01962984
10-01-1998
Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
William D. Morris v. Department of Defense
01962984
October 1, 1998
William D. Morris,
Appellant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01962984
Agency No. DM-92-056
EEOC Hearing No. 170-95-8281x
DECISION
Appellant timely appealed to the Equal Employment Opportunity Commission
(EEOC) from a final agency decision (FAD) concerning his allegation
that the agency violated the Rehabilitation Act of 1973, as amended,
29 U.S.C. 791 et seq. The appeal is accepted in accordance with the
provisions of EEOC Order 960, as amended.
The issue presented is whether the appellant was discriminated against
on the basis of a disability (arthritis, degenerative disc disease) when
he was denied a permanent light duty position outside of the warehouse
between February 27 and October 25, 1992.
At the time of the alleged discrimination, the appellant was employed
as a WG-5 Warehouse Worker (Forklift Operator) in the agency's Defense
Distribution Region East, Warehousing Division, in New Cumberland,
Pennsylvania. He filed the instant EEO complaint in August 1992 when the
agency failed to accommodate his requests for a reasonable accommodation
starting in February 1992.
After the agency completed the investigation of the complaint, the agency
notified the appellant of his right to request a hearing before an EEOC
Administrative Judge (AJ). The appellant requested a hearing. After a
hearing, the AJ issued a recommended decision on November 27, 1995,
finding that the appellant was a qualified individual with a disability;
and, that the agency intentionally discriminated against the appellant
between February 27 and April 11, 1992, by failing to make any attempts
to accommodate his medical restrictions by considering his reassignment
to an office job in spite of his repeated requests. However, the AJ found
that the agency did not discriminate against the appellant thereafter.
On February 5, 1996, the agency issued a FAD adopting the AJ's finding of
no discrimination after April 11, 1992, but rejecting the AJ's finding
of intentional discrimination prior to that date. It is from this FAD
that the appellant now appeals. Both parties submitted briefs on appeal.
The appellant argues for the affirmance of the AJ's findings regarding
discrimination between February and April 1992, and urges a reversal
of the AJ's finding that the agency did not discriminate against the
appellant thereafter. The agency urges an affirmance of the FAD.
After a careful review of the record in its entirety and the parties'
submissions on appeal, we find 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, we
discern no basis to disturb the AJ's findings.<1>
The AJ found that the agency was aware of the appellant's need for a
reasonable accommodation as of February 27, 1992, when the agency's
medical officer issued the report of a fitness-for-duty examination
concurring with the appellant's own physician's recommendation that the
appellant should not work in the warehouse setting where he was required
to stand on a concrete floor and work in cold and damp conditions.
Among the other restrictions, the appellant was not allowed to lift over
twenty pounds. In spite of the medical restrictions that the appellant
should not work on the concrete floor, in a damp and cold warehouse
environment, the agency made no attempt to consider reassigning the
appellant to any available office position. The AJ found the appellant's
testimony credible that he asked his supervisor and the Chief of the
Warehousing Division several times between February and April 1992
about a reassignment to an office job, consistent with his medical
restrictions. The AJ also found credible the testimony of a management
assistant responsible for coordinating the agency's placement actions for
employees who needed a reasonable accommodation for disabling conditions.
The management assistant testified that the Chief of the Warehousing
Division had asked her for assistance in preparing a personnel form
for reassigning the appellant. The Chief however did not submit such
a request until July 28, 1992. Based on this evidence, the AJ found
that the agency failed to make any attempts to reassign the appellant
in accordance with his medical restrictions until July 1992. In the
meantime, the appellant sustained an on-the-job injury on April 11,
1992, when he lifted an unmarked box weighing about thirty pounds.
Between April 11 and June 8, 1992, the appellant was off duty as a result
of the on-the-job injury. He received workers' compensation benefits
during this period. When the appellant returned to duty on June 8, 1992,
his physician continued several of the appellant's medical restrictions,
such as, no walking or standing for long periods and limitations
on lifting heavy weights. However, the physician did not indicate
that the appellant should be assigned to a job in an office setting.
Upon returning to duty on June 8, 1992, the appellant was again assigned
to work in the warehouse within his then-current medical restrictions.
Lastly, as a result of the appellant's continual requests for reassignment
to an office job, the agency permanently reassigned the appellant to an
office automation clerk position in the EEO office on October 25, 1992.
The AJ found that the agency did not discriminate against the appellant
after April 11, 1992. There was no need for an accommodation between
April 11 and June 8, 1992, because the appellant was not at work. The AJ
found that the agency provided the appellant with an accommodation after
June 8, 1992, consistent with his then-current medical restrictions.
The AJ rejected the appellant's contention that the agency failed to
accommodate him until October 1992 because he was not reassigned to
an office position until then. Not only did the June 1992 medical
restrictions not require such a reassignment, the AJ also noted that
the appellant acknowledged that the light duty assignments after June 8
were not in a cold and damp environment, even though they were located
in the warehouse setting.
