01981286
10-19-2001
James McCleese, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Allegheny Area), Agency.
James McCleese v. United States Postal Service
01981286
October 19, 2001
.
James McCleese,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Allegheny Area),
Agency.
Appeal No. 01981286
Agency No. 4C442107396
Hearing No. 220-97-5061x
DECISION
James McCleese (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning his equal employment opportunity (EEO)
complaint of unlawful discrimination in violation of the 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 appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he
was discriminated against on the bases of disability (blind right eye,
obesity, deformed feet, knees-degenerative joint disease) and age (49
at the relevant time) when:
(1) on January 25, 1996, management moved his desk to a congested area
of the workroom floor, approximately 50 to 100 feet from the restroom,
in violation of his physician's and the agency's recommendation that
he be close to a restroom; and
on April 23, 1996, management moved complainant's desk further into
the middle of the congested workroom floor after he complained that
water, plaster, and blue paint were leaking on his desk due to a hole
in the ceiling.
For the following reasons, the Commission REVERSES the agency's final
decision.
The record reveals that complainant, a Modified Distribution Clerk at
the agency's Warren, Ohio facility, filed a formal EEO complaint with
the agency on May 9, 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 decision
finding discrimination on the basis of disability and no discrimination
on the basis of age. The AJ concluded that complainant established
that he was a qualified individual with a disability and that the agency
therefore had a continuing obligation to provide him with a reasonable
accommodation, absent undue hardship.
The AJ determined that the agency provided complainant a reasonable
accommodation when it offered him the job of modified distribution
clerk, the position he was performing when the issues in question arose.
The AJ then concluded that the agency failed in its duty to provide a
continuing reasonable accommodation to complainant when it moved his desk
to the congested workroom floor. The AJ found that one of the essential
functions of complainant's position was providing customer service to
the public and that a great deal of that service was performed in person.
The AJ concluded that after being moved to the noisy and crowded workroom
floor, complainant was no longer able to perform face-to-face customer
service, and that he had difficulty handling telephone inquiries as well,
due to the noise. The AJ also found that the move made it difficult
for complainant to get to the restroom.
The AJ concluded that the agency did not establish either that it was an
undue hardship for it to continue to reasonably accommodate complainant or
that complainant was no longer entitled to a reasonable accommodation.
The AJ therefore recommended a finding of disability discrimination
due to the agency's failure to provide complainant with a reasonable
accommodation. The AJ went on to find that the agency failed to make
a good faith effort to reasonably accommodate complainant and that
complainant established a causal connection between the harm he suffered
and the agency's actions.
Turning to complainant's age discrimination complaint, the AJ found
that complainant failed to establish that he was subjected to age
discrimination, noting that he offered nothing, other than his date of
birth, in support of his allegation of age discrimination.
The agency's final decision rejected the AJ's finding of disability
discrimination and adopted her finding of no age discrimination.
The agency noted that complainant failed to establish that he was
disabled within the meaning of the Rehabilitation Act because he
failed to establish that he was substantially limited in a major life
activity.<1> The agency went on to find that even if complainant was
a qualified individual with a disability, the agency provided him with
a reasonable accommodation. Specifically, the agency noted that the
complainant was able to perform the essential functions of his position
from his new location on the workroom floor. The agency acknowledged
that complainant was restricted to �sit down� work close to a restroom,
but concluded that the new location of his desk did not violate these
restrictions. The agency found that complainant was not entitled to an
accommodation of his choice, but only one that allowed him to perform
the essential functions of his job. The agency also noted that once
management officials realized that complainant's desk was positioned
under a defective ceiling, his desk was moved.
On appeal, complainant contends that the AJ's recommended finding of
disability discrimination correctly summarized the facts and reached the
appropriate conclusions of law.<2> The agency reiterates the arguments
made in its FAD and asks that its FAD be affirmed.
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 summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. In so finding, we first note that
complainant established that he is disabled within the meaning of the
Rehabilitation Act. Complainant testified to a number of impairments,
including obesity and knee problems. Complainant's doctor indicated that
due to his knee impairment, complainant needed to have a �sit down job
only....� This doctor also noted that complainant needed to have surgery
due to his knee impairment. The agency's doctor agreed that complainant
required a sit-down job. Furthermore, various co-workers testified that
complainant had a hard time walking and that he often used a cane.
