How many hostile work environment situations or reasonable requests for a disability should be approved? In my experience, if a federal employee makes a reasonable request, the situation needs to be approved quickly to remedy a very bad situation that could result in a discrimination by the federal agency.
What are the symptoms of tendinitis that’s onset was from a work injury? We learned from a doctors prescribed recommendations on proper job restrictions for someone diagnosed with tendinitis and carpal tunnel syndrome.
Complainant was diagnosed with tendinitis and possible early carpal tunnel syndrome. Complainant’s limited duty job position states that she may work eight hours per day, and is restricted to lifting no more than five pounds, simple grasping only, pushing and pulling if less than two pounds, fine manipulation for less than five minutes at a time, driving a vehicle for less than thirty minutes, and no reaching above the shoulders or climbing.
Can you review what the federal government refers to someone disabled can request a reasonable accommodation under the rehabilitation act?
Pursuant to the Rehabilitation Act, an agency is required to make reasonable accommodations for the known physical or mental limitations of an otherwise “qualified applicant or employee with a disability,” unless the agency can demonstrate that the reasonable accommodation would impose an undue hardship on the operation of its business.
What is a qualified person with a 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 of more major life activities. See 29 C.F.R. §1630.2(g).<1>
Major life activities include caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. § 1630.2(i).
What if you can’t perform the duties of the job, even with a reasonable accommodation?
Complainant also must show that she is a “qualified” individual with a disability within the meaning of 29 C.F.R. 1630.2(m). These sections define the term qualified individual with a disability as meaning, with respect to employment, a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position in question. The term “position in question” is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. 29 C.F.R. 1630.2(o)(2).
Barbara J. Gimbel v. United States Postal Service
01982882
9/14/01
Barbara J. Gimbel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01982882
Agency No. 4F-950-0159-97
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD) concerning her complaint of unlawful employment discrimination in violation of 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. Complainant alleged that she was discriminated against on the basis of disability (tendinitis/carpal tunnel) when, on February 28, 1997, she was denied participation in the Associate Supervisor Program.
The record reveals that during the relevant time, complainant was employed as a Modified Distribution Window Clerk, at the agency’s Capitola, California facility. Believing she was a victim of discrimination, complainant sought EEO counseling and subsequently filed a formal complaint on April 25, 1997. At the conclusion of the investigation, complainant was informed of her right to request a hearing before an EEOC Administrative Judge or alternatively, to receive a final decision by the agency. When complainant failed to respond within the time period specified in 29 C.F.R. § 1614.108(f), the agency issued a final decision.
In its FAD, the agency conceded complainant was “a member of this protected [sic] group.” However, the agency also found complainant failed to establish a prima facie case of disability discrimination because she failed to establish she was treated differently than similarly situated individuals not within her protected class. Furthermore, the agency concluded that complainant failed to establish that she requested and was denied a reasonable accommodation for her disability.
Assuming, arguendo, that complainant established a prima facie case, the agency found it articulated a legitimate, nondiscriminatory reason for its actions. Specifically, the Associate Supervisor Program Coordinator averred that the Associate Supervisor position is an “exempt” position that requires working up to six days per week, and a minimum of eight hours per day. As such, the Coordinator averred that complainant’s medical restrictions rendered her unsuitable for the position. The Coordinator further averred that if complainant’s medical restrictions changed in the future, she could reapply for the program when a new posting occurred.
The agency found complainant failed to establish that agency’s reason for its action was a pretext for discrimination. Neither complainant nor the agency make any contentions on appeal.
The record reveals that at the time of the vacancy for the instant position, complainant occupied a Modified Distribution Window Clerk position due to an on the job injury which occurred in September 1995.
In September 1995, complainant was diagnosed with tendinitis and possible early carpal tunnel syndrome. Complainant’s limited duty job position states that she may work eight hours per day, and is restricted to lifting no more than five pounds, simple grasping only, pushing and pulling if less than two pounds, fine manipulation for less than five minutes at a time, driving a vehicle for less than thirty minutes, and no reaching above the shoulders or climbing.
There was no mention of physical requirements in the job vacancy announcement, yet her supervisors pre-disqualified her based on her disabilities.
Complainant submitted an application in response to an October 1996 Vacancy Announcement for the Associate Supervisor Program. The Vacancy Announcement states that the position:
Provides supervisory support to distribution operations or customer services operations work units within the local commuting area during the absence of regular staff, peak volume periods or other operational situations requiring supervisory resources. Requirements of the position include good leadership, decision making skills, as well as knowledge of labor relations, safety rules, math and reasoning skills. In addition, the position requires:
(1) successful completion of the Associate Supervisor Training Program;
(2) availability to work different tours, possibly in different facilities/offices; and
(3) variable hours/days off.
As required, complainant also submitted an Associate Supervisor Candidate Evaluation form completed by her supervisor. The Evaluation form directed the supervisor to rate complainant “acceptable,”“not acceptable” or “don’t know/not applicable” in areas such as safety, communications, leadership decision making, and labor relations. In a space provided for additional comments, complainant’s supervisor wrote the following:
Currently [complainant] is assigned to a Modified Distribution/Window Clerk limited duty job offer. She can only work 8 hours per day – 5 days per week with other physical requirements and restrictions. This assignment is the result of an injury compensation claim filed by this employee in August of 1995. An attempt was made in 1994 to train and assign this employee to a 204B opening within this facility. She did not succeed in being assigned to the 204B position. The record reveals that the first stage of the selection process involved a paper and pencil test and a review committee evaluation of application forms. On February 28, 1997, complainant received a letter informing her that her overall rating representing her test results and application evaluation was “strong.” However, the letter also informed complainant that “[b]ased on your physical requirements and restrictions you will not be considered for an interview at this time.”
