01992048
12-13-2000
Patricia Kendrick, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Patricia Kendrick, )
Complainant, )
) Appeal No. 01992048
v. ) Agency No. 4-D-280-1036-96
) Hearing No. 140-97-8046X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of reprisal (prior protected
activity) and disability (bronchial asthma), 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,<1> as amended, 29 U.S.C. � 791,
et seq.<2> Complainant alleges she was discriminated against when on
January 5, 1996, her supervisor (the Supervisor) told her to clock out
and go home because the agency could not provide her with a dust-free
environment, thus causing her to use approximately 18 hours of sick leave
on January 5, 6, and 9, 1996. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission REVERSES
the agency's final decision.
BACKGROUND
The record reveals that complainant was a Mark-Up Clerk, Automation,
PS-04 at the agency's Fayetteville, North Carolina Post Office.
On January 5, 1996, complainant gave the Supervisor a doctor's note
dated January 3, 1996, for three hours of leave she took the prior week.
The note stated that because of her bronchial asthma, complainant needed
to work in a dust free environment and not work around construction.<3>
The Supervisor contacted the Acting Postmaster (AP), then instructed
complainant to clock out and go home, and to not return until he told
her to do so.<4> Complainant refused to leave. The Supervisor then
clocked complainant out.
Complainant procured a second note from her doctor, dated January 5, 1996,
which stated that because the fumes from the construction at complainant's
work-site aggravated her asthma, she should be allowed to work at another
site until the construction was completed. Complainant returned to
work on January 8, 1996,<5> and gave the note to the union president.
The agency then moved complainant to the Fort Bragg Post Office on
January 10, 1996, until the construction was completed.
Complainant filed an EEO complaint claiming that the agency discriminated
against her as referenced above. In her complaint, she stated that
she wanted to be compensated for the hours lost on January 5, 6, and 9,
1996, and stated that she had to leave work on several prior occasions as
well on unscheduled sick leave. At the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). Following a hearing, the AJ issued a recommended decision finding
discrimination.
At the hearing, the Postmaster averred that he contacted complainant's
doctor's office and spoke to a nurse who informed him of the January
5, 1996 note and the fact that the doctor eliminated the dust-free
recommendation. The Supervisor averred that immediately after they
learned that complainant could work, they re-assigned her to work at
the Fort Bragg Office beginning January 10, 1996.
The Supervisor averred that complainant previously requested an
accommodation for her asthma in May 1995, when she asked to be re-assigned
to another facility while the office was undergoing construction.<6>
The Supervisor stated that on June 2, 1995, the former Postmaster (FP)
instructed him to send complainant to the Lafayette Branch. He averred
that later that day, the FP instructed him not to send complainant to
the Lafayette Branch because she could not do the work needed there due
to her tendinitis of the wrists. The Supervisor stated that complainant
was placed on unscheduled leave on May 26, 30, 31, June 7, and December
23, 1995, when she had to leave work because of her condition.
Complainant averred that she informed the agency of her asthma when she
was hired in December 1987. She stated that in her May 1995 note to
the FP, she requested an accommodation, and told him that she received
a medical disability discharge from the Army because of her asthma.
The AJ concluded that complainant established a prima facie case of
reprisal because she filed a prior EEO complaint in which she named
the Supervisor as the responsible management official, the Supervisor
was aware of that activity, having testified before an AJ in that case,
and that AJ issued a recommended finding of discrimination in the fall
of 1995, just months before complainant was forced to take sick leave
against her will. Thus, the AJ found a nexus between the protected
activity and the adverse action.
The AJ concluded that complainant established a prima facie case
of disability discrimination under both failure to accommodate and
disparate treatment analyses. The AJ found that complainant was a
qualified individual with a disability under the Rehabilitation Act.
The AJ found that complainant supplied medical documentation sufficient
to establish that she suffered from bronchial asthma, and that her
disability substantially limited one or more major life activities,
namely, her ability to breathe. The AJ further found that complainant
demonstrated that she was able to perform the essential functions of
her position, both at Fayetteville, when she worked on January 8, 1996,
and at Fort Bragg. The AJ found that complainant notified management
of her asthma at the time she was hired in 1987, and again in May 1995,
when she requested an accommodation. The AJ concluded that complainant
was sent home because of her physical condition.
The AJ then concluded that the agency failed to demonstrate that
accommodating complainant would impose an undue hardship on the operation
of its programs. Although the agency claimed that complainant never
requested an accommodation, the AJ noted the Supervisor's testimony
regarding complainant's request for re-assignment in June 1995, and her
letter to the FP requesting a temporary re-assignment to another postal
station while the construction continued because the mixing of asphalt
and tar aggravated her asthma. The AJ also noted that the Supervisor
made no effort to discuss the restriction in the January 3, 1996 letter
with complainant.
The AJ found that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that complainant was sent home because
the agency did not have any work available in a dust-free environment,
but concluded that complainant established that more likely than not,
the agency's reasons were a pretext for discrimination or retaliation.
