EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
CITY CRESCENT BUILDING
Baltimore District Office
10 South Howard Street, 3rd Floor
Baltimore, Maryland 21201
|
Ms. Client, vs. POSTMASTER GENERAL |
* * * * * * * * * * * |
|
COMPLAINANT’S CLOSING ARGUMENT
The Complainant, by and through her attorneys, Snider Law Offices and Michael J. Snider, Esq., hereby submits her Closing Argument and states:
Introduction
Complainant has shown that she has been discriminated against on the basis of her disability, and in reprisal for protected activity. The Complainant has proven by a preponderance of evidence that she is a qualified individual with a disability. The Agency failed to provide an effective accommodation to Complainant after she requested reasonable accommodation, and failed to make a good faith effort to accommodate the Complainant. In addition, after the Complainant engaged in protected activity, the Agency retaliated against her and created a hostile work environment for the Complainant.
Argument
Complainant proposes the following findings of fact:
Complainant is a qualified individual with a disability
Complainant has a condition or disorder that substantially limits her in one or more major life activities.Complainant has a “physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, cardiovascular, reproductive, digestive, respiratory, genitourinary, hemic and lymphatic, skin, and endocrine...”
Complainant has submitted numerous medical documents from her treating physicians regarding her disabilities and her restrictions (See, e.g., Complainant’s Exhibit 1 at 3, CX 19, CX 21). Consistently, Complainant and her medical providers have informed the Agency that Complainant has a chronic, permanent condition which limits her in many major life activities (Id). Dr. Stephan Izzi, for instance, advised the Agency on March 9, 2000 that Complainant suffered lumbo-sacral strain-sprain and that “cold exposure” caused her to have spasm and “limitation in the straight le[g] raise exam.” (CX 21 at page 2). Dr. Hall advised the Agency on February 29, 2000 that her medication caused her to need different, earlier, hours (CX 21 at 1). On April 4, 2000, Dr. Hall advised the Agency that Complainant had exacerbated pain from her lumbar radiculopathy and trochanteric bursitis “Due to environment (cold exposure) at work.) (CX 21 at 3). Dr. Hall advised the Agency on July 18, 2000 about “several relapses” from the same injuries do to cold exposure at work, and that “she can return to work, however must be removed from present work environment (cold exposure).” (CX 21 at 5). Again on April 17, 2001, Dr. Hall advised the Agency that Complainant had “a history of Chronic low back pain, lumbar disc disease in multiple levels of the L-S spine and Lumbar Radiculopathy.” (CX 21 at 4). She again asked for an earlier shift for the Complainant due to the side effects of medication (Id). Hall noted the serious medication being taken by Complainant, including Valium and Elavil, Celebrex and Ultram (Id). Finally, Dr. Hall submitted a letter to the Agency and the Administrative Judge on or about November 9, 2001 (CX 21 at 6). Dr. Hall stated in no uncertain terms that Complainant’s “pain is exacerbated by cold temperatures and repeated request was made to worksite to be a temperature control zone, which is not near any ventilation exhaust system and enclosed.” (Id). Dr. Hall clearly stated that “my recommendations are a cubical, or enclosed area with a space heater if the temperature cannot be controlled. The patient has had to wear layers of clothing due to the varying temperature chagnes on the work floor.” (Id). Finally, Dr. Hall stated that “For this patient to be productive and well the post office has to maintain her restrictions as well as my recommendation that she be placed on day time work schedule.” (Id).
Complainant testified to her restrictions in matters of daily living. The Agency claimed that the Complainant “is able to engage in those activities that are essential for daily life.” (Tr. 17). That is not the test for qualification under the Rehabilitation Act or ADA. Even if an individual can perform all daily activities, the question is whether they are substantially limited in their ability to do so. Complainant clearly is substantially limited in one or more major life activities.
