0120070743
05-22-2009
Toni L. Dimas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Toni L. Dimas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070743
Agency No. 1G761005606
DECISION
On November 14, 2006, complainant filed an appeal from the agency's
October 10, 2006 final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission VACATES the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Processing Clerk at the agency's Processing and Distribution
Center in Fort Worth, Texas.
In June 2001, complainant was diagnosed with a lumbar condition and
bilateral carpal tunnel syndrome, which are permanent. Complainant
asserts that her carpal tunnel syndrome becomes exacerbated after
approximately 1 to 1 1/2 hours of repetitious and continuous activities,
creating paresthesias in the form of numbness, tingling, and shooting pain
in her hands, forearms, and elbows. Complainant's medical documentation
also indicates that complainant becomes incapacitated for 1 to 3 days
twice a month. Further, because of complainant's lumbar condition,
she must wear a back brace and use a tall-backed chair when sitting.
On October 28, 2004, complainant was offered a modified limited-duty
assignment as a Mail Processing Clerk, which consisted of casing mail
for 4 hours at a modified case and verifying trails of mail up to 8
hours a day. Complainant accepted the position.
On December 28, 2005, vacancy announcement #CL0525 for the Mail Processing
Clerk - Data Collection Technician position was posted. This position
would have given complainant the preferred Tour 2 duty hours, a higher
pay level (level 6), and overtime opportunities.
The agency and the union entered into a Memorandum of Understanding
(MOU) which states that an employee who is temporarily disabled will
be allowed to bid and be awarded a preferred bid assignment if they can
fully assume the duties of the position within 6 months. As a result,
all bidders for the Mail Processing Clerk - Data Collection Technician
position who were on light or limited-duty were instructed to submit
documentation from a medical provider to the personnel office stating that
they would be able to perform the full duties of the job within 6 months.
On January 4, 2006, complainant's physician submitted a letter to Human
Resources Personnel. The letter stated:
This letter is to inform you that [complainant] is capable of performing
the essential job functions of the position she is bidding on, within
six months, with reasonable accommodation provided.
On February 13, 2006, a Human Resources Specialist (HR1) notified
complainant that she had been awarded the best-qualified bid and she was
selected for the position of Mail Processing Clerk - Data Collection
Technician effective February 18, 2006. Subsequently, complainant's
supervisor (S1), the Manager of Distributions Operations, learned that
complainant was awarded the bid and inquired of Human Resources whether
they were aware of complainant's physical limitations, demanded that
they review complainant's medical documentation, and asked why a disabled
person was awarded the bid.
On February 17, 2006, complainant received a telephone call from a
Human Resources Official (HR2) who rescinded the job offer and informed
complainant that she would remain in her current assignment. Complainant
was told by HR2 that the job was being rescinded because her physician's
letter contained the words "reasonable accommodation." Complainant was
also informed of S1's inquiries to Human Resources Office.
Complainant subsequently wrote the Manager of Labor Relations (HR3),
telling her that the rescission was unfair and based on her disability.
On February 24, 2006, HR3 responded in a letter, stating that it was
clear from the letter that complainant's physician submitted that she
would not be able to fully assume the position within 6 months.
On April 24, 2006, complainant filed a formal complaint of discrimination
on the bases of race (Hispanic1), national origin (Mexican American), sex
(female), disability (lumbar condition and bilateral carpal tunnel), and
in reprisal for prior protected EEO activity when on February 17, 2006,
she was notified that the bid assignment she was awarded was rescinded.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged. Specifically, the
agency found that complainant failed to establish her prima facie cases
of discrimination. Additionally, the agency found that complainant failed
to establish that she was disabled as defined by the Rehabilitation Act.
Complainant now appeals to the Commission.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Complainant is alleging that she was discriminated against when the
agency failed to reasonably accommodate her and subsequently rescinded a
job offer. Under the Commission's regulations, an agency is required to
make reasonable accommodation of the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause undue hardship. 29 C.F.R. � 1630.2(o)
and (p). In order to determine whether complainant is entitled to a
reasonable accommodation, we must first analyze whether complainant
is a "qualified individual with a disability" within the meaning of
the Rehabilitation Act. An "individual with a disability" is one who
(1) has a physical or mental impairment that substantially limits one
or more major life activities, (2) has a record of such impairment,
or (3) is regarded as having such impairment. Major life activities
include, but are not limited to, functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. Sitting, standing, lifting, and reaching are
also recognized as major life activities. Interpretive Guidance on
Title I of the Americans with Disabilities Act, Appendix to 29 C.F.R. �
1630.2(i); see also Haygood v. United States Postal Service, EEOC Appeal
No. 01976371. (April 25, 2000); Selix v. United States Postal Service,
EEOC Appeal No. 01970153 (March 16, 2000).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability
to perform the major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id. Here, complainant alleges that she is substantially
limited in the major life activities of performing manual tasks, lifting,
sitting, and standing.
