Patricia F. Henderson, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01976980 (E.E.O.C. Jan. 29, 1999)

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