us, we find

that there is sufficient information to conclude that complainant is a

qualified individual with a disability. The record before us shows that

complainant has an impairment, as well as a record of an impairment, that

substantially limits the major life activities of lifting and performing

manual tasks. Specifically, she has been treated for carpel tunnel

syndrome, including surgery, and continues to have difficulty in using

her hands and arms. Also, when she returned to work in October 1995,

she maintained extensive medical restrictions on her physical activities,

including lifting/carrying over ten pounds, climbing, pushing, pulling,

repetitious motion, and operation of certain postal machines. Moreover,

her physician noted that exposure to cold and drafts exacerbated the pain

in her arms and shoulders that arose from the carpal tunnel syndrome.

A qualified individual with a disability is one "who, with or without

reasonable accommodation, can perform the essential functions of the

position." 29 C.F.R. �1630.2(m). Based on the facts in the record,

we find that complainant has demonstrated that she is a qualified person

inasmuch as she has successfully performed her position in the PDU, and

the agency does not contend otherwise. See, generally, the Commission's

Interpretive Guidance on Title I of the Americans with Disabilities Act,

Appendix to 29 C.F.R. Part 1630.

Federal agencies and other employers are required to provide

reasonable accommodation to qualified individuals with disabilities or

applicants for employment unless to do so would cause undue hardship.

EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship

Under the Americans with Disabilities Act, No. 915.002 (March 1, 1999).

Undue hardship addresses quantitative, financial, or other limitations

on an employer's ability to provide

the reasonable accommodation, and the agency must assess on a case-by-case

basis whether a particular reasonable accommodation would cause undue

hardship. Id.

While the agency has provided reasonable accommodation to complainant

since her return to work with regard to many of her medical restrictions,

it has not provided reasonable accommodation with regard to the

requirement that complainant work in a constant and comfortable

temperature and avoid drafts, including extremes of temperature.

An agency may avoid its obligation to provide a reasonable accommodation

to complainant by showing that the specific accommodation needed by

complainant, in this case, a change or modification in the location of

her work area, constituted an undue hardship.

Here, complainant's work restrictions included that she not work in a cold

and drafty area. Complainant asserts, and the agency does not dispute,

that the PDU is now located in a cold and drafty area. The agency has

not argued that it cannot reasonably accommodate her, and instead, the

agency, through the MDO, only explained why it had relocated the unit

after moving it pursuant to the SA. We find therefore that the agency

discriminated against complainant on the basis of her disability.

Compensatory Damages. We turn now to consideration of whether

complainant may be entitled to compensatory damages for the agency's

failure to provide a reasonable accommodation to her with regard to her

medical restrictions regarding environmental temperatures. In general,

compensatory damages may be awarded for losses and suffering due to the

discriminatory acts or conduct of the agency and include past pecuniary

losses, future pecuniary losses, and non-pecuniary losses that are

directly or proximately caused by the agency's discriminatory conduct.

See Compensatory and Punitive Damages Available Under Section 102 of

the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992),

at pp. 8-9; Carle v. Department of the Navy, EEOC Appeal No. 01922369

(January 5, 1993).

Where an agency fails to provide reasonable accommodation, however, an

agency may avoid compensatory damages only if it can demonstrate that

it made "good faith" efforts to identify and reasonably accommodate

complainant. 42 U.S.C. 1981a(a)(3);<6> Riedel v. USPS, EEOC Appeal

No. 01964606 (October 16, 1998); Morris v. Department of Defense, EEOC

Appeal No. 01962984 (October 1, 1998). Based on the record before us,

we cannot find that the agency made any attempt to reasonably accommodate

complainant with regard to the environmental conditions in the PDU.

We find that complainant is entitled to an award of compensatory damages

from the date of her return to work on October 14, 1995, until the agency

provided her reasonable accommodation with regard to environmental

temperatures, and we will direct the agency to conduct a supplemental

investigation to afford complainant an opportunity to establish her

entitlement to compensatory damages.

Race and Sex Discrimination. Complainant also alleged that the agency

discriminated against her based on race (black) and sex. In general,

such claims allege disparate treatment and are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corporation

v. Green, 411 U.S. 792 (1973). For complainant to prevail, s/he must

first establish a prima facie case of discrimination by presenting

facts that, if unexplained, reasonably give rise to an inference of

discrimination, i.e., that a prohibited consideration was a factor

in the adverse employment action. McDonnell Douglas, 411 U.S. at

802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Here,

complainant has raised no facts which support an inference of race or sex

discrimination, nor has she identified a comparative employee that was

treated more favorably. See, generally, O'Connor v. Consolidated Coin

Caterer's Group, 116 S. Ct. 1307 (1996). While comparative evidence

is not an essential element of a prima facie case of discrimination,

the complainant must come forward with sufficient evidence to create an

inference of discrimination. Id. Here, complainant's identification

of her race and sex is insufficient to establish a prima facie case.

