0720070019
02-24-2009
Alfred Chircop, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Alfred Chircop,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0720070019
Hearing No. 370-2005-00051X
Agency No. 4F-940-0033-03
DECISION
Concurrent with its final order of November 13, 2006, the agency filed
a timely appeal which the Commission accepts pursuant to 29 C.F.R. �
1614.405(a). On appeal, the agency requests that the Commission
affirm its rejection of an EEOC Administrative Judge's (AJ) finding
of discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The agency also requests that the Commission affirm its rejection of the
relief ordered by the AJ. On December 12, 2006, complainant timely filed
his cross-appeal to the agency's rejection of the AJ decision. The two
appeals have been consolidated for consideration in the instant decision.
For the following reasons, the Commission REVERSES the agency's final
order with respect to the finding of discrimination and MODIFIES the
order with regard to the relief ordered by the AJ.
BACKGROUND
The chain of events giving rise to this appeal form a long and
complicated history, involving a number of previous Commission decisions.
As summarized by our decision in the case of Abordo, et al. v. United
States Postal Service, EEOC Appeal No. 07A20066 (November 6, 2003),
req. to reconsider denied, EEOC Request No. 05A40305 (September 29, 2004),
complainant was part of a class of 28 Special Delivery Messengers in the
San Francisco, California District who in 1991 filed both a collective
EEO complaint, as well as a union grievance, regarding the agency's
decision to dismantle the central Special Delivery unit and reassign
the Special Delivery Messengers to various facilities in the area.
The decision of the agency to do so was pursuant to a decision at the
agency's national level to phase out the Special Delivery function,
and the Special Delivery Messenger craft. The EEO complaint was held in
abeyance pending an arbitrator's decision, which was issued in June 1997.
The EEO complaint was reactivated on July 30, 1997.
Prior to the reactivation of the collective EEO complaint, on July
15 and 16, 1997, the Special Delivery Messengers in the San Francisco
District were transferred from the various facilities to which they had
been assigned in 1991 to the San Francisco Postal Data Center (SFPDC).
The class filed a new EEO complaint alleging that they had been retaliated
against for their prior protected EEO activity. After a hearing before an
AJ, on January 23, 2002, the AJ issued a decision finding discrimination,
and with specific regard to complainant, finding that he had been denied
reasonable accommodation for his disabilities. The agency appealed to
the Commission in EEOC Appeal Number 07A20066, supra. Our decision in
that appeal reversed the AJ's finding of reprisal discrimination with
respect to the class. It also reversed the finding that complainant
had been denied a reasonable accommodation, finding that he was not a
qualified individual with a disability, based on his physical limitations
and the lack of a vacant, funded position to which he could have been
transferred in the period between July and October 1997.
In July 1997, complainant reported to the SFPDC to perform the
Clerk/Messenger position to which the Special Delivery Messengers
had been reassigned. He found though, that his physical limitations
could not be accommodated at that time, as noted above, and he ceased
reporting to work in October 1997. Complainant was granted a disability
retirement in May 1998, and sometime in 2001, he applied for Office
of Workers Compensation Program (OWCP) benefits on the basis of his
depression and anxiety disorders. He was retroactively granted OWCP
benefits to January 15, 1998 (and his disability retirement payments
were paid back due to his receipt of OWCP benefits). In December 2001,
complainant's psychologist found that complainant was mentally recovered
enough to return to work starting on March 1, 2002, in what he thought
should be a phased in return to full time work. Complainant's regular
physician prepared a work capacity evaluation on December 12, 2001,
outlining what physical limitations the agency should consider when
determining an appropriate position for complainant.
In the meantime, following the AJ's January 23, 2002 decision in Abordo,
the agency was required to provide interim relief to the members of the
class during the pendency of its appeal.1 At this point, two separate
processes began to move forward with respect to complainant's employment,
the OWCP process and the interim relief process. These two processes
delivered conflicting information to complainant at every turn. On March
4, 2002, the Human Resources Office sent complainant a letter notifying
him that he was entitled to interim relief under the Abordo decision and
that he should notify the agency if he wished to receive this relief.
Complainant did want to return to work, as evidenced by his doctor's
December 2001 letter and his affirmative response to the interim relief
letter on April 5, 2002. On March 27, 2002, the agency's Human Resources
Specialist in the Injury Compensation Office (a separate entity) sent
a letter to the vocational rehabilitation consultant in complainant's
OWCP claim, stating that complainant would not be provided re-employment,
and that he should be rehabilitated through the OWCP process outside of
the agency. Over the course of the next several months, complainant, and
his psychologist, attempted to discuss with the agency what was happening
with respect to his employment, if he would be given a position which
would comport with both his physical and mental limitations and if the
agency would return him to work. As the AJ found in her decision, the
agency repeatedly mis-addressed many of its letters to complainant, even
though he consistently kept updating his current mailing address whenever
he communicated with agency staff. Finally, on April 9, 2003, complainant
was offered a position which the agency stated would enable him to be
reasonably accommodated. Although complainant was given the generic
position title, hours and duties, the letter did not specify the duties
he would perform in light of his restrictions (as required by OWCP).
