01A50730
03-06-2006
Bruce Iverson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bruce Iverson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50730
Hearing No. 170-2004-00279X
Agency No. 4A-070-0120-03
DECISION
On October 22, 2004, the complainant timely filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from the agency's
October 4, 2004 final decision (FAD) concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405(a).
ISSUES PRESENTED
Whether the complainant was discriminated against based on disability
(osteoarthrosis and possible osteonecrosis) and reprisal[1] for prior EEO
activity under the Rehabilitation Act when (1) on January 15, 2003, he was
issued a letter of demand, (2) on March 7, 2003, he was scheduled for a
fitness-for-duty examination (FFD), and (3) on March 21, 2003, he was
advised that his restrictions no longer permitted him to work in his job of
sales and services associate and he was not provided other work within his
restrictions, and (4) whether an EEOC Administrative Judge (AJ) properly
sanctioned him by denying him a hearing.
BACKGROUND
The complainant worked as a sales and services associate at the agency's
Ridgefield Park Post Office in New Jersey. He filed an EEO complaint
claiming issues 1, 2 and 3. Following an investigation, he requested a
hearing. Thereafter, the AJ sanctioned the complainant by denying him a
hearing. The agency then issued a FAD finding no discrimination.
The complainant was issued a letter of demand to collect $907.15. The
officer-in-charge (OIC) of the Ridgefield Pack Post Office explained that
that complainant's stamp stock was audited and was short $907.15. The
complainant's immediate supervisor, who conducted the audit, wrote that the
audit included a recount and the same shortage was found. He wrote that
the complainant was very disorganized in his daily transactions with
customers, and continuously made errors with customer money orders.
Regarding his medical condition, the complainant indicated it was
permanent. He stated that he has difficulty standing from a sitting
position, walks with a painful limp and only for short distances, and has
difficulty dressing and bathing. There is evidence that he has difficulty
walking with a cane, and walks very slowly. The OIC, who was in her
position from December 2001 through July 2003, stated that during her
tenure she saw the complainant's physical condition undergo deterioration.
She stated that during stamp stock audits, the complainant could not sit
straight up in his chair for long periods without sliding down. The
complainant's immediate supervisor wrote that the complainant could not
stand more than five minutes without sitting down or leaning on something,
and could not bend his knees to lift up trays of mail and packages.
As a sales and services associate, the complainant's duties included sales
and customer service at a retail window, and accepting and delivering
packages and accountable mail. The OIC stated that due to deterioration of
his hips, the complainant was neglecting his job. She stated that on
several occasions she observed customers waiting for other window clerks
because they could not wait for the complainant to get up from his stool
and walk to retrieve mail for them. According to the OIC, on a daily basis
she observed the complainant tell coworkers to stop their postal duties and
retrieve hold and accountable mail and open post office boxes for
customers. She stated all this put stress and pressure on his coworkers.
She added that through attrition, the compliment of clerks was reduced to a
lower base, and the complainant could no longer be constantly assisted by
them.
The OIC indicated that she sent the complainant on a FFD because of safety
issues she had with the complainant's inability to perform his duties in a
safe manner. She detailed his use of a cane, cart; and stool he brought
from home to perform his duties. She noted that due to the location of the
cart, she and another manager would knock into it, and that when the
complainant pushed himself up in his chair it would look like he was going
to fall off it. In the notice of impending FFD, the OIC wrote that it was
her responsibility to provide safe working conditions and the complainant's
responsibility to be fit for duty.
The FFD postal medical officer concluded that effective March 24, 2003, the
complainant was restricted from lifting, pushing, and pulling more than 15
pounds, and could not intermittently stand, walk, bend, twist, and drive
more than three to five hours at a time. The medical officer recommended
use of a cane if the safety officer agreed, and the use of a chair. The
complainant was released from duty on March 21, 2003, and has not returned
to work.
By letter to the complainant dated March 21, 2003, the OIC wrote that the
Ridgefield Post Office had no light duty jobs and no mail volumes to
accommodate his restrictions. The OIC said that she decided to find the
complainant employment within the Northern New Jersey District, and to this
end a Disability Recommendation Accommodation Committee (DRAC) was
convened. The record reflects that on April 4, 2003, the DRAC met and
indicated it was unable to locate a position the complainant could perform
within his limitations. It requested that the complainant advise what
position he believed he could perform. The complainant replied that in the
Ridgefield Post Office, he could do jobs such as "claims," "accountables,"
"nixies", "forwards," "box mail," and "supply clerk." He wrote that agency-
wide, he could perform jobs such as "claims clerk paying office," "highway
transportation clerk," "information clerk," "review clerk," and "time and
attendance clerk." Thereafter, the DRAC concluded that it was unable to
find suitable employment based on the opinion of a "safety" committee
member that the complainant could not meet safety concerns due to his
health.
