Linh Chau-Pham v. United States Postal Service
01985730
July 17, 2001
.


Linh Chau-Pham,
Complainant,

v.

John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.

Appeal No. 01985730
Agency No. 1F-915-1003-96
Hearing No. 340-96-3700X

DECISION

Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of  Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.;
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq.; and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.<1>  The appeal
is accepted pursuant to 29 C.F.R. § 1614.405.  Complainant alleges she
was discriminated against on the bases of race (Asian), color (yellow),
national origin (Chinese),  sex (female), age (DOB: 10/1/56)<2> and
disability (lower back injury) when she did not work for eleven months
between January 6, 1996 and December 5, 1996 because the agency refused
to grant her a light duty position.  For the following reasons, the
Commission affirms the agency's findings under Title VII and the ADEA
but reverses the agency's findings under the Rehabilitation Act.

BACKGROUND

The record reveals that complainant was an Automation Processing Clerk at
the agency's Processing and Distribution Center in Pasadena, California.
She incurred an on-the-job injury in May 1993 when she was struck in the
back by a cart mis-handled by another agency employee.  Complainant filed
a claim for benefits with the Department of Labor's Office of Workers
Compensation Programs (OWCP), which the agency contested.  While the
claim was pending before OWCP, complainant was granted a limited duty
assignment.  On December 5, 1995, OWCP denied complainant's claim.<3>
Consequently, the agency removed her from limited duty status, and
complainant requested a light duty assignment consistent with her medical
restrictions which she submitted on an OWCP Form CA-17 dated November
1995.  Her restrictions included no lifting in excess of ten pounds and
"no prolonged standing and/or walking over thirty minutes each day."
Without disputing the genuineness of complainant's restrictions but after
stating that no work was available within those restrictions, the agency
denied her request for light duty, informed her that she could reapply
if her restrictions changed, and requested that she inform them of what
type of leave she would be taking to cover her "non-work" status.

Believing the agency had discriminated against her as referenced above,
complainant filed a formal EEO complaint on March 7, 1996.  At the
conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge.  Following a hearing, the Administrative Judge
issued a decision finding no discrimination.  The Administrative Judge
concluded that complainant failed to establish a prima facie case of
discrimination on any alleged bases.  Regarding her Title VII and ADEA
claims, the Administrative Judge determined that there were no comparative
employees who were treated more favorably than complainant.  Regarding her
Rehabilitation Act claim, the Administrative Judge found that complainant
did not have a "permanent disabling condition" and that she chose to rely
on "fragments of her worker's compensation claim" rather than proffering
evidence of her disability.  The agency's final decision adopted the
Administrative Judge's decision.  On appeal, complainant contends that
she presented sufficient evidence of her disability and that the agency
made no effort to accommodate her.

ANALYSIS and FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”  Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted).  A finding regarding whether or not discriminatory
intent existed is a factual finding.  See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).  An Administrative Judge's conclusions of law
are subject to a de novo standard of review whether or not a hearing
was held.

Upon review of the record, the Commission agrees with the Administrative
Judge's conclusion that complainant failed to establish a prima facie case
of race, color, sex, national origin or age discrimination.  In reaching
this conclusion, we find no evidence in the record from which an inference
of discrimination on these bases can be drawn.  See Furnco Construction
Corp. v. Waters, 438 U.S. 567, 576 (1978).  However, the Commission
disagrees with the Administrative Judge's conclusion that complainant
was not discriminated against on the basis of her disability.

Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship.  29 C.F.R. §§ 1630.2(o) and
(p).  As a threshold matter, complainant must establish that she is an
"individual with a disability."  An individual with a disability is one
who (1) has a physical or mental impairment that substantially limits one
or more major life activities, (2) has a record of such impairment, or (3)
is regarded as having such an impairment.  Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
Sitting, standing, lifting, and reaching are also recognized as major
life activities.  Interpretive Guidance on Title I of the Americans With
Disabilities Act, Appendix to 29 C.F.R. § 1630.2(i).

The determination as to whether an individual has an impairment which
substantially limits a major life activity is made on a case by case
basis.  Bragdon v. Abbott, 524 U.S. 624 (1998); Interpretive Guidance
on Title I of the Americans With Disabilities Act, Appendix to 29
C.F.R. § 1630.2(j).  An impairment is substantially limiting when it
prevents an individual from performing a major life activity or when it
significantly restricts the condition, manner or duration under which an
individual can perform a major life activity.  29 C.F.R. § 1630.2(j).
The individual's ability to perform the major life activity must be
restricted as compared to the ability of the average person in the general
population to perform the activity.  Id.  Moreover, such impairments
must be long-term or potentially long-term, as opposed to temporary,
in order to render one an individual with a disability.  See generally
EEOC Enforcement Guidance on the Americans With Disabilities Act and
Psychiatric Disabilities (March 25, 1997) at question 10.  However,
"some conditions may be long-term, or potentially long-term, in that
their duration is indefinite and unknowable or is expected to be at least
several months.  Such conditions, if severe, may constitute disabilities."
Id. at question 7.

