01977073
10-20-2000
Carl Holmes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Western Area), Agency.
Carl Holmes v. United States Postal Service (Western Area)
01977073
October 20, 2000
.
Carl Holmes,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01977073
Agency No. 4E901019096
DECISION
Carl Holmes (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning his complaint 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 alleged
that he was discriminated against on the basis of disability (sleep apnea)
when he was placed on medical hold on January 29, 1996 and subsequently
terminated during his probationary period, effective February 9, 1996.
The record reveals that during the relevant time, complainant was employed
as a Part-time City Carrier at the agency's Bitterlake Station in Seattle,
Washington. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
July 27, 1996. At the conclusion of the investigation, 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.
Complainant requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of disability discrimination, noting that he failed
to demonstrate that he had been treated differently than any other
comparative employee in a similar situation. The agency went on to
articulate a legitimate non-discriminatory reason for terminating
complainant. Specifically, the agency noted that complainant was
appointed to the position in question after a pre-employment physical
in which the doctor was unaware that complainant had previously been
diagnosed with sleep apnea. Medical information furnished by complainant
at a later point revealed the diagnosis and led the agency doctor to
place complainant on medical hold with a �no driving� restriction,
pending receipt of further medical information. The agency noted that
driving is a core function of the City Carrier position and that it was
unable to provide complainant a reasonable accommodation. The agency
therefore terminated complainant.
The agency concluded that complainant failed to establish that its
explanation was a pretext for disability discrimination and therefore
issued a finding of no discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant raises a number of contentions. He first argues
that because the agency perceived him as having a breathing disability,
he established a prima facie case of disability discrimination. He then
notes that several applicants who did not have sleep apnea were hired
and that it is unrebutted that complainant, if not for his sleep apnea,
would not have been terminated. Complainant also notes that the agency
failed to provide evidence to support its claims that it could not provide
him a reasonable accommodation and that it provided no evidence that he
was a threat to the safety of himself or others. Finally, complainant
notes that the agency presented no legitimate non-discriminatory reason
for terminating complainant, relying instead on its claimed inability
to accommodate his disability.
The agency provides no response to these contentions and simply asks
that its FAD be affirmed.
FINDINGS AND ANALYSIS
As a threshold matter, complainant must establish that he is a �qualified
individual with 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. 29 C.F.R. � 1630.2(g).<2> Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
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. 29 C.F.R. � 1630.2(m).
The Supreme Court has held that the determination of whether a person is
an "individual with a disability" must be based on his condition at the
time of the alleged discrimination. The positive and negative effects
of mitigating measures used by the individual, such as medication or an
assistive device, must be considered when deciding if he has an impairment
that substantially limits a major life activity. Sutton v. United
Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service,
Inc., 527 U.S. 516 (1999).
In the case at hand, the record establishes that complainant was
terminated due to the agency's belief that his sleep apnea so interfered
with his ability to breathe, that he was unable to sleep at night.
The agency believed that this sleeping limitation was so severe that
complainant was apt to fall asleep or otherwise endanger himself or others
while driving during his daytime shift as a City Carrier. The Commission
has recognized both sleeping and breathing as major life activities.
See 29 C.F.R. � 1630.2(i); DeJohnette v. United States Postal Service,
EEOC Appeal No. 01953130 (August 11, 1997) (establishing sleeping as a
major life activity).
An individual is substantially limited if he is significantly restricted
as to the condition, manner, or duration under which he can perform a
particular major life activity as compared to the average person in the
general population. See 29 C.F.R. � 1630.2(j). The agency's actions
in terminating complainant due to its belief that his ability to sleep
was so limited by his sleep apnea as to lead to uncontrollable episodes
of falling asleep and loss of concentration during daytime driving,
establish that it regarded him as substantially limited in sleeping.
The agency acknowledged that complainant is qualified for the position
of City Carrier in every way except for his inability to drive, an
essential function of the position, due to sleep apnea. However,
it was the agency that placed a restriction on complainant's driving,
due to its belief that his ability to sleep was substantially limited by
his impairment to the extent that it left him so drowsy during the day
as to prevent safe driving. The Commission notes that the agency cannot
exclude qualified individuals with disabilities from employment based upon
fear of a future risk of injury, without engaging in an individualized
assessment into whether their disabilities pose a "direct threat" of
substantial harm. See Massingill v. Department of Veterans Affairs, EEOC
Appeal No. 01964890 (July 14, 2000). A "direct threat" is defined as
"a significant risk of substantial harm" which cannot be eliminated or
reduced by reasonable accommodation. 29 C.F.R. � 1630.2(r). The agency
has the burden of proof regarding whether there is a significant risk
of substantial harm. See Massingill, supra.
A determination as to whether an individual poses such a risk cannot be
based on an employer's subjective evaluation or, except in cases of most
apparent nature, merely on medical reports. See Selix v. United States
Postal Service, EEOC Appeal No. 01970153 (March 16, 2000). Rather,
it must be based on an individualized assessment of the individual
that takes into account: (1) the duration of the risk; (2) the
nature and severity of the potential harm; (3) the likelihood that the
potential harm will occur; and (4) the imminence of the potential harm.
