01965798
10-20-2000
Michael Worstell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael Worstell v. United States Postal Service
01965798
October 20, 2000
Michael Worstell, )
Complainant, )
)
v. ) Appeal No. 01965798
) Agency No. 1-E-971-1058-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination in
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUES PRESENTED
The issues presented are whether the agency discriminated against
complainant based on physical disability (Usher's Syndrome) when:
(1) on March 4, 1995, he was not converted to a career position;
(2) beginning August 17, 1995, he was not scheduled for work; (3) on
December 6, 1995, he was found medically unsuitable for Part-Time Regular
Mail Handler and Part-Time Flexible Mail Processor positions; and (4)
on December 8, 1995, his appointment as a casual employee was terminated.
BACKGROUND
In a complaint dated December 8, 1995, complainant, then a former Casual
Mail Handler, EAS-07, alleged that the agency discriminated against
him as delineated in the above-entitled statement "Issue Presented."
The agency conducted an investigation, provided complainant with a copy of
the investigative report, and advised complainant of his right to request
either a hearing before an EEOC administrative judge (AJ) or an immediate
final agency decision (FAD). Complainant requested an immediate FAD.
On February 8, 1996, the agency issued a FAD finding no discrimination.
It is from this decision that complainant now appeals.
The record reflects that complainant was hired by the agency in
July 1993 pursuant to its general public hiring, and was placed as a
Casual<1> Mail Clerk. He subsequently was certified for employment
as a Mail Processor under a special program for employment of persons
with disabilities whereby such persons are certified for employment by
agencies of the State of Oregon. The record reflects that complainant
has Usher's Syndrome, a combination of deafness from a young age and
Retinitis Pigmentosa, a condition of the eyes which leads to loss of
peripheral vision. Medical evidence of record reveals that although
complainant's forward vision is correctable, his peripheral vision is
limited to 15 to 25 degrees from center. The record reflects that at the
time he was hired, however, the agency was aware only of complainant's
hearing loss. Medical documentation submitted by complainant at that
time did not report his vision impairment.
Complainant alleged that he was told he would be converted to career
status in March 1995, but did not identify by whom he was told this.
He identified an employee who is deaf but has no vision impairment who was
converted to career status in March 1995. A Human Resources Specialist
(HRS) stated that complainant was never told that he would be converted.
The HRS further stated that as far as she knew, complainant requested
conversion to career status in Fall 1994, and that his request was
denied in Spring 1995 based on information provided by his supervisor
(Supervisor 1). More specifically, Supervisor 1 described complainant
as a good employee but limited in the range of tasks he could safely
perform, in that complainant could perform only two of the operational
functions of a Mail Handler,<2> the position he then occupied.<3>
Supervisor 1 concluded that complainant's limitations placed a burden
on Mail Handling operational functions, and that no accommodations were
available. In particular, Supervisor 1 stated that complainant could
not be assigned to rotate through all functions or cover other stations,
as is required of all Mail Handlers, and that mishaps occurred even though
other employees were notified of complainant's limitations. Supervisor 1
further noted that the two operational functions which complainant could
perform were being eliminated in favor of increased automation.
The record reflects that near the end of complainant's second appointment,
it was discovered that the state agency had certified him only for the
Mail Processor position. Complainant could not be reassigned across
craft from the Mail Handler to the Mail Processor position. It was
therefore decided to leave him in the Mail Handler position until his
appointment expired, which would occur shortly, then re-appoint him to
the Mail Processor position.
On July 25, 1995, complainant began work as a Mail Processor. On that
date and again on August 5, 1995, complainant was involved in work-place
accidents. Complainant was not scheduled for work after August 17, 1995.
The record reflects that complainant had been assigned a special training
supervisor (STS), who was also a certified interpreter. The record
contains a report prepared by the STS which discussed complainant's
performance in the Mail Processor position up through August 5, 1995.
The STS stated that complainant was a good employee and appeared to learn
each task as directed. She noted, however, that his lack of peripheral
vision hindered his movements, even within his limited work area. She
recommended that complainant be placed in another, less busy location.
The STS also noted that complainant performed a quantity of work far
below expectations, completing less work in one day than employees were
expected to complete in one hour.
The record also contains reports from two Mail Processing Supervisors
(Supervisors 2 and 3). Supervisor 2 stated that complainant's work
performance was careful and that he followed directions, but that his
work was slow and he did not process the quantity of work expected for
his position. Supervisor 3 stated that she was concerned about him
working where he needed to quickly throw mail bundles; and that on some
occasions he was unaware that mail had fallen off his belt onto the floor.
