01982863_01991049
09-18-2001
Buddy L. Spaulding, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Buddy L. Spaulding v. United States Postal Service
01982863; 01991949; 01991950; 01991951; 01991952; 01991953
September 18, 2001
.
Buddy L. Spaulding,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal Nos. 01982863; 01991949; 01991950; 01991951; 01991952; 01991953
Agency Nos. 1G-761-1105-96; 1G-761-0110-97; 1G-761-0081-97;
1G-761-0007-97;
1G-761-0014-98; 1G-761-0076-98
DECISION
Complainant timely initiated appeals from six final agency decisions
concerning his complaints of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeals are consolidated
and accepted for our de novo review pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that he was discriminated against on the bases of
disability (back injury) and in reprisal for prior protected activity
when he was denied the opportunity to work overtime and on holidays
between April 1996 and September 1997.<2> For the following reasons,
the Commission reverses the agency's final decisions.
The record reveals that during the relevant time, complainant was
employed as a PS-4 Mail Handler in a limited duty assignment at a
Fort Worth, Texas facility. In each of complainant's six complaints,
he alleged that he was on the overtime desired list for a specified
calendar quarter year but received no overtime or holiday assignments.
The agency gave two explanations for denying complainant's overtime
request: (1) that no overtime was available on limited duty operations;
and (2) that the work for which overtime was called was outside of
complainant's medical restrictions.
Believing the agency was discriminating against him, complainant sought
EEO counseling and subsequently filed the six complaints at issue herein.
At the conclusion of the investigations, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Either because
of complainant's request or because he failed to respond within the time
period specified in 29 C.F.R. � 1614.108(f), the agency issued six final
decisions finding no discrimination from which complainant now appeals.
As a threshold matter, we analyze whether complainant is a "qualified
individual with a disability" within the meaning of the Rehabilitation
Act. An individual with a disability is one who: (1) has a physical
or mental impairment that substantially limits one or more major life
activities; (2) has a record of such impairment; or (3) is regarded as
having such an impairment. Major life activities include, but are not
limited to, caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. Sitting, standing,
lifting, and reaching are also recognized as major life activities.
Interpretive Guidance on Title I of the Americans With Disabilities
Act, Appendix to 29 C.F.R. � 1630.2(i). A qualified individual with
a disability is one who satisfies the requirements for the employment
position he holds or desires and can perform the essential functions of
that position with or without reasonable accommodation.
We note that the duties of complainant's position and the medical
evidence concerning complainant's impairment have remained unchanged
since our determination in Spaulding v. United States Postal Service,
EEOC Appeal No. 01932868 (July 14, 1994), request to reopen denied, EEOC
Request No. 05940877 (April 19, 1995) that complainant was an individual
with a disability.<3> The instant record establishes that complainant
has a permanent disability resulting from a back injury, and his back
condition significantly restricts his ability to, inter alia, lift,
stand, sit, climb, carry, kneel, bend, stoop, twist, push, and pull.
The record also establishes that in limited duty status, complainant
could perform the essential functions of his position. Accordingly,
the Commission finds that complainant was a qualified individual with
a disability within the meaning of the Rehabilitation Act.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. The obligation to make
reasonable accommodation applies to all services and programs provided
in connection with employment. Interpretive Guidance on Title I of
the Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.9.
Since working overtime and on holidays is a program the agency offers
to its employees, we find that the agency has a duty to make reasonable
accommodation to enable complainant to work overtime or on holidays unless
the agency establishes that to do so would cause an undue hardship on
its operations.
After a thorough review of the records, it is clear from complainant's
affidavit testimony that the agency repeatedly told him that overtime
was unavailable because he was in limited duty status. We find no
evidence to corroborate the agency's assertion that the work for which
overtime was called was outside of complainant's medical restrictions
or to rebut complainant's contention that overtime work within his
medical restrictions was available. Accordingly, we find that the
agency denied complainant reasonable accommodation when, based on a
policy prohibiting overtime on limited duty operations, complainant was
excluded from overtime, absent any individualized assessment of whether
or not he could perform the overtime work with accommodation absent
undue hardship to the agency. In reaching this conclusion, we find
that there is insufficient evidence that possible accommodations were
adequately considered. Instead, the agency automatically disqualified
complainant from overtime, without regard to what overtime tasks needed
to be performed on a given day. We therefore find that the agency did
not fulfill its obligation to make a good faith effort to reasonably
accommodate complainant in his Mail Handler position because although he
was accommodated during his regular shift, he was automatically denied
any possibility of overtime. Cf. Joch v. United States Postal Service,
EEOC Request No. 05971044 (June 29, 2000) (complainant was denied
reasonable accommodation where agency failed to consider whether she
could perform certain positions on which she bid, instead applying a
policy of automatically excluding modified duty employees from bidding
on unrestricted positions).
Based on our finding that the agency did not act in good faith to
reasonably accommodate complainant in his Mail Handler position,
the agency is not relieved of its obligation to award appropriate
compensatory damages. See Teshima v. United States Postal Service, EEOC
Appeal No. 01961997 (May 5, 1998). We find that complainant has raised a
cognizable claim for compensatory damages in each of his six complaints.
In light of this finding, we decline to address whether complainant was
subjected to disparate treatment based on his disability or whether
the agency retaliated against him for his prior protected activity.
In conclusion, we reverse the agency's final decisions and remand the
case in accordance with the Order below.
ORDER
1. The agency shall determine the appropriate amount of back pay
(with interest, if applicable) and other benefits due complainant,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days
after the date this decision becomes final. The agency shall make this
determination by calculating the amount representing the average overtime
and holiday pay received by the facility's Mail Handlers between April
1996 and September 1997. See Adesanya v. United States Postal Service,
Petition No. 04980016 (February 19, 1999). The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
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. The issues of compensatory damages is remanded to the agency.
The agency shall conduct a supplemental investigation of the compensatory
damages issue. No later than sixty (60) days after this decision becomes
final, the agency shall issue a final agency decision addressing the
issue of compensatory damages. The agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below.
3. The agency shall re-examine its policy dated April 3, 1995, entitled
�The Fort Worth District Policy Regarding Medical Requirements for
Permanent and Temporary Limited Duty Employees� to ensure that its
overtime and holiday allocation practices do not preclude members of a
protected class, i.e., individuals with disabilities within the meaning
of the Rehabilitation Act from receiving overtime opportunities available
to non-disabled individuals.
4. The agency shall provide training to all managers and supervisors
in its Fort Worth, Texas facility regarding their obligations under the
Rehabilitation Act to provide reasonable accommodation in accordance
with the standards and authorities set forth in the foregoing decision.
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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Fort Worth, Texas facility copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
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 (K0501)
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 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 (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 (R0900)
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 (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 18, 2001
__________________
Date
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 dated ___________ which found
that a violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. has occurred at
the agency's facility in Fort Worth, Texas (hereinafter this facility).
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.
This facility was found to have denied an employee reasonable
accommodation for a disability. The facility was ordered to award the
employee with back pay and proven compensatory damages. This facility was
also ordered to provide training to its managers in their responsibilities
arising under the Rehabilitation Act. This facility 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.
This facility will comply with federal law and 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 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Complainant's prior protected activity arose under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �
621 et seq., in addition to the Rehabilitation Act.
3 Our decision also found that the agency discriminated against
complainant by denying him overtime during the fourth quarter of 1991
based on his disability.