29 C.F.R. � 1630.2(r). In other words, the employer must gather and
base its decision on substantial information regarding the individual's
work and medical history. See Selix, supra.
The agency did not establish that complainant poses a direct threat in the
case at hand. Simply on the ground that complainant was diagnosed with
sleep apnea, the agency's doctor placed a medical hold on complainant,
noting that sleep apnea �was known to be associated with an increased
risk of motor vehicle accidents due to impaired alertness or to falling
asleep at the wheel.� The agency did not observe complainant acting in an
unsafe manner at any point during his employment. Moreover, the agency
did not have any documentation indicating complainant had problems at
prior jobs due to sleep apnea, nor any medical evidence to establish that
complainant should be restricted from performing any kind of activity.
Instead, the agency doctor, relying solely on his general knowledge
of sleep apnea and medical reports which indicated that complainant,
at times, suffered from day time sleepiness, inferred that complainant
would be a danger if driving. While the agency told complainant that
he would be placed on medical hold pending further medical information,
it subsequently removed him without waiting to receive this evidence
or conducting any individualized assessment. Furthermore, medical
evidence in the record indicates that complainant's apnea was under
control through the use of hormones and a machine to help him breathe
at night and that a sleep evaluation in December 1996 showed no evidence
of significant apneas. In November of 1995 and again in April of 1996,
doctors indicated that complainant could work with no restrictions, as
long as he continued to keep the doctors updated on his condition. Given
this evidence, we find that the agency failed to prove that complainant
was a direct threat as defined by Commission regulations.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we REVERSE the agency's final
decision and REMAND this case to the agency to take remedial actions in
accordance with this decision and ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days from the date this decision
becomes final the agency shall offer to reinstate complainant to the
position of Part-Time Flexible City Carrier, or a substantially similar
position, at the agency's Bitterlake Station in Seattle, Washington, or,
with complainant's agreement, at another facility within the Seattle,
Washington commuting area. Complainant shall be given a minimum of
fifteen (15) calendar days from receipt of the offer within which to
accept or decline the offer. Failure to accept the offer within the time
period set by the agency will be considered a rejection of the offer,
unless complainant can show that circumstances beyond his control
prevented a response within the time limit. Such reinstatement shall
be retroactive to February 9, 1996.
(2) The agency shall determine the appropriate amount of back pay,
interest 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. If complainant declines to accept the
reinstatement, the back pay period shall end on the date he declines the
offer of reinstatement. 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 complainant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. 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.�
The agency shall remove from complainant's personnel file and all other
files, any mention of the determination that complainant was found
to be medically unfit for the position of Part-Time Flexible Carrier.
This includes ensuring that complainant's name remains on the active
register of eligibles, from which his name was removed after the agency
determined that he was medically unfit.
The agency shall provide appropriate EEO training for the agency
officials involved in the decision to terminate complainant for medical
unfitness. This training shall include information on the requirements
for terminating someone based on a direct threat analysis.
The agency shall award appropriate attorney's fees, as set forth below.
The agency shall consider complainant's claim for compensatory damages
incurred as a result of the agency's discriminatory actions. Within
fifteen (15) calendar days of the date this decision becomes final,
the agency shall notify complainant of his right to present evidence to
the agency regarding his claim for compensatory damages. Complainant
shall provide evidence that the damages claimed are a result of the
agency's discrimination and evidence of the amount of claimed damages.
Within thirty (30) calendar days of submission of such evidence,
the agency shall issue a final agency decision on this issue, with
appropriate appeal rights to the Commission. The Commission further
orders that the agency consider complainant's right to any additional
attorney's fees and costs in connection with this appeal and submission
of evidence in connection with his claim for compensatory damages.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Bitterlake Station in Seattle,
Washington and at its Seattle District Office, 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 (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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.
INTERIM RELIEF (F0900)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 29 C.F.R. � 1614.502(b).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0800)
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)(Supp. V 1993). 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 (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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
October 20, 2000
__________________
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 Department of Veterans Affairs, Bitterlake Station, Seattle,
Washington facility (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.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have discriminated on the basis of disability
when it terminated an employee after finding that he was medically unfit
for the position at issue. The facility was ordered to: (1) retroactively
reinstate the individual with appropriate back pay and other benefits;
(2) remove mention of the medical unfitness determination from any and
all agency files; (3) provide appropriate attorney's fees, if applicable;
(4) consider the individual's claim for compensatory damages to determine
whether they should be awarded and the amount of any such damages;
(5) provide appropriate EEO training to the responsible management
officials; and (6) post this notice.
The facility 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 On November 9, 1999, revised regulations governing
the EEOC's federal sector complaint process went
into effect. These regulations apply to all federal
sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission
will apply the revised regulations found at 29
C.F.R. Part 1614 in deciding the present appeal.
The regulations, as amended, may also be found at
the Commission's website at www.eeoc.gov.
2The 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website at www.eeoc.gov.