The record contains the following documentation with respect to
complainant's medical conditions: A document dated April 18, 2003,
from complainant's physician states that complainant was diagnosed
with a grade IV annual tear at L3-4, grade III annual tear at L5-S1,
and no focal disc protrusion or stenosis at the evaluated lower lumbar
disc levels. A document dated December 12, 2003, from complainant's
physician states that complainant was diagnosed with bilateral motor
and sensory median nerve compression at the wrists of moderate severity,
with a mild slowing of the right ulnar nerve across the elbow. Further,
a document dated December 18, 2003, from complainant's physician states
that complainant's medical assessment was right carpal tunnel syndrome
with recurrent parasthesias, right forearm flexor and extensor tendonitis
with mild ulnar nerve paresthesias, left elbow sprain, and mild lumbar
sprain. Finally, on June 3, 2004, complainant's doctor submitted a
form which indicated that complainant had lower back pain with lumbar
radiculopathy, and stated that complainant would be incapacitated 1 to
3 days, twice a month.
Further, documentation in the record shows that as a result of
complainant's impairments, she has had numerous limitations placed on
her by her physician. Specifically, she is unable to bend for prolonged
periods of time without creating muscle spasms to the lumbar region; she
is only capable of bending and stooping for 1 to 2 hours intermittently;
she is limited to lifting 20 to 25 pounds intermittently; she is unable
to sit for prolonged periods of time (1 hour) without creating muscle
spasms and numbness; she is limited to sitting 6 to 8 hours intermittently
with 15 minute breaks every hour; she is unable to stand for prolonged
periods of time (1 hour) without creating spasms and numbness; she
is unable to walk for prolonged periods of time (1 to 1 1/2 hours)
without creating spasms and numbness and she is limited to walking
4 to 6 hours intermittently; she is limited to pushing/pulling 1 to
2 hours intermittently; she is limited to twisting for 4 to 6 hours;
she is limited to simple grasping for 4 to 6 hours intermittently; and
she is prohibited from fine manipulation, reaching above her shoulders,
kneeling, or operating machinery.
Additionally, in her affidavit, complainant stated that when performing
activities such as driving, cooking, brushing her hair, and washing her
hair, she has to switch the use of her hands as often as possible to
prevent exacerbation of her impairments, which lead to extreme pain.
Complainant stated that once the pain becomes exacerbated, it remains
for a long period of time.
Based on the foregoing and the remainder of the record, it is
unclear to what extent complainant's condition impacts her major life
activities. For example, the record is devoid of information indicating
exactly how complainant is incapacitated, the extent to which complainant
is incapacitated when her pain becomes exacerbated, or what specific
major life activities complainant is incapacitated in. There is no
question that complainant bears the burden of proof in demonstrating
that she is substantially limited in a major life activity because of her
impairments. See Murphy v. United Parcel Service, 527 U.S. 516, 521-23
(1999). On the other hand, the agency is charged with the obligation
to develop an adequate investigative record.
The requirement that an agency investigate complaints of discrimination
is codified at 29 C.F.R. � 1614.108. The agency has a duty to develop
an impartial and appropriate factual record upon which to make findings
on the claims raised by the written complaint. An appropriate factual
record is one that allows a reasonable fact finder to draw conclusions
as to whether discrimination occurred. See 29 C.F.R. � 1614.108(b).
The investigator is required to conduct a thorough investigation,
identifying and obtaining all relevant evidence from all sources
regardless of how it may affect the outcome. EEOC Management Directive
(MD)-110, Chapter 6, VI, D (Nov. 9, 1999). Therefore, an investigator
must exhaust those sources of information likely to support both the
positions of complainant and the agency. Id.
In particular, in investigating a claim of disability discrimination,
the agency must ensure that the investigator "asks the right questions"
of complainant, designed to elicit pertinent evidence on the threshold
issues of whether complainant has an impairment; whether it affects a
major life activity; and whether it substantially limits a major life
activity. Carr v. United States Postal Service, EEOC Appeal No. 01A43665
(May 18, 2006). This may include the investigator asking the appropriate
follow-up questions to gather this information.
Accordingly, we VACATE the agency's final decision and REMAND the
complaint to the agency to undertake a supplemental investigation as
set forth in the Order of the Commission, below.2
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall undertake and complete a supplemental investigation of
this complaint, by obtaining affidavits and relevant documentation on
the following as it existed during the relevant time period:
1. The supplemental investigation shall provide detailed information
which addresses complainant's incapacitation, described in the
existing record as occurring for 1 to 3 days twice per month.
The supplemental investigation shall focus on the manner in which the
incapacitation affects complainant's ability to perform specific major
life activities, including: affirmation of the frequency and duration
of the incapacitation; the cause of the incapacitation; the severity of
the incapacitation, and the manner and extent to which complainant is
incapacitated.
2. The agency shall instruct the investigator to compile the above
information, and any other information deemed relevant, into an
investigative report, and transmit the report to the agency within thirty
(30) calendar days of the date this decision becomes final. No later than
thirty-five (35) calendar days after the date this decision becomes final,
the agency will ensure that the complainant is in receipt of a copy of
the supplemental report. Thereafter, within forty-five (45) calendar
days of the date this decision becomes final, the agency shall issue a
new final decision together with the appropriate appeal rights. A copy
of the new final decision must be provided to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 22, 2009
Date
1 We note that under the regulations enforced by the Commission, the term
"Hispanic" denotes a national origin rather than a race group.
2 Because we determine herein that this case must be remanded to
the agency to conduct a supplemental investigation with regard to
complainant's disability claim, and in order to avoid fragmentation,
we will not address at this time the merits of the complaint pertaining
to the additional bases of discrimination alleged.
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0120070743
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120070743
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