Additionally, the union local president (who was also complainant's
representative) filed a grievance over the offer to complainant, arguing
that as a regular bid position, it was a violation of the collective
bargaining agreement to have offered it to complainant. The agency
then claimed that complainant refused to accept the position and
caused a breakdown in the interactive reasonable accommodation process.
By mid-June 2003, complainant's anxiety and depression had worsened, due
to the agency's provision of conflicting information regarding employment,
and he was no longer psychologically able to return to work.
On December 20, 2002, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of disability (major depression
and anxiety disorders) and in reprisal for prior protected EEO activity
(arising under the Rehabilitation Act) when:
1. on October 10, 2002, complainant was notified by the Department of
Labor that he would be rehabilitated outside of the agency; and
2. on October 10, 2002, the agency engaged in a pattern of action in
denying complainant his right to return to duty.
The agency procedurally dismissed both claims for failure to state
a claim. In a previous Commission decision, EEOC Appeal No. 01A32065
(March 17, 2004), the Commission affirmed the dismissal of claim 1 on
the grounds that it was a collateral attack on the OWCP process, and
therefore failed to state a claim. However, the dismissal of claim 2
was reversed and remanded to the agency for an investigation.2
After the worsening of complainant's condition beginning in June 2002
and continuing into 2003, he was referred to a medical exam by OWCP to
determine his current status. It was decided in October 2003 that he was
temporarily totally disabled, and would not be referred for vocational
rehabilitation services at that time. Complainant remained unable to
work until February 2005, when his psychologist re-evaluated him and
found that his mental condition had improved enough that he could again
attempt a return to work.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ).3 Complainant timely
requested a hearing and the AJ held a hearing on June 16, 2005, and
issued a decision on September 28, 2006.
The AJ's decision first defined complainant's claim to be that his
request to return to work with a reasonable accommodation has been
denied since March 1, 2002, given that the "pattern of action in
denying complainant's return to duty," reached back to events that
began in March 2002. She found that complainant had shown a prima
facie case of reprisal discrimination. She then found that the agency
had articulated a legitimate, nondiscriminatory reason for its actions,
but that it had just barely satisfied this burden. The AJ found many
of the agency's explanations of the events to not be credible, based
on the testimony given at the hearing by the involved agency officials.
One agency official's testimony was so devoid of an explanation for the
agency's actions that she found it did not satisfy the agency's burden.
A second agency official's testimony satisfied the "agency's minimal
burden of production." The AJ then concluded that complainant had shown
the agency's reason to be pretextual. In support of that conclusion, the
AJ made a finding that the agency officials had acted "deliberately and
intentionally" to deprive complainant of the employment relief to which he
was entitled, through their actions of repeatedly sending correspondence
to the wrong address, ignoring multiple requests to provide information
about his status, and failing to take any steps to provide him with a job,
either through OWCP or the interim relief process.
With regard to his disability claim, the AJ concluded that complainant
was substantially limited in thinking, concentrating and interacting
with others, during the time period of 1998 through March 2002, and
June 2002 through February 2005, (the "relevant period") rendering
him an individual with a disability (also noting that he has a record
of a physical disability). She found that he was qualified to perform
the Clerk/Messenger position, with accommodation. The medical evidence
presented at hearing and in the investigation showed that complainant was
able to perform the duties of a Clerk/Messenger, or those similar to them,
in March 2002 and again in February 2005. She noted that the agency
did not provide meaningful evidence that complainant was not qualified
to perform the essential functions of his position with accommodation.
The AJ, based on the record and the testimony at hearing, then found
that the agency had failed in the reasonable accommodation process and
had acted in bad faith, and had failed to show that it would have been
an undue hardship to accommodate complainant. She specifically noted
that it took no "meaningful action" to comply with the interim relief
order of her decision from January 23, 2002.
To remedy the discrimination to which complainant had been subjected,
the AJ ordered reinstatement/placement of complainant in a full-time
Clerk/Messenger position or other position with similar duties that he
can perform. The agency was ordered to provide reasonable accommodation.
Backpay was ordered from March 1, 2002 through the date complainant
is placed in a position, offset by the OWCP payments already received.
