01974600
01-15-1999
William E. Crowder, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
William E. Crowder v. United States Postal Service
01974600
January 15, 1999
William E. Crowder, )
Appellant, )
)
v. ) Appeal No. 01974600
) Agency No. 4E-852-1240-94
William J. Henderson, ) Hearing No. 350-95-8181X
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
______________________________)
DECISION
On May 13, 1997, William E. Crowder (appellant) timely appealed the final
decision of the United States Postal Service (agency), dated April 24,
1997, which concluded that he had not been discriminated against in
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq., and Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. In his complaint, appellant alleged that officials
at the agency's Phoenix, Arizona, Post Office discriminated against
him on the basis of his perceived physical disabilities and reprisal
for his prior EEO activity when, in August 1994, he was not considered
for employment in a custodial position. This appeal is accepted in
accordance with the provisions of EEOC Order No. 960.001.
The record establishes that appellant originally applied to the agency
for employment as a Garageman. After taking the examination for this
position, he received a rating of "ineligible." He appealed this rating
through agency administrative channels, and subsequently was given an
eligibility rating for the position. While this appeal was pending,
appellant sought EEO counseling, but later abandoned his complaint when
his administrative appeal was successful. It was this EEO activity for
which appellant alleged the agency later retaliated against him.
In July 1994, appellant submitted an application to the agency for
a casual custodial position at the Phoenix, Arizona, Post Office.
Appellant's application showed several years of experience working as
a custodian. In August 1994, appellant learned that his application was
not being considered for available positions because he had been found to
be unsuitable for employment. The agency's Human Resources official who
reviewed appellant's application stated that the decision not to consider
appellant for employment was based on appellant's previous work history
which revealed that appellant had been terminated from the postal service
in August 1984 for being physically incapable of performing his duties
as a Letter Carrier. In addition, the official noted that appellant's
application indicated that he had left previous employment positions
because of "physical problems with legs," "inability to perform duties,"
and "medical reasons." The record indicates that, prior to rejecting
his application, the agency made no attempt to contact appellant to
seek any clarification of his medical condition or his current ability
to perform the duties of a casual custodial position.
On October 3, 1994, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against him as
referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On February 25, 1997, pursuant to 29 C.F.R. �1614.109(e), the AJ issued
a decision without a hearing, finding that agency had discriminated
against appellant on the basis of a perceived disability, in violation
of the Rehabilitation Act, when it refused to consider his application
for employment. On the other hand, the AJ found appellant had failed to
establish a prima facie case of reprisal discrimination because there
was no evidence that the agency officials who reviewed and rejected
appellant's application for employment were aware of his prior EEO
activity.
On April 24, 1997, the agency issued its final decision, rejecting the
AJ's recommended finding of disability discrimination, and entering a
finding of no discrimination on both bases alleged. It is from this
decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
Based on the evidence of record, the Commission discerns no basis to
disturb the AJ's finding of disability discrimination.<1> Based on
its review of the record, the Commission strongly concurs with the AJ's
finding that the overriding reason for the agency's denial of appellant's
request for employment was its unsubstantiated perception that his
physical condition rendered him unable to perform in the position for
which he was applying. See McGee v. Department of the Army, EEOC Appeal
No. 01953709 (February 20, 1998). Nothing proffered by agency in its
final decision or on appeal differs significantly from the arguments
raised before, and given full consideration by, the AJ.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE that portion of the agency's final decision which
rejected the AJ's finding of disability discrimination. In order to
remedy appellant for its discriminatory actions, the agency shall comply
with the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision
becomes final, the agency is directed to make an unconditional offer
of employment to appellant of the position of casual custodian at it
Phoenix, Arizona, Post Office. Appellant shall be awarded back pay
and benefits, with interest, retroactive to the date his application
was rejected by the agency (August 24, 1994).
(B) The agency shall determine the appropriate amount of back pay,
interest 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. If appellant declines to accept a position
with agency, the back pay period shall end with the date he declines
the offer of employment. Interim earning may be deducted from the
back pay award. 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."
(C) Training shall be provided to the agency officials responsible
for the agency's actions in this matter on the obligations and duties
imposed by the Rehabilitation Act.
(D) The agency shall post at the Phoenix, Arizona, Post Office 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.
(E) 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.
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.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. � l6l4.604(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 an 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 EIGHTY (180)
CALENDARS 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:
Jan 15, 1999
_________________ _______________________________
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 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 Phoenix, Arizona, Post Office supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Phoenix, Arizona, Post Office has been found to have discriminated
against the individual affected by the Commission's finding on the
basis of his perceived physical disabilities by failing to consider
his application for employment. The Commission has ordered that this
individual be offered an immediate position with the agency, with
an appropriate back pay award. The Phoenix, Arizona, Post Office
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 and will not retaliate
against employees who file EEO complaints.
The Phoenix, Arizona, Post Office 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: _________________
1 The Commission notes that, on appeal, appellant has not challenged
the AJ's finding of no reprisal discrimination.