01965344
01-20-1999
Rosemary Kalkofen, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rosemary Kalkofen v. United States Postal Service
01965344
January 20, 1999
Rosemary Kalkofen, )
Appellant, )
)
v. ) Appeal No. 01965344
) Agency No. 4F-920-1186-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
On July 3, 1996, Rosemary Kalkofen (hereinafter referred to as appellant)
filed a timely appeal from the June 6, 1996, 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., Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. ��791 et seq., and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq. The appeal is timely filed
(see 29 C.F.R. �1614.402(a)) and is accepted in accordance with EEOC
Order No. 960, as amended. For the reasons that follow, the agency's
decision is REVERSED.
ISSUE PRESENTED
The issue presented in this appeal is whether the appellant has proven, by
a preponderance of the evidence, that the agency discriminated against her
on the bases of race (white), disability (left hand/perceived), sex, and
age (DOB 8-24-48), when she was removed from training, denied a reasonable
accommodation, and terminated from employment in May-July 1995.
BACKGROUND
Appellant filed her formal complaint on August 10, 1995. Following an
investigation, she was advised of her right to request a hearing within
30 days, but her request for a hearing was not timely. Thereafter, the
agency issued its final agency decision (FAD), finding no discrimination.
Prior to her service with the agency, appellant had been employed with
the Internal Revenue Service (IRS) where she sustained an on-the-job
injury involving her left hand/wrist, for which she underwent surgery
in August 1994 and February 1995. She had applied for a position with
the agency and, when her name surfaced on the hiring register for the
position of City Carrier, she was sent for a pre-employment examination by
a contract physician (Dr. A) on March 14, 1995. Dr. A is associated with
the Occupational Medicine Resource Center although no medical specialty
is noted. Dr. A completed the agency's medical assessment form noting
that appellant's condition, wrist/thumb tenosynovitis, was still active
and under treatment by a second doctor (Dr. B), who had treated her and
returned her to work with a restriction on keyboarding activity following
surgery in February 1995. Dr. A identified appellant as a moderate risk,
with a restriction on repetitive use of her left wrist, hand, and thumb.
On April 11, 1995, an agency hiring official (M1) completed a reasonable
accommodation evaluation form for appellant. M1 noted the limitation
imposed by Dr. A and wrote:
As she is rt. handed, she would be casing & thumbing mail w/her rt
wrist/hand/thumb....Can be accommodated as a letter carrier.
Thereafter, appellant spoke with a second management hiring official
(M2), who assured her that her physical condition could be accommodated.
Appellant accepted the position with the agency and resigned from her
job with the IRS. She reported for work on May 1, 1995, for training.
During the training session on May 2, she was removed to meet with
M2 and a Labor Relations Specialist (M3).<1> According to M2, M3,
after looking at appellant's file, determined that appellant should
not have been found to be medically qualified and informed appellant
that her medical suitability determination was in error, in that, her
medical limitations precluded her from the position of letter carrier,
since she would have to case the mail with her left thumb. M3 refused
to consider any alternative or accommodation to this prescribed method
of casing mail, and he instructed appellant to resign or be terminated.
In a letter dated May 3, 1995, appellant requested reasonable
accommodation from the Postmaster, asking to be allowed to use alternative
methods to case the mail. On May 22, 1995, Dr. A, M1, M2, and M3 met to
discuss and observe the requirements of the carrier position, especially
with regard to hand casing of mail. In a letter dated May 30, 1995,
Dr. A, without further examination of appellant, revised her assessment
of appellant's ability to perform the essential job functions of the
carrier position. Specifically, Dr. A stated that appellant would be
unable to perform the following essential functions:<2>
1. grasping letters from the ledge with the left hand;
2. pushing the top of the letter with the left thumb to case with the
right hand;
3. pulling down bundles of mail with the left hand;
4. grasping trays from the hamper to load the vehicle;
5. driving, which requires wrist flexion; and
6. continuous carrying and grasping of mail with fingering and grasping
mail while on the route.
In addition, Dr. A noted that she spoke with Dr. B, who verbally concurred
in her assessment of appellant's capability to perform the above-listed
essential duties of the position based on Dr. A's explanations.
By letter dated June 14, 1995, the agency informed appellant that its
Reasonable Accommodation Committee (Committee) would consider her ability
to perform the essential functions of the city carrier position, noting
that Dr. A "recommended an accommodation of no repetitive use of the left
wrist/thumb/hand."<3> The letter requested that appellant provide written
suggestions by June 26 for accommodating the six functions listed above,
which it identified as "essential functions of a city letter carrier."
