01964606
10-16-1998
Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.
John F. Riedel v. United States Postal Service
01964606
October 16, 1998
John F. Riedel,
Appellant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny/Mid-Atlantic Areas),
Agency.
Appeal No. 01964606
Agency No. 4D-2602-93
EEOC Hearing No. 120-94-5375x
DECISION
On May 31, 1996, the appellant timely appealed the agency's final decision
("FAD") concluding that he had not been discriminated against in violation
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 et seq.
The appeal is accepted in accordance with the provisions of EEOC Order
No. 960.001.
The issue presented is whether the agency failed to make any reasonable
accommodation for the appellant's physical disability (heart disease)
starting in March 1993 when it failed to consider any possibility of a
reassignment for him to any vacancies at or below his grade level within
his commuting area and within his medical restrictions.
At the time of the alleged discrimination, the appellant was employed
as an EAS-16 Supervisor of Customer Services at the Arlington Road Post
Office in Bethesda, Maryland. He filed the instant complaint in August
1993. After the agency completed an investigation of the complaint,
the appellant requested a hearing before an EEOC Administrative Judge
(AJ). After a two-day evidentiary hearing, the AJ issued a recommended
decision on March 11, 1996, finding discrimination. As remedies, the AJ
recommended an award of back pay with interest for all lost wages between
the date the agency placed the appellant on sick leave in March 1993 and
the date his disability retirement became effective in December 1993,<1>
attorney's fees and costs, the posting of a notice of a violation,
and $10,000 as compensatory damages for proven emotional distress and
mental anguish.<2>
On May 10, 1996, the agency issued a FAD finding no discrimination.
On appeal, the appellant seeks an affirmance of the AJ's recommended
decision.
After a careful review of the entire record, including the parties'
submissions on appeal, we find that the AJ's recommended decision
sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. Based on the evidence of record, we
discern no basis to disturb the AJ's findings.
The record shows that the appellant began employment with the agency
in 1974 as a rural carrier in the Olney Post Office, Maryland.
In 1983, the appellant had heart surgery to replace an aortic valve.
After the surgery, the appellant continued to work as a rural carrier
without any accommodation. In 1988, he was promoted to the position of
Superintendent, Postal Operations, EAS- 16, at the Olney Post Office.
In September 1992, he was detailed to the position of a Supervisor, Mails
and Delivery, at the Arlington Road Post Office.<3> Because the Olney
Post Office is a small facility and the appellant's work as a supervisor
of rural operations did not require strenuous physical activity, the
appellant did not make any requests for a reasonable accommodation while
he was employed there. However, because the Arlington Road Post Office
is a very large facility and the appellant's supervisory duties included
strenuous physical activity, he requested a work-schedule in December 1992
that would give him two consecutive days off each week because of his need
for rest to combat respiratory infections associated with the replacement
of the aortic valve. The agency granted him the requested accommodation.
Appellant's position at the Arlington Road Post Office entailed
supervising the delivery, collection and distribution of mail, and
window services. The job required extensive walking inside the large
postal facility, supervising the letter carriers outside the facility,
conducting street supervision of the letter carriers on foot as well as
from a vehicle, supervising outside dock operations, and investigating
accidents. On or about March 20, 1993, the appellant submitted to three
agency officials a letter from his doctor stating that the appellant's
cardiac condition required him to get adequate rest and that he was
also under treatment for back pain, foot pain and shortness of breath.
The doctor stated that the appellant's medical condition was being
exacerbated by the duties of his current position and "[c]ontinuing in
this position could further harm his health." The doctor recommended
that the appellant should be transferred to a smaller facility with the
following restrictions: two consecutive days off each week, early daytime
hours, no work on holidays, no mandatory overtime, and no outside work.
Appellant requested an accommodation in his current position and
also asked for a transfer to any position consistent with his medical
restrictions.
Because of the appellant's doctor's statement concerning the exacerbation
of the appellant's medical condition, his supervisor placed him on sick
leave on March 23, 1993, and referred him to an agency doctor for a
fitness-for-duty examination. On April 20, 1993, the appellant met with
the agency's doctor for a fitness-for-duty examination which could not
be conducted because the doctor needed a copy of the appellant's job
description as well as his medical records from his private doctors.
Immediately thereafter, the appellant submitted to his supervisor
another letter from his cardiologist describing his medical condition
and repeating the medical restrictions previously communicated to the
agency by the appellant's other private doctor in March. The appellant
asked for a copy of his position description and an explanation for why
he could not be placed in a light/limited duty assignment.
On April 29, 1993, the appellant's supervisor informed him that there was
no supervisory position available at the Arlington Road Post Office within
his medical restrictions, provided him a copy of his position description,
and also informed him of his option to apply for a disability retirement
if he were found unfit to resume the full functions of his current
position. The appellant went back to see the agency's doctor on June
14, 1993, with all the required documentation but no fitness-for-duty
examination was conducted. After it became evident that the agency
would not accommodate his medical restrictions in the current position,
nor consider his transfer request, and because he was running out of
sick leave, the appellant applied for a disability retirement which was
approved effective December 11, 1993.
