01976980
01-29-1999
Patricia F. Henderson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Patricia F. Henderson v. United States Postal Service
01976980
January 29, 1999
Patricia F. Henderson, )
Appellant, )
)
v. ) Appeal No. 01976980
) Agency No. 1H-391-2017-93
William J. Henderson, ) Hearing No. 130-96-8214X
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
______________________________)
DECISION
On September 19, 1997, Patricia F. Henderson appealed the final decision
of the United States Postal Service (agency), dated August 20, 1997,
which concluded that she had not been discriminated against in violation
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. In
her complaint, appellant alleged that officials at the agency's facilities
in Jackson, Mississippi, discriminated against her on the basis of her
physical disability (hearing impairment) when, in August 1993, she was
denied the position of General Clerk, Delivery Programs Service Unit (Job
No. 6462679), despite being the senior bidder on the job. This appeal
is accepted in accordance with the provisions of EEOC Order No. 960.001.
The record establishes that, at the time of the events at issue,
appellant was employed by the agency at the Jackson General Mail Facility
(GMF) as a Distribution Clerk, MPFSM, PS-05. The parties have stipulated
that appellant is an individual with a disability as defined by the
Rehabilitation Act as a result of a severe hearing/speech impairment.
Pursuant to Job Bid No. 6462679, appellant applied for the position of
General Clerk, Delivery Programs Service Unit. It is undisputed that she
was qualified by examination for position and was the senior bidder on
the position. On or about August 24, 1993, appellant met with a number
of management officials to discuss her ability to assume the position.
During the meeting, management officials told her that they doubted
she could perform in the position because 50-60% of the job required
the incumbent to communicate orally with other agency employees and the
public via the telephone. It is undisputed by management that appellant,
at that same meeting, proposed the following possible accommodations
which she believed would enable her to perform the essential functions
of the position: e-mail; computer software; telephone relay service
(TDD); answering machine; FAX; and the distribution of telephone duties
among other employees, with appellant assuming other duties from those
employees. There is no evidence in the record that, after the meeting,
agency management made any attempts to analyze or ascertain whether or not
any of the proposed accommodations could be accomplished without resulting
in an undue hardship on the agency. Shortly thereafter, the position
was awarded to another employee who had no hearing or speech impairment.
The record further indicates that the agency had an organized reasonable
accommodation program for employees with disabilities in place at the
time, but the program was not utilized in this matter.
On September 16, 1993, appellant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against him
as referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On December 2, 1996, following a hearing on appellant's complaint, the AJ
issued a decision from the bench, finding that agency had discriminated
against appellant on the basis of her disability, in violation of the
Rehabilitation Act, when it denied appellant the position in question
without considering her proposals for reasonable accommodations which
she contended would have enabled her to perform the essential functions
of the position.
On August 20, 1997, the agency issued its final decision, rejecting the
AJ's recommended finding of disability discrimination, and entering a
finding of no discrimination. It is from this decision that appellant
now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts and
properly analyzes the appropriate regulations, policies and laws. Based
on the evidence of record, the Commission discerns no basis to disturb the
AJ's finding of disability discrimination. Nothing proffered by agency in
its final decision or on appeal differs significantly from the arguments
raised before, and given full consideration by, the AJ. Based on its
review of the record, the Commission is unpersuaded by the agency's
argument that appellant was not qualified for the position because she
could not perform the essential functions of the position. It is critical
to remember that the Rehabilitation Act's definition of "qualified"
requires the employee to be able to perform the essential functions
of the position at issue with or without reasonable accommodation. 29
C.F.R. �1614.203(a)(6). The Commission concurs with the AJ's finding that
appellant presented the agency with a number of plausible accommodations
to her disability which would have enabled her to successfully perform
the duties of the position in question. The agency completely failed
in its duty to consider any of the accommodation proposals advanced
by appellant or to determine any other viable avenues of providing her
with reasonable accommodation to her disability. Based on this evidence,
appellant has established a violation of the Rehabilitation Act.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision which rejected the AJ's
finding of disability discrimination. In order to remedy appellant for
its discriminatory actions, the agency shall comply with the following
Order.
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 is directed to place appellant in the
position in question, or a substantially equivalent one, retroactive
to the date the bid was awarded to another employee. The agency shall
ascertain and provide appellant with all reasonable accommodations
necessary to enable her to perform the essential functions of the
position. Appellant shall be awarded any back pay and benefits,
with interest, to which she is entitled as a result of the agency
discriminatory failure to award her the position in question.
(B) The agency shall determine the appropriate amount of back pay,
interest and other benefits due appellant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. If appellant declines to accept the
position in question, the back pay period shall end with the date she
declines the offer of placement. The appellant 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 appellant
for the undisputed amount within sixty (60) calendar days of the
date the agency determines the amount it believes to be due. The
appellant 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) Training shall be provided to the agency officials responsible
for the agency's actions in this matter on the obligations and duties
imposed by the Rehabilitation Act.
(D) The agency shall post at the Jackson, Mississippi, General
Mail 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.
(E) 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.
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.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. � l6l4.604(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 an 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 EIGHTY (180)
CALENDARS 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:
Jan 29, 1999
_________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
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 Jackson, Mississippi, General Mail Facility (GMF) supports and
will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The Jackson, Mississippi GMF has been found to have discriminated
against the individual affected by the Commission's finding on the
basis of her physical disability by failing to award her a position
on which she was the senior bidder. The Commission has ordered that
this individual be offered immediate placement in the position in
question, with reasonable accommodations provided to her disability
and an appropriate back pay award. The Jackson, Mississippi, GMF
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all Federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The Jackson, Mississippi, GMF 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: _________________
29 C.F.R. Part 1614