The instant complaint followed.
The Coordinator averred in her affidavit that she was not aware that complainant had a disability. She averred that the applications for the Associate Supervisor Program were reviewed by a Review Board consisting of various managers. After the applications were reviewed, the Review Board determined suitability for the program from the supervisor’s evaluation, absence records, disciplinary records and other important information determined by the committee. Those individuals who were deemed unsuitable were submitted to the Coordinator for notification. The Coordinator averred that the position requires working up to six days per week, and a minimum of eight hours per day. She stated that complainant and another individual were deemed not suitable because of medical restrictions which prevented them from working over 40 hours per week.
Complainant averred that the Vacancy Announcement mentions nothing about physical requirements or overtime. She states that she is capable of performing the essential functions of the Associate Supervisor Program position, but she is being treated differently because of her disability.
Pursuant to the Rehabilitation Act, an agency is required to make reasonable accommodations for the known physical or mental limitations of an otherwise “qualified applicant or employee with a disability,” unless the agency can demonstrate that the reasonable accommodation would impose an undue hardship on the operation of its business. 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 of more major life activities. See 29 C.F.R. §1630.2(g).<1> Major life activities include caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. § 1630.2(i). Complainant also must show that she is a “qualified” individual with a disability within the meaning of 29 C.F.R. 1630.2(m). These sections define the term qualified individual with a disability as meaning, with respect to employment, a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position in question. The term “position in question” is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. 29 C.F.R. 1630.2(o)(2).
In the case at hand, the agency acknowledged that complainant is “a
member of this protected group.” Furthermore, the vacancy announcement
does not mention overtime restrictions, or any physical requirements of
the position. In light of this concession, as well as the absence of
any evidence establishing that complainant could not perform essential
job functions with or without an accommodation, we find complainant is
a qualified individual with a disability.
After a careful review of the record, the Commission finds the agency
failed to accommodate complainant’s disability, when it found she was
not suitable for the Associate Supervisor Program, and rejected her for
the position. There is no dispute in the record that complainant’s
restrictions, which the agency acknowledged amount to a disability,
served as the basis for her nonselection. Although complainant had been
accommodated in her prior position, the agency failed to explain why it
could not accommodate her in the Associate Supervisor position. In that
regard, we note that the Vacancy Announcement contains no reference
to overtime requirements, or any other requirements that could not be
accommodated. Given that the agency has failed to demonstrate that it
would have been an undue hardship for it to accommodate complainant in
the Associate Supervisor Program, the Commission finds that the agency
discriminated against complainant based on her physical disability when
she was disqualified from the Associate Supervisor program based on the
agency’s suitability findings.
As for the relief, we note a job applicant has the right to be free from discrimination throughout the selection process. If the process is discriminatory at any phase, the applicant must be awarded full relief, i.e., the position retroactively, unless the employer shows by clear and convincing evidence that even in the absence of discrimination, the applicant would not have been selected. See Pryor v. United States Postal Service, EEOC Request No. 05980405 (August 6, 1999).
Placing such an onerous burden on the employer is proper, inasmuch as the employer’s unlawful acts caused the difficulty in determining what would have resulted if there had been no discrimination. See id. Thus, in a case such as this one, complainant is entitled to retroactive placement in the position, “unless clear and convincing evidence contained in the record” demonstrates that, even absent discrimination, complainant would not have been selected for the position she desired. See id; see also 29 C.F.R. §1614.501(c)(1); see Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976).
In the present case, the Coordinator averred that complainant’s sick leave usage and restrictions on operating machinery would have additionally affected her suitability determination. As an initial note, we find no evidence that operating machinery is a function of the Associate Supervisor position. As such, complainant’s inability to operate machinery would not clearly disqualify her for the position. Furthermore, finding no evidence as to the standards by which sick leave records were evaluated, as well as a lack of information as to whether complainant’s sick leave was related to her restrictions, we are not convinced complainant’s sick leave record would have rendered her unsuitable for the position.
Therefore, after a careful review of the record, including complainant’s contentions on appeal, the agency’s response, and arguments and evidence not specifically addressed in this decision, we REVERSE the agency’s final decision. The agency is directed to take remedial actions in accordance with this decision and ORDER set forth below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
Within thirty (30) days from the date this decision becomes final, the
agency shall offer complainant admission to the Associate Supervisor
Program and an Associate Supervisor position, or a substantially
equivalent position. Complainant shall be given a minimum of fifteen
(15) days from the receipt of the offer within which to accept or decline
the offer. Failure to accept the offer within the time period set by the
agency will be considered a rejection of the offer, unless complainant
can show that circumstances beyond her control prevented a response
within the time limit. The agency shall take all steps necessary to
ensure that, should complainant accept the position, she is provided
with such reasonable accommodation as she is entitled to by law.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other 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 back pay 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 and/or
benefits, the agency shall issue a check to the complainant for 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 shall provide training to the Supervisor, Coordinator, and
Members of the Review Board involved in the instant case in the agency’s
obligations pursuant to the Rehabilitation Act.
The agency shall post a notice in accordance with the paragraph below.
The agency shall pay complainant’s reasonable attorney’s fees in
accordance with the paragraph below.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its Capitola, California 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.
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.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0501)
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)
(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 (M0701)
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 (S0900)
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. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
9/28/01
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________
Date
______________________________
Equal Opportunity Assistant
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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 that 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 United States Postal Service, Capitola Post Office, Capitola,
California, (hereinafter referred to as “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 facility has been found to have violated the Rehabilitation Act when
it failed to select an individual for a position who would require a
reasonable accommodation of a disability. The facility was ordered to
offer the position to the employee, award her back pay, and associated
benefits, conduct training, and pay reasonable attorney’s fees.
The 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 1614
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