Complainant injured her back at work in May 1999, and was considering surgery for tears in her disc (Tr. 29). She moved to Kansas for a period of time, on LWOP, and returned to Baltimore and the IMF in December 1999 (Tr. 29-30). Prior to December 1999, she did not have any sensitivity to temperatures, although the IMF “kept it cool on the floor.” (Tr. 30-1). Sometimes the Agency kept the IMF too cold, and sometimes too hot (Tr. 31). Employees complained about the temperature problems to Mr. Johnson, Mr. Perry, Mr. Thornton and Mr. DeBow. Co-worker statements support Complainant’s allegations (See CX 13).
In January 2000, the air in the IMF was particularly cold (Tr. 31). Complainant told her managers about the cold conditions and asked that she be provided with a warm work area (Tr. 31-2). She told Mr. Grant about the situation and he rectified the situation for a few days (Tr. 32). Mr. Grant was a supervisor (Tr. 41).
Then, and on a number of occasions (to present), the Agency failed to maintain a warm work area for Complainant. For instance, on January 15, 2000, the IMF was again cold (Tr. 32). Complainant could only stay one hour due to the extreme cold conditions (Tr. 32-3). It was so cold that Complainant’s “back spasmed right on the floor. It took two people to help me off the floor because I couldn’t walk.” (Tr. 33). She was ordered to go back on the floor by Mr. Mobear (another supervisor) (Tr. 34). After stating that it was too cold and that she would injure herself, he required her to take leave (Tr. 35). Complainant directly approached Mr. Preston Johnson at that time and he stated that “if you can’t work in this environment, you need to go home.” (Tr. 35). Complainant testified that another employee also left the floor that day due to the extreme cold (Tr. 36). Complainant noted that the Agency told her that it had to keep the IMF at a certain temperature (Tr. 38). She stated that other employees would wear coats due to the cold (Tr. 38).
Complainant felt that the temperature in the IMF, on days when it got really cold, was “nowhere” near 72 degrees Fahrenheit (Tr. 39). She felt that in January 2000 it was very cold (Tr. 40). Although it has been cold enough since January 2000 to affect Complainant and require her to go home, it has not been that cold at any time since (Tr. 40). The Agency did not measure the temperature in the IMF near Complainant in January 2000 (Tr. 41-2). Complainant requested printouts of the temperatures in the IMF in January 2000 (Tr. 42). They were never provided by the Agency (Id).
Complainant testified that she has difficulty bathing (Tr. 44). She has difficulty raising her leg (Id). She has difficulty climbing (Id). She is substantially limited in her ability to climb stairs (Tr. 45-6). She can walk, but only slowly (Tr. 46). She is substantially limited in her ability to walk (Id). She can only walk 2-3 blocks without her muscles tightening up, at which point she must stop (Tr. 47). She cannot run (Id). She is substantially limited in her ability to run (Id). She can lift things, but has to modify the way that she bends in order to accommodate her back disability (Tr. 47-8). She cannot lift anything heavier than a gallon of milk (Tr. 49). She is substantially limited in her ability to lift (Tr. 48-9). She can push things, but in a limited way (Tr. 49-50). She “can’t push anything heavy.” (Tr. 50). She can only go shopping for three bags of food at a time due to her limitations in her ability to push the shopping cart (Tr. 50).
Complainant is limited in her ability to sit (Tr. 51). She cannot sit for a long time (Id). She testified that she cannot sit for longer than one hour at a time (Tr. 51). After an hour of sitting, she gets stiff and has difficulty standing (Id). She has pain in her back if she sits for more than one hour at a time (Tr. 51-2). She is substantially limited in her ability to sit (Id).
Complainant is limited in her ability to stand (Tr. 51). She cannot stand for a long time (Tr. 51). Her body simply cannot maintain its upright posture for a long period of time (Tr. 52).
Complainant takes medication (Tr. 52). The medication does not ameliorate the effects of her disabilities (Tr. 52-3). The medication just takes the edge off of her pain (Id).
Complainant can perform her job with or without accommodation.
