01981368
11-27-2000
Stanley Ness, Complainant, v. William J. Henderson, Postmaster General, (Midwest Area), United States Postal Service, Agency.
Stanley Ness v. United States Postal Service
01981368
November 27, 2000
.
Stanley Ness,
Complainant,
v.
William J. Henderson,
Postmaster General,
(Midwest Area),
United States Postal Service,
Agency.
Appeal No. 01981368
Agency No. 4I-630-1161-94
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of reprisal (prior EEO activity)
and physical disability (Interstitial Cystitis), in violation of Title
VII of the Civil Rights Act of 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.<1> The appeal is accepted in accordance with 29 C.F.R. � 1614.405.
For the following reasons, the agency's decision is AFFIRMED as CLARIFIED
in part and REVERSED and REMANDED in part.
ISSUES PRESENTED
The issues on appeal are whether complainant established, by a
preponderance of the evidence, that he was discriminated against as
stated above when:
he was denied a permanent light duty assignment on May 31, 1994, and
June 1, 1994;
he was denied a reasonable accommodation of two consecutive days off
since June 21, 1995, and ongoing;
he was removed for being physically unable to perform the duties of the
position for which he was hired; and
he was asked to provide medical documentation to support his request
for sick leave on July 27, 1994; and
whether the agency failed to acknowledge, accept or process complainant's
claims that:
he was discriminated against due to his Disabled Veteran status;
agency management officials provided false testimony during complainant's
arbitration hearing;
he was charged three days as absent without leave (AWOL) when he was
injured on January 25, 1994;
the agency breached its settlement agreement with complainant in agency
case number 4-P-0027-9;
he was harassed by agency management officials; and
he was denied due process of law due to the �dysfunctional� EEO complaints
processing system in the Gateway District.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a PS-05 Bulk Mail Technician, in a limited duty assignment,
at the agency's Columbia, Missouri postal facility. After complainant
was denied injury compensation for a work-related injury, he requested
permanent light duty on May 24, 1994. The following day, complainant
verbally contacted the EEO office and requested counseling. On May 31,
1994, the facility Postmaster (PM) informed complainant that there
were no light duty positions available at the Main Post Office, and
forwarded his request to the Manager of Processing and Distribution at
the Plant facility (Plant Manager). PM also informed complainant that
his present position would be posted as vacant because he was unable to
perform the physical requirements of the position. On June 1, 1994,
the Plant Manager notified complainant that there were no light duty
positions at the Plant facility. Complainant contacted the EEO office,
alleging discrimination based on the above-referenced actions by agency
management. Complainant declined to extend the time period for EEO
counseling and subsequently requested a copy of his written complaint
from the EEO office. The agency EEO office did not provide complainant
a copy of his complaint.
On June 24, 1994, PM issued complainant a proposed notice of removal
for being �[p]hysically unable to perform the duties of [the] position
for which [he] was hired.� On July 5, 1994, complainant and his union
representative met with PM and verbally objected to the proposed notice
of removal. On July 18, 1994, PM informed complainant that the proposed
notice of removal was fully supported despite his verbal protestations,
and that he would be removed, effective August 1, 1994.
On July 21, 1994, complainant requested sick leave for July 27,
1994, and his supervisor conditioned its approval on his producing
medical documentation to substantiate the need for sick leave.
Although complainant refused to provide the requested information,
his supervisor ultimately approved complainant's sick leave request.
Complainant filed a grievance with the union concerning his termination,
which ultimately went to arbitration. On March 19, 1995, the Arbitrator
assigned to hear complainant's grievance (Arbitrator) issued a decision
finding that the agency improperly removed complainant from his position
without fulfilling its duty under the Collective Bargaining Agreement to
find him a light duty position. See In the Matter of the Arbitration
between United States Postal Service and American Postal Workers
Union, AFL-CIO, Grievance Case No. I9OC-4I-D 94067015 (March 19, 1995),
Investigative File, Exhibit 7. In his decision, the Arbitrator discussed
complainant's disability, Interstitial Cystitis,<2> its manifestations,
and impact on complainant's daily life.<3> In concluding that the agency
breached the collective bargaining agreement, the Arbitrator noted that
�what went awry here was the process of searching for an appropriate
light duty position which [complainant] could perform within his medical
restrictions.� The Arbitrator ordered the agency to re-examine whether
there was a light duty position within complainant's medical restrictions,
and also ordered the agency to provide complainant back pay and interest
from the date of his removal until the date the agency offered him a
light duty position, or the date the agency determined that there was
no light duty position within complainant's medical restrictions.
Four days later, complainant was offered a light duty position with the
agency as a PS-04 Markup Clerk, with off days on Sunday and Thursday
(his off days had previously been Saturday and Sunday), and with a saved
grade (PS-05) for two years. On April 19, 1995, the Arbitrator upheld
the agency's decision to offer complainant a Markup Clerk position,
despite complainant's contention that the agency's offer was arbitrary,
and that complainant should have been permitted to return to his prior
limited duty assignment.
