01996097
09-18-2000
Wayne E. Day, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Areas) Agency.
Wayne E. Day v. United States Postal Service
01996097
September 18, 2000
.
Wayne E. Day,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Allegheny/Mid-Atlantic Areas)
Agency.
Appeal No. 01996097
Agency No. 4D-280-1157-96
Hearing No. 140-99-8109X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 701 et seq.<1> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). Complainant alleges he was discriminated against
on the basis of disability (blindness) when he was informed that the
position he had been offered (Information Clerk) was no longer available.
For the following reasons, the Commission REVERSES the agency's final
decision.
The record reveals that complainant filed a formal EEO complaint with
the agency on July 25, 1996, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
complainant was provided a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). Following a
hearing, the AJ issued a recommended decision finding discrimination.
In its final decision, the agency rejected the AJ's recommended finding
of discrimination. It is this decision that complainant appeals.
AJ's Findings of Fact
The AJ found the record to reflect the following: Complainant is
completely blind in both eyes and was approved as an individual with a
severe disability (blindness) for the position of a Computer Programmer
or a Switchboard Operator by an agency Rehabilitation Officer (RO).
Complainant applied for the position of Computer Programmer or Switchboard
Operator under the severely handicapped program in 1995, and on August
25, 1995, passed the agency's drug test. The complainant was appointed
to the position of part-time flexible Information Clerk, United States
Postal Service, Charlotte, North Carolina, by the agency on October 11,
1995, effective October 28, 1995.
On or about October 20, 1995, a new Postmaster (PO2) came on board.
PO2 placed the complainant's employment on hold on or about October
28, 1995. Following an assessment by PO2 and his staff, the agency
decided not to fill the position. The agency later alleged that it
would be more effective for information requests to be handled short
term at individual postal stations by current employees rather than by
an additional employee. As to long term, the Postal Service announced a
corporate call management program which would allow information requests
to be handled from a national 1-800 call center, eliminating the need
for local information resources.
The manager of human resources (HR) stated that ordinarily the agency
commits to hire when an applicant completes and passes a pre-employment
medical examination. However, he testified that, in the present
case, while complainant had taken and passed a pre-employment medical
examination, the actual establishment of a new position was still pending
and the details regarding the nature of his position, equipment, and
location had not been resolved. He also testified that the orientation
letter which complainant received was issued in error and should have
been retracted.
HR further explained that he was authorized by the acting Postmaster,
at that time, to develop the modified position of Information Clerk.
Complainant requested reasonable accommodations of using his seeing
eye dog and modification of a Postal Service Computer. The position
complainant was offered was determined through an extensive process of
pre-employment discussions among the Complainant, the Postal Service,
various vocational rehabilitation experts, and the union.
A human resources specialist (HR1) was told on October 30, 1995, to
contact complainant and inform him not to report for orientation because
suitable accommodations were not ready for his dog and special equipment.
HR1 stated that he never encountered a situation in which an individual
notified to report for duty for a career appointment was then notified
not to do so. He also affirmed HR's statement that a commitment to
hire is made when the applicant is scheduled for the medical physical.
In addition, HR also alleged that the agency made extensive efforts to
accommodate complainant after he accepted the offer, but was unable to
provide him with the modified position of Information Clerk.
A rehabilitation specialist (RS) named as an expert witness on technology
for the blind testified at the hearing that complainant was qualified
to perform the duties of an Information Clerk based on her review of
complainant's file maintained by the Metrolina Association for the Blind
and discussions with other rehabilitation specialists.
Complainant's wife testified that HR congratulated her husband on
getting the job, that it was a done deal, that he passed the physical and
received the orientation letter. Complainant testified that he was told
by HR, in September, 1995, that he had the job as an Information Clerk.
This conversation occurred by speaker phone, which included HR and the
acting Postmaster. Complainant explained that they were laughing at
the time and stating in a congratulatory manner, �we did it!�
Complainant passed his physical and received his orientation letter of
congratulations. He was told on the day of orientation not to report
to work, and later, on November 17, 1995, HR informed complainant that
they needed to start all over again and the reason was that they had a
new Postmaster.
Complainant also testified that prior to receiving the job offer there was
a panel established to determine an acceptable position for complainant.
The union representative (UR) was concerned with whether complainant would
be a part-time flexible or regular employee. According to complainant,
UR was not concerned, at that time, with how complainant's rights to
the job may be restricted because of the retreat rights of a different
employee (C1). In June, 1996, C1 informed complainant that he was not
interested in the Information Clerk position (a lower level position
than the position he occupied for several years) because it would mean
a reduction in salary for him.
AJ's Analysis and Conclusions of Law
The AJ concluded that complainant established a prima facie case
of disability discrimination because the AJ found complainant to
be a qualified person with a disability within the meaning of the
Rehabilitation Act. The AJ found that the complainant's blindness limits
his ability to work. In addition, the record shows that complainant
applied for, but was not placed into, the position of Information Clerk.
Accordingly, the AJ found that complainant met his prima facie burden.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ found
that the agency articulated several reasons for its employment action.