As stated by the Commission, a “Qualified individual with handicaps means with respect to employment, an individual with handicaps who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others...” The parties agreed that Complainant can perform her job with or without reasonable accommodation at the hearing, although it is not apparent that this agreement was made on the record (See CX 22). Complainant could also perform the rewrap functions performed by at least one person from 2:30 to 4:30 each day, and for which there exist vacant, funded positions.
The Agency violated the Rehabilitation Act when it failed to provide Complainant with reasonable accommodation (warm working environment)
Complainant has testified that since December 17, 1999, the Agency has kept the work floor at its Incoming Mail Facility (IMF) extremely cold (ROI at 77). She testified in a statement nearly contemporaneous with the events that occurred, that:
“Mr. Perry told em that I was to sit at the end of the table because the other employees verifies [sic] mail on the other end. After a week or so, I stated to Mr. Perry that where he had me sitting the vent that was above me was blowing cold air out of it. But Mr. Perry stated that the vent was closed, I stated to Mr. Parry [that] if the vent is closed, why is that yellow piece of strip blowing that is coming from the vent and that I don’t think that the vent was entirely closed.”
(ROI at 77). This unrebutted testimony shows that, as early as December 17, 1999, the Agency was on notice that the Complainant had physical problems with the extreme temperature conditions at the IMF, and that she required reasonable accommodation for her conditions. Mr. Grant told Complainant that she was a pretty girl, that the Agency had an OSHA inspection and had to keep the temperature at that level and that there was nothing the Agency could do about the heat (ROI at 77).
Complainant’s co-workers fully support her allegations of cold temperatures (CX 13).
Complainant requested, on January 6, 2000, a warm working environment. She was told by her management that if she could not work in the current environment, she would have to go home on leave. Complainant requested, on January 15, 2000, a warm working environment. Complainant testified that she informed a supervisor that the work floor “was extremely cold again” on January 15, 2000 upon her arrival at work and the supervisor (Crystal) admitted “it is freezing in here.” (ROI at 76). She told Crystal that it was too cold for her and that she needed the temperature to be adjusted (Id). Crystal, the supervisor, did nothing to accommodate the Complainant (Id).
The Agency kept placing Complainant in a cold working environment throughout the end of January 2000 (ROI page 83, Affidavit of Complainant). Complainant was placed out of work on January 28, 2000 due to the cold working conditions (Id, ROI at 76).
Complainant stated, in an affidavit more contemporaneous than her hearing testimony, that she:
“repeatedly asked them to turn the heat up prior to my injuries of 6 Jan 00 and 15 Jan 00, and after, between 15-27 Jan 00. But I was laughed at and told by Management that I needed to go put on a coat, to put on long johns and that it could be [because of my] age.”
(ROI at 79). This unrebutted testimony evidences a violation of the law and a hostile work environment. Complainant also stated in an affidavit that she was still placed in a cold environment after her return to work on February 3, 2000 (ROI at 75).
On February 3, 2000, Complainant returned to work but was still exposed to cold temperature conditions (ROI at 83). Complainant informed management that she needed a warm working environment, at least 70 degrees (Id). The IMF floor, however, got even colder (Id). After Complainant again raised the issue with management, the area became warmer such that she could finish her tour (ROI 83, 82).
On February 23, 2000, Complainant reported to work and provided statements from her physician regarding her medical restrictions (ROI 82). Complainant was allowed to work within those restrictions for two days (Id). Complainant asked George Fowler if she could have a space heater, and he told her that it was not allowed under OSHA regulations (Tr. 61-2). Mr. Johnson affirmed that Complainant was not allowed a space heater due to alleged OSHA regulations (Tr. 323). He could not cite a particular regulation (Id). In this case, the Agency representative has confirmed that there is, in fact, no safety or other regulation prohibiting or restricting the use of space heaters at the IMF.