On June 21, 1995, complainant requested a reasonable accommodation of
two consecutive days off, as he previously had, due to his Interstitial
Cystitis. Despite providing additional medical documentation in response
to PM's written request, complainant was never granted the requested
accommodation.<4> Even after complainant repeatedly requested the
above accommodation, he was informed that he had to provide medical
documentation, notwithstanding the fact that he had already provided
such documentation. See supra footnote 4.
The record also reveals that over the course of twenty months, complainant
drafted five letters to the EEO Manager seeking counseling and attempting
to initiate the formal complaint process. Complainant's appeal indicates
that the agency EEO office in the Gateway District received these letters,
as copies of certified receipts were included with most of the documents.
Notwithstanding complainant's numerous attempts to have his EEO matters
processed, none of those letters received a response from the Gateway
District EEO office. Ultimately, on January 31, 1996, complainant was
interviewed by an EEO Counselor. Notwithstanding complainant's voluminous
correspondence with the EEO Manager, the Counselor's Report only
referenced issues (1) and (3) and alluded to issue (2).<5> Complainant
submitted a formal EEO complaint on February 14, 1996. Complainant also
submitted a letter with the formal complaint. In this letter, complainant
set forth, in varying detail, the issues identified herein as (1) through
(10). The agency's investigative file does not contain the letter or
its numerous attachments, but complainant's appeal documents indicate
that the agency did receive the above-referenced documents.
The agency did not accept complainant's complaint until June 7, 1996,
and it only accepted issues (1) and (3), based on physical disability
(Interstitial Cystitis). The agency neither accepted nor dismissed
complainant's other claims, but informed complainant that if he objected
to the defined issues, he should �provide [the agency] with sufficient
reasons to substantiate [complainant's] objections, in writing, within
seven (7) calendar days of receipt of this letter.� On June 11, 1996,
complainant submitted a letter to the Gateway District EEO office,
wherein he disagreed with the limited scope of the agency's proposed
investigation. Complainant's lengthy letter was in large part a
restatement of his formal complaint, and he requested that the agency
address issues (2) and (4) through (10). Complainant also requested
�compensation for pain and suffering.� The agency did not respond to
complainant's letter.
On January 1, 1997, complainant received a copy of the investigative
file and requested a final agency decision (FAD). Additionally, and
having found the investigative file to be incomplete and inaccurate,
complainant attached his June 11, 1996, letter to his request for a FAD,
and renewed his request for the agency to investigate all of his claims
of discrimination. The agency did not include this correspondence in
the investigative file, though complainant provided evidence on appeal,
again in the form of a signed certified mail receipt dated January 7,
1997, that the Gateway District EEO office received this correspondence.
There is no record of any response by the agency.
Ten months later, on November 3, 1997, the agency issued its FAD.
In its FAD, the agency asserted that it had no record of any response
from complainant requesting a final agency decision, and proceeded
to address the issues herein identified as issues (1), (3) and (4).
Concerning issue (1), the agency concluded that by complying with
the Arbitrator's decision, it had fulfilled its obligation under the
Rehabilitation Act. Concerning issue (3), the agency concluded that
the removal issue was moot because the effects of complainant's removal
were completely eradicated by the Arbitrator's award. Concerning issue
(4), the agency concluded that the request for medical documentation
was consistent with provisions in its Collective Bargaining Agreement,
and because complainant was granted the requested sick leave without
having to provide the requested documentation, he experienced no harm.
Concerning complainant's retaliation claim, the FAD concluded, based on
PM's statement that he was unaware of complainant's EEO activity in 1987,
and the Plant Manager's testimony that he only had a vague recollection of
complainant's prior EEO activity, that complainant's prior EEO activity
had nothing to do with their actions, and that complainant therefore
did not establish the requisite nexus between the protected activity
and the alleged acts of retaliation.
On appeal, complainant submitted a detailed record and account of
his ongoing effort to address his claims through the EEO office.
As relief, complainant requested, among other things, �any other relief
deemed appropriate.� The agency stands on the record and argues that
complainant's inclusion of other issues that were not included in the
formal complaint should not be addressed on appeal. The agency requests
that the Commission affirm its FAD.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission will address each
of the issues, as set forth below:
Issues (1) through (3)
The Commission first notes that complainant requested compensatory
damages. The Commission has held that an agency must address the issue of
compensatory damages before it can dismiss a complaint for mootness. See
Rouston v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (March 18, 1999). Thus, the agency's dismissal of issue
(3) as moot was improper because it did not address compensatory damages
in its FAD.
We next note that the agency, in its final decision and on appeal,
did not dispute that complainant is an individual with a disability
as defined by the Rehabilitation Act.<6> Therefore, this issue is not
before the Commission on appeal, and need not be further discussed or
addressed. The dispositive issue in this case is whether the agency met
its responsibility to provide complainant with reasonable accommodations
to his disability in response to complainant's requests for permanent
light duty.
