0720070080
11-19-2009
Alvin Joseph, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alvin Joseph,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0720070080
Hearing No. 310-2005-00517X
Agency No. 4G-760-0029-05
DECISION
Following its September 12, 2007 final order, the agency timely filed an
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's) finding of discrimination for
failure to reasonably accommodate complainant's disability, in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.1 For the following reasons, the
Commission REVERSES the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a permanent limited-duty Distribution Clerk at the agency's General
Mail Facility in Amarillo, Texas. Pursuant to a rehabilitation job offer,
which complainant accepted, the agency assigned complainant the following
duties and responsibilities: working in support area fingerprinting,
tracking probation for employees, filing documents, doing background
searches, answering telephones, responding to customer inquiries,
assisting with walk-in customers, and acting as the injury compensation
control point.
The rehabilitation job offer also included a provision permitting the
agency to assign complainant other duties so long as they were within
his physical restrictions. One of the physical restrictions prohibited
complainant from lifting or carrying over twenty-pounds.
On January 5, 2005, complainant filed an EEO complaint, alleging that he
was discriminated against on the bases of race (Black), national origin
(African-American), disability (right knee injury), and age (forty-nine
years old) when:
1. on October 14, 2004, the agency assigned complainant work duties in
violation of his restrictions, resulting in an injury;
2. on November 15, 2004, the agency issued complainant a letter of
warning for not reporting an accident in a timely manner, which led to
discipline.
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). Complainant timely
requested a hearing, and the AJ held a hearing by telephone on March 16,
2006.
The AJ issued a bench decision on March 24, 2006, finding no
discrimination with regard to the letter of warning, but further
finding that the agency failed to reasonably accommodate complainant's
disability when it assigned him additional work duties in violation of
his physical restrictions. The AJ relied, in part, on the affidavit
of the Postmaster, who averred that complainant was assigned to drive a
postal vehicle to Hereford, Texas; have the employees at Hereford load
his truck; and "[r]eturn to the plant and unload the one or two 1043s
(small hampers) onto the dock, a lift of 1-3 inches, depending on the
ramp." The Postmaster further averred that the physical requirements
of the assigned duties consisted of "[p]ushing a small hamper with
letters off the [vehicle]." The AJ found that the assigned duties
required complainant, in part, to lift the small hampers, which weighed
forty-four pounds when empty. The AJ determined that this lifting
assignment violated complainant's twenty-pound lifting restriction, and
the agency failed to reasonably accommodate complainant's disability
when he injured his knee on October 14, 2004 while removing a hamper
from the postal vehicle.
The AJ then held a hearing on damages on November 7, 2006, and issued
a supplemental order awarding complainant damages, attorney's fees, and
costs. The AJ awarded $25,000.00 in non-pecuniary compensatory damages.
The AJ also determined that complainant was entitled to reinstatement of
leave, totaling $23,309.10, minus any partial reimbursement complainant
received from workers' compensation for this leave. The AJ ordered the
agency to pay attorney's fees and costs in the amount of $11,968.66.
As for non-monetary remedies, the AJ recommended training regarding
the Rehabilitation Act for the supervisors involved in this case, and
ordered the agency to post a notice of the agency's violation of the
Rehabilitation Act. The AJ issued an order entering judgment on August
2, 2007.
The agency then issued a final order rejecting the AJ's finding that
complainant proved that he was subjected to discrimination on the basis
of disability in that the agency failed to reasonably accommodate him.
CONTENTIONS ON APPEAL
On appeal, the agency contends that the AJ abused her discretion in
holding the March 16, 2006 hearing by telephone because: (1) the agency
"raised the issue regarding OFO's moratorium on telephonic hearings";
(2) there were no exigent circumstances necessitating a telephonic
hearing; and (3) the AJ primarily based her finding of discrimination on
a credibility determination of the postmaster. In addition, the agency
maintains that the AJ's finding that the agency failed to reasonably
accommodate complainant is not supported by substantial evidence in the
record.
ANALYSIS AND FINDINGS
Telephonic Hearing
The Commission has held that testimony may not be taken by telephone in
the absence of exigent circumstances, unless at the joint request of the
parties and provided specified conditions have been met. See Louthen
v. United States Postal Serv., EEOC Appeal No. 01A44521 (May 17, 2006).