Initially, at the investigation stage, the agency claimed that it was
deemed more effective for information requests to be handled in the short
term at individual postal stations by current employees rather than at a
centralized location by an additional employee. At the hearing, however,
the AJ noted that the agency articulated several additional reasons for
its employment action which include the following: (1) complainant was
not fully qualified because he was a poor speller; and (2) there were
union problems with respect to C1 who allegedly held retreat rights to
the Information Clerk position.
The AJ further concluded that complainant established that, more
likely than not, the reasons provided by the agency were a pretext for
discrimination. In reaching this conclusion, the AJ found that the record
shows that the agency offered complainant a position as an Information
Clerk and that complainant accepted that position. In addition, the
record shows that the position of Information Clerk was modified and
created especially for complainant. The AJ concluded that the record
supports the finding that the situation changed when the new Postmaster
came on board. In addition, the AJ did not find the agency's witnesses
to be credible. According to the AJ, the agency witnesses appeared
disingenuous at the hearing when they presented wholly new reasons for
the agency's employment decision which differed from the explanation
given to the investigator two years before. According to the AJ, the
evidence of pretext was sufficient, in this case, to support a finding
of discrimination.
Agency's Final Decision
The agency's final decision rejected the AJ's recommended decision. The
agency argued, inter alia, that complainant failed to establish a prima
facie case of disparate treatment. Specifically, the agency argued that
since the complainant failed to present similarly situated individuals,
outside complainant's protected class who were treated more favorably,
he cannot prove discrimination. In addition, while the agency agreed
that complainant has an impairment that substantially limits a major life
function, it argued that complainant is not a qualified individual with a
disability within the meaning of the Rehabilitation Act. Specifically,
the agency argued that complainant has not shown that he is capable of
performing the essential functions of the modified Information Clerk
position with or without a reasonable accommodation.
Complainant does not raise any additional arguments on appeal.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405(a)), all post-hearing factual findings by an AJ will be
upheld if supported by substantial evidence in the record. Substantial
evidence is defined as �such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.� Universal Camera
Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
We find that the AJ's findings of fact and credibility findings are
supported by substantial evidence. The record shows that HR spent
considerable efforts working with RO and meeting with impaired groups
to design a position for complainant. The record reveals that prior to
placing complainant into the position of Information Clerk, HR attempted
to place complainant into the position of Barcode Sorter. However, the
Plant Manager rejected such a proposal because he felt, inter alia, that
complainant did not have the ability to perform the duties of the position
with or without a reasonable accommodation. Accordingly, no offer of
employment was extended to complainant with respect to the Barcode Sorter
position. The record supports, however, that HR successfully created
the position of modified Information Clerk which the agency found could
be successfully filled by complainant. While the agency argues that
a position was never officially established, the record supports the
finding that the agency created and offered<2> complainant a position
(Information Clerk) that complainant was qualified<3> to perform with
two reasonable accommodations (use of a computer with a special program
to answer calls from customers and use of a special booth to shield
complainant's seeing eye dog from the general public).
With respect to C1's retreat rights, we agree with the AJ's finding of
pretext. The record supports the finding that C1 held no interest in
such position which would have meant a pay cut for him. Accordingly,
this was not a legitimate obstacle to complainant's obtainment of the
position. In addition, we find it suspect that agency representatives
never contemporaneously articulated this explanation to complainant at the
time his position was delayed (in October, 1995) and later rescinded (in
March, 1996). Nor did HR articulate this explanation when questioned at
the investigative stage of this complaint, but only raised such position
at the hearing.
With respect to the explanation by the agency pertaining to the formation
of a national call center, we also find sufficient evidence in the
record to support a finding of pretext. As the agency notably points
out, the proposal of a national call center must have been initiated
some significant time before its implementation in December, 1995.
Accordingly, despite the knowledge that such a program would eventually
be implemented, the agency proceeded to create and offer the Information
Clerk position to complainant. However, only after the arrival of the new
Postmaster was complainant's job placed on hold. The agency explained
to complainant that it was having difficulty getting his accommodations
in place. HR did not explain to complainant that the new Postmaster was
allegedly reevaluating the need for the position given the agency's plan
to implement a national call center. If the agency was legitimately
reevaluating the need for the position, that could have easily been
explained to complainant at the time his position was placed on hold.
The fact that complainant was provided with a different explanation at
such time is sufficient evidence of pretext.
Lastly, the Commission notes that while the agency argues that complainant
failed to establish a prima facie case because he did not show that he
was treated differently than similarly situated applicants, complainant
must only present evidence which, if unrebutted, would support an
inference that the agency's actions resulted from discrimination. See
O'Connor v. Consolidated Coin Caters Corp., 116 S.Ct. 1307 (1996);
Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp.,
EEOC Notice No. 915.002, n. 4 (September 18, 1996). We find the fact
that complainant was offered a job that was placed on hold shortly after
the arrival of a new Postmaster, coupled with the seemingly disingenuous
explanation given by the agency for its conduct, to sufficiently support
a prima facie case of discrimination.