While the Rehabilitation Act does not require an employer to create a
light duty position as an accommodation, it does require an employer,
absent undue hardship, to accommodate a qualified individual with a
disability by restructuring a position through redistribution of marginal
functions which he cannot perform because of disability, or by reassigning
him to an equivalent existing vacancy for which he is qualified. Williams
v. United States Postal Service, EEOC Appeal No. 01973755 (September 11,
2000); Flowers v. United States Postal Service, EEOC Appeal No. 01984878
(September 9, 1999); Lowery v. United States Postal Service, EEOC Appeal
No. 01961852 (October 31, 1997); 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). The Commission has also stated that
�the employer and the individual with a disability should engage in an
informal process to clarify what the individual needs and identify the
appropriate reasonable accommodation.� See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, No. 915.002, (March 1, 1999), at p. 11. See also
Crider v. Department of Veterans Affairs, EEOC Request No. 05960632
(October 16, 1998).
The agency maintains that it fulfilled its duty under the Rehabilitation
Act when it reassigned complainant to a light duty position, pursuant to
the order of an Arbitrator, as stated herein. We disagree. The agency
has failed to provide any evidence that from the time of his initial
request, it engaged in the requisite, interactive process, and as
a result of such process, concluded that complainant could not be
reasonably accommodated in any position within the agency. It appears
clear that prior to the Arbitrator's order, the agency refused to
give meaningful consideration to complainant's request. Yet, when
the Arbitrator ordered the agency to seek a light duty position for
complainant within his medical restrictions, the agency was able to
locate and offer complainant a light duty position within four days of
the Arbitrator's decision. Moreover, even during that search, there is
no indication that the agency attempted to engage in any interactive
process with complainant or that it engaged in a good faith search
to identify a position in complainant's grade, and within his medical
restrictions. See Williams v. United States Postal Service, EEOC Appeal
No. 01973755 (September 11, 2000). Thus, while the agency may have
complied with the Arbitrator's order by reassigning complainant to a
vacant position ten months after he was denied a light duty position,
this action cannot insulate the agency from its failure to provide
complainant a reasonable accommodation at the onset. The Commission
therefore concludes that the agency violated the Rehabilitation Act by
failing to consider complainant's initial request for reassignment to
a light duty position, and ultimately terminating him.
The record also reveals that while complainant's position prior to his
termination entitled him to consecutive days off, he was placed in a
light duty position with non-consecutive days off. Shortly thereafter,
complainant requested consecutive days off as an accommodation in his new
light duty position. Upon receiving this request, PM requested medical
documentation to substantiate complainant's request. Complainant's
physician provided the documentation requested by PM. See supra
footnote 4. PM, however, refused to grant the requested accommodation.
The correspondence from PM provides no explanation as to why he did not
accept complainant's physician's note. There is no record that PM or
any other agency management official contested the sufficiency of the
information justifying the need for two consecutive days off. To the
contrary, it appears that PM did not believe complainant was impaired
to any substantial degree, and he felt that complainant merely wanted
his way and would reference his disability to avoid performing duties.
Based on the record, the Commission concludes that PM failed to provide
a reasonable accommodation when he refused to give complainant two
consecutive days off. On remand, the agency shall confer with complainant
in order to determine his various limitations, reexamine the available
vacancies within complainant's grade, and, absent any undue hardship,
place complainant in a position or arrange his existing schedule, such
that he has two consecutive days off. Such a process shall be conducted
in an expedited fashion, given the medical necessity for consecutive
days off evident in the record.
Concerning complainant's remedies, the Commission first notes that
complainant is entitled to back pay and interest at a PS-05 grade from
the time of his removal through to the time the agency identifies a
position in its facility, at a PS-05 level, which has consecutive days
off or otherwise is consistent with his present needs for a reasonable
accommodation, consistent with this decision and its accompanying ORDER.
The Commission acknowledges that complainant has been reinstated and
received back pay and interest pursuant to the Arbitrator's finding.
While the record indicates that complainant was placed in a PS-04
position, it had a saved grade of PS-05 for only two years. Thus, the
agency shall be responsible for providing complainant any additional
back-pay and interest due him at a PS-05 grade level, less earnings
received, until such time as the agency has offered complainant a PS-05
grade level position consistent with his disability and present needs
for an accommodation, or until such time as the agency determines that
there are no available positions at the PS-05 grade level which can
accommodate his present needs for an accommodation.
