01993950olc3
06-17-2002
George Palfy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western) Agency.
George Palfy v. U.S. Postal Service
07A10087 & 01993950
June 17, 2002
.
George Palfy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western)
Agency.
Appeal Nos. 07A10087 & 01993950
Agency Nos. 1E-801-0018-97; 1E-801-0017-99
Hearing Nos. 320-99-8347X; 320-AO-8356X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The agency also filed
an appeal of the Administrative Judge's decision finding discrimination
in violation of the Rehabilitation Act. The appeals are accepted pursuant
to 29 C.F.R. � 1614.405 and consolidated under 29 C.F.R.�1614.606. In the
instant complaint, the complainant alleges he was discriminated against on
the bases of race (American Indian), sex (male), age (4/12/48), reprisal
(prior EEO activity), and disability (sleep apnea, asthma, diabetes,
hypertension, right shoulder) when:
(1) the agency failed to provide him with an ergonomic chair; and
(2) his work hours were changed.
For the following reasons, the Commission REVERSES and REMANDS in
part, the agency's final action for further action consistent with
this decision.
BACKGROUND
The record reveals that complainant, a mail processor at the agency's
Denver General Mail facility, filed a formal EEO complaint with the
agency on November 11, 1996 and March 1, 2000, alleging that the agency
had discriminated against him as referenced above. The agency also filed
an appeal contesting the AJ's finding that it failed to engage in the
interactive process by failing to consider maintaining the complainant's
work schedule. The agency further appealed the AJ's Order requiring
it to investigate the status of other employees assigned to light duty
positions and alter its decisions regarding their work schedules in line
with their disabilities.
Administrative Judge's Decision
At the conclusion of the investigation, complainant was provided with a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding discrimination in the agency's change of the complainant's work
schedule. The AJ found no discrimination regarding the provision of an
ergonomic chair because the record established reasonable efforts on the
part of the agency to obtain a chair to accommodate the complainant's
back condition. The AJ concluded that complainant established that he is
an individual with a disability because he has .multiple impairments -
asthma, sleep apnea, diabetes, shoulder injury, pulmonary hypertension,
and cor pulmonae which substantially limit his ability to work, sleep,
stand and breathe. The AJ also concluded the complainant is able to
perform the essential functions of his position. He concluded, based
on these findings, that the agency was required to provide complainant
with a reasonable accommodation.
At the hearing, the complainant argued that the agency unreasonably
delayed in providing him with a chair to accommodate his disabilities.
The AJ found, that the agency did not unreasonably delay in providing the
complainant with a chair and that any delay was caused by the fact that
it had to identify a different source from which to re-order and replace
the initial purchase of a chair. The agency made reasonable attempts,
he found, within an additional forty-five day period to re-order and
obtain a different chair after the first chair was found to be the wrong
size for the complainant.
The AJ found that the agency violated the Rehabilitation Act by not
engaging in the interactive process to determine if the change in work
schedule would frustrate the accommodation required. The complainant
had been assigned to work on Tour 2 with the hours of 8:00 a.m. to
4:30 p.m. but as of June 1999, the complainant was switched to a
shift with hours of 12 noon to 8:30 p.m. The AJ found that the agency
failed to consider whether it should continue the complainant on his
original schedule and whether any change would violate the complainant's
physician's clear intention that he be kept on a day shift. According to
the AJ, the agency had a continuing duty to provide the complainant with
an accommodation, meaning it had a duty to revisit the issue to determine
whether the change to his schedule continued to be a satisfactory
accommodation or whether a different accommodation was required.
This was especially true, the AJ concluded, because the complainant
made clear his objection to being placed on a different schedule than
the one he had held for two years.
The AJ concluded that the complainant failed to establish a prima facie
case of race, age or sex discrimination because he did not show that
any similarly situated employees were given preferential treatment.
