01970529
12-05-2000
David Trobia, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency,
David Trobia, )
Complainant, )
) Appeal No. 01970529
) Agency No.1B-145-1014-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency, )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning his
complaint of unlawful employment discrimination in violation of � 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
Accordingly, the appeal is accepted in accordance with 29 C.F.R. �
1614.405).<2>
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the basis of physical disability (spinal fusion and right
knee arthritis) when he was removed from a limited duty assignment in
the Box Section and reassigned to a manual distribution case.
BACKGROUND
Complainant was a Distribution Clerk in the Rochester, New York Processing
and Distribution Center, working as a limited duty, unassigned regular
in the Box Section.<3> On January 6, 1996, following an altercation
with a co-worker, complainant was re-assigned to a manual distribution
case using a standard rest bar.<4> The position consisted of resting
on a backless stool and distributing letter size mail to a distribution
case. On January 13, 1996, complainant complained that using a rest
bar aggravated his back and leg. The following day the agency placed
complainant in a handicap letter distribution case which allowed him to
sit in a chair with a back and distribute letter size mail to a modified
distribution case.
In a January 19, 1996 meeting, management officials gave complainant a
rehabilitation job offer dated January 4, 1996, which consisted of manual
distribution of letter size mail up to 15 pounds in a distribution case
using a standard rest bar with alternate periods of sitting. That same
day, complainant declined the offer and submitted a letter, dated January
15, 1996, from his doctor stating that leaning against a rail and reaching
out moving packages would increase the stress on complainant's back. The
doctor suggested that complainant return to the Box Section.
On January 26, 1996, complainant received a letter from the Injury
Compensation Specialist (Specialist) explaining that his doctor's January
15, 1996 letter failed to indicate what modifications would make the
job suitable. The Specialist explained that the doctor's suggestion that
complainant return to the Box Section was not a valid non-concurrence of
the job offer and suggested that the doctor provide medical rationale
as to why the job offered was not appropriate. The Specialist also
explained that the limited duty assignment in the Box Section was no
longer available.
On February 20, 1996, complainant submitted a letter from the Doctor dated
February 7, 1996, and an Office of Workers Compensation Form in support
of his claim that he was unable to work either the manual distribution
case using the standard rest bar or the handicap letter distribution
case job. In the letter, the doctor stated that complainant was fairly
limited; that he was unable to maintain a prolonged sitting position
and must get up and move around; could stand for only a few minutes at
a time; and could walk around on a limited basis as long as he could
change positions fairly frequently.
Complainant then filed an EEO complaint claiming that the re-assignment
was discriminatory based on his disability and asked, as relief,
to be re-assigned back to the Box Section.<5> Complainant submitted
documentation dated August 1, 1996, from the Department of Veterans
Affairs indicating a 30% disability in his right knee. Complainant stated
that his disabilities affected his normal life activities because he
could not walk, sit or stand for prolonged periods. He averred that,
as of April 5, 1996, he was placed on a medical restriction of working
four hours per day.
The agency issued a final decision finding that complainant failed to
establish that he was a qualified individual with a disability. The
agency found that although complainant suffered a back injury for which
the agency provided accommodation, complainant introduced no evidence
indicating the limits his injury imposed on major life activities other
than work. The agency also found that complainant did not have a record
of, and was not regarded as having a substantially limiting condition,
despite being provided with a limited duty assignment. The agency stated
that, assuming arguendo, that complainant was a qualified individual
with a disability, management provided him with a limited duty position
on a continuous basis, which was a reasonable accommodation, and had no
obligation to provide complainant with every accommodation he requested.
Finally, the agency found that complainant failed to establish a causal
relationship between his disabling condition and the agency's reasons
for the adverse action. Management officials averred that complainant
was involved in a serious altercation with a co-worker in January 1996,
and that they received numerous complaints from other employees regarding
complainant's behavior prior to the incident. Complainant appealed.
FINDINGS AND ANALYSIS
The Commission finds that complainant's claim raises two issues, namely,
whether the agency treated him differently than other employees because
of his disability when it removed him from the Box Section, and whether
the agency provided a reasonable accommodation for his disability when
it reassigned him.
To bring a claim of disability discrimination, complainant must
first establish that he has a disability within the meaning of the
Rehabilitation Act. Murphy v. United Parcel Service, Inc., 527 U.S. 516
(1999); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Albertsons,
Inc., v. Kirkingburg, 527 U.S. 555 (1999). EEOC Regulation 29 C.F.R. �
1630.2(g) defines an individual with a disability as one who: (1) has a
physical or mental impairment that substantially limits one or more of
that person's major life activities, (2) has a record of such impairment,
or (3) is regarded as having such an impairment. EEOC Regulation 29
C.F.R. � 1630.2(h)(2)(i) defines "major life activities" as including the
functions of caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working. Cook
v. United States Postal Service, EEOC Request No. 05960015 (June 21, 1996)
(To merit the protection of the Rehabilitation Act, it is not enough
to have a particular medical condition that carries the potential for
substantial limitations).