Additionally, the issue of compensatory damages was not addressed by
the agency. In this respect, we note that the Civil Rights Act of 1991,
Section 1977A(3) (42 U.S.C. � 1981(a)(3)), provides that compensatory
damages are not available for findings of discrimination under the
Rehabilitation Act for failure to accommodate where an agency has made
a �good faith effort� to reasonably accommodate a complainant. See
Morris v. Department of Defense, EEOC Appeal No. 01962984 (October 1,
1998) n.3. Here, however, the Commission finds that the agency did
not demonstrate that it engaged in a good faith effort to reasonably
accommodate complainant, and thus, compensatory damages are available to
the extent such damages are established on remand. See West v. Gibson,
527 U.S. 212 (1999).
In addition, there is no indication in the record that complainant
was credited with the appropriate accrued sick leave and annual leave,
or applicable seniority. Where discrimination is found, the injured
party is to be placed, as near as may be, in the situation he would have
occupied if the wrong had not been committed. Albemarle Paper Company
v. Moody, 422 U.S. 405, 418-19 (1975). On remand, the agency shall,
to the extent applicable, provide complainant with any applicable sick
and annual leave, seniority, or other benefits he would have earned
at a PS-05 grade level, between the date of complainant's termination
and the date of his reinstatement. Finally, the Commission, having
found discrimination based on physical disability, need not address
complainant's claim of retaliation, as the remedies available would not
be augmented, even with a finding of retaliation.
Issue (4)
The Commission agrees with the agency that complainant has not established
a prima facie case of disparate treatment based on disability or
retaliation because he was not aggrieved, as he experienced no present
harm to a term or condition of employment when the agency requested
medical documentation to support his request for sick leave. See 29
C.F.R. � 1614.107(a); Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). In this respect, we note that the
relevant Collective Bargaining Agreement does not preclude a supervisor
from requesting medical documentation to substantiate a request for sick
leave, and complainant did not allege that he was treated differently from
non-disabled employees when he was asked to provide medical documentation
to support his request.<7> As complainant did not experience any adverse
treatment to a term or condition of employment, he fails to establish
a prima facie case of discrimination. We therefore AFFIRM as CLARIFIED
the agency's finding of no discrimination respecting this issue.
Issues (5) through (10)
Concerning the issues identified herein as issues (5) through (10), we
find the FAD did not address these claims because the agency failed to
properly accept, define and ultimately process complainant's complaint
dated February 14, 1996. As reflected in the background portion of this
decision, there are numerous claims in the complaint which the agency
never acknowledged or accepted in its letter of acceptance. The Gateway
District EEO office failed to include voluminous correspondence from
complainant in the complaint file which set forth these additional
claims, and apparently did not respond to complainant's correspondence
concerning these additional claims notwithstanding his continuous attempts
to have them addressed. The agency does not deny having received any
of the correspondence provided by complainant on appeal, and in fact,
complainant has established that the Gateway District EEO office received
his correspondence based on signed certified mail receipts included in
his appeal submission.
As the July 12, 1999 Preamble to the 1614 Regulations effective November
9, 1999 identified fragmentation of EEO complaints as a problem in the
Federal Sector, and based on the information available in the record in
conjunction with the agency's failure to process the above-referenced
issues, it would be inappropriate to remand any of the above-referenced
issues to the agency for further processing to the extent that the
Commission has adequate information in the complaint file upon which
to make a determination. Accordingly, the Commission will address the
issues numbered (5) through (10) below.
Issue (5) Complainant was discriminated against due to his Disabled
Veteran status
The Commission concludes that to the extent complainant alleges he
was denied rights due to his status as a disabled veteran, complainant
has failed to state a claim. The Commission has repeatedly held that
veteran preference or status is not a protected basis for filing an EEO
complaint and therefore such complaints are not within the purview of
EEOC Regulations. See Devereux v. United States Postal Service, EEOC
Request No. 05960869 n.1. (Apr. 24, 1997). Further, the Commission
does not have any part in the enforcement of or jurisdiction over
the Veterans Readjustment Act or Veterans Affirmative Action Program.
To the extent that complainant believes that the agency is treating
veterans or disabled veterans in a discriminatory manner, complainant
is advised to contact the Office of Federal Contract Compliance (OFCCP),
the agency charged with such enforcement. Accordingly, and to the extent
the complainant has raised this as an issue in his appeal, the Commission
need not respond further for the reasons set forth above.
Issue (6) Agency management officials provided false testimony during
complainant's arbitration hearing.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense , EEOC Request No. 05970596 (July 30,
1998); Kleinman v. United States Postal Service, EEOC Request No.
05940585 (September 22, 1994); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 25, 1993). The proper forum for
complainant to have raised his challenges to actions which occurred
during the arbitration proceeding was at that proceeding itself. It is
inappropriate to now attempt to use the EEO process to collaterally attack
actions which occurred during the arbitration process. Accordingly, and
to the extent the complainant has raised this as an issue in his appeal,
the Commission need not respond further for the reasons set forth above.
