01973948
12-10-1998
Rosario Cornejo, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Rosario Cornejo v. United States Postal Service
01973948
December 10, 1998
Rosario Cornejo, )
Appellant, )
) Appeal No. 01973948
v. ) Agency No. 4F-946-1079-95
) Hearing No. 370-96-X2005
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning her
allegation that the agency violated Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq. The Commission hereby
accepts the appeal in accordance with EEOC Order No. 960, as amended.
The issue presented is whether appellant proved, by a preponderance of
the evidence, that she was discriminated against because of her physical
disability (tendinitis/muscle strain in upper extremities) when she was
not granted a change of work schedule request as an accommodation for
her disability.
On appeal, appellant's attorney contends that the agency's reliance
upon the fact that the interior of the agency facility is kept at a
constant temperature 24 hours a day does not answer the recommendations
of appellant's physicians that appellant be allowed to permanently work
an earlier shift. The agency did not respond to appellant's contentions
on appeal.
At the relevant time, appellant was employed by the agency in a limited
duty position as a Mail Processor Clerk working in nixie mail for
four hours a day. Believing that she was a victim of discrimination,
appellant sought EEO counseling and later filed the instant formal EEO
complaint dated January 25, 1995.
The agency complied with all procedural and regulatory prerequisites,
and on January 13, 1997, the EEOC Administrative Judge (AJ) issued
a Recommended Decision (RD) finding discrimination on the basis of
physical disability. The AJ noted the testimony of an expert medical
witness that it was common for patients with appellant's condition to
experience increased symptoms in cold weather, even when the individual
is working indoors at a constant temperature. The pain associated with
this condition can be exacerbated when the individual leaves work in the
late afternoon or evening because of the colder weather at that time,
as opposed to warmer temperatures earlier in the day. Thus appellant,
by working from 9:00 a.m. to 1:00 p.m. in the warmer part of the day,
experienced decreased pain symptoms. The AJ further found that such a
schedule change from appellant's reassigned shift of 3:30 p.m. to 7:30
p.m. would not constitute an undue hardship on the agency, as there was
ample nixie mail for appellant to process during the earlier shift and
her being assigned to the earlier shift would not violate the Collective
Bargaining Agreement, as contended by the agency.
In its FAD, however, the agency found no discrimination when it
rescheduled appellant to the 3:30 p.m. to 7:30 p.m. shift, because
the temperature inside the agency facility was kept constant at all
times. Therefore, appellant's rescheduling to a later shift could
have no adverse affect on appellant's condition. The agency noted
that appellant's expert medical witness based his conclusions on the
weather outside of appellant's work environment but failed to consider
the temperature inside appellant's work environment.
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We therefore discern no
basis to disturb the AJ's finding of discrimination based on physical
disability or his recommended remedial actions. In this regard, we
concur with the AJ's finding crediting the testimony of the expert
medical witness when he testified that: (1) patients with conditions
similar to those of appellant experience increased symptoms in cold
weather, even when working indoors at a constant temperature, and (2)
the condition can be exacerbated when the individual leaves work in the
late afternoon or evening because of the colder weather. The agency
did not provide any evidence or expert witness to rebut this testimony.
Accordingly, after a careful review of the entire record, including
arguments and evidence not specifically addressed in this decision, the
Commission hereby REVERSES the FAD and enters a finding of discrimination
against the agency. The complaint is hereby REMANDED to the agency
for further processing in accordance with this decision, the following
Order, and the subsequent paragraphs preceding the Statement of Rights
on Appeal.
ORDER (C1092)
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) days of the date of receipt of this decision,
the agency shall place appellant on Tour II for the duration of her
disability, as recommended by her physician. Appellant shall also
receive any back pay, differential, and benefits, plus interest, which
would have accrued to appellant had she not been rescheduled to Tour
III from May 27, 1994, to the present.
2. Within sixty (60) days of the date of receipt of this decision, the
agency shall conduct a supplemental investigation in order to determine
the appropriate amount of compensatory damages due appellant because of
the agency's discriminatory rescheduling of her to Tour III on May 27,
1994.<1> The appellant shall cooperate in the agency's efforts to
compute the amount of compensatory damages due her, and shall, within
thirty (30) days of the date of receipt of this decision, provide all
relevant information with respect to her claim for compensatory damages.
Thereafter, within ninety (90) days of the date of this decision, the
agency shall issue a final decision determining appellant's entitlement
to compensatory damages, together with appropriate appeal rights.
3. The agency is directed to conduct training for those management
officials who were found to have denied appellant's request to
remain on Tour II in 1994. The agency shall address these employees'
responsibilities with respect to eliminating discrimination in the Federal
workplace and all other supervisory and managerial responsibilities
under equal employment law.
4. 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 verifying
that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Oakland, California Main 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
ATTORNEY'S FEES (H1092)
If appellant 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 (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Dec 10, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
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, 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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, compensation, promotion,
or other terms, conditions or privileges of employment.
The United States Postal Service (Oakland, California Main Post
Office) 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 (Oakland, California Main Post
Office) was found to have discriminated against an employee at this
facility on the basis of physical disability, when it did not schedule
such individual to a Tour which would accommodate her disability.
It has remedied the employee affected by the Commission's finding by
rescheduling her to a Tour which does accommodate her disability,
giving her any back pay, differential, and benefits to which she
would have been entitled had she remained on the Tour of her choice,
and by granting her compensatory damages applicable for any pain and
suffering she endured by being assigned to another Tour. The United
States Postal Service (Oakland, California Main Post Office) 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 United States Postal Service (Oakland, California Main Post Office)
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 1614
1In Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992); request for reconsideration denied, EEOC Request No.
05930306 (February 1, 1993), the Commission held that Congress afforded
it the authority to award such damages in the administrative process. It
based this assessment, inter alia, on a review of the statutory
provisions of the Civil Rights Act of 1991 in relation to one another and
on principles of statutory interpretation which require statutes to be
interpreted as a whole. In particular, the Commission discussed the
meaning of the statute's definition of the term "complaining party" and
the significance of the reference to the word "action" in Section 102(a).
In addition to the specific reasons set forth in Jackson for this holding,
Section 2000e-16(b) (Section 717) of the Civil Rights Act of 1964 (42
U.S.C. �2000(e) et. seq.)(CRA) conveyed to the Commission the broad
authority in the administrative process to enforce the nondiscrimination
provisions of subsection (a) through "appropriate remedies." Similarly,
in Section 3 of the Civil Rights Act of 1991 (CRA of 1991), Congress
refers to its first stated purpose as being "to provide appropriate
remedies for intentional discrimination and unlawful harassment in the
workplace;", thereby reaffirming that authority. Consequently, it is our
view that in 1991, Congress clearly intended to expand the scope of the
"appropriate remedies" available in the administrative process to federal
employees who are victims of discrimination. Moreover, in Section 717(c)
of the CRA, the term "final action" is used to refer to administrative
decisions by agencies or the Commission, as distinguished from the term
"civil action," used to describe the rights of employees after such final
action is taken. Therefore, the Commission reaffirms the holding therein.
See Cobey Turner v. Department of the Interior, EEOC Appeal Nos. 01956390
and 01960518 (April 27, 1998).