EDDIE O. LUELLEN, APPELLANT,
v.
MARVIN T. RUNYON, JR., POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.

Appeal No. 01951340
Hearing No. 250-94-8072X
Agency No. 4H-1042-93

INTRODUCTION

On December 8, 1994, Eddie O. Luellen (hereinafter referred to as appellant) initiated an appeal to the Equal Employment Opportunity Commission (Commission). The final decision of the United States Postal Service (hereinafter referred to as the agency) was dated November 22, 1994, and was received by appellant's attorney on November 23, 1994. Appellant's equal employment opportunity (EEO) complaint alleged a violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 etseq. The appeal is accepted by the Commission in accordance with the provisions of EEOC Order No. 960.001.

ISSUES PRESENTED

The issues presented herein are:

1. Whether appellant proved, by a preponderance of the evidence, that the agency discriminated against him because of his physical disabilities when he was denied a reasonable accommodation; and

2. Whether appellant established that he was entitled to compensatory damages because of the agency's actions.

BACKGROUND

Appellant, a Mail Handler, PS-04, contacted an EEO counselor on November 5, 1992. Specifically, he alleged that he was discriminated against on the basis of physical disability (post concussion syndrome; optic neuropathy vision/left eye) when on October 23, 1992, he was instructed to report to a job outside of his medical limitations. On December 1, 1992, he filed a formal complaint.1 The agency investigated appellant's complaint, and on December 10, 1993, he requested a hearing before an EEOC Administrative Judge (AJ). Hearings were held on April 28, 1994, on the merits of appellant's complaint, and on August 22, 1994, regarding the issue of compensatory damages. On September 30, 1994, the AJ issued a Recommended Decision finding discrimination. The AJ, however, found that appellant was not entitled to compensatory damages because the agency made "good faith efforts" to identify and make a reasonable accommodation for appellant. The agency accepted the AJ's determination that appellant was not entitled to compensatory damages; however, it did not adopt the findings regarding discrimination based on physical disability. On November 22, 1994, the agency issued a final decision (FAD) finding no discrimination. This appeal followed.

The record indicates that appellant sustained a head injury in July 1985. Subsequently, he was diagnosed as having post-concussion syndrome with optic neuropathy vision in his left eye. According to the agency, his symptoms included "permanent post-traumatic headaches, and chronic diseased vision in his left eye (blurred vision)." The following limitations were placed on appellant's ability to work:
One hour use of hands at a computer keyboard, two hours visual work at a video terminal at a time, visual work at a desk should be illuminated magnifier (clamped on desk or casters), ear mufflers to be used at employee's discretion when walking through noisy areas for brief periods.

Appellant also was restricted in his ability to perform activities such as lifting, squatting, climbing, kneeling, and twisting. He also could not be exposed to environmental noise greater than 50 decibels.

Appellant filed a claim with the office of Workers' Compensation Programs (OWCP) and was awarded benefits for several years. In 1992, the agency offered to return appellant, who had undergone successful rehabilitation, to work in a modified Mail handler position.

The written job offer that was presented to appellant indicated that he would perform duties in the facility's Company Store (Store) when the regular clerk was not available. The Store was located in the lobby on the main floor of the facility. His duties included interacting with customers on the telephone or in person, handling sales transactions, processing mail orders, preparing necessary accounting paperwork, keeping adequate inventories available and performing other duties as assigned within his limitations. Although appellant's primary duties were to be performed in the Store, he was informed that there were also clerical duties that he might be required to perform in the Safety, injury Compensation, Medical, or Express Mail offices. The record indicates that duties in the Express Mail office were later eliminated upon the recommendation of one of appellant's physicians.

Appellant's primary physician, Physician-1, certified that the position was medically suitable on January 9, 1992; however, he added language that appellant could go into "noisy areas only for brief times and only with ear mufflers and only at his discretion . . . ." Appellant accepted the job offer on May 12, 1992. Appellant was assigned duties in the Store, working four (4) hours a day. He worked in the Store from May 12, 1992 until October 21, 1992, when he received a letter from the Manager of Marketing and Communications, (RMO). The letter directed appellant to report to the Safety/Health office in Room M-10 located on the Mezzanine level of the building. RMO indicated, in the letter, that:
Since accepting the job offer on May 12, 1992, your assignment has been in the Store. It was expected that the Store would have more work available; however, it has been to the contrary - less work. If, in the future, more work is available in that area, you will be reassigned to the Store, and will work in both the Safety and Health Office and the Store, as previously discussed with your physician and [your Rehabilitation Counselor].