Issue (7) Complainant was charged three days as absent without leave
(AWOL) when he was injured on January 25, 1994
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record reveals that the earliest date of initial counselor contact
was May 25, 1994, which is more than forty-five (45) days from the date
of the above-referenced incident. Complainant has presented no evidence
that he was not notified of the time limits and was not otherwise aware
of them, or that any other equitable reason would warrant an extension
of the time limit. Accordingly, and to the extent the complainant has
raised this as an issue in his appeal, the Commission need not respond
further for the reasons set forth above.
Issue (8) The agency breached its settlement agreement with complainant
in agency case number 4-P-0027-9
In his correspondence dated February 14, 1996, and sent to the
agency along with his formal complaint also dated February 14, 1996,
complainant claimed that the agency breached a settlement agreement
with him because �...the Postal Service had agreed to accommodate
[complainant's] medical restrictions for his interstitial cystitis.�
When the agency received this correspondence, it should have processed
the above pursuant to the Commission's Regulations concerning an alleged
breach of settlement agreement, found at 29 C.F.R. � 1614.504. The
Commission has already concluded, however, that the agency violated the
Rehabilitation Act when it failed to provide a reasonable accommodation
for complainant's disability. Thus, even assuming that the agency
breached its settlement agreement by failing to provide complainant with
a reasonable accommodation for his disability, he would be entitled to
no more relief then he is already obtaining as a result of this decision
and its accompanying ORDER. Moreover, an agency's duty to accommodate a
qualified individual with a disability is mandated by the Rehabilitation
Act and thus is independent of any duty it owed complainant pursuant
to a settlement agreement. Accordingly, the Commission concludes that
remanding issue (8) for further processing consistent with 29 C.F.R. �
1614.504 is not warranted, and to the extent the complainant has raised
this as an issue in his appeal, the Commission need not respond further
for the reasons set forth above.
Issue (9) Complainant was harassed by agency management officials
In his correspondence dated February 14, 1996, and sent to the agency
along with his formal complaint also dated February 14, 1996, complainant
alleged that his supervisor and a co-worker would not fill in for him
at the bulk mail acceptance area and would repeatedly page him over the
intercom to report to his duty station during the numerous bathroom
visits required as a result of his disability. Complainant further
alleged that he was assigned simultaneous incoming phone duty and
processing of NOV's which did not allow him to take bathroom breaks,
notwithstanding his need for regular and occasionally urgent bladder
movements more than once every hour. If proven, such acts of harassment
based on complainant's disability are sufficiently severe or pervasive
to state a claim of harassment under Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
The Commission again notes that because the agency failed to properly
process complainant's formal complaint, the agency did not investigate his
hostile work environment claim. Although the Commission is reluctant
to remand any claim which would result in further fragmentation of
complainant's EEO claims, we are left with no option other than to remand
issue (9) for an expedited supplemental investigation consistent with
this decision and its accompanying ORDER. The Commission further notes
that a potential finding that complainant was a subjected to a hostile
environment on the basis of his disability could have a substantial
impact on the amount of compensatory damages due him. Accordingly, any
determination into the amount of compensatory damages due complainant as
a result of the agency's violations of the Rehabilitation Act should be
held in abeyance pending the completion of an expedited investigation into
complainant's harassment claim. Accordingly, complainant's complaint
and subsequent appeal concerning issue (9) is REMANDED to the agency
for an expedited investigation consistent with this decision and its
accompanying ORDER.
Issue (10) Complainant was denied due process of law due to the
�dysfunctional� EEO complaints processing system in the Gateway
District.
The Commission finds, after an independent review of the record, that
the agency failed, over the course of a twenty month period, to provide
EEO counseling to complainant, despite his repeated attempts to secure
EEO counseling and file a formal EEO complaint. Additionally, and as
stated previously, the agency did not conduct a sufficient inquiry,
consistent with 29 C.F.R. � 1614.105 and our EEOC Management Directive
for 29 C.F.R. Part 1614 as revised, EEO-MD-110, at 2-8 and 2-9 (November
9, 1999) prior to issuing its letter of acceptance, as evidenced by the
numerous additional issues (and basis) neither accepted nor dismissed by
the agency in its letter of acceptance. Moreover, when confronted with
these errors by a letter from complainant per the agency's instructions,
the agency still took no action, and did not even acknowledge the dispute.
Furthermore, the agency investigation did not include a number of crucial
documents concerning, among other things, evidence of complainant's
physical impairments and various memoranda to the EEO office;<8> and
the final agency decision was issued, not within sixty days as required
by 29 C.F.R. � 1614.110, but after ten months. The agency's attempt
to deny receipt of the request for a FAD is undermined by a certified
receipt provided by complainant in his appeal documents. Finally, the
investigative file only contains a formal complaint dated February 14,
1996, and does not contain complainant's original formal complaint,
which has an illegible date in 1994.
