Frank Blades, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionMar 13, 2009
01-2007-2591_Blades (E.E.O.C. Mar. 13, 2009)

01-2007-2591_Blades

03-13-2009

Frank Blades, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.


Frank Blades,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Pacific Area),

Agency.

Appeal No. 0120072591

Agency No. 4F900028206

DECISION

On May 10, 2007, complainant filed an appeal from the agency's May 2,

2007 final decision concerning his equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of Title VII

of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �

2000e et seq., and 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). For the following reasons,

the Commission VACATES the agency's final decision and REMANDS the case

for a supplemental investigation.

BACKGROUND

On October 10, 2006, complainant filed an EEO complaint alleging that he

was discriminated against on the bases of his national origin (Belizean)

and disability (back, knee, and foot injury) when: (1) on August 31,

2006, he was placed off duty; and (2) on September 18, 2006, he was

issued a Notice of Removal.

At the time of events giving rise to this complaint, complainant worked

as a Letter Carrier at the agency's Inglewood, California Carrier Annex.

Complainant asserts that on August 31, 2006, he and a union steward (U1)

met with the Postmaster (PM) in her office, at which time complainant

was instructed to abide by the physical restrictions set forth in his

temporary light-duty assignment. Those restrictions limited complainant

to four hours of street delivery activity each day. Complainant further

alleges that on August 31, 2006, the mail was "heavy," i.e., voluminous,

and consequently he was unable to complete all of the deliveries his

assignment entailed within the four hours allotted.1

The record reflects that at some point on August 31, 2006, complainant

requested auxiliary assistance from his first-line supervisor (S1),

who denied his request. Complainant asserts that he also called into

the facility from his route to request auxiliary assistance later in his

shift and spoke to the Night Supervisor (NS), who instructed complainant

to complete his route even though complainant explained to NS that PM

instructed him not to work beyond his medical limitations. Complainant

further alleges that he returned to the facility with 35 minutes' worth

of undelivered mail in order to comply with the instructions he received

from PM at their meeting earlier that day.

PM asserts that complainant returned to the workroom floor after their

meeting on August 31, 2006 and confided in co-workers that he intended

to bring undelivered mail back to the office at the end of four hours of

street activity. PM further states that on August 31, 2006, complainant

returned to the office with undelivered mail that was assigned to his

route. PM also states that complainant failed to offer an acceptable

explanation for his failure to deliver all of the mail within the four

hours allotted. PM explained that she issued disciplinary action based

upon complainant's failure to follow instructions by working beyond

his medical restrictions and because he brought undelivered mall back

to the office without authorization. As a consequence of complainant's

behavior, PM explained, she initiated an emergency suspension under the

agency's regulations at the close of complainant's tour of duty on the

day in question.

ANALYSIS AND FINDNGS

As a preliminary matter, we note the agency's argument that the complaint

has been rendered moot by virtue of a Step 2 grievance decision in

complainant's favor. We reserve our determination on this point for

the end of our discussion.

After a thorough review of the record, we find that the evidence is

insufficient in certain critical respects to allow a determination on the

merits of complainant's claims. Our regulations and EEOC Management

Directive 110 (MD-110) require agencies to develop a complete and

impartial factual record. See 29 C.F.R. � 1614.108(b); MD-110 Chapter

6-1 (November 9, 1999). As set forth in greater detail below, we find

missing from the record: (1) basic comparative information; (2) complete

and sufficiently detailed affidavits from PM, S1, and complainant; (3)

entire affidavits from other relevant witnesses; and (4) entire rebuttal

affidavits from all relevant witnesses.

Complainant argues that he received disparate treatment and was denied

his previously-approved reasonable accommodation when management denied

his request for auxiliary assistance on a day when the mail volume was

particularly heavy. Complainant also asserts that he was disciplined

for attempting to abide with conflicting orders by management.2 In

support of his claims, complainant identified several Letter Carriers

whom he asserts have previously returned with undelivered mail without

receiving discipline. The record contains a statement by one identified

Letter Carrier who corroborates complainant's assertions that he had

returned with undelivered mail without being disciplined. Yet, none

of the Letter Carriers identified by complainant were interviewed by

the EEO investigator. Moreover, the EEO investigator failed to obtain

documentary evidence relevant to all similarly situated Letter Carriers,

whether or not named by complainant in his affidavit. While the

responsible management officials assert that they were unfamiliar with

some of the Letter Carriers identified by complainant in his affidavit,3

the agency, nevertheless, had the ability to generate: (a) a complete

list of all Letter Carriers supervised by S1 and/or PM (along with

each Letter Carrier's protected status), (b) a complete list of each

occurrence when undelivered mail was returned to the facility, and (c)

a description of each Letter Carrier's disciplinary record relative to

the return of undelivered mail.