In February 2000, Complainant was working four hours, from 4:30 p.m. to 8:30 p.m., when she was told by Mr. Perry that she had to come to work from 9:00 p.m. to 1:00 a.m. (ROI 82). Complainant asked for reasonable accommodation of working earlier in the shift rather than later, and that the Agency was requiring her to perform work that was in contradiction to her medical restrictions as set forth by her medical provider (Id). Mr. Perry told Complainant that if she did not report to work at 9:00 p.m., she would be placed on AWOL (Id). The next day, on February 26, 2000, the Agency met (through Charles Thomas and Maxine German-Bailey) with Complainant concerning a limited duty availability form (ROI 82, 74). Complainant informed them orally and in writing that the restrictions on the form were incorrect, and placed a copy of the response in Mr. Perry’s mail box (Id).
On February 27, 2000, the Agency, through Mr. Perry and Mr. Johnson, tried to force Complainant to sign an incorrect statement of her physical limitations (ROI 82, 74, Tr. 64, et seq). The Agency maintains that this was an innocent clerical error, but Complainant’s testimony is clear that 1) the Agency maintained that Complainant had to sign the form even after it was clear the restrictions were incorrect; 2) the Agency maintained that Complainant had to sign the form without performing a good faith effort to confirm that the restrictions were correct after she informed them of its inaccuracy; and 3) the Agency request for Complainant to sign the form was done in a hostile, intimidating and discriminatory manner. Complainant was locked in a room with two supervisors who continued haranguing her about signing the form even though she repeatedly stated that it was incorrect. At no time during the inquisition did the Agency make any attempt to confirm the accuracy of the form.
On March 3, 2000, Complainant filed a Complaint of Discrimination against the Agency (ROI at 88, citing dates of prior activity). On or about late February, 2000, Complainatn authored a 6-page letter detailing the discrimination she experienced in January and February 2000 (ROI at 83 to 78). On March 20, 2000, Complainant authored a 9-page letter detailing additional discrimination and retaliation (ROI at 77 to 68).
On March 13, 2000, Complainant received a letter that she understood to state that she was being placed on probationary status and could be fired at will (ROI at 72). Complainant was followed by other employees and reported on by those employees to management (ROI at 72, 71). On or about March 19, 2000, Complainant was forced to account for any time she spent away from her work location (ROI at 71). Another employee was allowed to work off the floor (ROI at 71, 70). This employee was friends with Mr. Perry (ROI at 70 at bottom).
On April 2, 2000, the IMF facility work floor was agin cold, and there was cold air blowing down from the vent (ROI 67 et seq, Tr. 71 et seq). On or about April 2, 2000, the Agency finally moved Complainant, but moved her to a place she did not request: directly between two open, blowing vents (Id). Since that time, she has experienced a number of similar occasions (Id).
Failure to Accommodate Temperature Dysfunctions
Recently, the EEOC awarded a Complainant $115,000 in non-pecuniary damages for physical and emotional distress she suffered when the Department of the Treasury failed to accommodate her temperature dysfunction. Caldonia T. Rivers v. O’Neill, Secretary, Dept. of the Treasury, 102 FEOR 1141, EEOC 01992843 (January 16, 2002). Rivers suffered from a condition which involved an extreme sensitivity to temperature fluctuations. Rivers requested partitions around her desk and a space heater. When the Agency failed to provide those accommodations, it agreed to provide Complainant relief under the Rehab Act. This is despite the Agency’s providing to Rivers one partition, since that accommodation was not effective.
Similarly in this case, Complainant suffers from an extreme sensitivity to temperature changes. Unlike Rivers, the Agency at no time made a good faith effort to accommodate Complainant. There, one manager
“installed eight-foot high partitions around her desk that blocked air flow from overhead vents, provided a space heater on an elevated platform and arranged for other modifications recommended by Dr. H and CF.”
