01974955
09-23-1999
Keith L. Kloock, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Area), Agency.
Keith L. Kloock, )
Appellant, )
) Appeal No. 01974955
v. ) Agency No. 4-J-481-1025-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Area), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of physical disability (herniated disc) and reprisal (prior EEO
activity), in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq.; and the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791, et seq. (�the Act�). Appellant alleges
he was discriminated against when on October 24, 1995, he was issued
a Notice of Separation-Disability (NOS). The appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is REVERSED.
The record reveals that during the relevant time, appellant was employed
as a PS-5 Letter Carrier at the agency's Wyandotte, Michigan Post Office,
when he was issued a removal notice dated January 11, 1995, for failing
to follow instructions and being absent without official leave.<1>
Appellant initially filed two complaints with the agency in 1995 over the
removal notice, and following a hearing, an Equal Employment Opportunity
Commission (EEOC) Administrative Judge (AJ) issued a decision finding that
appellant established that he was discriminated against by the agency
on the bases of his physical disability and reprisal. The AJ found
that the agency offered no legitimate explanation for its attempts to:
(1) remove appellant from limited duty status; (2) force him to request a
light duty position; and (3) require him to submit medical documentation
to support the light duty request. The agency's FAD rejected the AJ's
findings of discrimination, and on appeal, the Commission reversed the FAD
and discerned no basis to disturb the AJ's findings of discrimination.
In order to remedy appellant, the Commission ordered the agency: (1) to
make an offer of reinstatement to appellant of his position of Letter
Carrier with reasonable accommodation; (2) to calculate back pay; and
(3) commence an investigation regarding appellant's entitlement to
compensatory damages. Kloock v. United States Postal Service, EEOC
Appeal No. 01972840 (December 10, 1998).
Appellant also filed a union grievance over the removal notice,
and the arbitrator found the agency had scheduled appellant for a
fitness-for-duty (FFD) examination to substantiate his continued
absence from his usual job, but appellant refused to appear for the
FFD examination. As a result, the arbitrator directed appellant to
provide current medical evidence regarding his diagnosis, prognosis,
restrictions and anticipated return to his usual full duty position,
along with a request for light duty. Appellant provided a medical report
from his chiropractor dated June 30, 1995, which included his diagnosis,
physical restrictions and an undetermined convalescence duration<2>.
Appellant was then scheduled by the agency for a FFD examination
on July 28, 1995, but did not complete one of the required tests.
The results of the FFD examination limited appellant's activity to a
sitting job<3>, which the agency determined was incompatible with a
Letter Carrier position. Appellant was subsequently issued the NOS as
he could not perform his usual job, there were no permanent positions at
the facility which met his limitations and as he failed to fully perform
the FFD examination such that he could be accommodated.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint on March 18, 1996. At the
conclusion of the investigation, appellant was informed of his right
to request a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge, or request a final decision by the agency.
After appellant failed to respond within the appropriate time frame,
the agency issued its FAD.
The FAD found that appellant was not a qualified individual with a
disability, as he did not meet the physical requirements for a Letter
Carrier position, with or without reasonable accommodation, based on
the independent medical interpretation of appellant's FFD examination
which found that he was not fit for duty as a Letter Carrier. The FAD
further found that appellant failed to demonstrate a prima facie case
of reprisal discrimination because there was insufficient evidence to
establish a causal connection between his prior EEO activity and the NOS.
The FAD concluded that in any event, the agency articulated legitimate,
nondiscriminatory reasons for issuing the NOS, namely, that appellant
could not meet the requirements for the Letter Carrier position and
did not provide the required documentation for transfer to a light
duty position. The FAD further found that the agency's reason was
not proven to be a pretext for discrimination. On appeal, appellant
contends that the Commission should consolidate the instant case with a
previously filed case, but makes no new arguments regarding the FAD.<4>
The agency requests that we affirm its FAD.
The Commission will address the issue of whether appellant was subjected
to disability discrimination in the instant complaint. As a threshold
matter, one bringing a claim of disability discrimination must show
that he is a qualified individual with a disability within the meaning
of the Rehabilitation Act and that the agency either treated him less
favorably than individuals not within his protected group or that it
failed to make a reasonable accommodation to his disability. Mackey
v. U.S. Postal Service, EEOC Appeal No. 01931771 (April 28, 1994).
