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

Equal Employment Opportunity CommissionSep 9, 1999
01984878 (E.E.O.C. Sep. 9, 1999)

01984878

09-09-1999

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


Ronnie J. Flowers, )

Appellant, )

)

v. ) Appeal No. 01984878

) Agency No. 1-H-304-1009-95

William J. Henderson, ) Hearing No. 110-97-8344X

Postmaster General, )

United States Postal Service, )

(Southeast/Southwest Region), )

Agency. )

______________________________)

DECISION

On June 5, 1998, Ronnie J. Flowers (appellant) timely appealed the final

decision of the United States Postal Service (agency), dated May 6, 1998,

concluding he had not been discriminated against in violation of Title VII

of the Civil Rights Act 0f 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.

In his complaint, appellant had alleged that officials at the agency's

Bulk Mail Center in Atlanta, Georgia, discriminated against him on the

bases of his sex (male) and/or physical disability (degenerative disc

disease, exacerbated by a back injury) when his requests for a light

duty assignment were denied. This appeal is accepted in accordance with

the provisions of EEOC Order No. 960.001.

The record establishes that appellant had been employed by the agency

since 1989 at the Atlanta Bulk Mail Center as a Mailhander. His duties

included sorting mail, which often involved pushing, pulling and lifting

large sacks of mail weighing in excess of 70 lbs. In mid-1992, he began

experiencing chronic lower back pain and began on-going treatment

with an orthopedic surgeon. In 1993, with the assistance of an MRI,

appellant was diagnosed with L3-L4 degenerative disc disease, with

bilateral lateral gutter spinal stenosis. Medical evidence indicated

that this condition was chronic, required ongoing physical therapy,

and that his condition would be exacerbated by heavy lifting, prolonged

standing, squatting and certain repetitive motions. Appellant was also

placed on a regime of muscle relaxers and pain relievers.

Despite his back condition, appellant appears to have been working

full-time for the agency until February 1994, when he was in a severe

automobile accident and injured his shoulder, back and neck. He was

initially unable to work at all. However, on February 25, 1994,

appellant submitted a request for temporary light duty accompanied by

a certificate from his physician containing many medical restrictions,

including a prohibition against even moderate (15-45 lbs.) lifting.

Several weeks later, on March 14, 1994, appellant submitted a modified

doctor's certificate, which contained fewer restrictions and allowed

moderate lifting. On March 23, 1994, the agency denied appellant's

request, citing as a reason that there was no light duty work available

within appellant's medical restrictions. In May, June and August 1994,

appellant submitted additional requests for light duty, with the number

of restrictions apparently being reduced as time wore on, but the agency

continued to deny his requests. A union representative testified that

he spoke with the Manager in August 1994, who told him that appellant

had too many medical restrictions to be employed in light duty.

On September 1, 1994, appellant submitted another request for a light

duty assignment, which included a doctor's certification with eleven

restrictions: no working on ladders or scaffolding; no heavy lifting

over 45 lbs.; no heavy carrying over 45 lbs.; no pulling or pushing; no

crawling; no walking for more than 4 hours during a shift; and no standing

or kneeling for more than 2 hours during a shift.<1> Appellant's request

was again denied. Finally, on December 2, 1994, appellant submitted a

modified medical certificate which contained four restrictions: no working

on ladders or scaffolding; no crawling; no heavy lifting over 45 lbs.;

and no heavy carrying over 45 lbs. Upon receipt of this certificate,

the agency approved appellant's request for light duty and appellant

continued to work until February 1995, when the agency decided it no

longer had work for appellant within his medical restrictions.

From that time until September 1996, when appellant's physician released

him to return to full duty, appellant continued to request light duty,

with medical documentation that contained various restrictions, including

lifting and carrying restrictions. On some occasions, the agency provided

appellant with temporary light duty assignments, and on other occasions

it did not. When it did not, unavailability of work within appellant's

current medical restrictions was cited as the reason. The Manager also

testified that he was not really persuaded by the validity of appellant's

medical restrictions because they kept changing.

On November 2, 1995, 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 23, 1997, following a hearing at which eight witnesses

testified, the AJ issued a decision concluding appellant had been

discriminated against on the basis of his physical disability when the

agency failed to consistently provide him with a light duty assignment

between September 1994 and September 1996.<2> In reaching this

conclusion, the AJ found no evidence that the agency made a good faith

effort to assess the appellant's job skills, his medical restrictions,

the work environment and the agency's resources, and make an informed

determination whether it could provide appellant with an assignment

without creating an undue hardship on its operations. Prior to September

1994, the AJ was persuaded by the evidence submitted by the agency that

there was no work available for appellant because of the nature and extent

of his medical restrictions. However, the AJ found that as appellant's

medical restrictions lessened over time, the agency failed to conduct

any real continuing assessment to determine if what type of work was

available which he might do. The AJ also noted that the applicable

collective bargaining agreement required the agency to provide for

no less than six light duty positions at the facility. The evidence

established that for much of the period in question, there were actually

less than six individuals occupying those light duty positions.