In reaching her conclusion, the AJ found that the agency officials
involved were not credible, and noted inconsistent statements in the
affidavits and hearing regarding whether the AP or the Supervisor sent
complainant home. The AJ also found that if the agency was concerned
about complainant working in a dust-free environment, as it contended,
its managers would have reacted differently in May 1995, when she first
requested an accommodation.
The agency's final decision rejected the AJ's decision. The agency
argued that complainant failed to establish a prima facie case of reprisal
because the AP, who testified that he was unaware of complainant's prior
protected activity, decided to send complainant home on January 5, 1996.
The agency also found that complainant failed to establish a prima facie
case of discrimination based on physical disability because the record
contained only two or three incidents in which complainant may have had
a bronchial reaction to her environment. The agency thus concluded that
she did not prove that she suffered from an impairment which substantially
limited a major life activity. On appeal, complainant contends that the
AJ's decision correctly summarized the facts and reached the appropriate
conclusions of law.
ANALYSIS AND FINDINGS
To bring a claim of disability discrimination, complainant must
first establish that she has a disability within the meaning of the
Rehabilitation Act. Murphy v. United Parcel Service, Inc., 527 U.S. 516
(1999); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Albertsons,
Inc., v. Kirkingburg, 527 U.S. 555 (1999). EEOC Regulation 29 C.F.R. �
1630.2(g) defines an individual with a disability as one who: 1) has a
physical or mental impairment that substantially limits one or more of
that person's major life activities, 2) has a record of such impairment,
or 3) is regarded as having such an impairment. EEOC Regulation 29
C.F.R. � 1630.2(h)(2)(i) defines "major life activities" as including the
functions of caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working. Cook
v. United States Postal Service, EEOC Request No. 05960015 (June 21, 1996)
(To merit the protection of the Rehabilitation Act, it is not enough
to have a particular medical condition that carries the potential for
substantial limitations).
Complainant also must show that she is a "qualified" individual
with a disability within the meaning of 29 C.F.R. � 1630.2(m). That
section defines a qualified individual with a disability as meaning,
with respect to employment, a disabled person who, with or without
reasonable accommodation, can perform the essential functions of the
position in question.
To establish a prima facie case of disability discrimination, complainant
must show that: 1) she is an individual with a disability as defined in 29
C.F.R. �1630.2(g), 2) she is a "qualified" individual with a disability
as defined in 29 C.F.R. �1630.2(m), and 3) the agency took an adverse
action against her. See Prewitt v. United States Postal Service, 662
F.2d 292 (5th Cir. 1981). Complainant also must demonstrate a causal
relationship between her disabling condition and the agency's reasons
for the adverse action.
The Commission finds that complainant is a person with a disability
because she has bronchial asthma, which substantially limits a major life
activity, her ability to breathe, when exposed to dust and certain fumes
such as those from asphalt and tar. The Commission bases its finding on
the two notes from complainant's doctor; the first of which stated that
due to bronchial asthma, complainant should be in a dust free environment
and away from construction, and the second of which stated that, due to
exposure to fumes from construction, complainant should be allowed to work
at another site until construction is completed. The doctor recommended
moving complainant while the construction continued on the Fayetteville
office roof because the fumes aggravated her asthma and impaired her
ability to breathe. The agency was aware of complainant's condition.
Complainant notified the agency that she suffered from asthma when she
was hired and of the fact that she received a disability rating from
the military because of her condition. The Commission also finds that
complainant first requested accommodation for her asthma in May 1995.
The Supervisor averred that he knew of complainant's asthma in May 1995,
because of her request for accommodation.
The agency argues in its final decision that complainant is not an
individual with a disability because she had only two or three alleged
incidents where she may have had bronchial reactions to her environment.
The Commission finds this argument unpersuasive, having found in previous
decisions where an agency argued that bronchial asthma was a temporary
or transitory condition, that the complainant was an individual with a
disability because of the complainant's long history of the condition,
and the requirement that complainant exercise care in daily life to
avoid air-borne agents such as dust and various fumes which trigger
asthma attacks. See Collington v. USPS, EEOC Request No. 01973564
(December 10, 1998). See also, Carl v. Department of Defense, EEOC
Request No. 01985333 (March 19, 1999) (complainant found to be an
individual with a disability where medical evidence established that
she experienced severe allergic anaphylactic reactions to a variety
of unspecified chemicals in the air in concentrations below the normal
problem threshold for most other individuals.)
The Commission finds that complainant is a qualified individual with
a disability. There is no indication that complainant was unable to
perform her duties prior to the construction at the Fayetteville Office
or that she was unable to work at the detail at Fort Bragg.
Further, the Commission finds that the agency took adverse action against
complainant because of her disability. The Supervisor instructed her to
clock out and take sick leave when she complained about the construction
fumes aggravating her bronchitis. But for complainant's asthma, she
would not have been sent home and clocked out by the supervisor.