In the instant case, an OWCP Form CA-17 dated November 1995 establishes
that complainant was restricted by her physician from lifting in
excess of ten pounds.  We reject the Administrative Judge's finding
that complainant's reliance on the submission of an OWCP Form CA-17 was
insufficient to establish a substantially limiting impairment in light
of the Manager's testimony that this was the form the agency facility
required an employee requesting light duty to submit.  We also reject
the Administrative Judge's finding that complainant's impairment was not
permanent in nature insofar as her treating physician had diagnosed her
with, inter alia, degenerative disc disease; lumbosacral strain with
contusion; and herniated lumbar disc disease; and, since May 1993,
consistently recommended complainant be placed in limited/light duty
status as a result of her back impairment.  Moreover, insofar as the
Administrative Judge observed that lumbosacral strains and/or sprains
resolve themselves over time, we note that there was no evidence that
complainant's condition was in fact improving over time.  Rather,
complainant was first injured in May 1993 and was still restricted by
her physician from lifting in excess of ten pounds when she applied for
light duty in December 1995.<4>  The Commission finds that restrictions
in place two and one half years after the injury are sufficient to
establish a long term impairment, and we find that complainant was
substantially limited in the major life activity of lifting.  See Selix
v. United States Postal Service, EEOC Appeal No. 01970153 (March 16, 2000)
(complainant substantially limited in lifting where permanently restricted
from lifting more than ten pounds); Tran v. United States Postal Service,
EEOC Appeal No. 01971505 (May 18, 2000) (complainant substantially limited
in lifting where, at time request for accommodation made, complainant
remained subject to two pound lifting restriction which had been in
effect eight months).

A "qualified individual with a disability" is an individual with a
disability 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.  29 C.F.R. § 1630.2(m).
With respect to whether complainant is a qualified individual with a
disability, the inquiry is not limited to the position actually held
by the employee, but also includes positions that the employee could
have held as a result of job restructuring or reassignment.  See Van
Horn v. United States Postal Service, EEOC Appeal No. 01960159 (October
23, 1998).  When an employee cannot perform the essential functions of
her current position because of a disability, and no accommodation is
possible in that position, reasonable accommodation includes reassignment
to another position.  Ignacio v. United States Postal Service, EEOC
Petition No. 03840005 (September 4, 1984), aff'd, 30 M.S.P.R. 471
(Spec. Pan. February 7, 1986).  While the agency is not obligated to
create a new position for complainant, it must make a good faith effort
to locate a vacant, funded position for which complainant is qualified.
Therefore, "[o]nly after determining that reassignment to a vacant
position was not possible or would result in an undue hardship, would the
Rehabilitation Act permit the agency to conclude that [a complainant]
is not a qualified individual with a disability."  Kitaura v. United
States Postal Service, EEOC Petition No. 03980089 (March 11, 1999).

There is no evidence in the record that the agency made any effort to
accommodate complainant through job restructuring or, as an accommodation
of last resort, reassignment.  To the contrary, the Manager testified that
if an employee could not lift a mail tray which weighed fifteen pounds,
the employee could not be accommodated because it would not be productive
for the agency.  Since this was an informal rule which this individual
Manager adopted, we do not characterize it as a qualification standard;
however, to the extent that the Manager attempted to justify this rule
because accommodating individual who could not lift mail trays would be
an undue hardship for the agency, the Commission finds his testimony to
be speculative, at best.  While the Rehabilitation Act does not require
an employer to create a light duty position as an accommodation, it does
require an employer, absent undue hardship, to accommodate a qualified
individual with a disability by restructuring a position through
redistribution of marginal functions which she cannot perform because
of disability, or by reassigning her to an equivalent existing vacancy
for which she is qualified.  Bradley v. United States Postal Service,
EEOC Appeal No. 01962747 (October 22, 1998); see also Ignacio v. United
States Postal Service, EEOC Petition No. 03840005 (September 4, 1984),
aff'd, 30 M.S.P.R. 471 (Spec. Pan. February 7, 1986).<5>  In the instant
case, rather than attempting to identify a reasonable accommodation,
the agency informed complainant that she could use annual, sick or leave
without pay to cover her "non-work period."

Based on the evidence in the record, the Commission finds that the agency
made no attempt to restructure a position or to conduct a search for
vacant positions, whether light duty or otherwise, at other facilities to
which complainant could reasonably have been reassigned.  Accordingly,
we must conclude that the agency failed to satisfy its obligation under
the Rehabilitation Act to provide a reasonable accommodation absent
undue hardship.  See Mees v. United States Postal Service, EEOC Appeal
No. 01971964 (September 11, 2000); Flowers v. United States Postal
Service, EEOC Appeal No. 01984878 (September 9, 1999); Lowery v. United
States Postal Service, EEOC Appeal No. 01961852 (October 31, 1997).