As a sanction, the AJ denied the complainant's request for a hearing.
Specifically, the AJ issued an order to show cause why the complainant's
complaint should not be dismissed for his failure to comply with the AJ's
scheduling order that he submit a prehearing statement by a scheduled date
and appear at a prehearing conference on a scheduled date. In response,
the complainant's attorney, who entered his appearance about three days
after the scheduling order was sent to the complainant and his prior
representative, conceded the order was violated, but responded he did not
receive it. In denying the complainant a hearing, the AJ found that the
complainant did not assert that he did not receive the scheduling order,
only that he did not forward it to counsel nor act upon it himself. The AJ
found that the complainant failed to comply with the scheduling order,
which advised him that such failure could result in the dismissal of his
complaint. The AJ reviewed this conduct as a withdrawal of the hearing
request.
On appeal, the complainant argues that he was improperly denied a hearing
and that he is appealing the FAD.
ANALYSIS AND FINDINGS
An AJ has the authority to sanction a party for failure, without good cause
shown, to fully comply with an order. See 29 C.F.R. � 1614.109(f)(3). An
AJ's discretion to issue sanctions is premised on a party's failure to show
good cause for the conduct at issue. There is no requirement to show that
the other party was substantially prejudiced or that the non-complying
party exhibited bad faith, although such a showing may be a factor in the
AJ's determination of the appropriate sanction. Cornell v. Department of
Veterans Affairs, EEOC Appeal No. 0197i4476 (November 24, 1998).
Prior to issuing the sanction, the AJ met all the procedural prerequisites
for doing so. See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), Chap. 7, note 4 (November 9, 1999). The AJ
did not abuse his discretion by sanctioning the complainant as he did. We
add that the record reflects that the complainant also did not comply with
the AJ's order which granted the agency's motion to compel discovery. This
order was issued before the complainant's counsel entered his appearance.
For purposes of analysis, we will assume that the complainant is an
individual with a disability. We turn to claim 1.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions. See
Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,
1990). In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
The agency explained that it issued the complainant a letter of demand
because his stamp stock was short $907.15. The complainant countered that
the OIC directed him to force his balance, throwing it off. This
explanation is not persuasive and does not refute he was short $907.15.
Moreover, there is no evidence that the complainant was disparately treated
or that his immediate supervisor or the OIC were aware of his 1998 prior
EEO complaint activity. Accordingly, the complainant failed to prove
discrimination regarding claim 1.
We turn to claim 2. The Rehabilitation Act places certain limitations on
an employer's ability to make disability-related inquiries or require
medical examinations of employees only if it is job-related and consistent
with business necessity. 29 C.F.R. �� 1630.13(b), 14(c). Generally, a
disability-related inquiry or medical examination of an employee may be
"job-related and consistent with business necessity" when an employer "has
a reasonable belief, based on objective evidence, that: (1) an employee's
ability to perform essential job functions will be impaired by a medical
condition; or (2) an employee will pose a direct threat due to a medical
condition." Enforcement Guidance - Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act (ADA),
see text after question 4 (July 26, 2000) (available at www.eeoc.gov.) It
is the burden of the employer to show that its disability-related inquiries
and requests for examination are job-related and consistent with business
necessity. Id. "Direct threat" means a significant risk of substantial
harm that cannot be eliminated or reduced by reasonable accommodation. 29
C.F.R. � 1630.2(r).
While we do not fully understand the safety threat posed by a cane or use
of a stool, the agency established that management had a reasonable belief
that the complainant posed a direct threat to himself or others, i.e.,
people bumping into the cart he used for support and the danger of falling
out of a chair when straightening himself up.[2] More significantly, the
record suggests that the FFD was also scheduled because the agency believed
the complainant could no longer perform the essential functions of his
sales and services associate job with or without reasonable accommodation.
The notice of impending FFD letter made a reference to the complainant's
need to be fit for duty, and the OIC made references to the complainant's
inability to perform his job. These concerns were reasonable.
Accordingly, we find that the agency met its burden of showing that the FFD
was job-related and consistent with business necessity. The FFD did not
violate the Rehabilitation Act. There is also no evidence the FFD was
ordered as a retaliatory measure.
We now turn to claim 3. A qualified individual with a disability means an
individual with a disability who satisfies the requisite skill, experience,
education and other job related requirements of the position in question
and can, with or without reasonable accommodation, perform the essential
functions of such position. 29 C.F.R. � 1630.2(m).
An agency must provide reasonable accommodation to the known physical or
mental limitations of qualified applicants or employees with disabilities
unless it can demonstrate that the accommodation would impose an undue
hardship on the operations of its program. 29 C.F.R. � 1630.9(a) & (b).
