John D. Reasor, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 6, 2009
0720070004 (E.E.O.C. Jan. 6, 2009)

0720070004

01-06-2009

John D. Reasor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


John D. Reasor,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0720070004

Hearing No. 150200500629X

Agency No. 4H330007905

DECISION

Following its September 28, 2006 final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).

On appeal, the agency requests that the Commission affirm its rejection of

an EEOC Administrative Judge's (AJ) finding of discrimination in violation

of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq. In its final action, the agency

accepted the AJ's finding of discrimination, and rejected certain

corrective action. For the following reasons, the Commission REVERSES

the agency's final order.

BACKGROUND

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

an applicant for employment to a City Carrier position at the agency's

Miami, Florida facility. On February 11, 2005, complainant filed an

EEO complaint alleging that he was discriminated against on the basis

of disability (perceived) when on December 27, 2004, he was denied a

Carrier position.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing and the AJ held a hearing on November 22 and 23,

2005 and issued a decision on September 12, 2006.

The AJ found complainant was perceived as having a substantially limiting

impairment, and although he could perform the essential functions of

the job without accommodation, he was not hired. The AJ also found that

the agency failed in proving a direct threat defense.

The record reveals complainant was rejected for the City Carrier position

after the agency determined complainant was a threat to himself due to his

ankle injury. The AJ found this determination was made without regard

to the proper standard required to set forth a direct threat defense.

The AJ also found that the agency requested medical information from

complainant using forms which called for overly broad medical information,

and utilized an unwritten policy of subjecting veterans to higher scrutiny

because of their status as veterans. The AJ noted that although an

agency can ask for further medical questions after an initial assessment,

those questions must be medically related to the previously obtained

medical information; not because of complainant's status as a veteran.

The AJ found complainant provided credible medical documentation which

revealed he could perform the duties of a letter carrier. Instead,

however, the agency determined complainant's ankle and knee injuries

presented such a threat of injury, and that he could not perform the

duties of the position without significant risk of substantial harm.

The AJ found that the testimony of the agency's doctors supporting its

direct threat defense was both inadequate and not credible.

The AJ also ordered corrective action. In paragraph (2) of the AJ's

order, the agency was ordered to provide training for all the responsible

management officials, including the Postmaster at the time, and the

entire South Florida District Personnel Office. Said training was to

follow a strict timeline. In paragraph (4) of the AJ's order, the agency

was ordered that in the future, if the agency wished to seek further

medical information from a specific individual, it should refrain from

engaging in overly broad requests of information, and the information

should be medically related to the previously obtained information.

In paragraph (5) of the corrective action, the AJ ordered that in the

future, if the agency wishes to seek further medical information from

a specific individual, it should do so only in response to information

from the initial medical inquiry, and not because of the individual's

status as a veteran.

On September 28, 2006, the agency issued a final action stating that

it accepted the finding of discrimination, but rejected paragraphs (2),

(3), (4), and (5) of the corrective action listed in the AJ's decision.

On November 2, 2006, the agency issued a subsequent final action, arguing

that it erred in its first final action, when it rejected paragraph

(3). Rather, the agency maintained it only objected to paragraphs (2),

(4), and (5) of the AJ's decision. Both final actions informed the

complainant that it would be filing a brief in support of its appeal

within 20 days.

CONTENTIONS ON APPEAL

The agency did not file a brief in support of its appeal. In response

to the agency's notice of appeal, complainant argued that the agency

should fully comply with the AJ's ordered relief.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ 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 AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or

on the tone of voice of a witness will be accepted unless documents or

other objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

The agency does not take issue with the AJ's finding of discrimination;

rather, it stated in its final action that it rejected part of the

corrective action. After a review of the record, we find the AJ's

decision was supported by substantial evidence in the record, and there

is no dispute by the agency in this regard.

When discrimination is found, the agency must provide the petitioner with

an equitable remedy that constitutes full, make-whole relief to restore

him/her as nearly as possible to the position s/he would have occupied

absent the discrimination. See, e.g., Franks v. Bowman Transportation

Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,

418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395

(July 21, 1994). The Commission notes that we recognize that precise

measurement cannot always be used to reduce the wrong inflicted;

nonetheless, we believe that the burden of limiting the remedy rests with

the agency. See Davis v. U. S. Postal Service, EEOC Petition No. 04900010

(November 29, 1990).

After a review of the record, we find no reason to reject the AJ's

corrective action, as the agency has presented no argument why the AJ's

corrective action should be reversed.1

CONCLUSION

Accordingly, we REVERSE that portion of the agency's final action appealed

here, and REMAND the matter for further processing consistent with the

ORDER below.

ORDER (D0403)

The agency is ordered to take the following remedial action:

1. Within thirty (30) days from the date this decision becomes final,

the agency shall offer to retroactively appoint complainant to a Letter

Carrier position, at issue herein, retroactive to February 2, 2005 (

i.e., the date complainant would have been hired). Such appointment

should include all pay raises and accrual of seniority. The offer shall

be made in writing. Complainant shall have 15 days from receipt of the

offer to accept or decline the offer. Failure to accept the offer with 15

days will be considered a declination of the offer unless complainant can

show that circumstances beyond his control prevented a response within

the time limit. The agency shall determine the appropriate amount of

back pay, with interest, and other benefits (leave, training and agency

contributions) 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."

2. Within (30) days from the date this decision becomes final,

the agency shall provide a minimum of (16) hours of training to the

agency's Nurse, both Doctors, and the Manager for Personnel Service

(South Florida District) in the agency's duties and obligations pursuant

to the Rehabilitation Act, including appointment issues and perceived

disability.

3. The agency shall immediately expunge from complainant's personnel file,

any documents which reference, incorporate or refer to complainant's

alleged disability, including the evaluations by agency physicians and

contract physicians.

4. In the future, after a conditional offer of employment is made,

and the agency has already obtained basic medical information from all

conditional hires in a job category (such as having them answer a Medical

History Questionnaire), if the agency wishes to request further medical

information from a specific individual (as opposed to all conditional

hires in a job category) due to a disclosure of medical condition or

past injury, then the agency shall not engage in overly broad requests

by seeking all records from that individual for a certain time period,

but must limit its inquiry to questions (or medical examinations) which

are medically related to the previously obtained medical information;

and the additional follow-up must be based upon the answers provided by

that individual to the initial medical inquiry (such as disclosure of

a medical condition or past injury).

5. The agency shall immediately post a notice in accordance with the

paragraph below.

6. 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 backpay 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 Miami, Florida 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 (K0408)

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 (M0408)

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 (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

January 6, 2009

Date

1 We have modified paragraph (2) of the AJ's training order, which

was overly broad. Paragraph (4) of the AJ's award was not modified.

Paragraph (5) of the AJ's order, which exceeded the Commission's authority

under the Rehabilitation Act, has also been modified. Paragraphs (4)

and (5) of the AJ's award have been consolidated and are identified

herein as paragraph (4) of the Commissions Order.

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0720070004

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0720070004