You may wear your ear mufflers (at your discretion) while reporting to and from the Safety and Health Office, as prescribed by your physician.

While your work location is changing from one area of this building to another, you are still to work within your limitations as prescribed by your physicians. For example, you will work at a video terminal for two (2) hours at a time as per [an agency doctor]. However, [another agency doctor] states one (1) hour use of your hand at a computer keyboard. The remainder of the four (4) hours a day may be done at a desk utilizing your illuminated magnifier when doing visual work. [Physician-1], your physician has personally inspected and approved your working in M-10. Work will be assigned to you by [the Safety Specialist].

Appellant objected to his reassignment. He claimed that Physician-1 had not inspected or approved of that specific location; therefore, he did not report to Room M-10. In a letter dated October 28, 1992, Physician-1 also maintained that he never inspected or approved Room M-10; furthermore, he indicated that until the situation was clarified, it was not in appellant's medical interests to return to work.

During the hearing, the parties stipulated that appellant was both an individual with a disability, as well as a qualified individual within the meaning of the Rehabilitation Act; therefore, the focus of the hearing was on whether the agency breached its duty to reasonably accommodate appellant's disability. The testimony revealed that Room M-10 was located directly over the workroom floor. Appellant testified that his reassignment to the Safety/Health office was not reasonable because it was outside of his medical limitations. He said that he would be required to climb stairs and use the freight elevator, activities that were not approved by Physician-1. Prior to accepting the original job offer, appellant said that he and his physician were told that his full-time job would be in the Store and that he would only have occasional work in the other areas. He said that he was never told that he would have to perform clerical work on a full-time basis for an extensive period of time. Appellant also said that his physicians did not review or approve Room M-10. He said that Physician-1 was only shown the Safety and Injury Compensation office on the first floor and the Store.

Physician-1 testified that he toured appellant's worksite in January 1992, accompanied by RMO, then the Manager of Safety and Health, and A-1, an agency official. Physician-1 testified that he only inspected work locations on the ground floor, i.e., the Store, a small office with a desk and door, and the Medical facility. He said that his understanding was that appellant would alternate between the Store and the small office on the first floor. He did not think that the Medical facility would be considered a primary worksite, because of the noise. Physician-1 also testified that he took the elevator to a room that he thought was a break room. He did not recall, according to his testimony, seeing an office there. He noted, however, that the room "was very noisy" and would not have been an appropriate place to work. He also remembered that he rejected one other location that he was shown because it was too noisy due to the machinery in that area.

A union steward, (C-1), testifying on appellant's behalf, said that it was his understanding that appellant would be assigned to the Store, and that he would only perform office clerical duties when there was no work available in the Store. C-1 testified that the Injury Compensation and Safety offices were both located on the workroom floor at that time. C-1 also testified that the noise level on the Mezzanine level was greater than the noise level in the Store because of the noise made by the freight elevator and the employees in the "swingroom."

A-1, an Injury Compensation Specialist, testifying for the agency, said that although appellant's primary assignment was in the Store, he could be assigned to work in either the Safety or the Medical offices if there were not enough duties available in the Store. He said, contrary to C-1's testimony, that the Safety office was located on the Mezzanine level in Room M-10 at the time of the job offer. The Injury Compensation office was on the workroom floor in Room 125. According to A-1, people often confused the Safety and Injury Compensation offices because they had the same managers. A-1 said that Physician-1 inspected the Mezzanine level during his visit because he, A-1, remembered that a question was asked about a refrigerator that was located in that area. A-1, on cross examination, admitted that he did not hear anyone tell Physician-1 that Room M-10 was a possible work location.