Compensatory damages were awarded in the amount of $50,000.00. The agency
was also ordered to post a notice, and to pay complainant's costs.4 The
agency subsequently issued a final order rejecting the AJ's finding that
complainant proved that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, the agency presented several arguments. They argued that
complainant's initial EEO contact was untimely. They asserted that he
was not a qualified individual with a disability, and that the Commission
had previously issued a decision stating such (noting our finding in
Abordo, supra.). Their third argument was that the retaliation claim was
not supported by the evidence. The agency also claimed that the case was
actually a mixed-case and should have gone to the Merit Systems Protection
Board (MSPB) as it could be classified as a "failure to restore" case.
Finally it argued that agency personnel had acted in good faith when
attempting to locate a position with reasonable accommodation which
could be performed by complainant, and that the compensatory damages
awarded because of the "bad faith" finding should be reversed.
The complainant argued that the agency had not provided him interim relief
in the instant case, following the AJ's decision on September 29, 2006
and the agency's appeal of that order, and that therefore the case should
be dismissed under 29 C.F.R. � 1614.505(b). Complainant claimed that
the agency had not filed a timely appeal with the Commission He also
opposed the agency's timeliness, and wrong forum arguments. Finally he
stated that the agency's position in this case is directly contradicted
by the arguments put forth in Abordo regarding his impairments and the
agency's ability to accommodate him.
During the pendency of this appeal, the agency submitted a supplemental
brief, dated December 7, 2007, which detailed its ongoing efforts to
comply with the AJ's order of September 28, 2006 to reinstate/place
complainant in a full-time Clerk/Messenger position or other position
with similar duties that he can perform, and to provide reasonable
accommodation. It asks the Commission to consider the new documents,
stating that the evidence was not available at the time of the AJ's
decision, or the initial appeal, as the evidence post-dates the agency's
appeal and submission of its brief of January 4, 2007.
ANALYSIS AND FINDINGS
We first note that that agency's appeal in this case was timely as the
AJ issued her decision on September 28, 2006, which the agency received
on October 2, 2006. Under the regulation at 29 C.F.R. � 1614.110(a),
the agency had 40 days to file its appeal. As the fortieth day fell
on a Saturday, the deadline became the next business day, Monday,
November 13, 2006, as per 29 C.F.R � 1614.604(d). The agency's appeal
was postmarked on November 13, 2006. Complainant claims that although
he received the agency's Notice of Final Action dated November 13,
it was procedurally defective because it did not include a copy of
the appeal form filed with the Commission. We note that the Final
Action clearly stated that an appeal would be filed, and find that
this suffices to satisfy the requirements for an appeal by an agency.
See Janda v. U.S. Postal Service, EEOC Appeal No. 07A10018 (March 4,
2002). Further, as noted above, this case pertains to a failure to
reasonably accommodate complainant, and therefore does not fall under
the interim relief provision of the regulations.
As noted above, the agency failed to address the timeliness of
complainant's EEO Counselor contact in the context of EEOC Appeal
No. 01A32065 (March 17, 2004), and we decline to entertain the agency's
assertion at this time. Similarly, the agency's argument that this is
a mixed-case and should have gone to the MSPB as it could be classified
as a "failure to restore" case, is not convincing. The agency had
the responsibility to properly define the parameters of this case when
it issued the notice of rights to complainant with its acceptance or
dismissal letter, as specified in 29 C.F.R. � 1614.302(d). When a
complaint becomes firmly enmeshed in the EEO forum, the Commission
will assume jurisdiction if doing so better serves the interests of
judicial economy. See Burton v. Department of Agriculture, EEOC Appeal
No. 01932449 (October 28, 1994). We find that such is the case here,
given that complainant filed his formal complaint nearly six years ago,
in 2002, that the case has such a long history within the EEO context,
and the record is fully developed. Therefore, we concur in the AJ's
decision to assume jurisdiction of the complaint.
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 AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Initially, we note that we discern no abuse of the discretion on the part
of the AJ in the conduct of the hearing. Administrative Judges have broad
discretion in the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-
MD-110) at 7-8 to 7-14 (revised November 9, 1999); Bennett v. Department
of the Navy, EEOC Request No. 05980746 (September 19, 2000).
After reviewing the arguments which the agency made on appeal and applying
the substantial evidence standard to the AJ's factual findings, we discern
no basis to disturb the AJ's conclusion that the agency violated the
Rehabilitation Act when it retaliated against complainant and failed to
reasonably accommodate him. The AJ made detailed findings regarding
the credibility of the witnesses who testified at hearing which we
decline to disturb on appeal. The agency's argument that our previous
finding in Abordo that complainant was not a qualified individual with
a disability should preclude the AJ from finding that complainant was a
qualified individual with a disability in this context is not persuasive,
as the time frames in question are separated by 5 years.