While there is insufficient evidence that the Gateway District EEO Office
unlawfully interfered with complainant's EEO claim, see Pruette v. United
States Postal Service, EEOC Appeal No. 01951567 (March 10, 1998), the
Commission notes that based on the record of the agency's non-processing
or mis-processing of complainant's EEO claim, it is unclear whether
the above represents a systemic problem within the agency's Gateway
District EEO office. The Commission takes judicial notice that a number
of other complaints which have been processed through our hearings unit
in the St. Louis District Office corroborate complainant's allegation of
a dysfunctional EEO process in the Gateway District.<9> We also take
judicial notice of Congressional inquiries concerning labor management
relations and other problems related to the treatment of individuals
with disabilities at complainant's facility.<10>
We remind the agency of its obligation to process EEO complaints
of discrimination in a manner consistent with the EEOC Regulations.
In this respect, we note that 29 C.F.R. � 1614. 102(a)(2) provides that
agency's shall �[p]rovide for the prompt, fair, and impartial processing
of complaints in accordance with this part and the instructions contained
in the Commission's Management Directives.� Moreover, the Commission
has held that:
The agency has a continuing duty to promote the full realization of
equal employment opportunity in its policies and practices. This duty
extends to every aspect of agency personnel policy and practice in the
employment, advancement, and treatment of employees. Agencies shall,
among other things, insure that managers and supervisors perform in
such a manner as to effectuate continuing affirmative application and
vigorous enforcement of the policy of equal opportunity.
See George v. United States Postal Service, EEOC Request No. 05980451
(October 8, 1998) quoting Crespo v. United States Postal Service,
EEOC Request No. 05920842 (September 17, 1993). Here, the record
demonstrates the EEO office in the Gateway District did not effectuate
vigorous enforcement of the policy of equal opportunity, and, contrary
to 29 C.F.R. � 1614.102(a)(2), failed to provide for prompt, fair and
impartial processing of complainant's complaint.<11>
In analogous cases involving conflicts of interest, the Commission
has ordered another agency EEO office to assume processing of an EEO
complaint. See Davis v. Environmental Protection Agency, EEOC Request
No. 05920097 (March 12, 1992). Although there is no evidence of any
conflict here, the record clearly establishes that the EEO office in the
Gateway District failed to promptly, fairly, and impartially process
complainant's EEO complaint. Such failure to comply with 29 C.F.R. �
1614.102(a)(2) necessitates a similar remedy. Accordingly, on remand, the
Commission instructs the agency to assign all subsequent EEO processing
of complainant's complaint set forth herein to the agency's headquarters
EEO office in Washington, D.C. Further, the agency headquarters EEO
office shall conduct an on-site investigation concerning the actions or
inactions of the EEO office in the Gateway District which have given
rise to the course of events set forth herein, and issue a report to
the agency's Director of EEO and its Postmaster General, as well as
to the Commission's Compliance Officer, explaining what preventative
and curative actions it determines are required, and that it has taken,
in order to address the deficiencies in the Gateway District EEO office
evident in the record.
The agency shall assign an EEO investigator from its headquarters facility
within fifteen (15) days from its receipt of this decision. Thereafter,
the headquarters EEO investigator shall conduct concurrent, expedited
investigations into complainant's claim of hostile environment disability
discrimination (issue (9) herein), and complainant's compensatory
damages claim. The concurrent investigations shall be completed within
forty-five (45) days of the date the headquarters EEO investigator is
assigned to the case. Thereafter, the agency's headquarters EEO office
shall provide complainant a copy of the completed investigation and
provide a notice to complainant of his right to request a hearing or
a final agency decision on his hostile environment claim and his claim
for compensatory damages due him pursuant to 29 C.F.R. � 1614.108(f),
this decision and accompanying ORDER. If the agency fails to complete
its investigation within sixty (60) days of its receipt of this decision,
then complainant may request a hearing on his hostile environment claim
and compensatory damages by submitting a request for hearing with the
appropriate Commission office, with a copy to the agency, pursuant to 29
C.F.R. � 1614.108(g). Ultimately, either the agency or an Administrative
Judge from the Commission shall first rule on the merits of complainant's
hostile environment claim, and then make a determination as to what
compensatory damages, if any, are due complainant.<12>
CONCLUSION
Therefore, after a careful review of the record in its entirety, including
complainant's arguments on appeal, the agency's response, and arguments
and evidence not discussed in this decision, the Commission AFFIRMS as
CLARIFIED the FAD in part, to the extent that it found no discrimination
in issue (4), and to the extent it should have accepted and dismissed the
issues identified herein as (5) through (8); REVERSES and REMANDS the
FAD in part, finding that the agency unlawfully discriminated against
complainant concerning the actions alleged in issues (1) through (3),
and REMANDS in part, issues (9) and (10) identified herein to the agency
to take remedial actions in accordance with this decision and the ORDER
below.