However, because the facts of this case pre-date Louthen, the Commission
determines whether the AJ abused her discretion in conducting a telephonic
hearing by considering the totality of the circumstances. See Villanueva
v. Dep't of Homeland Sec., EEOC Appeal No. 01A34968 (Aug. 10, 2006).
In particular, the Commission will consider factors such as whether there
were exigent circumstances, whether a party objected to the taking of
telephonic testimony, whether the credibility of any witnesses testifying
telephonically is at issue, and the importance of the testimony given
telephonically. Sotomayor v. Dep't of Army, EEOC Appeal No. 01A43440
n.3 (May 17, 2006). Further, where telephonic testimony was improperly
taken, the Commission will scrutinize the evidence of record to determine
whether the error was harmless. Id.
The Commission initially notes that the record and parties' briefs on
appeal do not explain the circumstances under which the AJ notified the
parties of her decision to hold a telephonic hearing. In its brief
on appeal, the agency only maintains that at some unspecified point
in time, the parties both raised "concerns" about the AJ holding a
telephonic hearing. However, there is nothing in the record or hearing
transcript showing that the parties objected to a telephonic hearing.
The record reveals that the hearing was initially scheduled to take place
on February 16, 2006, but was postponed until March 16, 2006 because
of a death in the AJ's family. The AJ, whose office was in Dallas,
Texas, was notified on March 9, 2006 by the agency that the location of
the hearing would be over three hundred miles away in Amarillo, Texas.
The agency, in its brief on appeal, does not explain when the AJ notified
the parties that the hearing would be conducted by telephone, when the
agency raised its "concerns" to the AJ, or what the AJ's response was to
these concerns. It is unclear whether exigent circumstances existed,
and the record does not show that the parties formally objected to the
taking of telephonic testimony.
In addition, the Commission finds that there were no issues of witness
credibility that might have been affected by the taking of testimony
by telephone such that the agency was deprived of a fair hearing.
The AJ's decision primarily relied on the written admission by the
Postmaster in his affidavit that part of complainant's assigned work
duties was to lift small hampers one to three inches, instead of the
Postmaster's telephonic testimony that complainant's assigned duty was
limited solely to driving the postal vehicle.2 On cross-examination,
the Postmaster maintained that his affidavit remained his testimony in
that it did not say that complainant was supposed to unload the postal
vehicle. The Postmaster had ample opportunity on redirect examination
to explain the written admission. And when the AJ directly asked the
Postmaster whether he was changing his testimony from what he wrote in
his affidavit, the Postmaster replied, "No." Under these circumstances,
even if it is assumed that the AJ abused her discretion in this case by
taking testimony telephonically, the Commission finds that her action
constituted harmless error.
Reasonable Accommodation
On appeal, the agency also maintains that the AJ's finding that the
agency failed to reasonably accommodate complainant's disability is not
supported by substantial evidence. Specifically, the agency challenges
the AJ's finding that the agency assigned complainant the task of not only
driving the postal vehicle, but also lifting small hampers that exceeded
complainant's physical lifting restrictions. The agency argues that the
evidence shows that (1) the actual duty assigned to complainant was to
merely drive the postal vehicle, (2) whenever complainant requested
a reasonable accommodation, management told complainant not to do
any lifting or to violate his restrictions, (3) despite accommodating
complainant's concerns about lifting objects that exceeded his physical
restrictions, complainant nevertheless chose to disobey the agency's
instructions and lifted the small hampers, thereby injuring himself.
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). 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).
Under the Commission's regulations, federal agencies may not discriminate
against individuals with disabilities and are required to make reasonable
accommodations for the known physical and mental limitations of qualified
individuals with disabilities, unless an agency can show that reasonable
accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o)
and (p). A complainant with a disability must request a reasonable
accommodation by letting the employer know he needs an adjustment
or change at work for a reason related to a medical condition.
Id. at 8. After receiving a request for reasonable accommodation,
the employer should engage in an informal process with the individual
with a disability to clarify what the individual needs and identify
the appropriate reasonable accommodation. Id. at 11. A modification
or adjustment is reasonable if it appears to be feasible or plausible,
and the employer may choose among reasonable accommodations as long the
chosen accommodation is effective at removing the workplace barrier that
is impeding the individual with a disability. Id. at 4, 18.
The AJ found that complainant was assigned the duty of lifting small
hampers, whose weight exceeded complainant's physical restrictions.
The AJ determined that complainant notified the agency of his need for
an adjustment or a change at work for a reason related to a medical
condition. The AJ found that the agency failed to clarify the needs of
complainant and to identify the appropriate reasonable accommodation.