After a careful review of the record, the Commission finds that the AJ's
recommended decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws.<4> We discern no basis
to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's arguments on appeal, the agency's
response, and arguments and evidence not specifically discussed in this
decision, the Commission REVERSES the agency's final decision
and REMANDS this matter to the agency to comply with the Order below.
In addition, this matter shall also be REMANDED to the Hearings Unit
of the Charlotte District Office for a determination on the issue of
compensatory damages and attorney's fees.<5>
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
Within 30 days from the date this decision becomes final, the agency
shall unconditionally offer the complainant the position of Information
Clerk or a substantially equivalent position, with backpay plus interest,
retroactive to October 28, 1995. Complainant shall have 15 days from
receipt of the offer to accept or decline the offer. Failure to accept
the offer within 15 days will be considered a declination of the offer,
unless the complainant can show that circumstances beyond his control
prevented a response within the time limit. If the offer of appointment
is declined, the agency shall award complainant a sum equal to the back
pay he would have received computed in the manner prescribed by 5 C.F.R. �
550.805, from October 28, 1995 until the date the offer of appointment
was declined. If complainant accepts the offer of appointment, the agency
shall award appellant a sum equal to the back pay he would have received,
computed in a manner prescribed by 5 C.F.R. � 550.805, from October 28,
1995 to the commencement day of the new position. Interest on back pay
shall be included in the back pay computation.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, 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 issues of compensatory damages and attorney's fees and
costs are REMANDED to the Hearings Unit of the Charlotte District
Office. Thereafter, the Administrative Judge shall issue a decision
on these issues in accordance with 64 Fed. Reg. 37,644, 37,657 (1999)
(to be codified at 29 C.F.R. � 1614.109), and the agency shall issue
a final action in accordance with 64 Fed. Reg. 37,644, 37,657-58 (1999)
(to be codified at 29 C.F.R. � 1614.110) within forty (40) days of receipt
of the Administrative Judge's decision. The agency shall submit copies
of the Administrative Judge's decision and the final agency action to
the Compliance Officer at the address set forth below.
The agency shall take corrective, curative and preventive action to
ensure that disability discrimination does not recur.
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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Charlotte, North Carolina 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 (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration
as untimely, unless extenuating circumstances prevented the timely
filing of the request. Any supporting documentation must be submitted
with your request for reconsideration. The Commission will consider
requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not
extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the
paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 18, 2000
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
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. �
701 et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The United States Postal Service, Charlotte, North Carolina (�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 has been found to have discriminated on the basis of
disability (blindness) when an applicant for employment was informed
that the position he was offered (Information Clerk) was no longer
available. The Facility has been ordered to: (1) offer complainant a
position of Information Clerk or a substantially equivalent position;
(2) issue an appropriate award of backpay and interest; (3) award
reasonable attorney's fees and costs; and (4) take corrective, curative
and preventive action to ensure that disability discrimination does
not recur.
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 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding
the present appeal. In addition, the 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. Since that time, the ADA regulations set out at 29
C.F.R. Part 1630 apply to complaints of disability discrimination.
These regulations, as amended, may also be found at the Commission's
website at www.eeoc.gov.
2 The record shows that: (1) complainant was congratulated on his new
job by several agency officials over a conference call in September, 1995;
(2) a specially designed booth/work area was built for complainant in
order to shield his seeing-eye dog from the general public; and (3)
complainant received an written offer of employment which stated in
relevant part: �SUBJECT: Orientation - INFORMATION CLERK USPS, CHARLOTTE,
NC. .... CONGRATULATIONS!! It is a special pleasure for me to confirm
our offer and welcome you to the Postal Service in your appointment to
the above position [information clerk], which will be effective October
28, 1995.�
3 While the agency asserts that complainant was not qualified for the
position due to his inability to accurately spell the abbreviations of
various states, the Commission finds sufficient evidence in the record to
support the finding that complainant was, in fact, qualified to perform
the essential functions of the modified Information Clerk position with
two reasonable accommodations (use of a computer with specialized software
to aid complainant in assisting customers and complainant's enrollment
in a two-hour �Braille I� refresher course to assist complainant in
accurately spelling abbreviations of various states). It is notable that
a rehabilitation specialist testified at the hearing as an expert witness
and rendered her opinion that complainant was qualified to perform the
duties of the Information Clerk position. In addition, according to the
rehabilitation expert, while the record indicates that complainant would
require a �Braille I� refresher course in order to accurately spell the
abbreviations of each state, such refresher course would require minimal
class time (i.e., a total of a �couple of hours�).
4 Without determining whether the AJ appropriately found complainant
substantially limited in the major life function of work, we note that
the record supports that complainant was certainly substantially limited
in the major life function of seeing.
5 Since we find no evidence in the record indicating that the complainant
was notified of his right to present evidence of compensatory damages
either during the investigation of his complaint or at the hearing,
we remand this matter to the Hearings Unit of the Charlotte District
Office to allow complainant the opportunity to present such evidence.