ORDER (D0900)
The agency is ORDERED to take the following remedial action:
1. The agency shall reassign the processing of complainant's complaint,
including all compliance with this decision and accompanying ORDER,
the expedited investigation into complainant's hostile environment
claim, the supplemental investigation into complainant's entitlement to
compensatory damages, and FAD (if complainant does not request a hearing
before an Administrative Judge), to the agency's headquarters EEO Office
in Washington, D.C.
The agency's headquarters EEO office shall also conduct an on-site
investigation of the Gateway District EEO office concerning the prior
processing of complainant's complaint, and within ninety (90) days
of the date this decision becomes final, issue its findings to the
Director of EEO, the Postmaster General and the Compliance Officer,
as referenced below. The report should summarize its findings, and
set forth whatever preventative and curative actions are required and
it has taken in addition to that which the Commission has set forth in
paragraph nine of this ORDER.
Concerning complainant's hostile environment claim (issue (9)),
the agency headquarters EEO office shall assign an investigator from
headquarters office in Washington, D.C. within fifteen (15) days of
receipt of this decision. Thereafter, the headquarters EEO investigator
shall conduct concurrent, expedited investigations into complainant's
hostile environment claim and his claim for compensatory damages.
The investigator shall afford complainant an opportunity to establish
a causal relationship between the incident of discrimination and any
pecuniary or non-pecuniary losses. See West v. Gibson, 527 U.S. 212
(1999); Cobey Turner v. Department of the Interior, EEOC Appeal
Nos. 01956390 and 01960158 (April 27, 1998). The complainant shall
cooperate in the agency's efforts to obtain evidence concerning the
amount of compensatory damages, and shall provide all relevant information
requested by the agency. The expedited investigation shall be completed
within forty-five (45) days of the date the headquarters EEO investigator
is assigned to the case. The agency's headquarters EEO office shall
then provide complainant a copy of the completed investigation and
provide a notice to complainant of his right to request a hearing
before an EEOC Administrative Judge, or a final agency decision on his
hostile environment claim and his claim for compensatory damages due him
pursuant to 29 C.F.R. � 1614.108(f). If the agency fails to complete its
investigation within sixty (60) days of its receipt of this decision, then
complainant may request a hearing on his hostile environment claim and
entitlement to compensatory damages by submitting a request for hearing
to: Tanya Schwendinger, Supervisory Administrative Judge, St. Louis,
Missouri District Office, Robert A. Young Building, 1222 Spruce Street,
Room 8100, St. Louis, Missouri 63103.
If complainant requests a FAD, then within forty-five (45) days of receipt
of complainant's request, the agency shall issue a final decision on
the hostile environment claim and the issue of compensatory damages. 29
C.F.R. � 1614.110. A copy of the final decision must be submitted to
the Compliance Officer, as referenced below.
If complainant requests a hearing, then the agency shall cooperate with
the Administrative Judge assigned to rule on the merits of complainant's
hostile environment claim and his entitlement, if any, to compensatory
damages. The Administrative Judge assigned to hear these matters shall
be appraised by complainant and the agency of this decision and ORDER,
and shall make every effort to expedite the processing of complainant's
pending matters.
Within fifteen (15) days of the date the agency receives this decision,
the agency's headquarters EEO office shall ensure that the Columbia,
Missouri facility engages in an interactive process with complainant to
determine his current medical limitations. Concurrently, the agency
shall review job vacancies within the same grade (PS-05) to determine
whether there are any vacancies for which complainant may be qualified
within his medical restrictions. In providing complainant a position,
the agency shall provide all appropriate accommodations consistent with
complainant's current medical restrictions.
The agency shall ensure that complainant has received back pay at a
PS-05 wage level from the date of his termination through to the date the
agency places complainant in a position in its facility, at a PS-05 level,
which has consecutive days off or otherwise is consistent with his present
needs for a reasonable accommodation. The agency shall deduct any wages
received pursuant to the Arbitrator's decision and order, referenced
herein, and any other wages earned between the above-referenced dates.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) 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. 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."
The agency shall provide complainant with any leave, seniority, or other
benefits that complainant would have earned at a PS-05 grade, which
were not already provided in conjunction with the Arbitrator's award,
which accrued between the above-referenced dates.
The agency shall provide a minimum of twenty-four (24) hours of EEO
training for the Columbia, Missouri Postmaster and its Plant Manager,
who were found to have discriminated against the complainant as set forth
herein. The agency shall address these employees' responsibilities
with respect to eliminating discrimination in the workplace and
the requirements of reasonable accommodation as set forth in the
Rehabilitation Act. The agency shall provide written verification to
the Commission's Compliance Officer that these individuals received
relevant training after receipt of this decision and its ORDER.