The Agency's Final Action
The agency's final action accepted the AJ's finding of no discrimination
but declined to implement the AJ's finding of discrimination with
respect to its change of the complainant's work hours. In its timely
appeal, the agency argues that it was not required to engage in the
interactive process and that its change of the complainant's hours
did not violate the complainant's medical restrictions that he work
during daytime hours. The agency contends that it was not required to
consult with the complainant and that it fulfilled its duty because it
consulted the injury compensation manager (C1) who was aware of the
complainant's circumstances. The agency argued that its decision to
change the complainant's work schedule was purely a business decision and
that to keep the complainant on his old schedule was not a reasonable
accommodation. This was based on the fact that the mail profiles
indicated most mail was received later in the day and that employees
were not needed early in the day. Therefore, the agency argued that the
change in the complainant's work schedule was necessitated by business
considerations. The agency further argued that it would pose an undue
hardship to keep the complainant on the earlier work schedule because
there were no supervisors available to allow the complainant to work
at that time and it would be burdensome to provide a supervisor to only
one employee. Lastly, the agency concluded that its decision was based
on the opinion of its doctor that the change in hours would not adversely
affect the complainant's health condition.
Complainant's Appeal
The complainant did not submit specific comments regarding the AJ's
decision but it is presumed that he appeals the AJ's finding of
no discrimination in the agency's provision of an ergonomic chair
and the finding of no discrimination based on his race, sex and age.
The complainant's appeal under EEOC No. 01993950 concerned the agency's
alleged violation of the Rehabilitation Act in providing an ergonomic
chair. The AJ consolidated the complainant's second complaint concerning
the change in his work schedule and the two are hereby consolidated in
this decision.
ANALYSIS AND FINDINGS
The agency contests the AJ's conclusion that it violated the
Rehabilitation Act when it did not engage in an interactive process with
the complainant and when it changed the complainant's work schedule
to a later start time of 12 noon. The agency also contests the AJ's
authority to order it to investigate and correct its treatment of other
light duty employees whose schedules were also changed in violation of
their restrictions. Based on the complainant's appeal, we must also
determine whether the AJ was correct in his finding of no discrimination
concerning the agency's allegedly delayed provision of an ergonomic
chair and no discrimination based on his race, sex and age.
Pursuant to 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).
After a careful review of the record, the Commission finds that the AJ's
decision concluding that the agency violated the Rehabilitation Act
by changing the complainant's work hours was supported by substantial
evidence in the record. We further affirm the AJ's finding of no
discrimination regarding the agency's provision of an ergonomic chair.
To bring a claim of disability discrimination, complainant must
first establish that he has a disability within the meaning of the
Rehabilitation Act. An individual with a disability is one who
has an impairment which substantially limits a major life activity.
An individual is substantially limited in a major life activity if he is
�significantly restricted as to the condition, manner or duration under
which [he] can perform a particular major life activity as compared... to
the average person in the general population.� 29 C.F.R. �1630.2(j)(ii).
Complainant also must show that he is a "qualified" individual with a
disability within the meaning of 29 C.F.R. �1630.2(m). That section
defines a �qualified individual with a disability� as meaning, with
respect to employment, a disabled person who, with or without reasonable
accommodation, can perform the essential functions of the position
in question.
In its appeal brief, the agency contests that the complainant was
an individual with a disability because he allegedly failed to submit
adequate documentation that he was substantially limited in a major life
activity and he did not inform the agency that he needed an accommodation.
The Commission finds that the arguments are not supported by the record
because the agency was provided with adequate documentation of the kind
and nature of the complainant's impairments as well as his need for work
during daytime hours.
We conclude that the complainant is an individual with a disability
because he was diagnosed with multiple impairments - obstructive sleep
apnea, asthma, and pulmonary hypertension all of which, at a minimum,
substantially limited his ability to sleep and to breathe.<1> The record
in this case contained adequate documentation which indicated that
the combined effects of his multiple interconnected impairments made
it difficult for him to manage his sleep patterns and significantly
restricted the condition and manner of his sleep. Moreover, the
record, including complainant's testimony, reflected that because
of his interrelated impairments, his daily routine required that he
carefully adhere to a regularized schedule or his sleep apnea could be
significantly aggravated.
In addition, complainant's pulmonary hypertension and cor pulmonae
(enlarged right ventricle of the heart) contributed to his inability to
sleep.<2> Complainant's treating physician made clear in the record
his opinion that failure to control his sleep apnea could result in
life-threatening consequences. Based on the foregoing, we find that
the combined effects of complainant's sleep apnea and other impairments
placed a significant restriction on the major life activities of sleeping
and breathing. Moreover, the number of hours complainant is able to
sleep at any given time is not the dispositive factor as much as the
significant difficulty he has in managing his sleep patterns. See Silk
v. City of Chicago, 97 WL 790598 (ND Ill 1997).
Ergonomic Chair
According to the complainant's testimony, he requested that the agency
provide him with a chair with arms sometime in September 1996 due to
the effects he suffered from repetitive stress syndrome. The chair was
ordered and delivered on October 16, 1996. It was later determined to be
an ineffective accommodation because of the complainant's large stature.
The agency replaced this chair with another chair formerly used by another
employee on or about November 19, 1996. This too proved to be too small
for the complainant's size and the agency requested the complainant
to identify another source for ordering an appropriately sized chair.
The complainant took 20 days to identify a new source but the agency
prepared and forwarded a new requisition within 4 days. The complainant
eventually received a replacement chair on or about January 15, 1997
just 4 months after his initial request. Based on these facts, the
Commission finds the AJ's determination that the agency's actions met
its obligation under the Rehabilitation Act is supported by substantial
evidence in the record.<3>
Changed Work Hours
The record reflected that the agency disputed the complainant's
physician's assessment that the complainant needed to work only day shifts
and that his need for daytime work could be accommodated with work that
began at noon. Agency doctors conceded that the complainant suffered
from sleep apnea and a metabolic disorder which made rotating shifts
inadvisable, but they contested that it had to be addressed solely through
daytime work. Agency doctors also conceded that the complainant was
restricted in his lifting due to hypertension but considered the lifting
restriction temporary depending on an improvement in his condition.
In an apparent conciliation of a grievance the complainant filed regarding
his work schedule, the agency scheduled the complainant for light duty
work in the Manual Mail Unit on Tour 2, on the 8 a.m. to 4:30 shift.
This began in July 1996. He continued to work this shift for two years
from 1996 to 1998. During this time period, the complainant's physician
reported to the agency that the complainant suffered from severe sleep
apnea which resulted in pulmonary hypertension. He also reported that
the complainant was doing better at controlling his sleep patterns since
he started working the day shift and that with the accommodation, he was
able to sleep more than 5 hours at a time. His physician further stated
that the complainant's condition was lifelong, that he should avoid night
shifts indefinitely and that his condition could cause potentially life
threatening complications. Once the complainant's shift was changed to
12 noon to 8:30 p.m, the complainant testified that he became sick more
often which required him to use leave under the Family Medical Leave Act.
He stated that the new hours caused him to have a long day since he
still awakened at 6 a.m. under the new shift and that the change made
it hard for him �to cope with work every day because of his diabetic
condition.�<4>
Based on this objective evidence, the agency was aware that the
complainant's condition improved when he was placed on the early
shift and that the later shift caused the complainant to become sick.
Under the Commission's Guidance, the agency has a continuing duty to
provide a reasonable accommodation unless it can show that it would
create an undue hardship. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans With Disabilities
Act (Guidance), March 1, 1999 at p.45 and 54. Here, the evidence
established that the agency placed the complainant in the 8 a.m. shift
as an accommodation to his need for a daytime work schedule. At the
time the agency decided to eliminate the complainant's unit from shifts
beginning at 8 a.m., it was obligated to investigate the availability of
another position on an early morning shift. Although the agency claimed
that it had adequately investigated the complainant's circumstances
and that the change in hours did not adversely affect his condition,
the complainant's testimony and that of his doctor reflect otherwise.