The medical evidence in the record reveals that appellant had a serious
back injury which substantially limited his ability to stand, lift,
walk and reach, and was thus unable to perform his Letter Carrier
position. Accordingly, we find that appellant is an individual with
a disability within the meaning of the regulations, as he was unable
to perform several major life activities. 29 C.F.R. � 1614.203(a)(1).
We further find that, based on the AJ's decision in appellant's previously
filed complaints, the medical evidence of record and evidence that the
agency was aware of appellant's physical limitations and knew that
he historically required a limited duty assignment, appellant is a
qualified individual with a disability. 29 C.F.R. � 1614.203(a)(6);
Nance v. Department of the Navy, EEOC Request No. 01964338 (October 16,
1998). Furthermore, the Commission has held that even if an appellant
is unable to perform the essential functions of his current position,
he would still be a �qualified individual with a disability� if, with or
without accommodation, he could perform the essential functions of any
position which he could have held as a result of job restructuring or
reassignment. 29 C.F.R. � 1614.203(c)(2)(ii) and (g); Hawkins v. United
States Postal Service, EEOC Petition No. 03990006 (February 11, 1999).
Only after determining that reassignment to a vacant position was not
possible or would result in an undue hardship, would the Act permit the
agency to conclude that an appellant is not a qualified individual with
a disability. Kitaura v. United States Postal Service, EEOC Petition
No. 03980089 (March 11, 1999).
We note that appellant performed limited duty positions at the facility
for several years after injuring his back, and the medical report based
on the results of the FFD examination indicate that he is capable of
performing a job while sitting. In this regard, the Commission previously
ordered the agency to make an unconditional offer of reinstatement to
appellant of his Letter Carrier position, and if appellant accepted the
agency's offer, �he shall be provided any retraining necessary to perform
the position, as well as any reasonable accommodation he may need to
his current medical condition.� The Act requires that if appellant is
unable to be accommodated in his usual position, the agency is obligated
to then determine whether there are positions at the facility which
appellant could perform with his medical restrictions, and if not,
determine whether there are suitable positions at other facilities.
Kitaura, supra; Van Horn v. United States Postal Service, EEOC Appeal
No. 01960159 (October 23, 1998).
As it is undisputed appellant is unable to perform his usual position
as a Letter Carrier, the agency was required to provide appellant with a
reasonable accommodation or prove undue hardship. After a determination
that appellant could not be reassigned in his current position or that
such accommodation would constitute an undue hardship, reassignment
as a potential form of accommodation becomes relevant. Essenfeld
v. National Security Agency, EEOC Appeal No. 01961377 (December 12, 1997);
Interpretive Guidance on Title I of the Americans with Disabilities Act,
Appendix to 29 C.F.R. Part 1630.2(o). The record reflects that the agency
did not offer appellant a reasonable accommodation following submission of
the medical reports in 1995 and instead issued the NOS after it determined
that there were no suitable permanent positions at the facility which
met his limitations. However, there is insufficient evidence in the
record that the agency attempted to provide reasonable accommodation
for his Letter Carrier position, reassign appellant to a position
within his limitations or demonstrate that either accommodation would
be an undue hardship, as it was required to do. Apart from a assertion
in the Postmaster's affidavit that no position was identified which
matched appellant's physical abilities, the record contains no objective
evidence to support this determination, or to demonstrate that a search
for vacant positions at other facilities where appellant could reasonably
been assigned was actually conducted. As such, a remand is required in
order for a supplemental investigation to be conducted regarding whether
there were in fact any vacant positions to which appellant could have
been reassigned at this facility or any agency facility during the time
period in question, considering evidence presented by appellant as to his
qualifications for any position. Kitaura, supra; Cotter v. Department
of Veterans Affairs, EEOC Appeal No. 01963628 (December 23, 1998).
We therefore find that the FAD erred in finding that appellant failed
to establish a prima facie case of disability discrimination, and remand
the case for a supplemental investigation as discussed, supra.