The AJ found that the appellant was an individual with a disability whose
physical condition affected such major life activities as breathing,
walking and working. The AJ found that because the appellant could not
perform the essential physical functions of his current position, the
agency could not accommodate his medical restrictions by restructuring
his current position. The AJ, however, found that the "agency made
absolutely no attempt to accommodate" the appellant's disability by
making an effort to reassign him to a vacant position at the same or
lower grade. The record shows that other than offering the appellant
the option of considering taking a disability retirement, the agency
officials made no attempt to consider him for a reassignment to any
other vacancy as required by 29 C.F.R. 1614.203(g).<4> The AJ found
that had the agency considered reassigning the appellant, he could have
been transferred back to his position in Olney, the essential functions
of which the appellant could have performed as in the past because of
the less strenuous physical demands of the position, or to a position in
the Ashton Post Office which was a smaller facility than Olney. The AJ
found that the agency "did not present even a scintilla of evidence that
providing the complainant reasonable accommodation would have subjected
the agency to any undue hardship."
After finding the agency liable for discrimination, the AJ conducted
an evidentiary hearing on the appellant's claim for compensatory
damages. The AJ found that although the appellant did not seek medical
treatment, "his credible testimony revealed the suffering he endured."
The AJ found the appellant's testimony credible that because of the
agency's discriminatory treatment of him after nearly 20 years of
service, he developed an aversion to utilizing the postal service;
suffered from depression, emotional distress and mental anguish; and,
gained weight. After considering the appellant's testimony, and the
awards of compensatory damages ranging up to $100,000 in recent court
cases involving findings of emotional distress or mental anguish (which
did not include major depression), the AJ found reasonable an award of
$10,000 in compensatory damages.
We reject the agency's contention that the AJ misinterpreted the facts
regarding the availability of positions at Olney and Ashton for the
appellant's possible reassignment after March 20, 1993. Even though
the record is less than perfectly clear regarding the actual status
of vacant positions in Olney and Ashton between March and June 1993,
the agency fails to recognize the substantial testimony the AJ relied
upon regarding its absolute failure to make any efforts to determine
the availability of those or any other vacant positions contemporaneous
with the appellant's request for an accommodation. Among the evidence
relied upon by the AJ is the following testimony by the Manager of Post
Office Operations (emphasis added in italics):
In March of 1993, there was [sic] positions open, but with the
restrictions that John had, they were similar to what he was doing
in Bethesda. So he -- there wouldn't have been anything that he could
have fulfilled within that restriction.<5>
The agency also distorts the appellant's testimony by stating that he
himself admitted that there was no vacancy at the Olney Post Office at
the time of his request for a transfer in March 1993. The appellant
testified instead that the Olney position previously occupied by him
was apparently being filled by the temporary detail of an employee
because the appellant was still on a detail from the Olney position
to the Arlington position. Further, the agency acknowledges that the
position in Ashton might have been available sometime in the first half
of 1993 but argues that it is not clear whether it was still available as
of the time the appellant went to see the agency�s doctor for a second
time in connection with a fitness-for-duty examination in June 1993,
which examination was never conducted. The agency mistakenly faults
the appellant for its own failure to determine the availability of that
vacancy when he first requested a transfer consistent with his doctor's
recommendation in March 1993, or at any time thereafter. Although a
person with a disability has an obligation to cooperate with an agency
during its efforts to make a reasonable accommodation, it is the agency
that has the both the necessary information regarding the available
vacancies and the obligation to determine an employee's suitability for
any such vacancies when a reassignment accommodation is called for in
the circumstances of a particular case. We agree with the AJ that the
agency failed to demonstrate that it made any such efforts here.
Accordingly, we affirm the AJ's finding of discrimination. Considering
that nonpecuniary damages must be limited to an amount necessary to
compensate a victim of discrimination for the actual harm he endured due
to discrimination, we find the AJ's award is appropriate as it appears
consistent with the amounts awarded in similar cases.<6> See, e.g.,
White v. Department of Veterans Affairs, EEOC Appeal No. 01950342 (June
13, 1997); April v. Department of Agriculture, EEOC Appeal No. 01963775
(June 5, 1997); and, Demeuse v. United States Postal Service, EEOC Appeal
No. 01950324 (May 27, 1997).
For the above reasons, the FAD is REVERSED and the agency is ORDERED to
comply with the terms of the ORDER below.
ORDER
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall determine the amount of back pay, interest on
back pay, and all other benefits due appellant between the date the
agency placed the appellant on sick leave in March 1993 and the date his
disability retirement became effective in December 1993, in accordance
with 29 C.F.R. 1614.501(c). If there is a dispute regarding the exact
amount of back pay and other monetary benefits, the agency shall issue
a check to the appellant for the undisputed amount within thirty (30)
calendar days of the date the agency determines the amount it believes
to be due. The appellant 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. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue to the appellant a check for $10,000.00
representing nonpecuniary compensatory damages.
3. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall provide at least four hours of training to each of
the responsible management officials (the Manager of Customer Service,
Arlington Road Post Office; the Manager of Post Office Operations,
Capitol District; and, the Bethesda Officer-in-Charge) in the agency's
reasonable accommodation obligations under the Rehabilitation Act.
Documentation evidencing completion of such training shall be submitted
to the Compliance Officer within thirty (30) calendar days thereafter.
4. The agency shall post at the Arlington Road Post Office, Bethesda,
Maryland, 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 within ten (10) calendar days of
the expiration of the posting period.
5. 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.
ATTORNEY'S FEES (H1092)
If appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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:
Oct 16, 1998
DATE Frances M. Hart,
Executive Officer,
Executive Secretariat
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 ("EEOC") dated ______________ which
found that a violation of the Rehabilitation Act of 1973, as amended, 29
U.S.C. 791 et seq., has occurred at the United States Postal Service,
Arlington Road Post Office, Bethesda, Maryland (hereinafter "the
Arlington Post Office").
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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Arlington Post Office supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law.
The Arlington Post Office has been found to have discriminated against
an employee with a physical disability (heart disease) by failing
to consider him for a reassignment to a position within his medical
restrictions. As a result, the agency has been ordered by the EEOC
to award the employee appropriate amount of back pay and compensatory
damages, and to provide training to the responsible management officials
in the reasonable accommodation requirements of the Rehabilitation Act.
The Arlington Post Office 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.
The Arlington Post Office 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: _________________
29 C.F.R. Part 1614
1 After the agency failed to consider any reassignment accommodation
for his disability, the appellant applied for a disability retirement
which was approved by the Office of Personnel Management effective
December 11, 1993. Appellant stopped looking for any other employment
opportunities thereafter and testified that he was not interested in
returning to work at the agency.
2 Because the AJ found that the agency failed to make any efforts to
accommodate the appellant's disability, he found that the appellant was
entitled to compensatory damages for proven pecuniary and non-pecuniary
losses consistent with the limitations in 42 U.S.C. 1981a(a)(3)
(compensatory damages not available where an agency demonstrates that
it made good faith efforts to reasonably accommodate an employee's
disability).
3 Subsequent to the appellant's transfer, his job title was changed to
Supervisor, Customer Services.
4 Our regulation at 29 C.F.R. 1614.203(g) requires the agency to offer
to reassign an employee unable to perform the essential functions of
his position "to a funded vacant position located in the same commuting
area and serviced by the same appointing authority, and at the same
grade or level, the essential functions of which the individual would
be able to perform with reasonable accommodation if necessary" unless
the agency can demonstrate an undue hardship. Further, the regulation
provides that where a lateral reassignment is not possible, the agency
is required to offer reassignment to a vacant position at the highest
available grade below the employee's current grade without prejudice
to the employee's right to take a disability retirement in lieu of a
reassignment to a position at the lower grade.
5 The AJ found unbelievable the testimony that the appellant could
not perform the essential functions of any of the then-available vacant
positions, with or without a reasonable accommodation, because the agency
did not undertake to do a contemporaneous job analysis for the vacant
positions to determine whether the appellant's medical restrictions
could be accommodated. As noted previously, the AJ had found that the
appellant was able to perform the essential functions of the previous
position in Olney without any need for an accommodation because of its
less strenuous physical demands.
6 In Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992), reconsideration denied in EEOC Request No. 05930306
(February 1, 1993), we held that Congress afforded the Commission
the authority to award such damages in the administrative process.
We based this assessment, inter alia, on a review of the statutory
provisions of the Civil Rights Act of 1991 in relation to one another
and on principles of statutory interpretation which require statutes
to be interpreted as a whole. In particular, we discussed the meaning
of the statute's definition of the term "complaining party" and the
significance of the reference to the word "action" in Section 102(a). In
addition to the specific reasons set forth in Jackson for this holding,
Section 2000e-16(b) (Section 717) of the Civil Rights Act of 1964
(42 U.S.C. �2000e et seq.)(CRA) conveyed to the Commission the broad
authority in the administrative process to enforce the nondiscrimination
provisions of subsection (a) through "appropriate remedies". Similarly,
in Section 3 of the Civil Rights Act of 1991 (CRA of 1991), Congress
refers to its first stated purpose as being "to provide appropriate
remedies for intentional discrimination and unlawful harassment in the
workplace", thereby reaffirming that authority. Consequently, it is
our view that in 1991, Congress clearly intended to expand the scope
of the "appropriate remedies" available in the administrative process
to federal employees who are victims of discrimination. Moreover, in
Section 717(c) of the CRA, the term "final action" is used to refer to
administrative decisions by agencies or the Commission, as distinguished
from the term "civil action", used to describe the rights of employees
after such final action is taken. Therefore, we reaffirm the holding
therein. See Cobey Turner v. Department of the Interior, EEOC Appeal
Nos. 01956390 and 01960518 (April 27, 1998).