In addition, according to C1's testimony, she was not involved in
the decision regarding the complainant's changed hours other than to
document her case file. C1 was responsible for knowing the availability
of positions in the facility as a whole but the record does not indicate
that she investigated reassigning the complainant.
Given that the particular shift the complainant worked was the only
accommodation that was effective and did not aggravate his condition,
the agency was required to show that it would have been an undue hardship
to continue the complainant employment on the morning shift. This the
agency failed to do. Our Guidance cites several factors for determining
whether an agency has demonstrated undue hardship: the nature and cost of
the accommodation needed; the overall financial resources of the facility
making the reasonable accommodation; the number of persons employed; the
type of operation of the employer, including the structure and functions
of the workforce; the impact of the accommodation on the operation of
the facility. Guidance at p.54. Even though the manual mail units in
which the complainant worked were all moved to later shifts, the agency's
manager of distribution testified that there were other units that began
work in the morning. He also stated that �there were a phenomenal number
of flats right now� indicating that there was sufficient work available
in flat sorting possibly during the morning
hours. Based on this evidence, the agency failed to show that it could
not reassign the complainant because of undue hardship.
We do not base our finding of a violation on the failure of the agency
to engage in the interactive process as the agency was well aware of
the nature of the complainant's condition and his requests
for accommodation through numerous exchanges of correspondence between
the complainant's and the agency's physicians.
Based on the foregoing, we find the AJ's finding of a violation of the
Rehabilitation Act was supported by substantial evidence in the record
that the agency failed to consider reassigning the complainant to a
vacant position during the same work hours he held or in the alternative
failed to demonstrate that it would create an undue hardship to do so.
Therefore, we uphold the AJ's decision.
Regarding the AJ's finding of no discrimination based on the complainant's
race, age and gender, we find the complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory
animus on these bases. Therefore, we affirm the AJ's finding of no
discrimination on the bases of race, age and gender.
We address now, the AJ's authority to order the agency to investigate
the status of employees occupying light duty positions based on the
complainant's testimony that they were rescheduled in violation of
the law. The Commission's regulations do not permit it to order an
investigation of this sort without a complaint of discrimination filed
by the aggrieved party. See 29 C.F.R. Part 1614 (as amended November
9, 1999). Therefore, the Commission will vacate that portion of the
AJ's findings consistent with this decision.
CONCLUSION
Therefore, after a careful review of the record, including arguments on
appeal, and arguments and evidence not specifically discussed in this
decision, the Commission REVERSES the agency's final action on the issue
of the complainant's changed work schedule and directs the agency to
take action in accordance with the order set forth below. Our order
modifies the relief granted by the AJ as discussed in this decision.
The Commission AFFIRMS the agency's final action regarding the provision
of an ergonomic chair and the finding of no discrimination on the bases
of race, sex and age.
ORDER (D0900)
The agency is ordered to take the following remedial action:
1. The agency will offer to transfer the complainant to a unit with a
shift beginning at 8 a.m.
2. The agency will provide 8 hours of training to those managers
responsible for changing the complainant's shift and C1, the agency's
manager of injury compensation matters, in the requirements of the
Rehabilitation Act and the accompanying regulations and guidances.
3. The agency will restore the complainant's leave taken as a result of
the change in his shift hours and calculate and pay back pay for those
days taken as leave without pay during the time period at issue in this
appeal and described more fully below.
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 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 (G0900)
The agency is ordered to post at its Denver General Mail 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.
ATTORNEY'S FEES (H0900)
If complainant 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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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
June 17, 2002
Date
__________________
Date
1In light of the conclusion, we need not address the legal significance,
if any, of complainant's diabetes and shoulder impairment.
2We need not determine whether the complainant is substantially limited
in working because of his limitations in other major life activities.
3The complainant claimed that management employees were responsible
for the disappearance of his chair but he failed to produce evidence to
support his claim.
4The complainant's doctor related his need for �daytime hours� to his
diabetic condition in August 1995.