Complainant also must show that he is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). That section
defines a qualified individual with a disability as meaning, with
respect to employment, a disabled person who, with or without reasonable
accommodation, can perform the essential functions of the position
in question.
Thus, to establish a prima facie case of disability discrimination,
complainant must show that:(1) he is an individual with a disability as
defined in 29 C.F.R. �1630.2(g), 2) he is a "qualified" individual with a
disability as defined in 29 C.F.R. �1630.2(m), and 3) the agency took an
adverse action against him. See Prewitt v. United States Postal Service,
662 F.2d 292 (5th Cir. 1981). Complainant also must demonstrate a causal
relationship between his disabling condition and the agency's reasons
for the adverse action.
The Commission finds that complainant is an individual with a disability
based upon the medical documentation in the record, specifically the
February 7, 1996, report indicating that complainant was substantially
limited in his ability to walk, sit, or stand for prolonged periods.
The Commission further finds that complainant is a qualified individual
with disability based upon his ability to perform his duties both in the
Box Section and the manual distribution case. We note that complainant
stated that he could perform the duties of his position in the manual
distribution case and handicap case, but that the standard rest bar
aggravated his back. Thus, complainant demonstrated that he could
perform the essential functions of his job with or without accommodation.
The Commission is not convinced however, that the responsible agency
officials were motivated by discriminatory animus when they removed
complainant from the Box Section. The agency explained that complainant
was removed because he was involved in a serious altercation with a
co-worker, and that prior to that incident, several employees in that
section complained to their supervisors about his behavior. Thus,
the agency stated legitimate, nondiscriminatory reasons for its action,
which complainant failed to show were a pretext for discrimination.
Having established that complainant is a qualified individual with a
disability, the agency is required to reasonably accommodate complainant's
known limitations unless it can show that doing so would cause an undue
hardship. 29 C.F.R. � 1630.9(a), Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, EEOC Notice No. 915.002, 2-7 (March 1, 1999). A request for
reasonable accommodation is the first step in an informal, interactive
process between the individual and the employer to clarify what the
individual needs and identify the appropriate reasonable accommodation.
29 C.F.R. � 1630(o)(3).
Complainant notified the agency that the rehabilitation job offer with
the standard rest bar and the handicap letter distribution case job
aggravated his back. Once the agency was on notice that those jobs
were not compatible with complainant's medical limitation, the agency
was required to engage in the interactive process to determine whether
there was a position available in which complainant could perform the
essential duties with or without reasonable accommodation.
The Commission finds that, at this point, the agency failed to look for
another position for complainant, and thus violated the Rehabilitation Act
. The fact that the agency offered an accommodation does not relieve its
obligation under the Act if the accommodation offered was not effective.
See 29 C.F.R. pt.1630 app. � 1630.9. The Commission, therefore, finds
that the agency discriminated against complainant through its failure
to look for another position for complainant once it was determined that
he could not perform the rehabilitation job with the standard rest bar.
CONCLUSION
Accordingly, the decision of the agency is REVERSED and REMANDED for
further processing in accordance with this decision.
ORDER
The agency is ORDERED to take the following remedial action:
The agency shall offer complainant a position consistent with his current
medical restrictions no later than thirty (30) calendar days after the
date this decision becomes final.
The agency shall pay to complainant back pay for any time period in which
complainant was not working following the date on which he notified the
agency that the rehabilitation job was not effective until the date that
the agency offers him a position as ordered above. Back pay shall be paid
at part time rates for any period when complainant's doctor restricted
complainant to four hours of work per day, less any funds complainant
received from OWCP.
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 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."
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 Rochester, New York 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 (K0900)
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 (M0900)
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:
December 5, 2000
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 dated which found that a
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq., has occurred at 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.
The United States Postal Service, Rochester, New York supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The United States Postal Service, Rochester, New York has been found
to have discriminated against an applicant for employment through the
hiring process. The agency has been ordered to retroactively hire
the applicant as a result of the discrimination, and award back pay.
The United States Postal Service, Rochester, New York 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 United States Postal Service, Rochester, New York 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.
2On 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.
3 In November 1990, complainant sustained an on-the-job injury to his
back, and underwent surgery for a recurrent disc herniation. He returned
on July 25, 1994, to a modified job as a Distribution Clerk, Limited Duty
in the Box Section. The record indicates that complainant thereafter
lost his bid in the Box Section because he failed to submit medical
documentation as required.
4 The record does not indicate the date of the altercation. The Manager
and Supervisor both averred that it occurred several days to a week
prior to the re-assignment.
5 Complainant did not seek compensatory damages.