Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.

Equal Employment Opportunity CommissionOct 16, 1998
01964606 (E.E.O.C. Oct. 16, 1998)

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).