A-2, then the Injury Compensation Supervisor, testified that there were originally five areas that were a part of appellant's job offer. She noted that the Express Mail office was eliminated due to the noise associated with the printers. The other areas were the Store and the Injury Compensation and Safety offices. She noted that the Safety office was in two locations, on the Mezzanine level in Room M-10 and on the main floor in Room 125 or 129. A-2 also testified that she accompanied Physician-1, RMO, and A-1 when they inspected the worksite in January 1992. She insisted that Physician-1 was taken to the Mezzanine. She also testified that she was sure that A-3, appellant's Rehabilitation Counselor, made decibel or noise level readings of Room M-10, and that she submitted reports to this effect to the agency.2 The AJ, however, noted that A-2's records did not show that noise level measurements were made in any location at issue. The AJ, in the absence of any documentation that measurements were taken, found her testimony on this point to be unconvincing. We also note that counsel for appellant, in preparation for the hearing, had noise level measurements taken for various areas in the facility.3 The AJ did not find these measurements to be helpful because there had been a number of changes in the worksite since October 1992. A-2 also testified about additional efforts made by the agency to accommodate appellant's limitations. She said that these efforts included removing the buzzer from the elevator and the bell from the telephone. The agency also taped the air duct to reduce the noise level, obtained a magnifying light for appellant, and partitioned off his desk area in order to further reduce the noise level. These changes, according to A-2, were approved by Physician-1.

As previously indicated on August 22, 1994, the second stage of the hearing was held in order to determine whether appellant was entitled to compensatory damages. The AJ noted the agency's good faith efforts to identify and make a reasonable accommodation for appellant's impairment, such as, consulting appellant, his doctors, and the Rehabilitation Counselor, A-3. The AJ also noted that the agency, after deciding to reassign appellant, made various modifications to Room M-10 that were designed to further accommodate him in the position. The AJ found that the agency's efforts, although insufficient to accommodate appellant's disability, did establish that it made a good faith attempt to identify and make a reasonable accommodation; thereby, precluding an award of compensatory damages.

We also note that, during the hearing, the agency's representative moved for a remand of the case on the grounds that the matter was a "mixed case." He argued that the complaint raised the issue of constructive discharge or suspension that had to be appealed to the Merit Systems Protection Board. The AJ denied the agency's motion. She noted that the complaint concerned the agency's decision to reassign appellant to another area, not constructive discharge or suspension. Moreover, she also noted that even if constructive discharge or suspension had been raised, the complaint was "so enmeshed" in the EEO process that it should remain. The AJ cited a Commission precedent, Simon v. USPS, EEOC Request No. 05910112 (January 17, 1991), to support her position. The AJ stressed that at the time the motion was made, a full evidentiary hearing had been held, in which five witnesses were called, including an expert witness for appellant. She also noted that a preliminary ruling indicating a violation had already been issued. The agency, in the FAD, repeated its contention that this complaint was a "mixed case" that should have been remanded.

On appeal, appellant objected to the AJ's determination that the agency acted in good faith. He again reiterated his demand for compensatory damages. The agency, among other things, also reiterated its contention, first raised in its FAD, that appellant failed to cooperate with efforts to modify his work area by utilizing special ear plugs and noise deafening ear muffs.

ANALYSIS AND FINDINGS

At the outset, we find that the AJ was correct when she determined that, even if the issues of constructive discharge or suspension were raised, this matter was too enmeshed in the EEO process to remand to the agency for submission to the MSPB. We agree that a remand at this stage would be a substantial inconvenience to appellant, and would not promote judicial economy because it would result in the duplication of efforts. The agency's motion appears to have been designed to circumvent the AJ's finding of discrimination.

By regulation, the federal government is charged with becoming "a model employer" of individuals with disabilities. 29 C.F.R. §1614.203(b). This goal was also expressed by Congress when it enacted the Rehabilitation Act. Gardner v. Morris, 752 F.2d 1271 (8th Cir. 1985); Prewitt v. United States Postal Service, 662 F.2d 292, 301-02 (5th Cir. 1981). Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. §791 etseq., prohibits discrimination on the basis of disability and requires agencies of the federal government to make reasonable accommodation to the known physical or mental limitations of qualified employees with disabilities, unless the agency can demonstrate that accommodation would prove to be an "undue hardship." 29 C.F.R. §§1614.203(b) and (c).

A "person with a disability" is one who: 1) has a physical or mental impairment that substantially limits or restricts one or more of his or her major life activities; or 2) either has a record of such impairment or is regarded as having the impairment. 29 C.F.R. §1614.203(a). Major life activities include functions such as, interalia, self care, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. §1614.203(a)(3).