Both supervisors indicated that complainant's coworkers had been alerted
to his physical limitations.
In October 1995, complainant was given a fitness-for-duty examination by
an opthamologist and by an occupational health physician. The agency
provided background information including a copy of the Mail Handler
position description, but it is not apparent whether a copy of
the Mail Processor position description was also provided.<4> The
opthamologist stated that complainant is able to perform tasks that
require straight-ahead vision or scanning vision in a narrow range, but
cannot work in an area with moving people and equipment, because he will
not be aware of activity to his sides or behind him because of his visual
limitations. The opthamologist opined that complainant could perform
only two of the seven identified essential functions of the Mail Handler
position, being the two functions complainant did perform when assigned to
that position. The opthamologist stated that the other functions "seem
unsuitable for his limitations" and that complainant could only work in
"a consistent and controlled area of work without dependence on visual or
auditory clues to maintain safety." The occupational health physician,
referring to the report of the opthamologist, found that complainant was
a moderate risk and needed accommodation for his total hearing loss and
vision impairment.
The record contains a checklist wherein the agency reviewed whether any
reasonable accommodation was available or practical that would allow
complainant to perform the essential functions of the Mail Processor
position, concluding that there were none. The record also contains a
report from the state agency which certified complainant for employment
noting that it was unaware of any assistive device which would improve
complainant's peripheral vision.
By letter dated December 6, 1995, the agency terminated complainant from
his position as a casual employee based on his "past safety record and
unsatisfactory performance." In a second letter, the agency informed
complainant that he was medically unsuitable for the Mail Handler and
Mail Processor positions, in that he could not perform the essential
functions of these positions. In particular, the letter highlighted
complainant's inability to perform around moving equipment and machinery.
In a third letter, an agency Medical Officer stated that complainant
had been certified and accepted by the agency based on his hearing loss.
The Medical Officer stated that the agency found complainant medically
unsuitable based on the report of the opthamologist.
In his affidavit, complainant suggested various accommodations: that
the agency inform his coworkers about his limitations, that he wear
a red safety armband to make him more visible to his coworkers, and
that he would be more careful. He contended that the accidents were
not his fault. In his appeal statement, complainant argues that he can
perform the essential functions of the Mail Processor and Mail Handler
positions in a safe manner and does not present a threat to himself
or others. He further argues that the opthamologist's report only
addressed his ability to function as a Mail Handler and stated that,
with accommodations, he could perform two of the seven job functions.
He also refers to another employee who is deaf who was converted to career
status in March 1995. The agency did not reply to the appeal statement.
ANALYSIS AND FINDINGS
In order to establish a prima facie case of disability discrimination,
complainant must prove, by a preponderance of the evidence, that he was
treated differently than individuals not within his protected group,
or that the agency failed to make a needed reasonable accommodation,
resulting in adverse treatment of complainant. See Sisson v. Helms,
751 F.2d 991, 992-93 (9th Cir.), cert. denied, 474 U.S. 846 (1985).
As a threshold matter, complainant must establish that he is a "qualified
individual with disability" within the meaning of the Rehabilitation Act.
The Act's implementing regulation defines "individual with disability"
as a person who has, has a record of, or is regarded as having a physical
or mental impairment which substantially limits one or more of that
person's major life activities: self-care, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. ��1630.2(g)-(l).<5> The regulation defines a "qualified
individual with disability" as a person "who, with or without reasonable
accommodation, can perform the essential functions of the position in
question ...." 29 C.F.R. �1630.2(m).
There is no question that complainant is an "individual with disability"
within the meaning of the Rehabilitation Act, given the evidence of
record that he is deaf and has severely limited vision. There is,
however, a question as to whether complainant is a "qualified individual
with disability."
A "qualified" employee with a disability is one who can perform the
essential functions of the position he or she holds with or without
reasonable accommodation. 29 C.F.R. �1630.2(m). The term "position held"
is not limited to the position actually held by the employee, but also
includes positions that the employee could have held as a result of job
restructuring or reassignment. 29 C.F.R. �1630.2(o)(2).
In determining whether an employee is "qualified," an agency therefore
must look beyond the position which the employee presently encumbers
to determine whether there is a position to which the employee can
be reassigned. In this case, although the agency undertook to explore
whether complainant could be accommodated in the Mail Processor position,
the agency made no effort to explore reassignment as an accommodation
when an accommodation that would allow complainant to remain in the Mail
Processor position could not be found.
