01997185
01-24-2002
Angelo Finocchiaro, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Angelo Finocchiaro, Jr. v. United States Postal Service
01997185
January 24, 2002
.
Angelo Finocchiaro, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01997185
Agency No. 4F-920-1120-96
Hearing No. 340-97-3287X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant when he was reassigned from a full-time regular position in
the carrier craft to a part-time flexible position in the clerk craft
effective February 17, 1996.
BACKGROUND
The record reveals that complainant was hired as a Letter Carrier at the
agency's Vista facility in San Diego County, California, on February 16,
1988. He was then transferred to the agency's Rancho Bernardo facility.
On September 21, 1988, complainant injured his ankle on the job and
was placed on light duty on November 22, 1989. On January 10, 1991 and
December 2, 1991, complainant injured his back and was restricted from
standing for more than one hour at a time. On January 22, 1992, he was
then diagnosed with Bilateral Epicondylitis which limited his lifting
to less than twenty-five pounds and his repetitive use of his arms to
less than two hours. At that time, complainant's physician (Physician)
informed the agency that he would not be able to return to his Letter
Carrier position.
Consequently, the agency assigned complainant to a Limited Duty assignment
within his restrictions on October 6, 1993. He was assigned to the
agency's Customer Service Center (CSC) answering telephone inquiries.
He remained in that assignment for over two years. The Physician's
report dated April 28, 1995, indicated that complainant was restricted
from repetitive lifting over twenty pounds, repetitive use of his upper
extremities greater than thirty minutes at a time for up to four hours per
day, and standing for more than one hour at a time. The Physician also
noted that complainant's Limited Duty position is completely acceptable
and that he could continue to perform in this position.
On January 30, 1996, the Acting Supervisor of CSC informed complainant
that the Injury Compensation Supervisor contacted her about making
complainant a Permanent Rehabilitation Assignment Offer. He indicated
that he had been waiting for the agency to provide him with such an offer
and that the assignment he had been in was the only one that accommodated
his conditions. Therefore, on January 30, 1996, complainant submitted
a memorandum to the Injury Compensation Supervisor noting that he would
never be able to carry mail again. Complainant requested a change
from the carrier craft to the clerk craft and noted that he wished
to be considered for a Permanent Rehabilitation position in the CSC.
On February 9, 1996, complainant received a Rehabilitation Job Offer for a
part-time flexible position as a Modified Distribution Clerk at the CSC.
The position entailed answering customer phone inquiries as he had been
performing for over two years and provided for his physical limitations.
Complainant accepted the offer on the same day. He commenced his position
on February 6, 1996. He noted that due to the change in crafts, he was
unable to retain his seniority and he was changed from a full-time to
a part-time flexible employee.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on May 8, 1996,
alleging that he was discriminated against on the basis of disability
(Bilateral Epicondylitis) when he was reassigned from a full-time regular
position in the carrier craft to a part-time flexible position in the
clerk craft effective February 17, 1996.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing and the complaint was assigned to an AJ. The AJ
issued a summary judgement decision in favor of complainant. The agency
issued its final decision (FAD 1) rejecting the AJ's decision. In FAD 1,
the agency concluded that it did not discriminate against complainant
as alleged in his complaint.
Complainant appealed FAD 1 to the Commission which was docketed as
EEOC Appeal No. 01982730. The Commission in the previous decision
vacated FAD 1 finding that the record was not sufficiently developed
for adjudication. It remanded the case to the agency to conduct a
supplemental investigation and subsequently issue another final decision.
The agency completed the investigation and issued its second final
decision (FAD 2) on August 24, 1999. FAD 2 addressed the information the
agency collected pursuant to the Commission's request for a supplemental
investigation. It again concluded that the agency did not discriminate
against complainant.
On appeal, complainant contends that the agency improperly reassigned
him to the Rehabilitation Job Offer and as a result he lost his full-time
regular position. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Initially we note that the Commission's previous decision found that
the record was inadequately developed for adjudication. Therefore, the
previous decision essentially determined that it was inappropriate for
the AJ to render a decision on the merits of the case. The case is now
before the Commission following the agency's supplemental investigation in
compliance with the previous decision's order. Upon review of the record,
we find that the record is adequately developed and ripe for decision.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. �1630.9.
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that
he is an "individual with a disability." We shall assume, arguendo,
that complainant established that he is a qualified individual with a
disability covered under the Rehabilitation Act.
Upon review of the record, the Commission finds that the agency provided
complainant with a reasonable accommodation. The record indicates that
complainant sought a permanent rehabilitation position. Complainant
averred that the limited duty position he performed for over two years
accommodated his conditions. The Injury Compensation Supervisor stated
that he informed complainant that he may be accommodated in a modified
letter carrier position. It was explained to complainant that a modified
letter carrier position would be in a different facility because all
positions at the CSC were in the clerk craft. The Injury Compensation
Supervisor stated that complainant opted to remain at CSC. Therefore,
complainant requested that he be provided a permanent rehabilitation
offer in the form of a transfer to the clerk craft at CSC. Based on
complainant's expressed preferences, the agency offered him a permanent
position in the clerk craft which he had been performing for over
two years. The agency reassigned complainant to a part-time flexible
position in the clerk craft pursuant to their interpretation of an
arbitration award.<1> Therefore, we find that the agency has provided
complainant with a reasonable accommodation.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm FAD 2.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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. 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
January 24, 2002
__________________
Date
1When a carrier is injured on the job, he or she is given modified
duties which may include tasks normally within the clerk craft. When a
carrier's injuries are determined to be permanent and the carrier has
reached MMI, he or she is placed into the clerk craft if assigned to
perform clerk craft duties. In the 1994 national arbitration decision
issued by Professor Carlton Snow in a grievance brought by the American
Postal Workers Union (�Snow Award�), it was held that when carriers with
a disability are assigned to the clerk craft, they must be assigned
as beginning PTF clerks rather than as full-time regular clerks, so
as to avoid a hardship on PTF clerks who were working toward becoming
full-time clerks. Full-time clerks enjoy, inter alia, certain seniority
and bid rights and accrue their annual leave at the beginning of each
year, rather than per pay period. In 1998, in a grievance brought by
the National Association of Letter Carriers, Professor Snow clarified
his 1994 decision to indicate that it only applied to letter carriers
returning to work and not to then-working letter carriers being reassigned
to the clerk craft.