While the AJ found that the agency told complainant to ask other
coworkers to lift the small hampers and to refrain from lifting the
hampers himself, the AJ found that this accommodation did not address
the needs of complainant, who was concerned about being held accountable
for not having the mail inside the Amarillo facility before the 6:00
p.m. deadline whenever coworkers were temporarily preoccupied with other
tasks and were unavailable to assist in lifting the hampers.
After reviewing the record, the Commission finds that there is substantial
evidence to support the AJ's finding that the agency failed to reasonably
accommodate complainant's disability.3 The agency's limited-duty job
offer specified a twenty-pound lifting restriction for complainant.
In a written affidavit, the postmaster, who assigned the additional
duties to complainant, described those duties as follows:
Drive a [postal vehicle] to Hereford, TX. Have the employees at Hereford
load his truck. Return to the plant and unload the one or two 1043s
(small hampers) onto the dock, a lift of 1-3 inches, depending on
the ramp. At no time did these hampers exceed his weight restrictions.
The Postmaster further explained in his affidavit that the reason he
assigned these additional duties to complainant was to have "more letter
cancellation by 1800 and to provide better service to our customers."
At the hearing, complainant testified that the cutoff time for him to
perform the additional duties was 6:00 p.m.
Complainant testified that the small hampers weighed forty to forty-four
pounds when empty. He further testified at the hearing that he told the
Postmaster on at least three occasions that the additional duties violated
his restrictions, and that he needed to get out of those duties because
he was in pain. However, according to the testimony of complainant and
the agency's witnesses, the agency's response to complainant was to not
do any lifting or violate his restrictions.
There is substantial evidence in the record to support the AJ's finding
that the agency failed to clarify what complainant needed, which was
slightly more time to complete his duties beyond the 6:00 p.m. deadline
whenever coworkers were not immediately available to lift the hampers.
Instead, the agency merely advised complainant to not violate his
physical restrictions without identifying a viable accommodation for
this situation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission finds
that the AJ's conducting a telephonic hearing was harmless error, and
that there was substantial evidence showing that the agency failed to
reasonably accommodate complainant's disability. We REVERSE the agency's
final action regarding the reasonable accommodation issue, and remand
this matter to the agency to take remedial action in accordance with
this decision and the order below.
ORDER
To the extent that the agency has not already done so, the agency is
ORDERED to take the following actions:
A. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall pay complainant $23,309.10 for leave, deducting
the amount that complainant was reimbursed for this leave under workers'
compensation, if any.
B. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall pay complainant $25,000.00 in non-pecuniary
compensatory damages.
C. Within sixty (60) calendar days, the agency shall pay
complainant's counsel $11,968.66 in attorney's fees and costs.
D. Within ninety (90) calendar days, the agency shall provide
training to the agency personnel responsible for the failure to provide
complainant with reasonable accommodation, placing special emphasis
on procedures and techniques for clarifying what an individual needs
upon requesting a reasonable accommodation and identifying appropriate
reasonable accommodations under the Rehabilitation Act.
E. The agency shall consider taking disciplinary action against
the subordinate employee identified as being responsible for the
discriminatory harassment perpetrated against complainant. The agency
shall report its decision. If the agency decides to take disciplinary
action, it shall identify the action taken. If the agency decides not
to take disciplinary action, it shall set forth the reason(s) for its
decision not to impose discipline. The Commission notes that training
does not constitute disciplinary action.
The agency shall provide a report of its compliance to the Compliance
Officer as reference below. Copies must be sent to complainant and his
representative.
POSTING ORDER (G0900)
The agency is ordered to post at its General Mail Facility in Amarillo,
Texas 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 (K0408)
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, D.C. 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
November 19, 2009
Date
1 The agency accepted the AJ's findings that complainant was not subjected
to disparate treatment on the bases of race, national origin, disability,
or age regarding the incidences alleged by complainant.
2 The reverse situation, where an AJ finds a witness' telephonic testimony
to be so credible that the AJ relies on it rather than the witness'
contradictory written admission, offers a more compelling scenario for
the Commission to find that the credibility of a witness' telephonic
testimony is at issue.
3 Because neither party appeals the AJ's finding that complainant was
a qualified individual with a disability, the Commission exercises its
discretion to review only the issues specifically raised on appeal.
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0720070080
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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