Complainant v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120113802 Hearing No. 520-2011-00084X Agency No. 1B-069-0008-10 DECISION On August 1, 2011, Complainant filed an appeal from the Agency's July 1, 2011, final decision concerning her equal employment opportunity (EEO) complaint alleging 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 Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision. ISSUE PRESENTED The issue presented is whether Complainant has proven discrimination on the basis of disability1 (cervical and lumbar strain) when the Agency denied her a reasonable accommodation by not allowing her to return to work beginning on February 17, 2010, and continuing.2 BACKGROUND During the time at issue, Complainant worked as a Mail Processing Clerk at the Agency's Stamford Processing and Distribution Center in Stamford, Connecticut. In this capacity, Complainant was tasked with sorting and distributing mail manually or with the use of mail processing equipment. See Report of Investigation (ROI), Exhibit (Ex.) 7 at 1. On March 17, 2010, she contacted an EEO Counselor to discuss discrimination regarding, in relevant part, what has been identified as the "Issue Presented." When the issue was not resolved at the counseling stage, Complainant filed a formal EEO complaint, dated June 28, 2010, alleging discrimination in the matter. The Agency accepted the complaint for investigation. At the conclusion thereof, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ), or alternatively, a decision from the Agency based on the record. Complainant timely requested a hearing. Her initial request for a hearing notwithstanding, Complainant ultimately withdrew that request in favor of a decision from the Agency based on the record. See AJ May 25, 2011, Dismissal Order; see also Complainant May 18, 2011, Notice of Withdrawal of Request for Hearing and Submission of the Case on the Record. Consistent with Complainant's withdrawal, the AJ dismissed Complainant's hearing request and ordered the Agency to issue a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency concluded that Complainant failed to prove discrimination as alleged. Complainant thereafter filed this appeal. CONTENTIONS ON APPEAL On appeal, Complainant contends the Agency erred when it determined she was not an individual with a disability. She further contends the Agency discriminated against her when it did not accommodate her disability by refusing to allow her to work pending a clean bill of health or out of an unsupported fear she would injure herself. See Complainant's Brief on Appeal at 11, 16. Finally, Complainant argues she is entitled to pecuniary and non-pecuniary compensatory damages. The Agency submitted no contentions on appeal. STANDARD OF REVIEW 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Nov. 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"). ANALYSIS AND FINDINGS Disability Discrimination and Reasonable Accommodation Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §1630.9. As a threshold matter in a case of disability discrimination under a failure to accommodate theory, the complainant must demonstrate that she is an "individual with a disability." In order to establish a prima facie case of disability discrimination, Complainant must demonstrate that she: (1) is an "individual with a disability": (2) is "qualified" for the position held or desired; (3) was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. E.g., McMillan v. U.S. Postal Serv., EEOC Appeal No. 0120072556 (Feb. 26, 2009). The record reflects that, on September 21, 2009, Complainant injured herself while working on an automation machine, resulting in a cervical lumbar strain. See ROI, Affidavit (Aff.) A. Specifically, she strained her back lifting trays of mail. ROI, Aff. A at 5-7. She was placed on bed rest at which time she was informed that she was restricted in lifting. ROI, Aff. B at 21. Complainant's medical record as it exists in the evidentiary file, in relevant part, reveals the following information: (1) A medical note dated September 30, 2009, indicating that Complainant was under a doctor's care but not indicating a diagnosis; ROI. Aff. B, at 10. (2) A medical document from Greenwich Hospital dated October 3, 2009, identifying Complainant's condition as "back pain cervical strain" and indicating that Complainant had been prescribed medication to ameliorate the condition. ROI, Aff. A at 25. (3) On October 13, 2009, Complainant's restrictions were a five-pound intermittent lifting restriction; standing and walking intermittently up to one hour per day; no climbing, kneeling, bending, stooping, twisting, or pulling. ROI, Aff C at 16. (4) A medical document from Greenwich Hospital dated October 20, 2009, indicating that Complainant was diagnosed with cervical lumbar strain and had restrictions of lifting up to five pounds from floor to waist, waist to shoulder, and up to five pounds forceful pulling and pushing. The document also indicated that Complainant was limited in walking and standing to what she could tolerate and intermittent sitting. ROI, Aff. A at 25. (5) A medical note dated February 12, 2010, indicating that Complainant