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).