01971964
09-11-2000
Roy H. Mees, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Roy H. Mees v. United States Postal Service
01971964
.
Roy H. Mees,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01971964
Agency No. 4-H-390-1032-95
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).<2> Complainant alleged that he
was discriminated against based on his age (56) and physical disability
(herniated lumbar disc) when his request for permanent light duty was
denied.
ISSUES PRESENTED
The issues on appeal are whether the agency erred in finding that
complainant was not discriminated against on the basis of his age or
disability when, on October 11, 1994, he was informed that his request
for permanent light duty was denied.<3>
BACKGROUND
The record reveals that complainant, a former window clerk at an agency
facility in Jackson, Mississippi, filed a formal EEO complaint with the
agency on December 29, 1994, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
complainant requested a hearing before an Equal Employment Opportunity
Commission (EEOC) Administrative Judge (AJ), but apparently withdrew his
request on the day of the scheduled hearing, whereupon the AJ remanded
the matter to the agency.<4>
The agency issued a FAD finding no discrimination. Specifically, with
respect to complainant's age discrimination claim, the agency found that
complainant failed to establish a prima facie case of discrimination based
on age, because the younger co-worker cited by complainant as a comparator
had-received a temporary, rather than permanent, light-duty assignment,
and therefore complainant failed to identify a similarly situated employee
who received favorable treatment. With respect to complainant's disability
discrimination claim, the agency found that complainant had failed to
establish that he was a "qualified individual with a disability" within
the meaning of the Rehabilitation Act. The FAD further found that even
assuming complainant was a "qualified individual with a disability,"
management had properly denied his request for permanent light duty
because "management had nothing, on a permanent basis, to offer." Finally,
the FAD concluded, in the alternative, that complainant had filed his
complaint prematurely, because he did not complete agency procedures
for requesting a permanent light-duty assignment until after he filed
his formal complaint alleging discriminatory denial of the assignment.
The agency stands on the record and requests that the Commission affirm
its final decision. Complainant has submitted no contentions on appeal.
ANALYSIS AND FINDINGS
With respect to complainant's disability discrimination claim,
complainant must first establish that he is a "qualified individual
with a disability" within the meaning of the Rehabilitation Act. An
individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such impairment; or (3) is regarded as having such an
impairment. Major life activities include, but are not limited to, caring
for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. Lifting has also been recognized by
this Commission as a major life activity. See, e.g., Haygood v. United
States Postal Service, EEOC Appeal No. 01976371 (April 25, 2000); Selix
v. United States Postal Service, EEOC Appeal No. 01970153 (March 16,
2000). A "qualified" individual with a disability is one who satisfies
the requirements for the employment position he holds or desires and
can perform the essential functions of that position with or without
reasonable accommodation.
The Record of Investigation (ROI) contains a Work Restriction
Evaluation Form completed by complainant's physician on November 8,
1994, approximately one year following complainant's back surgery
for a herniated lumbar disc. The form advised the agency that due to
complainant's post-surgical impairments, he was completely restricted from
climbing, kneeling, bending/stooping, or twisting, and could not lift or
carry more than ten pounds, push or pull more than twenty pounds (or more
than two hundred pounds if on wheels), or stand continuously. The agency's
contract physician, based on the December 16, 1994, fitness for duty (FFD)
examination, concurred with this assessment, diagnosing complainant as
follows: "status post laminectomy for herniated disc, L5, S1 level with
persistent deep tendon reflexes (sic) losses in left leg." ROI Exhibit 9
at 1. The agency's physician further concluded: "... the positive findings
are related to the patient's musculoskeletal and neurologic examination
... Because of the patient's subjective complaints and objective findings
this combination leads me to recommend that [complainant] be placed on
a permanent light duty position if this is possible." Id.