We find that the factual findings underlying the AJ's decision that
complainant is a disabled individual are supported by substantial
evidence. Complainant established that his knee condition, along with
his obesity, significantly restricts his ability to walk as compared to
the average person in the general population. See Interpretive Guidance
on Title I of the Americans with Disabilities Act, 29 C.F.R. Part 1630
(Interpretive Guidance), 1630.2(i) (walking is a major life activity) and
1630.2(j) (an individual is substantially limited if he is significantly
restricted in his ability to perform a major life activity as compared
to the average person in the general population); see also Emma J. Lee
v. Department of Veterans Affairs, EEOC Appeal No. 07A00007 (July 13,
2000) (complainant who provided evidence that her �ability to ambulate�
was limited was found to be substantially limited in the major life
activity of walking and, therefore, an individual with a disability
within the meaning of the Rehabilitation Act).<3>
Furthermore, we find that the agency's failure to grant complainant's
request to be moved back to a location that had a close and unobstructed
path to the restroom denied complainant a reasonable accommodation.
The duty to provide an individual with a disability with reasonable
accommodation includes the accommodation of making existing facilities
used by employees readily accessible to those with disabilities.
See Interpretive Guidance, � 1630.2(o). This accommodation includes
both those areas that must be accessible for the employee to perform
the essential job functions, as well as non-work areas used by employees
for other purposes, such as restrooms. See id.
Here, the AJ's finding that the movement of complainant's desk made
complainant's access to the restroom difficult is supported by substantial
evidence. The record established that the move placed complainant's
desk in a very congested area, at least twice as far from the restroom
as it had previously been. Several witnesses testified that before the
move complainant's desk was about 20-25 feet from the restroom and that
there were no obstacles in his path. The record also establishes, through
complainant's testimony and the testimony of coworkers, that the move put
complainant's desk about 50-100 feet<4> from the restroom and that the
path was often block by carts and other obstacles. Witnesses testified
that even small individuals had to twist and turn to get through the
area on the workroom floor and that complainant, due to his weight and
walking problems, had a very hard time doing this.
Complainant provided unrebutted testimony that his difficulty in getting
to the restroom due to the distance and obstacles caused him to fall
and twist a knee on which he had recently had surgery. Complainant also
established that immediately after he returned from surgery, on March 26,
1996, he requested that he be moved to a location with easier access to
the restroom. After a careful review of the record, we find that in
failing to grant complainant's request to be moved, the agency failed
in its duty to provide complainant with a readily accessible restroom.
Moreover, the agency failed to establish that providing an accommodation
which would allow complainant ready access to a restroom would
impose an undue hardship on the operation of the agency's business.
The Officer-in-Charge (OIC) testified that complainant's desk was moved
because the agency decided to remodel the office in which complainant
previously sat. This area functioned as a reception area and OIC
testified that it looked unprofessional with complainant's desk in it.
We note, however, that the agency provided no evidence to suggest that
placing complainant in some other location with a short and clear path
to the restroom would have posed any difficulty whatsoever, much less a
significant difficulty or expense, as it is required to show to establish
undue hardship. See Interpretive Guidance, � 1630.2(p). Accordingly,
we find that the agency failed to provide complainant with a reasonable
accommodation when it failed to place his desk so as to afford him a
short and unencumbered path to the restroom.
Furthermore, we find that because the agency failed to make a good faith
effort to reasonably accommodate complainant, the AJ's decision to award
complainant compensatory damages was proper. A good faith effort can be
demonstrated by proof that the agency, in consultation with the disabled
individual, attempted to identify and make a reasonable accommodation.
Compare Luellen v. United States Postal Service, EEOC Appeal No. 01951340
(December 23, 1996) (agency demonstrated good faith effort where it
consulted with complainant and her physicians in attempting to identify
a reasonable accommodation, despite the fact that these efforts were
not sufficient to afford complainant a reasonable accommodation) with
Morris v. Department of Defense, EEOC Appeal No. 01962984 (October 1,
1998) (agency did not make a good faith effort to identify and provide
a reasonable accommodation for complainant where it did not make any
attempt to find an available office position for complainant in spite
of his repeated requests.)
Here, the record establishes that complainant returned from surgery and
complained that, due to his impairments, the location of his desk impeded
his access to the bathroom. Complainant also suggested an alternate
location that would remedy this problem, but the agency refused to
consider whether other locations were available.
We note, however, that the AJ's finding that the agency violated the
Rehabilitation Act beginning on January 25, 1996, when it �discontinued�
complainant's previously granted reasonable accommodation of reassignment
to a Modified Distribution Clerk by moving his desk to the workroom floor,
is erroneous. Complainant failed to establish that the movement
of his desk to the workroom floor prevented him from performing the
essential functions of his position as a Modified Distribution Clerk,
the position the agency gave him in 1993 as a reasonable accommodation.