In her letter in response dated June 26, 1995, appellant suggested and
described reasonable accommodations that would allow her to perform the
essential duties of the position and supplied a new CA-17 from Dr. B
dated June 22, 1995, which showed reduced restrictions since her February
1995 surgery.<4> Although the CA-17 form does not require the same
information as the agency's medical examination and assessment form,
much of the information is transferable. For example, Dr. B's new
assessment allowed appellant to carry and lift up to 50 pounds on an
intermittent basis; no limitations were placed on sitting, standing,
walking, climbing, stooping, twisting, and, significantly, pulling;
pushing and fine manipulation were allowed intermittently up to four
hours per day; and, simple grasping was allowed intermittently up to
eight hours per day. We note, in addition, that Dr. B is identified as
a board certified specialist in orthopedic surgery of the hand.
Also, in her letter, appellant asserted that her physical abilities
had greatly improved since her surgery in February 1995 and
Dr. A's examination in March 1995, that her medical restrictions
had greatly lessened since March 1995 per Dr. B's recent assessment,
that Dr. A's revised opinion on May 30 was not made on the basis of a
current physical examination, and that the agency's own Guidelines on
Reasonable Accommodation, EL-307 (April 1990) provided specific examples
of accommodations for the city carrier position. Appellant identified
specific accommodations that would allow her to perform the six essential
duties identified by Dr. A and contended that, with accommodations and
within her revised restrictions, she could successfully perform the six
essential duties identified, above.<5>
In preparation for the Committee meeting, Dr. A was asked for a new
assessment based on appellant's response, but the record contains no
additional comments from Dr. A. Nevertheless, by letter dated July 25,
1995, M1 informed appellant that the Committee had met on July 19 and
that it:
determined you cannot perform the essential functions of a city Carrier
with or without reasonable accommodation.
No further information or explanation was provided. By letter dated July
20, appellant was terminated from her position based on her "physical
inability to perform the duties for the position for which hired."
The record contains a two-page form entitled "Reasonable Accommodation -
Placement Procedures," which appears to be the report of the Committee.
It references that several documents are attached, e.g., the essential
functions of the position, input of line supervisor, evidence of ability
to perform the functions, but none of these items are attached thereto or
contained or identified in the record. Under remarks, the report stated:
The [Committee] considered the essential functions of the position,
the physicians' suggestions for accommodation, [appellant]'s suggestions
and operations input. [Appellant] was afforded an opportunity to visit
a city carrier worksite and amend her suggestions. She visited a city
carrier worksite and was given until the close of business July 17, 1995
to submit an addendum. However, no additional information was received.
The [Committee] determined [appellant] could not perform the essential
functions of a city carrier with or without reasonable accommodation.
No other information was contained in this report; it is not clear whether
this two-page form was forwarded to appellant. By letter dated July 17,
appellant had responded with additional comments, again asserting her
ability to perform the essential functions of the city carrier position
with reasonable accommodation. At no time did the Committee respond or
comment on appellant's specific suggested forms of accommodation nor did
it explain why appellant could not be accommodated as prescribed in the
agency Guidelines on Reasonable Accommodation.
In its FAD, the agency found that appellant failed to establish a prima
facie case on any bases because she was unable to demonstrate that she had
been treated differently than other comparative employees. The agency
also held that it stated legitimate, nondiscriminatory reasons for its
actions, in that, appellant could not perform the essential functions of
the position with or without reasonable accommodation, and that appellant
was not able to demonstrate pretext.
In her appeal, appellant restates facts and arguments and asserts that
she can perform the essential duties of the position and those duties
set out by Dr. A, that the agency did not follow proper procedures, that
agency managers were not credible, and that the agency's reasons were
a pretext for discrimination. Appellant also refers to the agency's
Guidelines on Reasonable Accommodation, which provide case studies
for accommodating individuals with disabilities that are applicable to
appellant's situation. See fn. 5.
ANALYSIS AND FINDINGS
Discrimination Based on Disability
The Rehabilitation Act prohibits discrimination on the basis of
disability, and Federal agencies are required to make reasonable
accommodations to the known physical and mental limitations of
qualified individuals with disabilities unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. �1614.203(c).
To establish a prima facie case of disability discrimination, appellant
must show that (1) she is an individual with a disability as defined
in 29 C.F.R. �1614.203(a)(1); (2) she is a "qualified" individual
with a disability as defined in 29 C.F.R. �1614.203(a)(6); and (3)
the agency took an adverse action against her because of her disability.
See Prewitt v. USPS, 662 F.2d 292 (5th Cir. 1981). In addition, appellant
must make a plausible showing that there is a causal relationship between
her disabling condition and the alleged misconduct of the agency, that
is, that the agency's action was based on appellant's disability.