Here, Complainant’s physicians likewise recommended a nearly identical accommodation for a nearly identical condition. Although Complainant has not been officially diagnosed with hyperhidrosis or temperature dysregulation, it is apparent that she suffers from this or an identical condition (See Rivers, supra, n. 1). Temperature fluctuations, or exposure to temperatures, is a major life activity. Just because Complainant can be exposed to some temperatures, or can be exposed to cold temperatures for brief periods of time, does not vitiate her claim that she needs protection from extended periods of exposure to drafty cold air as an effective accommodation for her physical disabilities.
Complainant requested a warm working environment
From the record it is clear that Complainant, her physicians and the Union all requested, on numerous occasions, an enclosed office space or partitions and a space heater. This would have not been burdensome for the Agency and certainly not an undue hardship. Complainant has not filed for disability retirement. She wants to work. All Complainant requests is a warm working environment. Instead, she was kept directly under an open vent, then later moved to between two open vents and eventually moved to an area partially sheltered near two partially open and one partially closed vent. This is not an effective accommodation, as was clear from the testimony of Complainant and her physician.
An accommodation of warm working environment was connected to her disability
Complainant and her physician explained why her disabilities resulted in an extreme sensitivity to cold temperatures, similar to the temperature sensitivity experienced by the Complainant in Rivers v. Treasury, supra. Complainant explained that her back injuries made her sensitive to cold temperatures. Dr. Hall testified that exposure to cold air, either ambient or blowing, was a violation of her restriction (Tr. 132, et seq.; CX 21 at 6). There is a clear nexus between the requested accommodation and Complainant’s disabilities.
Providing a warm working environment would not have been an undue hardship
No evidence was submitted by the Agency indicating that a warm working environment would be an undue hardship, given its size and budget. This failure should be taken as an adverse inference against the Agency on this issue.
Failure to provide the requested accommodation resulted in harm to Complainant
The Agency’s failure to provide an effective accommodation to the Complainant resulted in tangible harm to the Complainant. She missed work, losing pay and leave. She incurred expenses in visiting and paying for visits to her physician. She incurred expenses in payment for her medication. She incurred expenses for visits to the physical therapist. Complainant was eventually evicted from her apartment due to her inability to pay her rent because of the Agency’s failure to accommodate. She incurred moving and storage expenses, suffered a loss in her credit history and had severe physical and emotional damages.
The Agency did not provide an effective accommodation to Complainant
The Agency claims that it ‘effectively’ accommodated the Complainant. This is not true. First, the Agency did not move the Complainant at all until April 2, 2000 (Tr. 70-1). The move on April 2, 2000 was to a location between two open vents, and not to the location where Complainant is currently – which is where she originally, and begrudgingly, consented to be placed (Tr. 70-2). Complainant, the Union and her physicians, however, clearly and repeatedly asked for a warm work environment, and not merely to be moved around on the IMF floor. The Agency’s claim that it effectively accommodated Complainant, therefore, is simply unpersuasive.
The Agency did not keep the temperature near the Complainant at or above 70 degrees. The Agency maintains that the temperatures in the Incoming Mail Facility where Complainant works have been “kept at or above 70o F.” (See Agency’s MSJ at Factual Contentions 5, 18, 20). The Agency has, in fact, produced temperature logs which purport to show that the temperature at the IMF is kept at a constant 76-78 degrees Fahrenheit (Cabinet Trend Data Report dated May 12, 2000, Exhibit 23). Other information, however, disputes these assertions. The Agency’s Cabinet Point Log indicates that the discharge temperature for air coming out of the Air Handlers (HVAC machines) is between 58 and 65 degrees Fahrenheit (See Cabinet Point Log dated July 11, 2000, CX 24). Complainant has requested Cabinet Point Log data for January 2000, which the Agency has failed and refused to provide. Complainant requests an adverse inference on this matter, such that had the Agency provided the information requested, it would have been damaging to the Agency and would have supported Complainant’s allegations. In this regard, the Agency provided such data for December 1999 and early 2000 but not for January 2000.