To establish a prima facie case of discrimination based on a failure to accommodate a disability, appellant must show: 1) that he is a "person with a disability" for purposes of the Rehabilitation Act, as defined in 29 C.F.R. § 1614.203(a); 2) that he is a "qualified person with a disability", in that he is qualified for and can perform the essential elements of the position at issue with or without reasonable accommodation, as specified in 29 C.F.R. § 1614.203(a)(6); and 3) that he received an adverse employment action as a result of his disability. Arneson v. Heckler, 50 FEP Cases 451 (8th Cir. 1989); Treadwell v. Alexander, 707 F.2d 473 (11th Cir. 1983); Prewitt v. United States Postal Service, 662 F.2d 242 (5th Cir. 1981). In addition, initially, appellant must make at least a facial showing that his disability can be accommodated. Treadwell, 707 F.2d at 477-78.

We find that appellant is a person with a disability. The record indicates that after a 1985 head injury, he was diagnosed as having post-concussion syndrome with optic neuropathy vision in his left eye. His symptoms include permanent traumatic headaches and chronic blurred vision in his left eye. Moreover, appellant, according to his physician, is unable to tolerate noise levels greater than 50 decibels. Based on the record in this case, the Commission finds that appellant is an individual with a disability in that he has a physical impairment which substantially limits his ability to see and hear. Next, we find that appellant is a "qualified individual with a disability." The record indicates that prior to his reassignment, he was successfully performing the essential functions of his position.

We, like the AJ, find that the agency had an affirmative obligation to reasonably accommodate the known disabilities of appellant. Since appellant's impairment precluded exposure to noise levels greater than 50 decibels, any accommodation offered by the agency had to be, at a minimum, within the precise sound and other limitations that were imposed by appellant's doctor. The agency, however, did not measure the noise level in Room M-10 in October 1992, in order to determine if it exceeded 50 decibels. Although the agency took steps to reduce the noise level in Room M-10, we find that, without accurate noise level readings after the modifications were made, the agency did not afford appellant a reasonable accommodation. Also, like the AJ, we reject the agency's reliance on Physician-1's purported inspection of Room M-10. We find that even if Physician-1 inspected and approved of Room M-10, there was no evidence that he measured the noise level in order to determine if it was within appellant's restrictions. Therefore, the agency's obligation, to accommodate appellant's known disabilities by providing him a work environment in which the noise level did not exceed 50 decibels, would continue.

As previously noted, the agency argued that appellant failed to cooperate with its efforts to modify his work area by utilizing special ear plug and noise deafening ear muffs. However, appellant, during the hearing, testified that he did not go back to Room M-10, because he was told by his doctor, "don't go back into it until I get it clarified."Appellant's doctor testified that he gave appellant a slip that he was to remain off work until further notice. He also said that he wrote "[agency officials] telling them that [appellant] had to be in a quiet place and the only place [he] had seen . . . was a noisy place."According to the doctor, the agency did not respond to him; therefore, he felt that rather then subject appellant to a medical risk, he advised appellant to "lay out" until things were worked out. On appeal, appellant, through his attorney, said that he and his doctor tried repeatedly to communicate with the agency about whether appellant had been cleared for Room M-10. The agency, according to appellant, did not respond on many occasions.

It is the responsibility of an appellant to cooperate in an agency's efforts to reasonably accommodate the appellant's disability. In the present case, the testimony is conflicting as to the extent of appellant's willingness to engage in efforts to dampen the noise levels enough for him to work in Room M-10. However, no explanation is provided by the agency as to why, given the fact that it was on notice that appellant had a noise level restriction of 50 decibels, it did not attempt to measure the noise level prior to requiring appellant to work in the room, especially in light of appellant's physician's reluctance to release him for work there. Thus, we find that without an accurate measure of the noise level in Room M-10, any efforts by the agency to modify the work area, albeit constructive, were deficient. We especially note in this regard that a March 16, 1994 noise level measurement indicated that the decibel level exceeded appellant's restrictions. Appellant is not required to jeopardize his health in order to allow the agency to experiment with different forms of accommodation.

Accordingly, we find that the appellant has met his burden of establishing that he was subjected to disability discrimination when he was denied a reasonable accommodation upon being reassigned from the Store to Room M-10 in October 1992.

