U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Faustino M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency. Appeal No. 0120160319 Agency No. 4G-752-0271-14 DECISION On October 8, 2015, Complainant filed an appeal from the Agency's May 18, 2015, final decision concerning his 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 it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier in a Modified Limited Duty Position at the Agency's North Texas Processing & Distribution Center facility in Coppell, Texas. The record indicated that Complainant requested a reasonable accommodation in March 2014. Complainant stated that he asked to shift his computer screen on his desk so that it was in a position which would cause him less pain. The Supervisor indicated that she needed him to provide a written request for his reasonable accommodation. He provided the Supervisor with a written request on March 11, 2014. After he provided the written request, the Supervisor allowed him to move his monitor and equipment into a position which would allow him to do his job and cause the least amount of pain. Complainant worked in this manner from March to August 2014. On August 28, 2014, the Manager, in the presence of a witness, instructed Complainant to place his equipment in the "standard" position. Complainant indicated that he had moved the equipment as a reasonable accommodation for his back condition. The Manager investigated the record and found a request dated March 11, 2014. However, there was no indication that Complainant's request had been forwarded to the District Reasonable Accommodation Committee (DRAC). She believed that the manner in which Complainant sat was a danger to himself, and again directed him to return the equipment to the standard position. The Manager forwarded Complainant's reasonable accommodation request to the DRAC. Complainant was asked to provide medical documentation to support his request. Complainant was provided two weeks to do so. When he failed to provide the documentation, the DRAC closed the matter and Complainant was no longer permitted to shift the equipment from the "standard" position. Complainant indicated that he has not been allowed to return the computer to more comfortable position for his back condition and has suffered further injury to his back due to the Agency's removal of the reasonable accommodation. On December 8, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (back) and reprisal for his Union activity when, on August 28, 2014, he was not afforded reasonable accommodation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission 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 Agency conceded that Complainant was an individual with a disability based on his back condition. The Agency noted that Complainant was no longer qualified for his bid position as a City Carrier. Therefore, the Agency provided him with a limited duty assignment beginning September 22, 2013. The Agency indicated that Complainant was able to perform the essential functions of his modified position with accommodations. Therefore, the Agency found that Complainant was also qualified. The Agency then turned to the issue of Complainant's requested reasonable accommodation. The Supervisor recalled Complainant asking about moving the computer on his desk from the "standard" position because it would be more comfortable for him due to his back condition. She noted that Complainant brought her a written note requesting to move his computer to an angle that would allow him to have more support for his back and that was more comfortable for him. She stated that there was no supporting medical documentation, but she told Complainant that it was okay for him to turn his computer as he needed. When she was on vacation, the Manager saw Complainant on August 28, 2014. The Manager noted that Complainant repositioned his computer in such a way that he was sitting at an angle on his chair and she feared that there was a potential for him to fall off his chair. She indicated that she brought a union representative and instructed Complainant to reposition his computer back to the "standard" position. Complainant advised her that he had requested a reasonable accommodation and had a written request in his file. The Manager found the March 11, 2014, written request, but still had issues with the note. The Manager contacted the DRAC and forwarded the request for them to address the issue. The Agency noted that it was Complainant who failed to provide the requested medical documentation to the DRAC. As such, the Agency concluded that it did not fail to provide Complainant with a reasonable accommodation. The Agency then reviewed Complainant's claim of unlawful retaliation. The Agency found that it provided legitimate, nondiscriminatory reasons for its action and Complainant did not show that the Agency's reasons were pretext for discrimination. Therefore, the decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant appealed. On appeal, Complainant stated that he did not receive a copy of the Agency's final decision. He noted that there was a delay in his representative receiving the decision because her name and address were not correct. Furthermore, the representative had moved and there was a delay in the decision being forwarded to her because her name was misspelled on the envelope. As such, Complainant indicated that he was delayed in receiving the final decision. Complainant also requested that the Commission find that he was denied a reasonable accommodation in violation of the Rehabilitation Act. The Agency asked that the Commission dismiss the appeal as untimely. The Agency asserted that the Agency mailed Complainant a copy of the decision on May 18, 2015. Complainant did not file his appeal until months later on October 5, 2015. The Agency then requests that the Commission affirm its decision finding no discrimination. 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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"). Timeliness of Appeal The Agency asserted that Complainant's appeal was untimely filed. The Agency indicated that it mailed the decision on May 18, 2015. Complainant indicated that he never received the Agency's final decision. The Agency presumed that Complainant received the final decision. However, there is no proof that Complainant received the Agency's final decision. We take administrative notice that the Commission attempted to track Complainant's final decision using the delivery confirmation number provided by the Agency. When the Commission entered the confirmation number, the Agency's website responded with "The Postal Service could not locate the tracking information for your request. Please verify your tracking number and try again later." Therefore, we cannot find that Complainant received the Agency's final decision in May 2015, as presumed by the Agency. Upon review, we are not persuaded by the Agency's claim that the appeal should be dismissed. Therefore, the Commission accepts the instant appeal pursuant to 29 C.F.R. § 1614.405(a). Denial of 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. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an "individual with a disability," as defined by 29 C.F.R. § 1630.2(g); (2) he is a "qualified" individual with a disability pursuant to 29 C.F. R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance). We note that the Agency, in its final decision, determined that Complainant is an individual with a disability covered under the Rehabilitation Act. We discern no basis to disturb the Agency's finding. The next issue is whether Complainant was "qualified." The Agency argued at one point that Complainant could not perform the essential functions of his City Carrier position. However, we note that the record showed that Complainant was assigned a modified limited duty position. There is no indication that Complainant could not perform this assignment. Therefore, we determine that Complainant has established that he is qualified. As such, the only issue before the Commission is whether the Agency failed to provide a reasonable accommodation. Complainant averred that he asked the Supervisor for a reasonable accommodation in March 2014. We find that the Agency was acutely aware that Complainant has a back problem. Complainant informed the Supervisor that he needed to shift the computer on his desk from the standard position to a position which causes less pain for his back condition. In making an accommodation request, an employee is not required to use the "magic" words "reasonable accommodation." See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002) at Q.1. Instead, the employee need only inform the Agency that he or she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. U.S. Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24, 2006). As such, the Agency was put on notice that Complainant required a reasonable accommodation when he told the Supervisor about his need for a shift in the computer on his desk. The Supervisor permitted Complainant to shift his computer on his desk so that it no longer caused injury to his back. This de minimus accommodation was provided to Complainant from March 11, 2014 to August 28, 2014. On August 28, 2014, the Manager entered the workspace and saw Complainant. The record indicated that the Manager was also aware of Complainant's back condition. Without discussing the matter with Complainant, the Manager determined that Complainant had taken it upon himself to move the equipment without permission from management. As a result, she believed, based solely on her observation on August 28, 2014, that he was in violation of safety standards and he could fall. We note that the Manager did not discuss the situation with Complainant first. Instead, the Manager had a union representative accompany her to inform Complainant that he was required to return the computer to the "standard" position on the desk. At that time, Complainant informed her that he in fact had spoken to the Supervisor and provided a written request on March 11, 2014. He also stated that the computer was in the shifted position on the desk due to his back injury. The Manager checked the records and found a document corroborating Complainant's statement. Despite this information and her knowledge of his back condition, the Manager determined Complainant could not have the computer shifted on his desk. Instead, the Manager ordered Complainant to return the computer to the "standard" position on the desk and had his accommodation request forwarded to the DRAC. Upon review of the record, we find that the Manager's actions violated the Rehabilitation Act. Complainant had been provided with a reasonable accommodation as authorized by the Supervisor. We also note that the requested reasonable accommodation was merely a request to shift the monitor on his desk. There was no request for additional equipment nor did the request in any way create disruption in the workplace. It was merely a shift of a monitor on the desk. When the Manager saw Complainant's computer at an angle, rather than asking him about the situation, she contacted a union representative so that she can order him to move the computer back to "standard" position. The Manager asserted it was because she believed it was a safety issue. However, she did not consider the fact that it was a safety issue for Complainant to have the computer in the "standard" position due to his back condition. When the Manager was informed that the shift of the computer was allowed by the Supervisor, she required Complainant to obtain further authorization for his requested accommodation by going before the DRAC. We find no support for the Manager's actions. As such, we conclude that the Manager violated the Rehabilitation Act. Where a discriminatory practice involves the provision of a reasonable accommodation damages may be awarded if the Agency fails to demonstrate that it made a good faith effort to provide the individual with a reasonable accommodation for her disability. 42 U.S.C. § 1981a(a)(3). Complainant was provided with the reasonable accommodation for over five months without an issue. It was a de minimus accommodation. When the Supervisor was on leave, the Manager removed the accommodation without sufficient explanation. Therefore, we find that the Agency did not demonstrate its agent, the Manager, made the requisite good faith effort. As such, we shall order the Agency to determine if Complainant is entitled to compensatory damages. Because we find that Complainant was discriminated against based on his disability, we need not address his reprisal claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below. ORDER (C0610) The Agency is ordered to take the following remedial action: I. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. § 1614.110. II. The Agency shall allow Complainant to move the monitor and computer on his desk in such a way that it lessens his pain. III. The Agency is directed to conduct training for Manager who was found to have violated the Rehabilitation Act. The Agency shall address the Manager's responsibilities with respect to reasonable accommodation. IV. The Agency shall consider taking disciplinary action against the Manager. The Agency shall report its decision. 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(s) for its decision not to impose discipline. V. The Agency shall complete all of the above actions within 120 calendar days from the date on which the decision becomes final. 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 evidence that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its North Texas Processing & Distribution Center facility 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. 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations February 25, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160319 2 0120160319