William Bishop is an HVAC expert witness for Complainant (Tr. 5). The Parties agreed that, if called to testify, Mr. Bishop would have testified to his expertise in HVAC (Id). The Parties agreed that Mr. Bishop would have testified that the discharge temperature at the vents in the IMF near the Complainant’s work station would be within five (5) degrees of the temperature indicated on the Cabinet Point Log as “DISC TEMP.” (Tr. 6). The Parties agreed that Mr. Bishop would have testified that the effect of closing the louvers on the discharge vents at the IMF would be to dissipate, but not stop, the flow of air coming out of the vent (Id).
Complainant’s physician recommended that the Agency allow Complainant to work in a temperature controlled zone, not near any ventilation exhaust system, and enclosed (CX 1). Mr. Debow testified that the air coming out of the air handler was around 31,000 cubic feet per minute (Tr. 360). Each air handler had eight vents (Tr. 364). That translates into roughly 3875 cubic feet per minute coming out of each vent. Mr. DeBow was apparently defensive in his testimony because any failure regarding temperature would reflect badly on him personally. He did testify that the air vents were insulated (Tr. 361). The temperature at the exit from the vent was close to no more than five (5) degrees from that showing on CX 24 (Tr. 362). Mr. DeBow testified that he never found the ambient air temperature to be below 70 degrees (Tr. 376-7). No testimony was advanced by the Agency as to the actual temperatures on the dates in question alleged by the Complainant and supported by her witness statements and objective medical findings by her physicians. Further, the Agency never measured, not once, the actual temperature of the air flowing, at 3750 cubic feet per minute, out of the vents. Debow testified that it was unlikely that the air coming out of the vents would gain more than ten degrees from its discharge temperature at the vent itself (Tr. 375). If the temperature at the vent was 58.4 degrees (See CX 24), the air temperature blowing down by the time it reaches the floor would be, according to Mr. DeBow, no warmer than 68.4 degrees (See, e.g., Tr. 375-6). This is below the 70 degree minimum recommended by Complainant’s physicians.
The Zone Temp is usually set at 75-78 degrees. Mr. Debow saw it at 70 degrees on one day Complainant said that it was very cold (Tr. 353-4). He realized something was wrong and released the outside dampers to correct the situation (Id). Other employees in the area where Complainant sits have complained to Debow that it is cold in that area (Tr. 377).
On a physical walk-through in January 2002, DeBow noted that the actual temperature reading at the temperature sensor (which shows constant readings of 76-78 degrees - See CX 23) was around 70 degrees (Tr. 351-2). There was usually a differential of a few degrees between the area where the temperature sensor was located and the actual temperature at Complainant’s work area, up to a four degree difference (Tr. 382). Logically, therefore, if the Zone Temperature was 70 degrees, the differential temperature at Complainant’s work station could be as cold as 66 degrees. The Agency has failed to effectively accommodate the Complainant in the area of a warm working environment.
The Agency violated the Rehabilitation Act when it failed to provide Complainant with reasonable accommodation (different working hours)
Complainant requested different working hours; An accommodation of different working hours was connected to her disability and medication side effects
Complainant’s physician recommended that Complainant’s work schedule be adjusted as a reasonable accommodation due to the side effects of her medication (CX 21, Tr. 134 et seq). Complainant and her Union representative requested the change on a number of occasions (See, e.g., CX 1). The request was denied, despite the availability of work. Similarly, the Agency has refused to allow Complainant to begin her shift at 2:30 p.m. It currently claims that there is not enough work. It previously claimed that there was a policy to not allow employees on Complainant’s shift to begin before 4:30 (CX 2 at page 5, et seq). Complainant noted in her August 23, 2001 Note that “I have been requesting to be reasonably accommodated prior to any other employee being placed on the limited/light duty table, however, I was not allowed to beg[in] my tour at an earlier time schedule, but the other employee was allowed to begin their schedule at 2:30 p.m....” (Id). Complainant stated that she approached Mr. Johnson about it and he stated that he did not have any work for her (CX 2, at 6). Complainant, however, has worked on Tour 2 before, from 7 a.m. to 3:30 p.m. and knows personally that there was plenty of work to be done (Id).