The record indicates that these restrictions were long-term, inasmuch
as both complainant's physician and the agency's own contract physician
recommended complainant for permanent, not temporary, light duty. See ROI
Exhibit 9 at 1-2. Complainant's own physician stated it was "undetermined"
when complainant could return to unrestricted duty. ROI Exhibit 6 at
1. Also, by letter from the Postmaster, the agency advised complainant
that he had improperly applied for temporary rather than permanent light
duty given the apparent nature of his restrictions. ROI Exhibit 8 at
1. Moreover, the instant request for light duty was made by complainant
and approved by both his physician and the agency's physician more than
one year following his back surgery, and he had been off of work most or
all of the time since then due to the continuing limitations resulting
from his impairment.
Thus, since complainant's herniated disc and resulting long-term nerve
losses substantially limited, inter alia, his ability to lift, we conclude
that he is an "individual with a disability" under the Rehabilitation
Act. See, e.g., Haygood v. United States Postal Service, EEOC Appeal
No. 01976371 (April 25, 2000).
We next consider whether complainant is a "qualified individual with a
disability" under the Rehabilitation Act. The agency incorrectly concluded
that complainant was not "qualified" because he could not perform the
essential functions of his then-current position as a window clerk. To
the contrary, the inquiry 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. See Van
Horn v. United States Postal Service, EEOC Appeal No. 01960159 (October
23, 1998). When an employee cannot perform the essential functions of
his current position because of a disability, and no accommodation is
possible in that position, reasonable accommodation includes reassignment
to another position. Ignacio v. United States Postal Service, EEOC
Petition No. 03840005 (September 4, 1984), aff'd, 30 M.S.P.R. 471
(Spec. Pan. February 7, 1986). While the agency is not obligated to create
a new position for complainant, it must make a good faith effort to locate
a vacant, funded position for which complainant was qualified. Therefore,
"[o]nly after determining that reassignment to a vacant position was not
possible or would result in an undue hardship, would the Rehabilitation
Act permit the agency to conclude that [a complainant] is not a qualified
individual with a disability." Kitaura v. United States Postal Service,
EEOC Petition No. 03980089 (March 11, 1999).
The agency asserts that complainant's request for permanent light duty was
denied because "management had nothing on a permanent basis to offer." FAD
at 6. However, apart from a generalized assertion in the Postmaster's
affidavit that no position was identified which matched complainant's
physical abilities, the record contains no objective evidence to support
this determination, or even to demonstrate that a search was actually
conducted for vacant positions at other facilities to which complainant
could reasonably have been reassigned. Based on this failure of the
agency to produce any such evidence, we must conclude that the agency
failed to satisfy its obligation under the Rehabilitation Act. See Flowers
v. United States Postal Service, EEOC Appeal No. 0198487 8 (September 9,
1999); Lowery v. United States Postal Service, EEOC Appeal No. 01961852
(October 31, 1997).
Finally, we note that the agency improperly concluded that complainant's
complaint was prematurely filed. The complaint alleges that complainant
was advised on October 11, 1994, that there was no light duty work
available for him. In his affidavit, complainant specifies that this was
the date on which the union president informed him that management had
stated there were no positions into which complainant could be placed
given his medical restrictions, and that he should retire rather than
seek to return to work. The agency contends that it had received no light
duty request from complainant by October, 1994. The record reveals that
the agency contract physician's report was dated December 16, 1994, and
complainant was sent a letter dated April 3, 1995 denying his request
for permanent light duty.
The agency relies on managerial affidavits stating that no request for
permanent light duty had been received from complainant as of the time
he initiated counseling, and that even when complainant subsequently
submitted a "temporary light duty request form" with the word "temporary"
crossed out and the word "permanent" written in its place, this failed
to comply with the agency's formal request procedure for permanent light
duty.<5> Nonetheless, based on the agency's own affidavits contained
in the ROI, it is undisputed that by the time the agency investigated
complainant's formal complaint, complainant had completed the agency's
formal request process for permanent light duty, his request had been
denied, and the agency processed the complaint accordingly. Therefore,
the formal denial of complainant's request for permanent light duty,
occurring subsequent to initiation of EEO Counselor contact, is
encompassed within the complaint. Cf. Charles v. Department of Treasury,
EEOC Request No. 05910190 (February 25, 1991) (where a complaint is
filed with respect to a proposed action and the agency later proceeds
with the action, then the action and the proposed action merge).