Although the agency placed complainant in the Mail Processor position
after discovering that it was the only position for which the state agency
had certified him, the Commission notes that complainant initially was
hired through general public hiring as a Mail Clerk. Complainant states
that he performed this position successfully, and the agency has submitted
no evidence to the contrary. Rather, the agency stated that complainant
requested transfer to a Mail Handler position, which offered more hours,
and was re-appointed to a Mail Processor position when it was discovered
that the state agency had not certified him for the Mail Handler position.
Considering the length of time that complainant had been working for
the agency and that he was not initially hired under a special program,
and the agency's position that the Mail Handler and Mail Processor
positions are functionally equivalent, which position complainant was
certified to hold is immaterial. What is material is that the agency
did not consider reassigning complainant to a different position when
it became apparent that he could not perform the essential functions of
the Mail Handler or Mail Processor positions. As such, the Commission
finds that the agency failed to reasonably accommodate complainant.
CONCLUSION
Based upon a careful review of the record, and for the foregoing reasons,
it is the decision of the Commission to REVERSE the final agency decision,
finding that the agency discriminated against complainant when it did
not reasonably accommodate him.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall retroactively reinstate complainant, with
backpay, to a position he is able to perform, with or without reasonable
accommodation. Complainant shall be given a minimum of fifteen (15) days
from receipt of the offer of placement within which to accept or decline
the offer. Failure to accept the offer within the time period set by the
agency will be considered a rejection of the offer, unless complainant
can show that circumstances beyond his control prevented a response
within the time limit. Prior to reporting for duty, complainant shall
provide the agency with a current assessment of his medical condition
and any current medical restrictions. Upon receipt of this information,
if it indicates that complainant cannot perform the essential functions
of his position with or without accommodation, the agency shall assign
complainant to a vacant position, the essential functions of which he
can perform with or without reasonable accommodation. The agency shall
take all steps necessary to ensure that, once complainant returns to
work, he is provided with reasonable accommodation of his disability.
(B) Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to award complainant back pay, with
interest, for all wages and benefits lost between the date he was
barred from working (August 17, 1995) and the date he returns to duty
or declines the offer of reinstatement. The agency shall determine
the appropriate amount of back pay, interest and other benefits due
complainant, pursuant to 29 C.F.R. � 1614.501(c). 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."
(C) Within ten (10) days of its receipt of this decision, the agency
shall solicit from complainant evidence bearing on his entitlement to
compensatory damages. The agency shall afford complainant no fewer
than forty-five (45) calendar days from her receipt of its request to
provide such information. The agency shall then determine the extent
of complainant's entitlement to compensatory damages, and pay any such
damages forthwith.
(D) The agency shall post at the Portland, Oregon PD&C 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.
(E) The agency shall provide training to all the management officials
responsible for this matter in their duties and obligations under the
Rehabilitation Act.
(F) 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.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
October 20, 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, Portland,
Oregon PD&C reaffirms its commitment to comply with these statutory
provisions.
The United States Postal Service, Portland, Oregon PD&C 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, Portland, Oregon PD&C was found
to have violated the Rehabilitation Act of 1973 when they failed to
provide reasonable accommodation to an employee with a disability and
terminated his employment. The agency was ordered to reinstate the
employee, pay compensatory damages, reimburse the individual for sick
leave, annual leave, and leave without pay. The agency was ordered to
pay the appropriate amount of back pay, leave and other benefits due
the individual. The agency was also ordered to pay attorney's fees.
The United States Postal Service, Portland, Oregon PD&C 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: ________________
1The agency uses different types of appointments to secure temporary
(non-permanent) workers, e.g., casual employees. Persons employed under
these appointments are used as surplus employees and may not perform
all aspects of the positions to which they are assigned.
2The record reflects that Mail Handlers were expected to rotate through
the following functional areas: load/unload trucks; unload/hash
BBM sacks; dump 2C mail onto a belt; dump/hash 2C bundles of letters
and flats; dump mail onto a belt/sweep mail into containers; empty
equipment; BBM trays; GROSS operation. Complainant was restricted to
unloading/hashing BBM sacks and dumping 2C mail onto a belt.
3At some point, complainant requested and in June 1994 received transfer
to a position as a Mail Handler, a clerk-craft position which offered
more hours.
4A Senior Personnel Services Specialist noted in her affidavit that
the two positions were functionally equivalent, involving the same work
behaviors and vision requirements.
5On 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, can also be found at the
Commission's website at www.eeoc.gov.
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.
The ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations also can be found
on the Commission's website.