Providing different working hours would not have been an undue hardship
No evidence was submitted that allowing Complainant to come in a mere two hours earlier would constitute an undue hardship, or that changing her shift would be an undue hardship. The Agency admitted that vacant funded positions exist which Complainant could perform at a different, more desirable time. Its failure to accommodate is therefore a violation of the law.
Failure to provide the requested accommodation resulted in harm to Complainant; the Agency did not provide an effective accommodation to Complainant
The Agency failed to provide an effective accommodation to Complainant in regard to her working hours. Initially, it changed her hours from earlier (4:30-8:30) to later (9:00 p.m.-1 a.m.) in a discriminatory move. To date, Complainant is still losing two hours of pay a day due to the Agency’s failure to allow her to come in at 2:00 p.m. or to move to a different shift.
The Agency also claimed for the first time at the hearing that a reason Complainant could not work in an enclosed office was because of the inability for postal inspectors to observe her processing mail (See, e.g., ROI vs. Tr. 294). This defense was never raised prior to the hearing.
A change or shift in defenses is strong evidence of pretext. When a defendant shifts defenses, the defenses are rightly subject to attack as unworthy of credence and pretextual. See Taylor et al. v. Teletype Corporation et al., supra (shifting defenses properly reviewed by trier of fact for pretext); Mozee v. American Commercial Marine Service Co., 940 F.2d 1036 (7th Cir. 1991) (holding that class complainant’s discharge discriminatory when placed in the context of the company’s shifting defenses and its treatment of similarly situated white workers); N.L.R.B. v. Howard Electric Co., 873 v. F.2d 1287 (9th Cir. 1989) (shifting defenses were found to be pretextual).
Courts have been extremely skeptical of alleged reasons which are not asserted until the latter stages of a discrimination dispute. See Gallo v. John Powell Chevrolet, Inc., 61 F.E.P. Cases 1121, 1129 (M.D. Pa. 1991) (the fact that employer’s alleged reasons were not asserted until the hearing “casts doubt on their authenticity and suggests that they were fabricated after the fact to justify a decision made on other grounds”); Foster v. Simon, 467 F. Supp. 533 (W. D. N.C. 1979) (the court specifically noted that compelling evidence of pretext is found in fact that the defendant’s “B average” criteria appeared for the first time at trial). Similarly, shifting reasons or defenses between the time of the adverse action and the time of the hearing is strong evidence of pretext. See Townsend v. Grey Line Bus Co., 597 F. Supp. 1287 (D. Mass. 1984), aff’d, 767 F.2d 11 (1st Cir. 1985) (finding defendant’s shifting defenses unworthy of credence and pretextual). The foregoing principles apply in the instant matter.
Preston Johnson denied Complainant’s request for a change in tour from 4:30 p.m. - 1 a.m to 2:00 p.m. to 10:50 p.m. (Complainant’s Exhibit 1, page 1). Mr. Johnson stated in a note dated July 29, 2001 that the reason he would not change the tour was because there was a policy that “all limited and light duty assignments on Tour 3 starts [sic] at 4:30 p.m.” (CX 1 at page 2). Mr. Johnson also stated that “there is not sufficient mail volume to support additional limited duty personnel at 2:30 p.m.” (Id)(emphasis added). At the hearing, Johnson testified that there were contractually required, vacant available positions at 2:30 p.m. and on other shifts that were not offered to Complainant (Tr. 300-1, et seq). Johnson affirmed that Complainant would not be bumping anyone out of the vacant funded position or otherwise violating a seniority process or collective bargaining agreement (Tr. 301-2). Preston Johnson testified that he did not consider Complainant and her doctor’s request for a warm work environment to be a request for reasonable accommodation (Johnson Depo at 34).