could return to work with modified duties and a less than five-pound lifting restriction. ROI, Aff. A at 26. (6) A light-duty form signed by Complainant's physician on February 11, 2010, indicating Complainant's restrictions as lifting up to five pounds; and no reaching above the shoulders, walking, standing, or repetitive stooping.3 ROI, Aff. A at 27. (7) According to Complainant's physician, from March 7 to April 25, 2011, Complainant remained limited to lifting no more than five pounds. ROI, Exhibit (Ex.) 1. The record is clear that Complainant was unable to lift more than five pounds over a six month period.4 We therefore find that Complainant has demonstrated that she is an individual with a disability. Cf. 29 C.F.R. § 1630-15(f) (stating that an impairment is only transitory in nature, and therefore not considered a disability, if it lasts or is expected to last six months or less); see also Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121002 (Apr. 10, 2014) (agency noted that official's decision acknowledging complainant's ten-pound lifting restriction but concluding complainant was not an individual with a disability was clearly erroneous); Lapointe v. U.S. Postal Service, EEOC Appeal No. 01992460 (June 27, 2002) (Commission has consistently held that 20-pound lifting restriction renders an individual substantially limited in the major life activity of lifting). After having established that she is an individual with a disability, Complainant must also show that she is "qualified" within the meaning of 29 C.F.R. § 1630.2(m). A "qualified" individual with a disability is one who satisfies the requisite skill, experience, education, and other job related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of the position. See 29 C.F.R. § 1630.2(m). In this case, Complainant worked in an assignment that involved work within her restrictions. Specifically, Complainant states that from October 7, 2009,5 to the time she was not allowed to return to work on February 17, 2010, she was able to perform her mail processing clerk duties by simply splitting her lift trays in the staging area to lighten the load, and then manually grabbing the mail and carrying it to her duty station where she threw it by hand. The Agency does not dispute this. It is not clear from the record whether splitting the lift trays was allowed as an accommodation, or was simply "business as usual." Consequently, we find that Complainant is a "qualified" individual with a disability within the meaning of the Rehabilitation Act. See Ray v. U.S. Postal Serv., EEOC Appeal No. 01952335 (June 19, 1997) (complainant is "qualified individual with disability" because she is able to perform essential functions of her limited-duty position with accommodation). Complainant was subject to an adverse employment action when she was not allowed to return to work from February 17, 2010, and continuing, and the circumstances surrounding that adverse employment action give rise to an inference of discrimination. Regarding reasonable accommodation, we note that the Agency does not argue an undue hardship as to why Complainant was not accommodated. There is some information in the record that the Agency expressed concern that Complainant's condition would worsen if she were allowed to return to work, but undue hardship is not reflected in the record nor argued by the Agency. Based on the Agency's concern of future injury, however, we now consider whether Complainant posed a direct threat to herself or others. Disability Discrimination and Direct Threat In order to exclude an individual on the basis of possible future injury, the Agency bears the burden of showing there is a significant risk, i.e., a high probability of substantial harm. Nathan v. Dep't of Justice, EEOC Appeal No. 0720070014 (July 19, 2013). A speculative or remote risk is insufficient. Id. The Agency must show more than that an individual with a disability seeking employment stands some slightly increased risk of harm. Selix v. U.S. Postal Serv., EEOC Appeal No. 01970153 (Mar. 16, 2000). Such a finding must be based on an individualized assessment of the individual that takes into account: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. 29 C.F.R. § 1630.2(r). A determination of significant risk cannot be based merely on an employer's subjective evaluation, or, except in cases of a most apparent nature, merely on medical reports. Rather, the Agency must gather information and base its decision on substantial information regarding the individual's work and medical history. See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002); Harrison v. Dep't of Justice, EEOC Appeal No. 01A03948 (July 30, 2003). Here, we find that the Agency failed to conduct an individualized assessment of Complainant to determine if she was qualified for her position. There is nothing in the record that would indicate that the Agency considered whether the Complainant's impairment posed a direct threat before it decided to not allow her to return to work from February 17, 2010, and continuing. Instead, the record reflects that the Agency relied solely on the Plant Manager's subjective interpretation that Complainant would reinjure herself due to the fact that she was unable to lift more than five pounds, and his allegation there was no work available for her within the Agency. Because the Agency failed to conduct an individualized assessment of Complainant, it has not shown that Complainant presented a direct threat to herself or others. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby REVERSE the Agency's final decision and find that Complainant has established that the Agency discriminated against her on the basis of disability when she was not allowed to return to work on February 17, 2010, and continuing. The Agency will take action pursuant to this decision and the Order below. ORDER The Agency is ORDERD, within 120 days of the date this decision becomes final, to take the following remedial action: 1. If Complainant has not already returned to work during the pendency of these proceedings, the Agency shall offer Complainant a return to her duties as a Mail Processing Clerk, with reasonable accommodation if necessary. Complainant shall have 15 days from receipt of the offer within which to accept or decline the Agency's offer. Failure to accept the offer within the 15-day period will be considered a declination of the offer, unless Complainant can show that circumstances beyond her control prevented a response within the time limit. The Agency shall ensure that Complainant's seniority date is unaffected by her wrongful exclusion from the workplace. 2. 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, from February 17, 2010, to the present. 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 Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. 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." 3. The Agency shall conduct a supplemental investigation into Complainant's entitlement to compensatory damages. Complainant shall cooperate in the Agency's efforts to compute the compensatory damages, and shall provide all relevant information requested by the Agency. Within (60) calendar days of the Agency's receipt of Complainant's compensatory damages evidence, the Agency shall issue a final decision addressing compensatory damages. The Agency shall submit a copy of the final decision to the Commission's Compliance Officer. 4. The Agency shall consider taking appropriate disciplinary action against the Plant Manager, the sole decision-maker in this case. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason for its decision not to impose discipline. If the responsible management official has left the Agency's employment, the Agency shall furnish documentation of his departure date. 5. The Agency shall provide at least (8) hours of EEO training to all management officials in the Stamford Packaging and Distribution Center and all responsible Human Resources officials in the area of disability law with an emphasis on reasonable accommodation obligations and direct threat analysis under the Rehabilitation Act. 6. The Agency shall post the attached notice, as prescribed in the Posting Notice Order below. The Agency shall provide a report of compliance with this order to the Commission's Compliance Office. Copies must also be sent to Complainant and her representative. POSTING ORDER (G0614) The Agency is ordered to post at its Stamford Processing and Distribution Center copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 (K0610) 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 (M0610) 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), at 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 (R0610) 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 (Z0610) 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: ______________________________ Bernadette B. Wilson Acting Executive Officer Executive Secretariat September 18, 2015 Date 1 Complainant also alleged discrimination on the bases of race, color, religion, national origin, sex, and age but on appeal expressly withdrew those bases. See Complainant's Brief in Support of Appeal of Final Agency Decision at 3. 2 This case arose after January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2010, the Commission will use the analytical framework as it exists pursuant to the ADAAA to determine whether Complainant is an individual with a disability. 3 A notation on the form reflects that, on February 16, 2010, Complainant's Plant Manager disapproved of Complainant's request for light-duty because the trays of letter mail weighed a minimum of ten pounds; because Complainant's restrictions do not allow her to lift more than five pounds, there was no work available for Complainant at that time. 4 According to Complainant's medical records, Complainant was unable to lift more than five pounds from at least October 13, 2009, to at least April 25, 2011. We note that medical documentation dated April 25, 2011, indicates that it is unknown how long Complainant's lifting restrictions will apply. 5 Although Complainant spent some time away from work following her September 21, 2009, injury, she returned to work on October 7, 2009. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120113802 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 2 0120113802