01996948
10-24-2001
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
01996948
October 24, 2001
.
Buddy L. Spaulding,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01996948
Agency Nos. 1G-761-1081-96; 1G-761-1122-96; 1G-761-0035-97;
1G-761-0080-97; 1G-761-0121-97; 1G-761-0127-98; 1G-761-0171-98
Hearing Nos. 310-99-5175X; 310-99-5218X; 310-99-5252X; 310-99-5279X;
310-99-5384X;
310-99-5385X; 310-99-5387X
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning his equal employment opportunity (EEO) 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 appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges he was discriminated against on the
bases of disability (back injury) and in reprisal for prior protected
activity.<2> For the following reasons, the Commission affirms the
agency's final decision as modified herein.
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. Complainant filed the seven complaints at issue herein
alleging that:
(1) he was denied the opportunity to work overtime and on holidays
between January-March, 1996 and September 1997-June 1998;
(2) complainant was informed he would have to visit his physician at
his own expense to provide Injury Compensation with updated medical
documentation and when he refused, he was placed in off duty status
between September 2, 1996 and September 28, 1996;
(3) on or around March 25, 1997, complainant was not allowed to return
to work after being released by his physician; and
(4) on or around July 5, 1997, he was issued a seven day suspension.
At the conclusion of the investigations, complainant was provided a copy
of the investigative reports and requested a hearing before an EEOC
Administrative Judge. Following a hearing, the Administrative Judge
issued a decision finding disability discrimination regarding the denial
of overtime and holiday work and ordered the agency to provide back pay
plus interest in an amount representing the average overtime and holiday
pay received by all Mail Handlers on complainant's tours during the
periods at issue. On complainant's other claims, the Administrative Judge
found no discrimination. The agency adopted the Administrative Judge's
decision and accepted the Administrative Judge's order to award back pay,
post a notice and provide training to the responsible management official.
On appeal, complainant argues that a back pay award based on the average
number of overtime and holiday hours worked between January-March, 1996
and September 1997-June 1998 will not adequately compensate him for
his loss because he has been denied overtime for approximately fifteen
years, not just the time period at issue in this complaint. Concerning
the remaining claims, complainant restates arguments he presented to
the Administrative Judge and asks the Commission to reconsider them.
The agency requests that we affirm its final decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National Labor
Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding
regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An Administrative Judge's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.
Concerning issue (1), the Commission recently issued Spaulding v. United
States Postal Service, EEOC Appeal Nos. 01982863; 01991949; 01991950;
01991951; 01991952; 01991953 (September 18, 2001) holding that the agency
violated the Rehabilitation Act when it denied complainant the opportunity
to work overtime and on holidays between April 1996 and September 1997.
The circumstances surrounding complainant's impairment and the denial
of overtime and holiday work in the instant case are identical to the
circumstances in our September 18, 2001 decision. Accordingly, for the
reasons set forth in our September 18, 2001 decision, the Commission
affirms the Administrative Judge's finding of disability discrimination
and calculation of the back pay due complainant, based upon the average
overtime and holiday pay received by the facility's Mail Handlers between
January-March, 1996 and September 1997-June 1998. We also find that:
(1) the agency did not act in good faith to reasonably accommodate
complainant in his Mail Handler position; and (2) complainant has raised
a cognizable claim for compensatory damages. Accordingly, the agency is
not relieved of its obligation to pay appropriate compensatory damages.
See Teshima v. United States Postal Service, EEOC Appeal No. 01961997
(May 5, 1998). Although the Administrative Judge stated in her decision
that she did not find evidence demonstrating complainant's entitlement
to compensatory damages, the Commission is not persuaded that complainant
was given an opportunity to present evidence on this issue.
Concerning issue (2), the Administrative Judge found that the agency
requested updated medical information from complainant after discovering
that his Department of Labor Office of Workers Compensation file had
been closed for over five years. Complainant refused to provide
the agency with updated medical information, contending that the
agency had been aware of his disability for years and had adequate
medical records in its files. Because complainant refused to comply
with the agency's request, the agency placed him in off-duty status.
The Administrative Judge found that other limited duty employees who
provided the required information were not placed in off-duty status.
The Commission notes that an agency may make disability related inquiries
of an employee when those inquiries are job related and consistent with
business necessity. See EEOC Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees Under The Americans
With Disabilities Act, (July 27, 2000). In the context of a request for
reasonable accommodation, an agency may request medical documentation to
the extent necessary to establish that complainant is an individual with
a disability in need of the requested accommodation. Id. at Question 10.
Since complainant required reasonable accommodation in order to perform
his job and had not provided updated medical information in five years,
we decline to find that the agency violated the Rehabilitation Act when
it requested updated information. For the same reasons, we also decline
to find that the agency's action was retaliatory in nature. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans With Disabilities Act, (March 1, 1999) at footnote 30.
Finally, under the facts of this case, we decline to find the agency's
decision to place complainant in off-duty status inappropriate because he
refused to comply with a permissible request for medical documentation
where his continued need for reasonable accommodation was not obvious.
See EEOC Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees Under The Americans With Disabilities Act,
(July 27, 2000) at Question 9.
Concerning issue (3), the Administrative Judge found that complainant
returned to work wearing a soft collar without any medical documentation
regarding the collar and without providing a medical release from his
doctor clearing him to return to work. The Administrative Judge credited
a management official's testimony that wearing a neck brace is permitted
only when proper medical documentation is provided. Concerning issue
(4), complainant admitted he fell asleep during a break because he had
been caring for his ill wife and was exhausted. The Administrative Judge
credited a management official's testimony that complainant was suspended
for sleeping during an unauthorized break and that others have been
suspended for failing to perform their duties in a satisfactory manner.
Concerning issues (3) and (4), we find that the Administrative Judge's
findings of fact are supported by substantial evidence in the record,
and we discern no reason to disturb her findings of no disability
discrimination and no retaliation in regard to these issues.
In conclusion, we affirm the agency's final decision as modified herein by
our finding that complainant is entitled to proven compensatory damages.
The agency provided proof that it had complied with the Administrative
Judge's order requiring an appropriate posting order and training.
The agency did not provide proof that it awarded complainant back pay.
Accordingly, we remand the case for further processing in accordance
with the Order below.
ORDER
1. To the extent it has not already done so, 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: January-March, 1996 and September
1997-June 1998. 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 issue of compensatory damages and attorney's fees are remanded to
the Hearings Unit of the Dallas District Office. The agency is directed
to submit a copy of the complaint file to the EEOC Hearings Unit within
fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance
Officer at the address set forth below that the complaint file has
been transmitted to the Hearings Unit. Thereafter, the Administrative
Judge must be assigned in an expeditious manner to further process the
issue of compensatory damages and attorney's fees in accordance with
the regulations.
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 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.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
October 24, 2001
__________________
Date
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.