0120090078
03-04-2009
Louis A. Foraker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Louis A. Foraker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090078
Agency No. 1C-081-0021-08
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 3, 2008, finding that
it was in compliance with the terms of the April 16, 2008 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
Complainant was a mail processing clerk assigned to automation. His left
leg is amputated just below the knee. The April 16, 2008, settlement
agreement provided, in pertinent part, that:
Mr. Foraker will be provided with a stool so that he can rest his left leg
during his shift. Mr. Foraker agrees that the stool [will] only be used
during the time of his sweeping activities....[Identified supervisor]
will contact...human resources and a final decision will be afforded
Mr. Foraker within 7 days as per the above aforementioned language.
The later part of the settlement agreement was handled by the agency
district reasonable accommodation committee (DRAC). By letter dated
April 28, 2008, DRAC asked complainant to submit documentation of his
medical requirements and restrictions, among other medical information.
He submitted a letter dated May 6, 2008 from a health care provider
explaining that when complainant stands in one position for long periods
it causes much pain and pressure to his stump; and at times it swells
and alters the way complainant's prosthesis fits, causing possible skin
breakdown. The letter stated it would benefit complainant if he was
allowed to sit on a stool while performing his duties on the machine.
By letter dated June 6, 2008, DRAC informed complainant of its decision
to provide him a different accommodation of allowing him to rest his leg
when his stump became painful by being assigned to a manual operation
for short periods [which allows sitting or resting on a rest bar].
A pre-complaint counseling intake form indicates that complainant
requested EEO counseling on June 10, 2008. It is agency case number
PRE-027990-2008. On the form, which complainant completed and returned to
the agency, he alleged that the agency discriminated against him based on
disability (left leg amputee) when DRAC decided not to provide a stool.
Complainant wrote that at the last minute the supervisor decided not
to sign the settlement agreement to provide a stool, saying he had to
contact human resources for a final decision.1 By letter to the agency
dated July 11, 2008, complainant indicated that the agency breached the
settlement agreement because DRAC was late in making its decision.
According to the DRAC reasonable accommodation coordinator, it was
his understanding that complainant had the stool until DRAC made its
decision. He stated that DRAC determined that it was almost impossible
to be productive using a stool on the machine. He stated sitting on a
stool would create a problem anywhere on the machine. The reasonable
accommodation coordinator stated that when DRAC met with complainant,
he said that he needed to rest his leg from time to time and suggested
the accommodation of moving from the machine to the manual operation, and
all agreed with complainant's suggestion. The reasonable accommodation
coordinator was not aware if complainant was working in the manual
operation to rest his leg. The supervisor who signed the settlement
agreement stated that complainant's assignment in automation is to
feed mail through a machine while standing and to sweep mail out
of the stacker, which requires constant movement with two employees
working together. He stated a stool could create a tripping hazard,
and complainant has gone to the manual operation at least four times.
He stated that he never stipulated complainant could use a stool, but
said he could not make that decision and would seek help from DRAC.
The FAD characterized the June 2008, pre-complaint counseling intake
form to be a notice of breach. It found that the agency substantially
complied with the settlement agreement. It reasoned that while DRAC
took more than seven days to reach its decision, it granted complainant's
requested reasonable accommodation of allowing him to work in the manual
operation when he needed to rest his leg.
On appeal, complainant argues by and through his attorney that DRAC
breached the settlement agreement when it denied his use of a stool
in automation on June 6, 2008. He argues this breach was a denial of
reasonable accommodation. He argues that DRAC improperly requested
medical documentation on April 28, 2008, since the agency already had
sufficient knowledge of his disability and needs, and that at this point
management had not yet granted him the agreed reasonable accommodation of
a stool. He argues that having to leave his usual automation assignment
and go to the manual operation when his stump hurt was not an effective
accommodation because the agency would have to find someone to replace
him, and he feared daily harassment by his supervisors asking of his
whereabouts and what he was doing if he regularly walked off to the
manual operation. Complainant argues that having to go to the manual
operation was unacceptable and punitive, and because of this he was
forced to accept a custodial position at a lower grade, a constructive
demotion, so he could rest his stump intermittently without having to
endure the humiliation and rejection levied by his supervisors when
requesting accommodation in the automation area. Complainant asks,
in part, for implementation of the settlement agreement, reinstatement
to his prior job, back pay, and damages.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
Our reading of the settlement agreement is that complainant would be
provided a stool to rest his leg during sweeping activities until the
supervisor who signed it could get a final decision within seven days.