The Commission further notes that because this is not a case where the
agency made a "good faith effort" to reasonably accommodate complainant,
the agency is not relieved of its obligation to award appropriate
compensatory damages based on the instant finding of discrimination under
the Rehabilitation Act.  See Teshima v. United States Postal Service,
EEOC Appeal No. 01961997 (May 5, 1998).  In light of our findings that
complainant has prevailed on her denial of reasonable accommodation claim
and that the agency did not make a good faith effort, we do not reach
complainant's separate claim of disparate treatment based on disability.

CONCLUSION

Therefore, after a careful review of the record, including arguments
and evidence not discussed in this decision, the Commission affirms
the agency's final decision with respect to complainant's claims of
discrimination based on race, color, national origin sex, and age, but
reverses the agency's final decision with respect to complainant's claim
of disability discrimination.  Based on the foregoing analysis, we hereby
find that complainant was discriminated against based on disability.
The agency is ORDERED to provide the relief specified below.

ORDER

The agency is ORDERED to take the following remedial action:

1.  Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to award complainant back pay, with
interest, if applicable, for all wages and benefits lost between
January 6, 1996 and December 5, 1996.  The agency shall determine
the appropriate amount of back pay, interest, and other benefits due
complainant, pursuant to 29 C.F.R. § 1614.501(c).  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."
2.  The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as a result
of the agency's discriminatory actions in this matter. The agency shall
afford complainant sixty (60) days to submit any additional evidence
in support of her claim for compensatory damages.  Within thirty (30)
days of its receipt of complainant's evidence, the agency shall issue
a final decision determining complainant's entitlement to compensatory
damages, together with appropriate appeal rights.

3.  The agency shall provide training to all the management officials
responsible for this matter in their duties and obligations under the
Rehabilitation Act, and shall ensure that these managers are aware that
reassignment obligations under the Rehabilitation Act are not limited
to the facility at which the qualified individual with a disability
is employed.

4. 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,
and the agency's decision regarding compensatory damages,  including
evidence that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Pasadena, California Processing
and Distribution 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 (M0900)

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 (T0900)

This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint.  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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing.    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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:

______________________________
Frances M. Hart
Executive Officer
Executive Secretariat

July 17, 2001
__________________
Date



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
 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. has occurred at
 the agency's Processing and Distribution Center in Pasadena, California
 (hereinafter 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.

This facility was found to have denied an employee a reasonable
accommodation.  The facility was ordered to award the employee with
appropriate back pay and proven compensatory damages.  This facility
was also ordered to provide its managers with training regarding their
responsibilities under the Rehabilitation Act.  This facility 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.

This facility will comply with federal law and 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: _________________

1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.

2 The parties stipulated to this date of birth during the hearing.

3 Testimony at the hearing from a Human Resource Specialist then working
in the Injury Compensation Office established that complainant appealed
OWCP's initial determination and ultimately prevailed on her claim
for benefits.

4 The record contains a compensation order issued by the Department
of Labor on December 5, 1995 setting forth the agency's basis for
denying complainant OWCP benefits.  Specifically, the agency rejected
the reports of complainant's orthopedic physician in favor of the
assessment of the agency's contract orthopedic physician who found that
complainant had no further ongoing medical condition or residuals from
her May 1993 work injury and that she could perform her pre-injury work.
The compensation order discredited complainant's orthopedic physician's
reports based on the fact that he had "consistently changed diagnoses"
and did not establish a sufficient causal connection between the
impairment he identified and the May 1993 injury.  To the extent that
the Administrative Judge relied upon this compensation order when
he determined that complainant's injury was not permanent in nature,
we find his reliance to be misplaced.  Under the Rehabilitation Act,
it is not relevant whether complainant's impairment was  connected to
the on-the-job injury; rather, the inquiry is whether complainant has an
impairment which substantially limits a major life activity.  Moreover,
we do not find that complainant's orthopedic physician's diagnoses of a
lumbosacral strain; degenerative disc disease; a herniated lumbar disc
and lumbar disease to be so inconsistent or disconnected as to warrant
discrediting his opinion, and we note that complainant had the same
lifting restriction when she reapplied for light duty at the end of 1996.
Furthermore, in denying complainant the light duty position she requested,
the agency did not dispute the ten pound restriction identified by her
orthopedic physician but stated only that no work was available within
her medical restrictions.

5 While "an employer may not avoid its obligation to accommodate an
individual with a disability simply by asserting that the disability did
not derive from occupational injury," Bradley v. United States Postal
Service, EEOC Appeal No. 01962747 (October 22, 1998), an employer is
permitted to create light duty positions for those injured on the job
but not those injured off the job, as long as it does not make such
a distinction between on and off the job injuries where it maintains
reserved light duty positions.  See EEOC Enforcement Guidance on Workers'
Compensation and the Americans with Disabilities Act (September 3,
1996) at questions 27-28; McCutcheon v. United States Postal Service,
EEOC Appeal No. 01A00408 (January 8, 2001).

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