Stanley Ness, Complainant,v.William J. Henderson, Postmaster General, (Midwest Area), United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 27, 2000
01981368 (E.E.O.C. Nov. 27, 2000)

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.