Reasonable accommodation may include job restructuring, acquisition or
modifications of equipment or devices, and reassignment to a funded, vacant
position. 29 C.F.R. � 1630.2(o)(2)(ii).
When determining whether an employee with a disability is "qualified,"
i.e., is he able to perform the essential functions of the position in
question with or without reasonable accommodation, the term "position in
question" is not limited to the position actually held by the employee, but
also positions that the employee could have held as a result of
reassignment. Ignacio v. United States Postal Service, EEOC Petition No.
03840005 (September 4, 1984), aff'd, 30 M.S.P.R. 471 (Spec. Pan. February
27, 1986). Before considering reassignment as a reasonable accommodation,
employers should first consider those accommodations that would enable an
employee to remain in her current position. Reassignment is the reasonable
accommodation of last resort. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act,
Reassignment subsection (October 17, 2002) (available at www.eeoc.gov.)
The agency contends that the complainant was unable to perform the
essential functions of his sales and services associate position with or
without reasonable accommodation. The complainant counters that he was
performing the essential functions of the job with the self accommodations
he utilized. This is presumably a reference to his use of a cane and cart,
as well as the stool he brought from home. He does not raise any other
accommodations he needed to perform the job.
An employer, as a form of reasonable accommodation, is not required to
eliminate an essential function of a position, nor lower production
standards, whether qualitative or quantitative, that are applied uniformly
to employees with or without disabilities. EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, General Principles section.
The complainant does not contest the OIC's statement that even with his
self-accommodations, customers left his line because he was unable to
provide prompt service. He does not contest that on a daily bases he asked
coworkers to retrieve mail for him and open post office boxes for his
customers, and that the coworkers had to stop their work while doing so.
And he does not contest the OIC's statement that he constantly needed such
assistance from coworkers, nor contest that this put stress and pressure on
them because through attrition, there was a lower compliment of clerks.
The position description of the sales and services associate job indicates
its purpose was to wait on customers and accept and deliver mail and
packages, and the record shows these were done daily, supporting the
agency's assertion that they were essential functions of the job. The OIC
affirmed that the complainant was neglecting his duties because he was
unable to promptly perform his duties. We find that the preponderance of
the evidence shows that the complainant was unable to perform the essential
functions of his position with or without reasonable accommodation.
The complainant also contends that he could have been reassigned. In
Hampton v. United States Postal Service, EEOC Appeal No. 01986308 (July 31,
2002), the Commission clarified its position regarding the standard for
assessing liability for reassignment. The Commission determined that the
evidentiary burden is on the complainant to establish by a preponderance of
the evidence that there were vacancies during the relevant time period into
which he could have been reassigned. Clearly, the complainant can
establish this by producing evidence of particular vacancies. However, this
is not the only way of meeting complainant's evidentiary burden. In the
alternative, the complainant need only show that: (1) he was qualified to
perform a job or jobs which existed at the agency, and (2) that there were
trends or patterns of turnover in the relevant jobs so as to make a vacancy
likely during the time period. Id. It can also be met by documentary or
testimonial evidence regarding, among other things, (1) the complainant's
qualifications; (2) the size of the agency's work force; and (3) indicia of
postings and/or selections during the pertinent time period within classes
of jobs for which complainant would have been qualified. Rowlette v.
Social Security Administration, EEOC Appeal No. 01A10816 (August 1,
2003).[3]
The complainant provided a list of jobs he stated he could do. A number of
the jobs do not appear to be positions, but rather tasks or duties. An
agency is not required to create a job as a form of reasonable
accommodation. Castenda v. United States Postal Service, EEOC Appeal No.
01951445 (September 18, 1998). Further, to the extent some of the jobs the
complainant listed were positions, there is no evidence in the record that
any of them were vacate nor does the record show he was likely qualified to
perform them.
The complainant failed to show that he was discriminated against based on
his disability when he was placed off duty and not reassigned. He also
failed to show reprisal regarding this matter.
CONCLUSION
Based on the record and for the foregoing reasons, the FAD finding of no
discrimination is affirmed. Further, the complainant was properly denied
a hearing.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848, Washington, D.C.
20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 6, 2006
__________________
Date
-----------------------
[1]While the FAD did not identify reprisal as an alleged basis of
discrimination, the complainant raised it with the EEO counselor, in
correspondence with the AJ, and on appeal. For this reason, we will
adjudicate the reprisal basis on the merits.
[2]Because of other rulings in this decision, we need not determine whether
the complainant posed a direct threat to himself or others.
[3]The agency's failure to continue its search for a reassignment does not
shift the burden back onto it to show there were no vacancies for which the
complainant was qualified. Prioleau v. United States Postal Service, EEOC
Appeal No. 07A40021 (May 9, 2005) (agency stated it would not make the
complainant another job offer until it heard back from the Department of
Labor's Office of Workers' Compensation Programs. Burden did not shift).