In light of our finding that the agency failed to establish it made a
good faith effort to locate a vacant position for which complainant
was qualified to be reassigned as a reasonable accommodation, we do
not reach complainant's separate claim of disparate treatment based on
disability. Further, for the reasons set forth in the FAD, we affirm the
agency's finding that complainant failed to establish age discrimination
CONCLUSION
For the foregoing reasons, as well as based on arguments and evidence
not addressed herein, it is the decision of the Commission that the
FAD is affirmed with respect to the finding of no age discrimination,
but is reversed with respect to complainant's claim of disability
discrimination. Based on the foregoing analysis, we hereby find that
complainant was discriminated against based on disability. The agency
is ORDERED to provide the relief specified below.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall retroactively reinstate complainant to his
former position at the Jackson, Mississippi, Candlestick Station
facility. Complainant shall be given a minimum of fifteen 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 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.
2. 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 denied
light duty (April 3, 1995), and the date he returns to duty, declines the
offer of reinstatement, or was otherwise unable to return to duty. 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."
3. The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as a result
of the agency's discriminatory actions in this matter.<6> The agency
shall afford complainant sixty (60) days to submit additional evidence
in support of his claim for compensatory damages. Within thirty (30)
days of its receipt of complainant's evidence, the agency shall issue
a final decision determining complainant's entitlement to compensatory
damages, together with appropriate appeal rights.
4. The agency shall provide training to all the management officials
responsible for this matter in their duties and obligations under the
Rehabilitation Act.
5. 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,
and the agency's decision regarding compensatory damages, including
evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Jackson Mississippi, Candlestick
Station 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 insure 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.
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 (M0300)
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); 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 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 (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until such
time as the agency issues its final decision on your complaint. 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 (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 11, 2000
__________________
Date
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 Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., has occurred at the United States
Postal Service's Candlestick Station facility in Jackson, Mississippi.
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 facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against
the individual affected by the Commission's findings on the basis of
disability, when the agency failed to accommodate him by reassignment to a
light duty position. The agency shall therefore remedy this discrimination
by providing this individual with reinstatement, back pay, and restoration
of other attendant benefits. The agency will also provide compensatory
damages if proven, 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.
The facility 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 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.
2On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3In his affidavit submitted during the agency investigation of his
complaint, complainant clarifies that he alleges both disparate treatment
based on disability and failure to accommodate his disability.
4The record does not contain any documentation reflecting complainant's
withdrawal of his original request for a hearing, or the AJ's subsequent
remand of the matter to the agency. However, complainant has not
disputed on appeal this procedural history as recited in the final agency
decision.
5Requests for accommodation need not be in writing, nor in a particular
format, in order to trigger the employer's obligation to commence the
interactive process of clarifying and assessing the request. See, e.g.,
Schmidt v. Safeway Inc., 864 F. Supp. 991 , 997 (D. Or. 1994) ("statute
does not require the plaintiff to speak any magic words . . . . The
employee need not mention the ADA or even the term 'accommodation'"); see
also Hendricks-Robinson v. Excel Corp., 154 F.3d 685 , 694 (7th Cir. 1998)
("[a] request as straightforward as asking for continued employment is
a sufficient request for accommodation").
6The Commission notes that this is not a case where the agency made
a "good faith effort" to reasonably accommodate complainant, thereby
insulating it from an obligation to award appropriate compensatory damages
based on the instant finding of discrimination under the Rehabilitation
Act. See Teshima v. United States Postal Service, EEOC Appeal No. 01961997
(May 5, 1998).