However, in light of the evidence presented to the Commission in the
agency's supplemental brief, we find it appropriate to modify the order of
relief as crafted by the AJ, and make the following findings. The agency
has argued that it has made good faith efforts to place complainant
in a position as ordered by the AJ, that is in either a "full-time
Clerk/Messenger position or other position with similar duties that he
can perform." It puts forth that there are no vacant Clerk /Messenger
positions into which he can be placed, and it offered him the position
of Collector, a position similar to that of a Clerk/Messenger. Over the
course of eight months, complainant and the agency engaged in a dialogue
regarding the duties of the Collector position, and whether complainant
would be able to perform those duties, with the agency reiterating its
commitment to accommodating complainant's mental and physical limitations
through whatever reasonable accommodations he may request. On August 6,
2007, the agency, believing that it had addressed all of complainant's
concerns, informed complainant that he should report for duty beginning
on August 20, 2007. By letter of August 16, 2007, the complainant's
physician informed the agency that complainant would not be reporting for
duty, that he has "suffered a work related injury that renders him unable
to work in any capacity," that he is "temporarily totally incapacitated,"
and that he "cannot work in any capacity." We find that the agency has
satisfied its obligation to comply with the order of the AJ to place
complainant in a Clerk/Messenger or substantially equivalent position.
Therefore, we decline to order the agency to continue to attempt to
place complainant in a Clerk/Messenger or substantially equivalent
position, and find that the agency's liability for back pay terminated
with complainant's declination of the position offered.
CONCLUSION
Based on a review of the record and the contentions on appeal, including
those not specifically addressed herein, we REVERSE the agency's final
order with respect to the finding of discrimination and MODIFY the order
with regard to the relief ordered by the AJ.
ORDER
Within ninety (90) days of the date this decision becomes final and to
the extent it has not already done so, the agency is ordered to do the
following:
(1) Issue complainant the amount of backpay due from March 1, 2002
through August 16, 2007, offset by the OWCP payments already received.
(2) Issue complainant compensatory damages in the amount of $50,000.00.
(3) Pay complainant's costs, as associated with the processing of
this case. Complainant has 30 days from the date this decision becomes
final to submit a petition to recover costs, with appropriate supporting
documentation. The agency has 30 days from the submission of the costs
petition to issue a decision regarding costs, along with payment to
complainant of the undisputed costs.
(4) Provide a minimum of eight (8) hours of EEO training, with
special emphasis on the areas of reprisal and reasonable accommodation
requirements, for all involved management officials still employed with
the agency.
(5) Consider taking appropriate disciplinary action against the
responsible management officials still employed by the agency.
The Commission does not consider training to be disciplinary action.
The agency shall report its decision to the Compliance Officer. If the
agency decides to take disciplinary action, it shall identify the action
taken. If the agency decides not to take disciplinary action, it shall
set forth the reason(s) for its decision not to impose discipline. If any
of the responsible management officials have left the agency's employ,
the agency shall furnish documentation of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its San Francisco Postal Data Center
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 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 (S0408)
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. 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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
2-24-09
__________________
Date
1 The regulation concerning interim relief is codified at 29 C.F.R. �
1614.505. However, it is unclear that the agency was actually required
to provide relief, as the case did not involve a case of removal,
separation or suspension, as specified in the interim relief provision.
The AJ stated the agency was obligated to give it to those who "lost"
their jobs due to the retaliation. (AJ Decision, p. 7, fn 3). We also
note that in the instant appeal, the agency was not required to provide
interim relief under 29 C.F.R. � 1614.505, as argued by complainant on
appeal, as this is a case alleging denial of reasonable accommodation, not
one involving removal, separation or suspension. The AJ's September 28,
2006 Decision does not specifically order interim relief to be provided
should the agency file an appeal.
2 The agency had the opportunity at this stage to procedurally dismiss
complainant's complaint on the basis of untimely EEO contact, under 29
C.F.R. � 1614.107(a)(2). Our previous decision does not indicate that
the agency cited this basis for dismissal, and we decline to entertain
the agency's assertion to both the AJ at the hearing stage, and to the
Commission on appeal that the complaint should now be dismissed due
to untimeliness.
3 The same AJ who heard the Abordo case and issued the decision reviewed
in EEOC Appeal No. 07A20066, also conducted the hearing and issued the
instant decision under review.
4 As complainant's representative was the union local president, who is
not an attorney, he is not entitled to attorney's fees.
??
??
??
??
2
0720070019
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
6
0720070019