However, the supervisor stated that he never stipulated complainant could
use a stool, and told him he could not make a decision at his level and
would seek help from DRAC. Complainant's June 2008 EEO counseling intake
form is consistent with this, in that he wrote the supervisor declined
"to sign" the settlement at the last minute, stating he would contact
human resources for a final decision on the stool. Complainant waited
until soon after the June 8, 2008, DRAC decision to allege breach,
which is consistent with an understanding that the settlement agreement
did not promise a stool until a decision was made by human resources
(which DRAC actually made).
Given the parties understanding of the settlement agreement, all that
was left for complainant therein was a promise to make a prompt decision
on his request for a stool. This was important to complainant given his
contention that he needed it to accommodate his leg when it hurt (which is
largely what prompted settlement mediation). However, the decision on the
stool was not made in seven days as promised, but took about seven weeks.
We find that the preponderance of the evidence shows complainant was
not provided a stool pending the outcome of the DRAC decision, given the
supervisor's statement and the parties understanding of the settlement
agreement.2 Given that complainant bargained for a prompt decision and
had no use of a stool during the delay to accommodate severe intermittent
leg pain, we find that the six week delay was a substantial breach of
the settlement agreement.
The remedy for breach of a settlement agreement is to specifically
implement its terms or reinstate the complaint for further processing
from the point processing ceased. 29 C.F.R. � 1614.504(a).
Complainant asks for specific implementation of being provided a stool
in automation. Given that the settlement agreement agreed to provide
a prompt final decision on a stool, not a promise to do so thereafter,
we decline to order that the agency provide a stool pursuant to the
settlement agreement. Also, complainant is now in a different job,
so specific performance of the settlement agreement is impracticable.
Accordingly, the appropriate remedy for the breach is for the agency
to reinstate the informal complaint closed by the settlement agreement,
i.e., 1C-081-0021-08 for processing .3
While the agency correctly processed complainant's June 2008,
pre-complaint counselor intake PRE-027990-2008 as a breach of settlement
claim, it was also a discrimination claim. The agency failed to
process the discrimination claim. This created confusion, resulting in
complainant misdirecting his claims that the agency made a medical inquiry
on April 28, 2008, in violation of the Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq., and constructively
demoted him into the breach of settlement agreement claim, including
the appeal thereof. Accordingly, the order below will address this.
The FAD is reversed.
ORDER
The agency is ordered to consolidate informal complaint 1C-081-0021-08,4
with the June 2008 pre-complaint counseling intake PRE-027990-20085
along with complainant's claims that the agency made a medical inquiry in
violation of the Rehabilitation Act on April 28, 2008 and constructively
demoted him to custodian in accordance with 29 C.F.R. � 1614.105(b)(1)
et seq. (in summary consolidate and provide EEO counseling on the above
matters and process them under 29 C.F.R. Part 1614). For purposes
of timeliness, the agency shall deem that complainant contacted EEO
counselors regarding his informal complaints/pre-complaint counseling
intakes on March 21, 2008, and June 10, 2008, and for timeliness deem that
the April 28, 2008 improper medical inquiry claim and the constructive
demotion to custodian claim are like and related and hence part of the
claims covered by the June 10, 2008, counselor contact.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
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 (S0408)
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. 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. If you
file a request to reconsider and also file a civil action, 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 4, 2009_________________
Date
1 The settlement agreement was signed by complainant and the supervisor.
2 The reasonable accommodation coordinator stated it was his understanding
complainant was provided a stool for a very short period until DRAC made
its decision. We give his statement little weight because the record
does not show he observed complainant working. He was a manager of
labor relations, stated DRAC did not observe complainant work, and was
not aware if complainant worked in the manual operation, all suggesting
he did not work on the floor.
3 The settlement agreement also closed grievance CL28-3308. As we do
not have jurisdiction over the grievance process, we will not order
the agency to reinstate the grievance.
4 Informal complaint 1C-081-0021-08 alleged that on March 14, 2008,
the agency made an improper medical inquiry of complainant in violation
of the Rehabilitation Act, and failed to reasonably accommodate by not
giving him a stool and allowing him to use it.
5 In this matter, complainant alleged discrimination based on disability
when he was not reasonably accommodated.
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0120090078
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090078