We now address the FAD's finding that even if appellant established a
prima facie case of disability discrimination, the agency articulated
legitimate, nondiscriminatory reasons for issuing the NOS as appellant
refused to provide appropriate information concerning his medical
condition. The Commission notes that the Act only permits employers to
�require medical examinations...when there is a need to determine whether
an employee is still able to perform the essential functions of his or her
job.� Interpretive Guidance on Title I of the Americans with Disabilities
Act, Appendix to 29 C.F.R. � 1630.14(c). In the instant case, appellant's
chiropractor and the agency's consulting physician agreed that appellant
is presently unable to perform his Letter Carrier position due to his
back injury. However, the agency's consulting physician and a consulting
chiropractor opined that based on the results of FFD examination, he was
physically capable of performing a sitting job. Therefore, we find that
the subsequent FFD examination required by the agency was unreasonable
as there was adequate medical documentation to provide the agency with
appellant's restrictions sufficient to allow the agency the opportunity
to reasonably accommodate appellant by reassigning him to a position
he could have performed while sitting. Hupka v. Department of Defense,
EEOC Appeal No. 02960003 (August 13, 1997). Rather than issuing the NOS,
the agency should have established that reassigning appellant would have
provided an undue hardship, but the agency failed to do so.
Further, while the NOS was issued as the agency believed appellant failed
to cooperate with its examination, the evidence shows that appellant
refused only one test and that even without the results of that test,
the agency's physician determined his restrictions and concluded he
could perform a job while sitting. We further note that the report from
appellant's chiropractor provided all of the information required by the
arbitrator except for a definite date of convalescence. As a result,
we find that agency erred in issuing the NOS without attempting to
reasonably accommodate appellant or demonstrating that an accommodation
would constitute an undue hardship.
Based on a careful review of the record, it is the decision of the
Commission to REVERSE the agency's FAD that it did not discriminate
against appellant on the basis of disability when the agency issued the
Notice of Separation-Disability rather than reasonably accommodate him.
ORDER
The agency is ORDERED to take the following action:
1. The Notice of Separation-Disability issued by the agency on October
24, 1995, is hereby canceled.
2. The agency shall conduct a supplemental investigation regarding
whether there were in fact any vacant positions to which appellant could
have been reassigned at this facility or any relevant agency facility
during the time period in question, considering evidence presented by
appellant as to his qualifications for any position.
3. To the extent it has not complied with the Commission's decision
dated December 10, 1998, the agency shall offer appellant any and all
reasonable accommodations of his Letter Carrier position, if necessary.
Should appellant not be able to perform the position of Letter Carrier,
PS-05, at the Wyandotte, Michigan, Post Office, the agency shall attempt
to reassign him to a position currently available within his medical
restrictions or demonstrate that any reassignment would constitute an
undue hardship. The parties shall engage in the interactive process
as contemplated by the Rehabilitation Act, Commission regulations and
the Guidance.
4. The agency shall comply with the requirements and posting order of
the Commission's previous decision if it has not done so already.
5. 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 appellant,
including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If
the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
ATTORNEY'S FEES (H1092)
If appellant 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
September 23, 1999
DATE Frances M. Hart
Executive Director
Executive Secretariat
1 Appellant suffered a work-related injury to his back in April of 1991,
exacerbated the injury in 1994 and has been on a limited duty status
on several occasions since that time. The agency believed in 1994 that
appellant was no longer entitled to remain in a limited duty status and
scheduled him for a fitness for duty examination. When appellant did
not report for the examination, the agency issued the Notice of Removal.
2 Appellant's treating chiropractor diagnosed a subluxation of the L5
region, with a good prognosis and physical restrictions of no bending,
stooping or lifting over ten pounds, walking limited to less than six
hours per day and sitting limited to no more than two hours per day.
3 Appellant's FFD examination found that he could not perform arduous
exertion such as standing, walking, reaching or lifting which is required
to perform the Letter Carrier position, but could perform a job while
sitting.
4 We note that while appellant requests consolidation of the instant
claim with the EEO complaints he filed in 1995, the previously filed
complaints have been decided by the Commission in appellant's favor.
See Kloock v. United States Postal Service, EEOC Appeal No. 01972840
(December 10, 1998).