As remedy, the AJ recommended an award of back pay, with interest, for
any work missed by the appellant between February 27 and June 8, 1992;<2>
compensatory damages for any loss suffered by the appellant as a result of
the April 11, 1992 on-the-job injury, caused by the agency's intentional
failure to accommodate the appellant's medical restrictions;<3> reasonable
attorney's fees; and, training in the requirements of the Rehabilitation
Act for all responsible management officials.
Accordingly, we AFFIRM the FAD in so far as it adopted the AJ's finding
of no discrimination regarding discrimination after April 11, 1992.
However, we REVERSE the FAD in so far as it rejected the AJ's finding
of discrimination between February 27 and April 11, 1992. The matter
is REMANDED for the agency to comply with the terms of the ORDER below.
ORDER
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall determine the appropriate amount of back pay,
interest and other benefits due appellant, for any work missed by
the appellant between February 27 and June 8, 1992, because of the
agency's failure to accommodate the appellant's medical restrictions,
pursuant to 29 C.F.R. �1614.501. 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 thirty (30) 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."
2. Within ten (10) calendar days of the date this decision becomes final,
the agency shall give the appellant a notice of his right to submit
objective evidence (pursuant to the guidance given in Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of
his claim for compensatory damages within forty-five (45) calendar days
of the date the appellant receives the agency's notice. The agency shall
complete the investigation on the claim for compensatory damages within
seventy-five (75) calendar days of the date this decision becomes final.
Thereafter, the agency shall process the claim in accordance with 29
C.F.R. 1614.108(f).
3. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall provide training to all responsible management
officials in the requirements of the Rehabilitation Act of 1973 regarding
their obligation to provide a reasonable accommodation to an employee
with a disability. Documentation evidencing completion of such training
shall be submitted to the Compliance Officer within thirty (30) calendar
days thereafter.
4. The agency shall post at the Defense Distribution Region East,
Warehousing Division, New Cumberland, Pennsylvania, 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 within ten
(10) calendar days of the expiration of the posting period.
5. 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.
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 (T0993)
This decision affirms the agency's final decision 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 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.
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. 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 (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:
Oct 1, 1998
DATE Frances M. Hart
Executive Officer
Executive Secretariat
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 ("EEOC") dated ______________ which
found that a violation of the Rehabilitation Act of 1973, 29 U.S.C. 791
et seq., has occurred at the Department of Defense, Defense Logistics
Agency, Defense Distribution Region East, Warehousing Division, New
Cumberland, Pennsylvania (hereinafter "DDRE").
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 DDRE supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The DDRE has been found to have denied a reasonable accommodation to
an employee with a disability (arthritis/degenerative disc disease)
by failing to timely reassign him from a warehousing job to an
office job. As a result, the agency has been ordered by the EEOC
to award the employee back pay for any missed work opportunities,
and award appropriate compensatory damages and attorney's fees to the
employee. Further, the agency has been ordered to provide training
in the requirements of the Rehabilitation Act to the responsible
management officials at the DDRE who were responsible for engaging in
discrimination. The DDRE 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 DDRE 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 Because we uphold the AJ's recommended decision in its entirety, we
find it unnecessary to resolve the appellant's contention that the agency
is bound by the AJ's decision under 29 C.F.R. 1614.109(g) because it did
not timely issue the FAD. The AJ mailed the decision to the parties on
November 27, 1995. Because the agency had moved to a different location,
it did not receive the FAD until December 12, 1995. The appellant argues
that the agency's February 1996 FAD should be deemed untimely because the
agency's delayed receipt of the AJ's decision was due to its failure to
inform the AJ of a change of its address. Although the agency failed to
inform the AJ of the change of address, it had submitted a permanent
change-of-address order to the Post Office, and the delay in the
forwarding of the mail to the agency's new location occurred in the Post
office. The agency then issued the FAD on February 5, 1996, within less
than 60 days of actually receiving the AJ's decision.
2 Even though the AJ found that the agency did not discriminate against
the appellant between April 11 and June 8, 1992, the award of back pay for
this period is proper as a remedy for discrimination during the preceding
period which caused the appellant to be off duty after April 11, 1992.
3 Compensatory damages may be awarded pursuant to 42 U.S.C. 1981a(a)(3)
where an agency fails to demonstrate that it made "good faith efforts,
in consultation with the person with the disability who has informed
the [agency] that accommodation is needed, to identify and make a
reasonable accommodation that would provide such individual with an
equally effective opportunity and would not cause undue hardship on the
operation of [its] business." The agency's failure to make any attempts
to find an available office position for the appellant, in spite of his
repeated requests, supports the AJ's award of compensatory damages for
any losses the appellant may be able to establish on remand.