On May 6, 1998, the agency issued its final decision rejecting the

AJ's conclusion that it had unlawfully failed to provide appellant with

reasonable accommodation to his disability in the form of an assignment

to a light duty position. 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 raised

by the agency in its final decision or on appeal differs significantly

from the arguments presented to, and considered by, the AJ when he issued

his decision. The Commission is unpersuaded by the agency's assertion

that appellant's condition was temporary in nature and, therefore, not a

disability within the meaning of the Rehabilitation Act. The agency also

incorrectly argued that appellant was not a "qualified" individual with

a disability because he was unable to perform his original Mailhandler

duties. A determination of whether or not an individual is qualified

must take into account the provision of reasonable accommodations,

including reassignment. 29 C.F.R. �1614.203(a)(6). The Commission

concurs with the AJ that the agency's duty to reasonably accommodate

appellant under the Rehabilitation Act included an attempt to reassign

appellant to a suitable position. See Dudley v. United States Postal

Service, EEOC Request No. 05920572 (May 13, 1993); Ignacio v. United

States Postal Service, EEOC Petition No. 03840005 (September 4, 1984),

aff'd, Special Panel No. 1 (February 27, 1986). While the agency's

assertion that it did not have to create a new position is true, the

agency was required to make a good faith effort to locate a suitable

vacant and funded position for appellant. See Lowery v. United States

Postal Service, EEOC Appeal No. 01961852 (October 31, 1997). As the AJ

correctly noted, it is precisely the agency's lack of effort in searching

for such a position which resulted in the finding of discrimination.

The applicable collective bargaining agreement provided for light duty

positions, and the agency never provided sufficient explanation for why,

when such positions were available, appellant was not placed in one

of them.

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 unlawful failure to provide appellant with reasonable

accommodation to his physical disability. 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 sixty (60) calendar days of the date this decision becomes

final, the agency is directed to restore to appellant any wages lost

(with interest), leave used and/or other benefits lost due to the

agency's discriminatory actions for September 1, 1994 through September

1996, when appellant returned to full duty.

(B) The agency shall provide immediate training to the officials

responsible for its actions in this matter regarding their obligations

and responsibilities under the Rehabilitation Act.

(C) The agency shall post at the Atlanta, Georgia, Bulk Mail Center

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.

(D) If appellant has been represented by an attorney (as defined by 29

C.F.R. �1614.501 (e)(1)(iii)), he is entitled to an award of reasonable

attorney's fees incurred in the processing of her complaint and/or this

appeal. 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.

(E) The agency shall conduct a supplemental investigation pertaining

to appellant's entitlement to compensatory damages incurred as result

of the agency's discriminatory actions in this matter. See Feris

v. Environmental Protection Agency, EEOC Appeal No. 01934828 (August

10, 1995), request to reopen denied, EEOC Request No. 05950936

(July 19, 1996); Rivera v. Department of the Navy, EEOC Appeal

No. 01934157 (July 22, 1994); Carle v. Department of the Navy,

EEOC Appeal No. 01922369 (January 5, 1993). See also, Cobey Turner

v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518

(April 27, 1998); Jackson v. United States Postal Service, EEOC Appeal

No. 01923399 (November 12, 1992), request for reconsideration denied,

EEOC Request No. 05930306 (February 1, 1993). The agency shall afford

appellant sixty (60) days to submit additional evidence in support

of his claim for compensatory damages. Within thirty (30) days of

its receipt of appellant's evidence, the agency shall issue a final

decision determining appellant's entitlement to compensatory damages,

together with appropriate appeal rights.

(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 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.

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:

September 9, 1999

_________________ _______________________________

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. Sect. 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 Atlanta, Georgia, Bulk Mail Center supports and will comply with

such Federal law and will not take action against individuals because

they have exercised their rights under law.

The Atlanta, Georgia, Bulk Mail Center has been found to have

discriminated against the individual affected by the Commission's

finding on the basis of his physical disability when his request for

a reassignment to a light duty position was denied. The Commission

has ordered that this individual be awarded back pay with interest,

as well as restoration of leave and other benefits lost as a result of

the agency's actions. In addition, the Commission ordered the agency

to investigate the individual's claim for compensatory damages and

provide training to the responsible management officials. The Atlanta,

Georgia, Bulk Mail Center 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 Atlanta, Georgia, Bulk Mail Center 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 16141 It appears that on September 20, 1994, appellant's

doctor modified the restriction on standing and kneeling to no more than

4 hours during a shift.

2 On the other hand, the AJ found insufficient evidence of disparate

treatment based on sex. Appellant has not challenged this finding

on appeal. Therefore, the Commission will not address it further in

this decision.