01975027
11-24-1998
Stanley Tyler, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region),) Agency.
Stanley Tyler v. United States Postal Service
01975027
November 24, 1998
Stanley Tyler, )
Appellant, )
) Appeal No. 01975027
v. ) Agency No. 1C-191-2021-93
) Hearing No. 170-95-8264X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid Atlantic Region),)
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of physical disability (lower
back and left leg impairments), in violation of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791, et seq. Appellant alleges that
he was discriminated against when, effective April 28, 1993, the agency
ceased accommodating his physical disability by revoking his special
parking permit and by prohibiting his entering the work place via the
outer island platform. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
REVERSED AND REMANDED.
The record reveals that during the relevant time, appellant was employed
as a PS-7 Modified Maintenance Mechanic at the agency's Processing and
Distribution Center, Philadelphia, Pennsylvania. On October 27, 1992,
as an accommodation to appellant's physical restrictions which resulted
from a prior work place injury, the agency provided him a handicapped
parking spot in the agency's moat, and permitted him to enter the facility
through the freight elevators located in the outer island platform.
Without this accommodation, appellant was unable to perform his position
without significant pain. On April 22, 1993, the agency issued General
Order No. S-04-93 (order), which prohibited employees from utilizing the
outer island platform to enter or exit the facility. As a result of this
order, the agency ceased accommodating appellant's physical disability
by revoking his special parking permit and by prohibiting his entering
the work place via the outer island platform. As an alternative, the
agency offered appellant a modified office clerk position, with different
working hours and working location, and with a handicap parking spot in
a parking area near the main entrance of the facility.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on December 14,
1993. At the conclusion of the investigation, appellant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a Recommended Decision (RD)
finding discrimination.
The AJ first noted that the agency stipulated that appellant was a
qualified individual with a disability. The AJ concluded that the
agency failed to demonstrate that continuing appellant's accommodation,
despite its order, would constitute an undue hardship for the agency.
In reaching this conclusion, the AJ found that the alleged safety
and security problems which prompted the order were not a significant
concern where there was no evidence of accidents or thefts resulting from
employee access through the outer island platform. The AJ noted that moat
parking was permitted for high level facility managers, and there was,
therefore, no reason to now preclude appellant from the accommodation
which permitted him to perform the essential functions of his position.
Noting that appellant had since been assigned to another position, the
AJ ordered, as relief, among other things, that appellant be returned
to his original PS-7 Modified Maintenance Mechanic position, with his
parking spot in the moat and with permission to enter and exit the
facility through the outer island platform.
The agency's FAD rejected the AJ's RD. The FAD first noted that the
agency's attorney erroneously stipulated that appellant was a qualified
individual with a disability, and based on their analysis, appellant
was not a qualified individual with a disability. The agency next
concluded that even assuming appellant was a qualified individual with
a disability, it did not deny him a reasonable accommodation because
it had offered him a reassignment to a clerical position located near
the entrance of the facility, with a handicapped parking spot near
the entrance of the facility. The FAD noted that appellant was not
entitled to his choice of accommodations, and further, that testimony
in the record supported the agency's safety concerns because there was
evidence of a few near accidents in the outer island area. Finally, the
agency disputed the AJ's recommended corrective action set forth above,
arguing that such relief was not set forth in the formal complaint nor
accepted by the agency. On appeal, appellant contends that the AJ's RD
should be reinstated for the reasons set forth in the RD. The agency
argues otherwise, and requests that we affirm its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that the record adequately
supports the fact that appellant was a qualified individual with a
disability as defined by the Rehabilitation Act.<1> We also agree
with the AJ's conclusion that the agency failed to demonstrate that
preserving appellant's existing accommodation, despite the release of
its order, would constitute an undue hardship, where high level agency
managers were permitted to park in the same area that appellant had been
parking. We therefore discern no basis to disturb the AJ's findings of
discrimination which were based on a detailed assessment of the record
and the credibility of the witnesses. See Anderson v. Bessemer City,
470 U.S. 564, 575 (1985); Saramma v. Department of Veterans Affairs, EEOC
Request No. 05930131 (September 2, 1993); Wrenn v. Gould, 808 F.2d 493,
499 (6th Cir. 1987). Therefore, after a careful review of the record,
including appellant's arguments on appeal, the agency's response, and
arguments and evidence not specifically discussed in this decision,
the Commission REVERSES the FAD and REMANDS the matter to the agency to
take remedial actions in accordance with this decision and Order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall return appellant, within his current medical
restrictions, to the PS-7 Modified Maintenance Mechanic position which
appellant occupied until April 28, 1993. The agency shall provide
appellant with a parking spot in the moat, and permission to enter and
exit the facility through the freight elevators located by the outer
island platform.