Darryl Thornton confirmed that the real (and only) reason Complainant was not allowed to come in to work at 2:00 or 2:30 p.m. was because Preston Johnson had a blanket policy to that effect (Tr. 244).
This is clear evidence of the Agency’s negligent and reckless violations of the Rehabilitation Act. See also, depositions of High and Brockington. The Agency had a “Reasonable Accommodation Committee” up until some time in 1999. It met regularly prior during that time period. Darryl Thornton (Depo at 32-3), Anna Kramer (Depo at 72, et seq). Affidavit of Anna Kramer re: RAC files (CX 25a).
The Agency’s Reasonable Accommodation Committee was inactive from approximately 1999 until early November 2001.Darryl Thornton (Id), Anna Cramer (Id). The Reasonable Accommodation Committee kept files. There are no file for, and no mention in the minutes of the RAC regarding, the Complainant. Anna Cramer (Depo at 69); December 21, 2001 Affidavit of Anna Cramer (CX 25a).
First line supervisors are not empowered to make decisions regarding requests for reasonable accommodation. Anna Cramer (Depo at 71), Agency guidelines on Reasonable Accommodation. Second and third line managers are not empowered to make decisions alone regarding requests for reasonable accommodation. Anna Cramer (Depo at 71); Agency guidelines on Reasonable Accommodation. Here, these very managers claim to have made decisions regarding Reasonable Accommodation. The Agency cannot have it both ways. It did not accommodate complainant, and ongoing damages clearly make whatever the Agency has done to date ‘ineffective.’
The Agency Retaliated Against the Complainant for Her Participation in Protected Activity
Complainant participated in protected activity
Complainant engaged in protected activity as early as February 28, 2000 or March 3, 2000 (See ROI at 88, 83).
Complainant was subjected to adverse treatment by the Agency; there was a nexus between the protected activity and the adverse treatment
The actions taken by the Agency on April 2, 2000 in placing Complainant between two open vents, and indeed failing to accommodate her disability, were retaliatory and adverse in nature. They caused her to be off of work, to lose leave and pay, to be evicted and to suffer pecuniary and non-pecuniary physical and emotional damages.
The Agency created a hostile working environment (retaliation, disability) for the Complainant
Complainant credibly testified (unrebutted) that co-workers were ordered by her
management to follow her around, that she was not allowed to leave her work site without informing her management of her whereabouts. She testified credibly about the intimidating meeting behind closed doors with her managers, and that her supervisors and managers actually laughed at her and made fun of her, telling her to buy thermals and bring a coat to work. This was objectively and subjectively hostile behavior based on Complainant’s disability and/or protected activity.
Complainant suffered pecuniary compensatory damages as a result of the Agency’s discrimination
Complainant and her physician testified as to the fair market value of doctor’s visits she incurred as a result of the Agency’s failure to accommodate her disability. Both testified to the cost of Complainant’s prescription drugs for pain she needed to manage. Complainant testified (and documents were provided) about the costs of her eviction, storage and damage to credit (See CX 12). In addition, it is clear that Complainant suffered severe non-pecuniary compensatory damages as a direct result of the Agency’s actions and omissions. She cried a number of times at the hearing, and it was clear that she suffered physical damages as well, similar to that experienced by the Complainant in Rivers, supra.
Summary and Conclusion
Complainant and her physician and Union officials maintain that they related her physical impairments and restrictions to her first, second and third-line supervisors, as well as to the Workers Compensation office. The EEO Office was aware of Complainant’s physical impairments and restrictions. Complainant, Dr. Trudy Hall, Darryl Thorton (Depo at 36-7); Brockington Depo, High Depo all support the conclusion that the Agency was well aware of Complainant’s sensitivity to cold temperatures and ability to work an earlier shift, yet failed to provide her with an effective accommodation. The Agency should be found fully liable for its violative actions and omissions.
Respectfully Submitted,
_________________________________
Michael J. Snider, Esq.
Attorney for Complainant