The record also contains a statement by U1, who corroborates much of

complainant's assertions. U1 claims that PM made it clear that she

was not interested in hearing any explanation by complainant for his

actions on August 31, 2006, so (according to U1) there was no reason for

complainant to give PM any explanation. In addition, U1 asserts that

complainant was not previously disciplined, contrary to the statements in

the Notice of Removal. Despite the relevant information provided by U1,

the EEO investigator did not interview him or request an affidavit from

him to obtain more complete information.

The record also shows that complainant filed a grievance with respect to

the issues in this complaint. The Dispute Resolution Team concluded in

a Step B Decision on August 31, 2006, that management was not justified

in placing complainant on Emergency Placement in an Off-Duty Status

(without pay). The Dispute Resolution Team ordered the agency to rescind

the emergency suspension letter and termination, reinstate complainant,

and award complainant "make whole relief," including any and all lost

wages and benefits. However, the record does not identify the evidence

that the Dispute Resolution Team used to support its decision.

The EEO investigator also failed to obtained statements from complainant's

co-workers in order to address PM's assertion that complainant had stated

to them that he intended to return with undelivered mail before he left

on his route. We also find missing in the record a statement by NS

regarding his role in the incident at issue, as well as any relevant

discussions he had with complainant. Moreover, the EEO investigator

did not obtain (or explain the failure to obtain) various documents

identified and requested by complainant, many of which are relevant to

the pending claims and are in the agency's custody or control.

We also find that the EEO investigator failed to properly develop

the record with respect to the question of whether complainant has a

substantially limiting impairment or is an individual with a disability

within the meaning of the Rehabilitation Act. An individual has

a disability for purposes of the Rehabilitation Act, if she or he:

(1) has a physical or mental impairment that substantially limits

a major life activity; (2) has a record of such impairment; or (3)

is regarded as having such impairment. 29 C.F.R. � 1630.2(g)(1)-(3).

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. See Interpretive Guidance on Title I

of the Americans With Disabilities Act, Appendix to 29 C.F.R. 1630.2(i).

Determinations regarding whether a complainant is an individual with

a disability must be made on a case-by-case basis. Long v. United

States Postal Service, EEOC Request No. 05A01062 (September 26, 2002).

In determining whether an individual is substantially limited in a

major life activity, one must consider "[t]he nature and severity of the

impairment," "[t]he duration or expected duration of the impairment,"

and "[t]he permanent or long term impact, or the expected permanent

or long term impact of or resulting from the impairment." 29 C.F.R. �

1630.2(j)(2)(i), (ii), (iii).

The interview questions posed by the EEO investigator were not tailored

to this particular complaint and many questions were not applicable to

complainant's allegations. In addition, with respect to the issue of

whether complainant's impairments substantially limit any of his major

life activities, the record shows the following responses to the EEO

investigator's questions:

6. Do you have a physical or mental impairment? If so, please describe.

Yes. I suffer from substantial impairments of my right foot and knee,

left wrist and lower back.

7. Does this impairment substantially limit your ability to perform a

major life activity (e.g., caring for one's self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working)?

Yes. I have significant daily impairments of my major life activities

of walking, standing, lifting and bending which have, since my injuries,

substantially limited my ability to do ordinary, daily activities that

I once took for granted.

The EEO investigator did not seek any additional follow-up information

or clarification in order to determine whether complainant's limitations

amount to substantially limiting major life activities. We note that

S1 affirmed that "complainant is qualified to perform the essential

functions of the job with a reasonable accommodation." In addition,

none of the agency officials present contradictory evidence with

respect to complainant's disability status. In addition, the record

contains limited documentary medical evidence in the form of "Duty

Status Reports" and Office of Workers' Compensation Program (OWCP)

"Federal Physician's Progress Reports" that support the conclusion

that complainant was not able to: (1) intermittently lift more than 20

pounds; or (2) intermittently stand, walk, climb, bend/stoop, twist,

pull/push more than 4 hours each day. In addition, the record shows

that complainant was restricted to no more than two hours of continuing

mail casing for a maximum of four hours each day.

Moreover, complainant stated in his affidavit that PM and S1 "were

forever complaining that [he] was a 'worthless cripple.'" Yet the EEO

investigator did not request additional details from complainant with

respect to his allegation, including whether other employees witnessed

such alleged statements. Moreover, the EEO investigator failed to ask

PM and S1 to address this allegation in their affidavits.

Given the numerous deficiencies in the record set forth herein, we will

vacate the agency's finding of no discrimination, and remand this matter

for a supplemental investigation as set forth in the Order below.