2. Appellant shall also be awarded back pay for the difference, if
any, between the workers' compensation benefits he received for the
period of April 28, 1993, through October 1, 1994, and the salary
he would have earned had he worked for forty hours per pay period
(four hours per day) during that time. The agency shall also award
appellant applicable seniority, restoration of leave, step increases,
cost of living increases, and other employee benefits from April 28,
1993, the date his accommodation was removed, through October 1, 1994.
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 appellant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the appellant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The appellant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. The agency is directed to conduct training for relevant agency
management officials who were found to have discriminated against
appellant by failing to reasonably accommodate his disability.
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 conduct a supplemental investigation on the issue
of appellant's entitlement to compensatory damages and shall afford
appellant an opportunity to establish a causal relationship between
the incident of discrimination and any pecuniary or non-pecuniary
losses. See Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993).<2> The appellant shall cooperate in the agency's
efforts to compute the amount of compensatory damages, and shall provide
all relevant information requested by the agency. The agency shall issue a
final decision on the issue of compensatory damages. 29 C.F.R. � 1614.110.
The supplemental investigation and issuance of the final decision shall
be completed within one hundred and twenty (120) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below;
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Philadelphia, Pennsylvania Processing
and Distribution Center, copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington,
D.C. 20036. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant has the right to
file a civil action on the underlying complaint in accordance with the
paragraph below entitled "Right to File A Civil Action." 29 C.F.R. ��
1614.408 and 1614.409. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42
U.S.C. � 2000e-16(c)(Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. � 1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court
appoint an attorney to represent you and that the Court permit you
to file the action without payment of fees, costs, or other security.
See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��
791, 794(c). The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not
extend your time in which to file a civil action. Both the request
and the civil action must be filed within the time limits as stated in
the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
Nov 24, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated __________ which found that a
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791, et seq. has occurred at the agency's Philadelphia, Pennsylvania
Processing and Distribution Center (hereinafter "facility").
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have discriminated against the individual
affected by the Commission's findings on the basis of physical disability
(lower back and left leg impairments) when the agency removed his
parking and access to the facility via the outer island platform.
The agency shall therefore remedy the discrimination by retroactively
placing the affected individual in his original Modified Maintenance
Mechanic position; providing a disabled parking spot in the moat
and access to the freight elevators in the outer island platform;
providing appropriate back pay, with interest if applicable, and
other employee increases and benefits from the date he was denied
a reasonable accommodation; determining his entitlement, if any, to
compensatory damages; and providing training to appropriate management
officials on equal employment opportunity law in the federal workplace
to remedy the unlawful discrimination. The facility will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all Federal equal
employment opportunity laws.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1 We also note that the agency, having stipulated that appellant is a
qualified individual with a disability during the hearing, may not now
reject the stipulation and argue otherwise. Had the agency wished to
contest appellant's status as a qualified individual with a disability,
it could and should have done so at the hearing.
2 In Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992); request for reconsideration denied, EEOC Request
No. 05930306 (February 1, 1993), the Commission held that Congress
afforded it the authority to award such damages in the administrative
process. It based this assessment, inter alia, on a review of the
statutory provisions of the Civil Rights Act of 1991 in relation
to one another and on principles of statutory interpretation which
require statutes to be interpreted as a whole. In particular, the
Commission discussed the meaning of the statute's definition of the
term "complaining party" and the significance of the reference to
the word "action" in Section 102(a). In addition to the specific
reasons set forth in Jackson for this holding, Section 2000e-16(b)
(Section 717) of the Civil Rights Act of 1964 (42 U.S.C. � 2000(e)
et. seq.)(CRA) conveyed to the Commission the broad authority in the
administrative process to enforce the nondiscrimination provisions of
subsection (a) through "appropriate remedies." Similarly, in Section
3 of the Civil Rights Act of 1991 (CRA of 1991), Congress refers to
its first stated purpose as being "to provide appropriate remedies for
intentional discrimination and unlawful harassment in the workplace;",
thereby reaffirming that authority. Consequently, it is our view that in
1991, Congress clearly intended to expand the scope of the "appropriate
remedies" available in the administrative process to federal employees who
are victims of discrimination. Moreover, in Section 717(c) of the CRA,
the term "final action" is used to refer to administrative decisions by
agencies or the Commission, as distinguished from the term "civil action,"
used to describe the rights of employees after such final action is taken.
Therefore, the Commission reaffirms the holding therein. See Cobey Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998).