Finally, the Commission finds that the agency failed to accommodate
complainant's disability. The Supervisor was aware that complainant was
taking sick leave because the construction fumes aggravated her asthma.
The agency made little effort to accommodate complainant in May 1995,
when construction on the roof began and she requested to be re-assigned.
Complainant states that she was on unscheduled leave on May 26, 30,
and 31, 1995, because of the construction fumes. On June 2, 1995, the FP
instructed the Supervisor to send complainant to the Lafayette Branch,
then later rescinded that instruction because complainant could not
perform the work needed there. There is no indication that the FP
took any further steps to accommodate complainant or locate another
branch for her. The agency provided no evidence that accommodating
complainant's disability during the construction periods would create
an undue hardship on its operations.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, complainant must show: 1) that she engaged in
protected activity, e.g., participated in a Title VII proceeding; 2)
that the alleged discriminating official was aware of the protected
activity; 3) that she was disadvantaged by an action of the agency
contemporaneously with or subsequent to such participation; and 4)
that there is a causal connection between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d
80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The record indicates that complainant engaged in protected activity when
she filed an EEO complaint which was resolved by an EEOC AJ in October
1995, with a finding of discrimination based on reprisal. The Supervisor
was aware of that activity, because he was named as the responsible
official in that complaint and testified at the hearing. The AJ issued a
Recommended Decision on that case in the Fall of 1995. The Commission
thus finds that complainant established a causal connection based on
closeness in time, and established a prima facie case of discrimination
based on reprisal.
We find that the agency stated legitimate, nondiscriminatory reasons
for its action, namely that
the agency had no work available within complainant's medical
restrictions. However, we find that complainant established that the
agency's reasons were likely a pretext for discrimination. The Supervisor
lacks credibility, having given inconsistent statements regarding whether
he or the AP decided to send complainant home on January 5, 1996.
The facts demonstrate that work was available within complainant's
restrictions at the Fort Bragg office, as evidenced by the fact that
the AP detailed complainant there on January 10, 1996. The Supervisor
took no action to accommodate complainant on January 5, 1996, but instead
clocked her out against her will. Therefore, the agency's determination
that complainant failed to establish that the agency retaliated against
her or that its actions were based on discriminatory animus was incorrect.
Pursuant to 29 C.F.R. � 1614.405(a) all post-hearing factual findings
by an Administrative Judge 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).
After a careful review of the record, the Commission finds that the
AJ's recommended decision summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Therefore, after a careful review of
the record, including the agency's decision, complainant's arguments
on appeal, and arguments and evidence not specifically discussed in
this decision, the Commission REVERSES the agency's final decision and
REMANDS the matter to the agency to take remedial actions in accordance
with this decision and the ORDER below.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
The agency shall retroactively restore complainant's sick leave used
because of construction fumes aggravating her bronchial asthma, beginning
from the time that she requested reasonable accommodation in May 1995.
This includes May 26, 30, 31, June 7, and December 23, 1995, and January
5, 6, and 9, 1996. Complainant shall also be awarded any incurred and
reasonable attorney's fees.
The agency shall determine the appropriate amount of benefits due
complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60)
calendar days after the date this decision becomes final. The complainant
shall cooperate in the agency's efforts to compute the amount of restored
sick leave due, and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amount of
sick leave and/or benefits, the agency shall restore to complainant
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
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 restored sick leave and other benefits due
complainant, including evidence that the corrective action has been
implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Fayetteville, North Carolina Post
Office 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.
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.
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.
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
December 13, 2000
__________________
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 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, et seq. 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, OR IN REPRISAL FOR PROTECTED
ACTIVITY with respect to hiring, firing, promotion, compensation, or
other terms, conditions or privileges of employment.
The United States Postal Service, Fayetteville, North Carolina 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 United States Postal Service, Fayetteville, North Carolina facility
has been found to have discriminated against an employee based on reprisal
for prior EEO activity and on disability by requiring the employee to use
sick leave and by denying a reasonable accommodation for a disability.
The agency has been ordered to restore the employee's sick leave
retroactively as a result of the discrimination. The United States Postal
Service, Fayetteville, North Carolina 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 and will not retaliate against employees who file EEO complaints.
The United States Postal Service, Fayetteville, North Carolina 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: __________________
29 C.F.R. Part 16141 The 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.
2 On 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 where applicable, in
deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.
3 According to the Supervisor, the Post Office roof was periodically
under construction from May 1, 1995, through January 20, 1996.
4 The Supervisor averred in his affidavit that it was his decision to send
complainant home. At the hearing, he testified that the AP instructed
him to send complainant home.
5 The Supervisor was not at work that day. The union president told
complainant not to give the second note to the Supervisor.
6 The record contains an undated letter from complainant to the Former
Postmaster requesting re-assignment because the construction fumes and
dust aggravate her asthma.