McGill v. Department of the Navy, EEOC Appeal No. 01955718 (September

3, 1998). We find that the agency did not discriminate against her

based on sex or race.

Reprisal Discrimination. Complainant may establish a prima facie case of

reprisal discrimination by showing that she engaged in prior protected

activity, that acting agency officials had knowledge of complainant's

EEO complaints, and that the alleged agency action took place at such

a time as to establish an inference of retaliatory motive. Hochstadt

v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,

324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976); Manoharan v. Columbia

University College of Physicians and Surgeons, 842 F.2d 590, 593 (2d

Cir. 1988). The causal connection may be shown by evidence that the

adverse action followed the protected activity within such a period

of time and in such a manner that a reprisal motive is inferred.

Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980). Here,

we find that petitioner failed to establish a prima facie case because

she did not demonstrate a causal connection between her work assignment

and the prior EEO activity. The mere fact that complainant's prior

EEO activity concerned a settlement agreement regarding the location

of the PDU is not sufficient to demonstrate a nexus between her prior

activity and her work assignment. We find therefore that the agency

did not discriminate against complainant in reprisal.

CONCLUSION

Accordingly, the agency's decision is REVERSED, in part, and AFFIRMED,

in part. The agency is directed to comply with the Order, below.

ORDER (D1092)

The agency is ORDERED to take the following remedial action:

A. If it has not already done so, the agency is directed to provide

complainant reasonable accommodation with regard to the environmental

temperature conditions in which she works. The agency should insure

that complainant is assigned to a location that is in full accord with

her medical limitations and restrictions as required by her physician.

B. If complainant missed work due to the agency's failure to afford her

reasonable accommodation, the agency shall reimburse her in kind (e.g.,

pay for leave without pay, restoration of leave for leave used).

C. Within 30 days of the date this decision becomes final, the agency

shall request objective evidence from complainant in support of her

claim for compensatory damages, with sufficient specificity to allow

complainant to reasonably respond to the agency's request. The agency

shall conduct a supplemental investigation to determine the amount of

compensatory damages due to complainant, if any, and issue a final agency

decision. The supplemental investigation and final agency decision shall

be completed within 60 days of complainant's presentation of objective

evidence. A copy of the final agency decision must be submitted to the

Compliance Officer, as described, below.

D. 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 back pay 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 Richmond (Virginia) 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 (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

__12-13-00_________

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, 794(c) has occurred at 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 DISABILITY with respect to hiring, firing,

promotion, compensation, or other terms, conditions or privilege of

employment.

The Richmond, Virginia, Processing and Distribution Center, supports

and will comply with such Federal law and will not take action against

individuals because they have exercised their rights under the law.

It has remedied the employee affected by the Commission's finding by,

inter alia, affording reasonable accommodation and reimbursement for

losses. The Richmond, Virginia, Processing and Distribution Center, will

ensure that officials responsible for personnel decisions and terms and

conditions of employment will abide by the requirements of all federal

equal employment laws and will not subject employees to discrimination

based on disability.

The Richmond, Virginia, Processing and Distribution Center, 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 participated in proceedings pursuant to, Federal

equal employment opportunity law.

Date Posted:

Posting Expires:

29 C.F.R. Part 1614.

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The record also contains a completed CA-17 form from her doctor

authorizing her return to work with restrictions, including maintenance

of constant and comfortable temperatures.

3At counseling on the instant matter, she was advised of her option to

allege breach of the SA, and she elected to file the instant complaint.

4The MDO also makes reference to steps taken by the agency to reasonably

accommodate complainant, e.g., a detail to another location, work in

MVS dispatch, adjustable chairs. It appears, however, that these steps

were taken after the complaint at issue herein. Nevertheless, neither

the MDO or the agency supplies any information to the record about its

efforts to reasonably accommodate complainant.

5The 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.

6Specifically, the Civil Rights Act of 1991 provides that compensatory

damages may be awarded where an agency fails to demonstrate that it made

"good faith efforts, in consultation with the person with the disability

who has informed the [agency] that accommodation is needed, to identify

and make a reasonable accommodation that would provide such individual

with an equally effective opportunity and would not cause undue hardship

on the operation of [its] business." 42 U.S.C. 1981a(a)(3).