As a threshold matter, one asserting the protection of the Rehabilitation
Act must show that she is a qualified person with a disability within
the meaning of the Act. 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 activity.
29 C.F.R. �1614.203(a)(1)(I). Major life activities include caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. �1614.203(a)(3).
After a thorough review of the medical information contained in the
record, we find that there is sufficient information to conclude that
appellant is a person with a disability, as she is limited in her ability
to engage in fine motor activity on an unrestricted, regular basis.
See Cooper v. USPS, EEOC Appeal No. 01922979 (May 7, 1993). Based on
the most recent documentation in the record as supplied by Dr. B in the
CA-17 dated June 22, 1995, appellant's restrictions limit her ability to
engage in other motor skills on more than an intermittent basis, i.e.,
appellant may intermittently engage in simple grasping up to eight hours
per day, fine manipulation up to four hours per day, and reach above her
shoulder up to two hours per day. Although these restrictions are less
than the restrictions imposed by Dr. B in February 1995 following her
surgery, it does not appear that appellant will ever be totally free of
some limitations on her fine motor activity. We also find that appellant
has shown a causal connection between the agency's removal action and her
disability, since the agency's action was predicated on her disability.
Appellant must also show that she is a qualified person with a disability.
A qualified individual with a disability is one who, with or without
reasonable accommodation, can perform the essential functions of
the position in question and meets the experience and/or educational
requirements for the position. 29 C.F.R. �1614.203(a)(6).
The agency initially found appellant to be a qualified disabled
individual, since she was qualified for the position and hired based on
the agency's initial determination that she could perform the essential
functions of the position with a reasonable accommodation. Thereafter,
for reasons that are not fully set out in the record, appellant was
removed from her position apparently based on a revised determination
that she could not perform the essential functions of the position with
or without reasonable accommodation. Nevertheless, because we find that
there are plausible reasons to believe that appellant's disability can
be accommodated based on appellant's letter of June 26, 1995, we find
that appellant is a qualified person with a disability.
The Commission's regulations require a Federal agency to "make
reasonable accommodation for the known physical or mental limitations"
of qualified applicants or employees with disabilities, unless the agency
can demonstrate that the accommodation would impose an undue hardship
on the operation of its program. 29 C.F.R. �1614.203(c). Reasonable
accommodation may include making facilities accessible, restructuring
jobs, modifying work schedules, and other similar actions.
29 C.F.R. �1614.203(c)(2).
The Interpretive Guidance on Title I of the Americans with Disabilities
Act (1991) (Guidance), 29 C.F.R. Part 1630, addresses the process for
providing a reasonable accommodation. It notes that once an individual
makes a request for an accommodation, "[t]he appropriate reasonable
accommodation is best determined through a flexible, interactive process
that involves both the employer and the qualified individual with
a disability." Guidance, 29 C.F.R. �1630.9. In other words, once an
accommodation is properly requested, the responsibility for fashioning
a reasonable accommodation is shared between the employer and employee.
Id.
The facts herein indicate that appellant was advised that the agency
would provide a reasonable accommodation to allow her to perform the
position. Thereafter, she formally requested reasonable accommodation,
suggesting several accommodations. Later, following a tour, she suggested
additional accommodations and submitted updated medical information
from Dr. B. The agency, however, through the Committee, found that it
could not provide appellant a reasonable accommodation. Even though the
Committee had before it appellant's suggested accommodations and Dr. B's
new evaluation, it found that no new information had been submitted for
its consideration.
The Commission finds that appellant's request for reasonable
accommodation, submission of updated medical information, and suggested
forms of accommodation provided the agency sufficient information from
which it should have provided appellant reasonable accommodation(s) to
perform the position. For example, appellant stated that she could case
mail with her opposite hand and described scenarios found in the agency's
Guidelines on Reasonable Accommodation, EL-307 (April 1990). Other than
deny her request for reasonable accommodation without explanation, the
agency has failed to show that accommodating appellant would impose an
undue hardship on its operations.
As the agency failed to show undue hardship and failed to offer appellant
a reasonable accommodation, the Commission finds that appellant has
established discrimination on the basis of disability as alleged.
Having established that the agency discriminated against her, we find
that appellant is entitled to retroactive reinstatement into the position
and back pay with associated benefits. In addition, because the agency
failed to engage in good faith efforts to reasonably accommodate appellant
and based on appellant's correspondence and statements contained in the
record, we find that she has raised a claim for compensatory damages.<6>
The Commission has held that an agency must address the issue of
compensatory damages when the complainant presents objective evidence that
she has incurred monetary and non-monetary damages and that the damages
are related to the alleged unlawful discrimination. See Jackson v. USPS,
EEOC Appeal No. 01923399 (November 12, 1992), request to reopen denied,
EEOC Request No. 05930306 (February 1, 1993). The agency will be required
to consider appellant's claim for compensatory damages by requesting that
appellant present objective evidence to support her claim for damages.
Discrimination Based on Race, Sex, and Age
In general, claims of disparate treatment discrimination are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). See Loeb v. Textron,
Inc., 600 F.2d 1003 (1979). For appellant to prevail, she 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).
In the matter before us, appellant has not raised the necessary inference
to establish a prima facie case based on age, sex, or race nor does the
record so reflect. She has not discussed or explained her allegations
based on race, sex and age, and none of her statements or documents
elaborate on these claims. To the extent that appellant contends that
she was treated differently than other employees when she was denied
reasonable accommodation, that claim has been addressed, above. For the
above reasons, we find that appellant has failed to show that the agency
discriminated against her based on sex, age, or race.
CONCLUSION
Accordingly, the agency's decision is REVERSED. The agency is directed
to comply with the Order, set out below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall reinstate appellant to the position of City
Carrier (or similar position acceptable to appellant) retroactive to
May 1, 1995, the effective date of her initial hire by the agency.
(B) The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The appellant shall cooperate in the
agency's efforts to compute the amount of back pay, interest, and benefits
due, and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay, interest,
and/or benefits, the agency shall issue a check to the appellant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The appellant 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."
(C) The agency is directed to take all steps necessary, including meeting
with appellant, to provide reasonable accommodation to appellant to allow
her to perform the essential duties of her position in accordance with
the Commission's regulations and the agency's Guidelines on Reasonable
Accommodations.
(D) Within 30 days of the date this decision becomes final, the agency
shall request objective evidence from appellant in support of her claim
for compensatory damages, providing appellant sufficient specificity to
allow her to reasonably respond to the agency's request for information
and evidence. The agency shall conduct a supplemental investigation to
determine the amount of compensatory damages due to appellant, if any,
and issue a final agency decision. The supplemental investigation and
final agency decision shall be completed within 60 days of appellant's
presentation of objective evidence. A copy of the final agency decision
must be submitted to the Compliance Officer, as described, below.
(E) The agency is directed to provide comprehensive EEO training to all
hiring officials involved in this matter and M3 with regard to their
responsibilities under the equal employment opportunity laws and the
agency's regulations. The training shall place special emphasis on
prevention and elimination of discrimination on the bases of disability
and the provision of reasonable accommodation to qualified persons with
disabilities.
(F) 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, interest, and other benefits due
appellant, including evidence that the corrective action has been
implemented, and a copy of the final agency decision with regard to
appellant's claim for compensatory damages.
POSTING ORDER (G1092)
The agency is ORDERED to post at the San Diego Post Office 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 (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.
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.
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 (S0993)
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. 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 (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:
JAN 20, 1999
DATE Ronnie Blumenthal, Director
1M2 had initially contacted M3 to determine whether appellant had
disclosed her workers' compensation claim on her application; M3 found
that she had done so. M3 declined to submit an affidavit or other
statement to the investigator, and this has compromised our
understanding of the agency's actions. The agency is reminded of its
obligation to perform a full and complete investigation. 29 C.F.R.
�1614.108 et seq.
2Dr. A referred to Sections 224 and 225 of the agency manual as defining
the essential functions of the position. The record contains one page
of the manual covering Sections 224.2 through 225.18. While this page
provides some instruction on hand casing, it does not state, define or
purport to describe the essential functions of the city carrier position.
3Although Dr. A noted this restriction on the medical assessment form at
"5. Suggested Accommodation," it is clearly not an accommodation but a
restriction limiting appellant's physical activity.
4Dr. B stated that he had previously agreed with Dr. A based upon her
verbal description of the job duties. Upon review of the position
description, however, he concluded that appellant would be able to
perform the position.
5In particular, appellant referred to Appendix A, where several case
studies are set out that show examples of actions that can be taken
to reasonably accommodate individuals with disabilities. All of the
examples have applicability to appellant's situation, and, in particular,
the second case study describes an applicant with a partially paralyzed
left hand who used a device which allowed him to case with his right hand.
Another case study portrayed an individual with an artificial limb who,
with modifications, was able to case and distribute mail.
6Where a discriminatory practice involves the provision of a reasonable
accommodation, compensatory damages may be awarded where the employer does
not demonstrate good faith efforts to make a reasonable accommodation.
42 U.S.C. � 1981a(a)(3).