Finally, we note that while the agency concluded that complainant

failed to satisfy his burden of proof on the merits of his claims,

it also asserts that the complaint should be dismissed on the grounds

that it is moot. The Commission determines that this complaint has

not been rendered moot because, at a minimum, complainant requested

compensatory damages, as reflected by a fair reading of his requested

remedies. The Commission has held that an agency must address the issue

of compensatory damages when the complainant presented objective evidence

that he incurred compensatory damages and that the damages were related to

the alleged discrimination. See Jackson v. United States Postal Service,

EEOC Appeal No. 01923399 (November 12, 1992); request to reopen denied,

EEOC Request No. 05930386 (February 11, 1993). Consequently, where (as

here) a complainant requests compensatory damages during the processing

of a complaint, the agency is obliged to request from the complainant

objective evidence of such damages. In this case, the agency did not

request objective evidence of compensatory damages. Should complainant

prevail in his complaint, the possibility of an award of compensatory

damages exists, and complainant's claim is not moot. See Glover v. United

States Postal Service, EEOC Appeal No. 01930696 (December 9, 1993);

Stewart v. Department of the Agriculture, EEOC Appeal No. 01A00009

(May 7, 2002).

CONCLUSION

Upon review of the record, and for the foregoing reasons, it is the

decision of the Commission to VACATE the final agency decision and to

REMAND the case for further action consistent with this decision and

the Order of the Commission, below.

ORDER

The agency is ordered to take the following actions within forty-five

(45) days from the date this decision becomes final:

1. The agency shall conduct a supplemental investigation to develop an

adequate factual record on the issue of whether complainant's foot, knee,

wrist and/or lower back injuries render him a qualified individual with

a disability under the Rehabilitation Act, including but not limited to,

obtaining all pertinent evidence needed to address whether complainant

has an impairment that substantially limits a major life activity;4

2. The agency shall provide the EEO investigator with all relevant

documentary evidence requested by complainant in his affidavit;

3. The agency shall obtain information from various sources within the

agency, if necessary, in order to provide the EEO investigator with a

complete list of all comparative employees (i.e., all Letter Carriers

who were supervised by PM and/or S1 during 2005, 2006 and 2007.)

Such comparative employee information should include: (1) the name of

each comparative employee; (2) each comparative employee's protected

status relevant to this complainant; (3) each comparative employee's

relevant history of undelivered mail; and (4) each comparative employee's

disciplinary record along with the basis for any discipline;

4. The agency shall ensure that the EEO investigative file contains

complete affidavits and rebuttal affidavits from the named responsible

officials and from any other individual likely to have information

bearing on the outcome of the complaint, including, but not limited to:

(a) detailed statements from any witness with direct or indirect knowledge

pertaining to complainant's allegation that S1 and PM referred to him

as a "worthless cripple"; (b) detailed statements from complainant's

co-workers who may be able to corroborate PM's claim that complainant

intended to bring back undelivered mail on August 31, 2006; (c) additional

information from PM regarding her claim that complainant spoke to his

co-workers regarding his intentions to bring back undelivered mail;

(d) detailed statements from complainant, NS, and any other witness with

relevant information regarding complainant's claim that NS ordered him

to work beyond his four-hour medical limitation on August 31, 2006; (e)

detailed statements from all relevant witnesses regarding complainant's

claim that at times other Letter Carriers were permitted to return to

the facility with undelivered mail without receiving discipline; and (f)

a detailed statement from U1 in which he describes his direct knowledge

relevant to complainant's claims;

5. The agency shall produce the documentary and testimonial evidence

relied upon by the Dispute Resolution Team in its Step B Decision

referenced herein above;

6. The agency shall produce all documentary and testimonial evidence to

show that it has fully complied with the Dispute Resolution Team's Step

B Decision;

7. The EEO investigative file shall be organized in accordance with EEOC

MD-110, Chapter 6, including a summary of the investigation;

8. Upon completion of the investigation, the agency shall provide

complainant with a copy of the supplemental report of investigation, and

shall apprise complainant of his right to request either a hearing before

an EEO Administrative Judge or an immediate final decision by the agency.

In accordance with Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-23 (November 9, 1999), the agency

shall give priority to this remanded case in order to comply with the

time frames contained in this Order. The Office of Federal Operations

will issue sanctions against agencies when it determines that agencies

are not making reasonable efforts to comply with a Commission order to

investigate a complaint.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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 77960, Washington,

DC 20013. 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 (M1208)

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 77960,

Washington, DC 20013. 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 (R0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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 13, 2009

Date

1 In addition, complainant asserts that he left for his deliveries later

than usual due to the meeting with PM.

2 As complainant describes it, in the notice of removal he was accused

of both failing to comply with his work restrictions by working too

long and disobeying orders by working too little (i.e., by not working

overtime until all of the mail was delivered).

3 According to complainant, he identified only the last names of the

Letter Carriers he asserts were proper comparison employees.

4 When determining whether a complainant satisfies the definition

of "individual with a disability," the EEO investigator should

remember that the concepts of "impairment," "major life activity," and

"substantially limits" are relevant to all three parts of the definition

of "disability." The EEO investigator should provide complainant, as well

as the responsible management officials, with specific definitions and

explanations of each of these terms referenced by the Rehabilitation Act.

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0120072591

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120072591