01A42573
09-02-2004
Leon E. Hanson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Leon E. Hanson v. United States Postal Service
01A42573
September 2, 2004
.
Leon E. Hanson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A42573
Agency No. 4F-956-0010-03
Hearing No. 370-2004-0003X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
At the relevant time, complainant was employed as a Mail Processing Clerk,
PS-05, in the Redding, California Post Office. Believing he was a victim
of discrimination, complainant filed a formal complaint alleging that
the agency had discriminated against him on the basis of disability and
in reprisal for prior EEO activity, in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., when, on September 18, 2002, management failed to provide
him with a reasonable accommodation.
The record indicates that on or about May 14, 2002, the Pacific
Area Occupational Health Unit offered complainant a Video Coding
System Technician position. In response, on or about June 10, 2002,
complainant's physician sent a facsimile stating that complainant's
medical restrictions did not restrict complainant's ability to perform the
essential job functions of the Video Coding System Technician position.
Subsequently, however, complainant was informed that the Redding Post
Office could not accommodate his disability. The stated reason was that
the Redding office could not support the equipment needed for the video
recognition job, and the office did not have the equipment on which the
video technology would run.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision, without a hearing,
finding no discrimination.
The AJ found that the record is devoid of any evidence that there
were any vacant funded positions available which would have met with
complainant's restrictions. The AJ noted that pursuant to 29 C.F.R. �
1614.203(g)(1999), an agency is only required to offer reassignment to
a vacant funded position located in the same commuting area, serviced by
the same appointing authority, and at the same grade level. The agency's
final order implemented the AJ's decision.
On appeal, complainant contends that management discriminated against
him by offering him a job that they knew was not available, and then
withdrawing the offer. The agency requests that we affirm the final
order. As this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject
to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
In this case, we find that the Administrative Judge committed an error
of law. Specifically, the AJ found that the agency satisfied its
obligations under the Rehabilitation Act, when it searched for a vacant
funded position for complainant as an accommodation within the Redding,
California area. The AJ cited 29 C.F.R. � 1614.203(g)(1999). However, at
the time the AJ issued her decision, 29 C.F.R. � 1614.203(g)(1999), which
governed and limited the obligation of reassignment in the federal sector,
had already been superseded and no longer applied. 67 Fed. Reg. 35732
(5/21/02), to be codified as 29 C.F.R. � 1614.203(b). The ADA standards
apply to all conduct on or after June 20, 2002, and emphasize, among
other things, a broader search for a vacancy. In this case the agency
conduct at issue occurred after June 20, 2002, on or about September
18, 2002. The ADA regulations regarding reassignment can be found at 29
C.F.R. �� 1630.2(o) and 1630.9. Additional information can be found in
the Appendix to the ADA regulations and in the EEOC's Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under The Americans with
Disabilities Act, No. 915.002, at Questions 25-31 (rev. Oct. 17, 2002).
These documents are available on the EEOC's website at www.eeoc.gov.
Here, the agency was required to conduct a broader search than simply
within the Redding, California area. Additionally, we note that since
the Pacific Area Occupational Health Unit did in fact initially offer
complainant a Video Coding System Technician position, it is possible, if
not likely, that such a position existed at some agency location, at the
relevant time, to which complainant could have been offered reassignment.
We find that a hearing is necessary to resolve this genuine issue of
material fact.
Accordingly, the issuance of a decision without a hearing was improper,
and we VACATE the agency's final order and REMAND the matter for a
hearing in accordance with this decision and the ORDER below.
ORDER (E0900)
The agency shall submit to the Hearings Unit of the San Francisco District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted to
the Hearing Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint 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.
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:
September 2, 2004
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations