01974481
04-06-2000
Thelma J. Reagins, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.
Thelma J. Reagins v. United States Postal Service
01974481
April 6, 2000
Thelma J. Reagins, )
Complainant, )
)
v. ) Appeal No. 01974481
) Agency No. 1-J-464-1001-94
William J. Henderson, ) Hearing No. 240-95-5091X
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Region), )
Agency. )
______________________________)
DECISION
On May 16, 1997, Thelma J. Reagins (complainant), by and through her
attorney, timely appealed the final decision of the United States Postal
Service (agency), dated April 18, 1997, concluding she had not been
discriminated against in violation of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791 et seq.<1> In her complaint, complainant alleged
that officials at the agency's main postal facility in Gary, Indiana,
had discriminated against her on the basis of her physical disability
(ulnar neuropathy and bilateral carpal tunnel syndrome of both elbows
and hands) when, between August 1993 and March 1994, the agency failed to
provide her a job with duties which were in compliance with her medical
restrictions. The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).<2>
The record establishes that complainant had been employed by the agency
since 1977 as a LSM Distribution Clerk. In 1983, complainant developed
job-related bilateral carpal tunnel syndrome, which eventually required
surgery in both wrists. The condition was accepted as work-related
by the Department of Labor's Office of Workers Compensation Programs
(OWCP), and complainant received a variety of OWCP benefits. Subsequent
to her surgery, complainant successfully bid on the position of Flex
Order Operator but soon required another surgery on her left elbow to
relieve problems with her ulnar nerve. Sometime later, complainant also
required surgery on her right elbow. OWCP again accepted the injuries
as job-related and provided complainant with medical and other benefits.
She returned to work after each surgery and continued successfully in
her bid position. In February 1989, complainant successfully bid into
a General Clerk position in the Finance Department, a position which
did not require any accommodation of her physical impairments.
In May 1993, due to an agency-wide restructuring effort, complainant's
General Clerk position was abolished, and she was involuntarily
reassigned to the position of Distribution Clerk. Her physician, however,
immediately notified the agency that repetitive motion or lifting heavy
objects might lead to a recurrence of complainant's nerve compression
syndrome and require further surgery. Upon receipt of this letter,
the agency scheduled complainant for a fitness-for-duty examination.
After the exam, the agency's contract physician sent the agency a report
indicating that complainant would never be able to work in any position
which required repetitive lifting or repetitive use of her hands and arms.
During this time period, complainant was permitted to work in a temporary
detail performing clerical duties which were necessary to dismantle
the Finance Office. After this work ran out, complainant obtained
another temporary detail to the position of General Clerk in the Bulk
Mail Acceptance Unit. She did not need any accommodations to perform
these duties.
On July 27, 1993, the agency's Injury Compensation Office wrote the
Plant Manager to ascertain whether she had a permanent limited duty
assignment within complainant's medical restrictions. On August 5,
1993, the Plant Manager responded that she had no work available for
complainant within her medical restrictions. On August 12, 1993,
the Injury Compensation Office contacted the Postmaster and asked
about limited duty assignments for complainant. On August 13, 1993,
the Postmaster also responded that he had no work available to provide
complainant a permanent assignment within her medical restrictions.
On August 27, 1993, complainant's detail in the Bulk Mail Unit expired.
At that time, the Injury Compensation Office informed complainant that
there was no work for her and she was to stay at home.
On November 22, 1993, OWCP informed the agency that since complainant had
been placed on Leave Without Pay (LWOP) due to a lack of suitable work,
she would be granted lost wage benefits. OWCP asked the agency to again
determine whether modified work was available. In mid-January 1994,
the agency's Injury Compensation Office again contacted the Plant Manager
and the Postmaster to ask about limited duty assignments for complainant.
Finally, in a letter dated March 29, 1994, the agency offered complainant
the permanent limited duty position of Modified Distribution Clerk which
provided her duties within her medical restrictions. Complainant accepted
the position and returned to work on April 16, 1994, after nearly eight
months without work.
On November 30, 1993, complainant filed a formal EEO complaint alleging
that the agency had discriminated against her as referenced above.
The agency accepted the complaint and conducted an investigation. At the
conclusion of the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ).
On February 26, 1997, following a hearing at which six witnesses
testified, the AJ issued a decision concluding complainant had been
discriminated against on the basis of her physical disability when
the agency failed to provide her with reasonable accommodation to
her disability by reassigning her to a limited duty position between
August 1993 and March 1994.<3> In reaching this conclusion, the AJ
found no evidence that the agency made a good faith effort to assess the
complainant's job skills, her medical restrictions, the work environment
and the agency's resources in order to make an informed determination
whether it could provide complainant with an assignment without creating
an undue hardship on its operations. Rather, the AJ noted that the
agency made little effort until such time as it determined that it was in
its financial interest to undertake such an effort because complainant
started to collect OWCP lost wages benefits. At that time, the agency
was almost immediately able to offer complainant a suitable permanent
limited duty position.
On April 18, 1997, the agency issued its final decision rejecting the
AJ's conclusion that it had unlawfully failed to provide complainant
with reasonable accommodation. It is from this decision that complainant
now appeals.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405(a)), all post-hearing factual findings by an AJ 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 in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
Nothing raised by the agency in its final decision or on appeal differs
significantly from the arguments presented to, and considered by,
the AJ when she issued her decision. The Commission affirms the AJ's
determination that complainant, whose bilateral carpel tunnel syndrome
substantially limited her ability to perform a wide range of manual tasks,
was a qualified individual with a disability within the meaning of the
Rehabilitation Act. 29 C.F.R. � 1630.2(m).
The Commission further concurs with the AJ that the agency's duty
to reasonably accommodate complainant under the Rehabilitation Act
included an attempt to reassign complainant to a suitable position.
29 C.F.R. � 1630.2(o); Ignacio v. United States Postal Service, EEOC
Petition No. 03840005 (September 4, 1984), aff'd, Special Panel No. 1
(February 27, 1986). While an agency need not create a new position for
a disabled individual or "bump" another employee from a job in order
to create a vacancy, the agency must reassign complainant to a vacant
position if she is qualified for it. Schuetter v. Department of Defense,
EEOC Petition No. 03970140 (January 15, 1999). In the federal government,
a position is vacant for purposes of reassignment if it is funded and not
yet encumbered, even if the agency has already posted a notice advertising
the position, or if it is not yet available but is expected to become
available within a reasonable amount of time. 29 C.F.R. � 1630.2(o)
and Appendix. As the AJ correctly noted, it is precisely the agency's
lack of effort in searching for a position to which complainant could have
be assigned which resulted in the finding of discrimination. This lack
of good faith effort was clearly demonstrated by the fact that when the
agency had the financial incentive to conduct a thorough assessment of
available positions for complainant, it was almost immediately able to
locate one.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision which rejected the
AJ's finding of unlawful failure to provide complainant with reasonable
accommodation to her physical disability. In order to remedy complainant
for its discriminatory actions, the agency shall, comply with the
following Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to restore to complainant any wages lost
(with interest), leave used and/or other benefits lost due to the
agency's discriminatory actions.
(B) The agency shall provide immediate training to the officials
responsible for its actions in this matter regarding their obligations
and responsibilities under the Rehabilitation Act.
(C) The agency shall post at the Gary, Indiana 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 set forth below within ten (10)
calendar days of the expiration of the posting period.
(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.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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:
April 6, 2000
_________________ _______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
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 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, promotion, compensation,
or other terms, conditions or privileges of employment.
The Gary, Indiana, 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 Gary, Indiana, Post Office has been found to have discriminated
against the individual affected by the Commission's finding on the basis
of her physical disability when her request for a reassignment to a
limited duty position was denied. The Commission has ordered that this
individual be awarded back pay with interest, as well as restoration
of leave and other benefits lost as a result of the agency's actions.
In addition, the Commission ordered the agency to provide training
to the responsible agency officials. The Gary, Indiana, 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 and will not retaliate
against employees who file EEO complaints.
The Gary, Indiana, 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: _________________
1 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
3 On the other hand, the AJ found insufficient evidence of disparate
treatment discrimination. Complainant has not challenged this finding
on appeal.