Although the AJ found that complainant was unable to provide face-to-face
customer service and that the noise levels on the workroom floor made it
difficult for him to answer the telephone, the agency established that
complainant was still able to perform the essential functions of his job,
which did not include providing face-to-face customer service.
The agency also established that complainant was able to answer the
telephone in a relatively noiseless environment during the majority of
his work day, after the carriers left the workroom floor to deliver mail.
Moreover, there is no evidence to indicate that the 1993 accommodation
involved proximity to the restroom. Rather, the record establishes that
the issue of proximity to the restroom did not arise until March 1996
when complainant's doctor asked that complainant be close to a restroom.
Accordingly, it was not until March 26, 1996, when complainant requested
that his desk be moved to a location with easier access to the restroom,
that the agency violated the Rehabilitation Act by not granting
complainant's request.
Complainant apparently is also alleging that the placement of his desk
under this hole was a denial of a reasonable accommodation. There is
no merit to this contention. Complainant's established disability, the
substantial limitation on his ability to walk due to his knee impairment
and weight, was not related to or affected by the placement of his desk
under this hole. Rather, complainant testified that this placement
affected his breathing because of his asthma.
Because there is insufficient evidence that complainant's asthma
substantially limited his ability to breathe, we find improper the AJ's
apparent determination that the placement of complainant's desk under
a hole was an additional denial of a reasonable accommodation, separate
from the placement of complainant's desk in a position that denied him
ready access to the restroom. Moreover, if complainant intended to
argue that he was subjected to disparate treatment when his desk was
placed under this hole, testimonial evidence indicates that non-disabled
individuals had desks in this position at various times. Accordingly,
we find that complainant did not establish that the placement of his desk
under the damaged portion of the ceiling was motivated by discrimination.
Accordingly, after a careful review of the entire record, including
complainant's arguments on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we discern
no basis to discern the AJ's decision. We therefore REVERSE the FAD
and REMAND the matter for further processing in accordance with the
ORDER below.
ORDER
The agency is ORDERED to take the following remedial actions:
Within sixty (60) calendar days of the date this decision becomes final,
the agency is directed to reimburse all annual leave, sick leave,
and/or Leave Without Pay that complainant incurred due to the agency's
discriminatory denial of his request for reasonable accommodation,
from March 26, 1996 through complainant's retirement.<5>
Within sixty (60) calendar days of the date this decision becomes
final, the agency shall conduct training for the Officer in Charge of
the Warren, Ohio facility at the time the complaint at issue arose,
as well as complainant's then supervisor, addressing these employees'
responsibilities under equal employment opportunity law. The training
shall address the proper procedures for facilitating the provision of
reasonable accommodation under the Rehabilitation Act. 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 verifying that the
corrective action has been implemented.
The issues of compensatory damages and attorney's fees and costs
are REMANDED to the Hearings Unit of the Cleveland district office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 29 C.F.R. � 1614.109, and the agency shall
issue a final action in accordance with 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.
POSTING ORDER (G0900)
The agency is ordered to post at its Warren, Ohio 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 (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
October 19, 2001
Date
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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. has occurred
at United States Postal Service, Warren, Ohio facility (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 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, was found to have discriminated on the basis of disability
when it denied an employee a reasonable accommodation. The employee
has since retired, but the agency has been ordered to: (1) reimburse
all annual leave, sick leave and/or Leave Without Pay that the employee
incurred due to its discriminatory denial of reasonable accommodation;
and (2) provide training for the management officials who failed to
provide the employee with a reasonable accommodation. In addition,
the issue of compensatory damages and attorney's fees and costs has been
remanding to the Hearings Unit of the EEOC's Cleveland District office.
The facility 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.
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 16141The 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.
2 Complainant did not appeal the agency's decision to adopt the AJ's
finding of no age discrimination. This decision will therefore only
address complainant's claim that he was subjected to disability-based
discrimination when the agency failed to provide him with a reasonable
accommodation.
3 The agency did not dispute that complainant is qualified to perform
his job.
4 Complainant's desk was moved twice. Initially, in January 1996,
the desk was moved onto the workroom floor. He then went on leave for
knee surgery and when he returned, he found that his desk had been moved
again, to a location directly under a hole in the ceiling, farther away
from the restroom.
5 The record establishes that complainant's application for disability
retirement was approved by the Office of Personnel Management on June
6, 1997 and that the agency began to process the application on June
12, 1997. Because complainant no longer works at the agency, we are
not ordering the agency to provide him with a reasonable accommodation.