We now turn to the relief to which appellant is entitled. Where discrimination is found, the injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed. Albemarle Paper Company v. Moody, 422 U.S. 405, 418-19 (1975). This would include backpay for all periods he did not work due to not being reasonably accommodated, and reimbursement of leave used for the same reason.

Appellant contends that he is entitled to compensatory damages for emotional distress. Under §102 of the Civil Rights Act of 1991 (CRA), compensatory damages may be awarded for pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. We note, however, that §102 of the CRA also provides that an agency is not liable for compensatory damages in cases of disability discrimination where it demonstrates that it made a good faith effort to accommodate the complainant's disability.

Regarding the question of compensatory damages, we agree with the AJ's finding. The agency consulted appellant, Physician-1, and A-3, in order to identify a position that was within appellant's medical limitations. Because of the agency's efforts, appellant was able to work in the Store from May 1992 until October 1992. Upon reassigning appellant, the agency made various modifications to Room M-10 that were designed to further accommodate him in the position. For the reasons stated above, we find that the agency's efforts, although not sufficient to afford appellant a reasonable accommodation, demonstrate that the agency made a good faith effort to accommodate appellant. Consequently, appellant is not entitled to receive compensatory damages.

CONCLUSION

Based upon a review of the record, and the foregoing reasons, it is the decision of the EEOC that the agency discriminated against appellant on the basis of disability when it failed to provide him a reasonable accommodation in October 1992. However, we affirm the agency's determination that appellant was not entitled to compensatory damages. On remand, the agency shall comply with the order below.

ORDER

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 is directed to place appellant in a position for which he is qualified and which meets the precise limitations imposed by his physician.

(B). The agency is ORDERED to issue a check to appellant for the appropriate amount of backpay and interest on backpay less any interim earnings by appellant, and provide appropriate within-grade increases, as applicable, seniority and other benefits, including restoration of leave, in accordance with this decision, pertinent Office of Personnel Management Regulations, and 29 C.F.R. §1614.501, no later than ninety (90) calendar days of receipt of this decision. The appellant is ORDERED to cooperate in the agency's efforts to compute the amount of backpay, interest, and benefits due, and to provide all necessary information the agency requests to help it comply. If there is a dispute about the amount of backpay, interest due, and/or other benefits, the agency is ORDERED to issue a check to the appellant for the undisputed amount within ninety (90) calendar days of receipt of this decision. The appellant may file a 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 shall conduct EEO training for RMO, A-1, and A-2, which will address their responsibilities with respect to eliminating discrimination in the Federal workplace. The training shall also address the requirements of the Rehabilitation Act, in particular, the agency's obligation under the law to make a reasonable accommodation to the known physical and mental limitations of qualified individuals with disabilities.

(D) The agency is ORDERED to post at its Memphis Post Office (GMF) in Memphis, Tennessee, 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.

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 backpay and other benefits due appellant, including evidence that the corrective action has been implemented.

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 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, MUSTBEFILEDWITHINTHIRTY (30) CALENDARDAYS 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 WITHINTWENTY (20) CALENDARDAYS of the date you receive the request to reconsider. See29 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. § 1614.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. 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. 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 (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 etseq.; 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:

Frances M. Hart
Executive Officer
Executive Secretariat

December 23, 1996


1. Appellant, as corrective action, sought the agency's compliance with all limitations imposed by his physician. Subsequently, he amended his request and asked for compensatory damages.

2. The AJ, in a footnote, indicated that A-3 later testified at the August 22, 1994 hearing that she did not take noise level measurements in Room M-10.

3. The record indicates that the readings were taken on March 16, 1994. The individual who took the readings, C-2, a Rehabilitation Consultant, testified that his readings for Room M-10 were between 56 to 58 decibels. C-2 felt that it would have been possible to lower the noise level to 50 decibels.

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 section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 etseq., 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 Memphis Post Office (GMF) in Memphis, Tennessee reaffirms its commitment to comply with these statutory provisions.

The Memphis Post Office (GMF) in Memphis, Tennessee supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law.

The Memphis Post Office (GMF) in Memphis, Tennessee has been found to have discriminated against the individual affected by the Commission's finding. The Memphis Post Office (GMF) in Memphis, Tennessee 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 Memphis Post Office (GMF) in Memphis, Tennessee 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.

29 C.F.R. Part 1614