The agency shall also provide a minimum of twenty-four (24) hours of EEO
processing training to all agency EEO management and staff in the Gateway
district EEO office. If any employees of the Gateway District during the
relevant time have transferred to another agency EEO or Personnel office,
then the agency shall ensure that these individuals are located and are
also provided training consistent with this decision and its accompanying
ORDER. The agency shall address these employees' responsibilities
with respect to EEO complaints processing, eliminating discrimination
in the workplace and the requirements of reasonable accommodation as
set forth in the Rehabilitation Act. The agency shall provide written
verification to the Commission's Compliance Officer that all current and
relevant past Gateway District EEO managers and staff received relevant
training after receipt of this decision and its accompanying ORDER.
The agency shall consider whether disciplinary action is appropriate for
any of the relevant agency management or EEO officials, as set forth
herein.
12. 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 any benefits due complainant, including evidence
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Columbia, Missouri postal 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
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
November 27, 2000
_______________
DATE
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________________________
DATE
__________________________________
EQUAL OPPORTUNITY ASSISTANT 1 On 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, may also be
found at the Commission's website at www.eeoc.gov.
2 Interstitial Cystitis is defined as �[a] chronic inflammatory condition
of unknown etiology involving the mucosa and muscularis of the bladder,
resulting in reduced bladder capacity, pain relieved by voiding, and
severe bladder irritative symptoms.� Stedman's Medical Dictionary, at 434
(26th Ed., 1995).
3 The Commission notes, with respect to the impact of the disease on
complainant, an excerpt from one of his physician's notes (found at in
the Investigative File at Exhibit 7, page 2), which provides that:
[Complainant] currently voids frequently (greater than on[c]e [every]
hour [sic] and has nocturia 3-4 times per night. His main problem is
abdominal pain which is aggravated by any type of physical pressure.
This curtails his physical activities and keeps him from being able to
lift appropriately.
[Complainant] is currently on a number of medications including
nortriptyline, hydroxyzine, and beelafon and clonazapan for his
interstitial cystitis. He also undergoes regular DMSO installations [pain
medication] every couple of weeks and cystoscopy with hydrodistention
under anesthesia every couple of months.
4 A physician's note dated July 24, 1995, stated that because
of complainant's Interstitial Cystitis, and �[t]o help [complainant]
continue his work activities I would recommend that you arrange his
schedule with two consecutive days off a week. This will give him some
recovery time from a five day work period. Most of these patients find
that if they can go to bed and rest for one or two days their symptoms
are alleviated enough that they can resume normal work activities.
I would encourage you to see if his schedule can be altered so he can
have a 48 hour rest interval.�
5 The Counselor's Report, dated April 30, 1996, indicates that complainant
sought EEO counseling on May 25, 1994 and August 31, 1994.
6The 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.
7 The relevant portion of the Collective Bargaining Agreement provides
that �For periods of absence of three (3) days or less, a supervisor
may accept an employee's certification as reason for an absence.� See
Investigative file, exhibit 16, page 4.
8 The Commission reminds the agency that our Regulations and the EEOC
Management Directive for 29 C.F.R. Part 1614 require agencies to develop
a complete and impartial factual record. See 29 C.F.R. � 1614.108(b)
and EEO-MD-110, at 5-1 (November 9, 1999). Additionally, the recently
published EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act, No. 915.002,
(March 1, 1999), provides instructions for investigators when assessing
whether or not an agency violated the Rehabilitation Act by denying a
reasonable accommodation.
9See Agnew v. United States Postal Service, Agency No. 1I-632-1067-97,
EEOC No. 280-97-4403X (Counseling took almost two years, Investigation
took approximately fourteen months); Kerley v. United States Postal
Service, Agency No. 4I-630-1017-95, EEOC No. 280-AO-4054X(Counseling
took two years; Investigation took approximately eighteen months);
Mays v. United States Postal Service, Agency No. 1I-633-1002-96,
EEOC No. 280-97-4407X(Counseling took eight months, Investigation
took one year); Campbell v. United States Postal Service, Agency
No. 4Q-000-1585-92, EEOC No. 280-97-4193X(Counseling took over fifteen
months, Investigation took over four-and-one-half years to complete).
10The Commission further notes that we have found disability
discrimination at the Columbia, Missouri postal facility on another
occasion. See Davis v. United States Postal Service, EEOC appeal
No. 01956586 (December 8, 1997)(finding of discrimination due to agency
failure to provide a PS-6 Distribution Clerk a reasonable accommodation).
11While the Commission's Regulations provide that an agency not subject
to 5 U.S.C. � 7121(d) which has a negotiated grievance procedure may
hold an EEO complaint in abeyance during the processing of a grievance
covering the same matter as the complaint, see 29 C.F.R. � 1614.301(d),
there is no evidence in the record that the agency's inaction was in
any way connected to its processing of complainant's grievance. To the
contrary, the agency's inaction commenced prior to the time complainant
filed his grievance, and continued beyond the time his grievance was
ultimately decided in his favor.
12 The Commission notes that as the record indicates complainant was
not represented by counsel, it is accordingly not ordering a remedy of
attorney's fees in this matter.