07A20015
09-29-2004
Michael Mearns, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael Mearns v. United States Postal Service
07A20015
09-29-04
.
Michael Mearns,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A20015
Agency No. HI-0004-07
Hearing No. 160-99-8158X
DECISION
Following its September 13, 2001 final order, the agency filed a
timely appeal which the Commission accepts pursuant to 29 C.F.R. �
1614.405. On appeal, the agency requests that the Commission affirm
its rejection of an EEOC Administrative Judge's (AJ) finding that the
agency discriminated against complainant on the basis of his disability
(speech impediment/stutter). The agency also requests that the Commission
affirm its rejection of the AJ's order to award compensatory damages
and front pay. For the following reasons, the Commission reverses the
agency's final order.
ISSUE PRESENTED
Whether complainant proved by a preponderance of the evidence that the
agency discriminated against him on the basis of disability (speech
impediment/stutter) when on July 8, 1996, a Postal Inspector told him
that he would not receive further consideration for the Postal Police
Officer position because of his speech impediment.
BACKGROUND
Complainant worked as a Letter Carrier at the agency's Babylon, New York
facility. The record reveals that complainant applied for the position
of Postal Police Officer (the position) on or about September 1994.<1>
He took the examination for this position and received a score of 85.
On April 30, 1996, the Officer in Charge (OIC) interviewed complainant
for the position, and he wrote the notation �heavy stuttering� on
complainant's application folder.
Following the interview, the OIC advised two of the Postal Inspectors
(Inspectors) involved in the hiring process that complainant had a
severe stutter. The OIC, both Inspectors, and other individuals with
experience within the Inspection Service discussed complainant's stutter,
the essential functions of the position, and complainant's ability
to perform those functions. They concluded that complainant was not
qualified to perform the essential functions of the position because of
his stutter. It was decided that complainant should not be allowed to
continue in the process.
On July 8, 1996, Inspector-1 contacted complainant by telephone and
informed him that he would no longer be considered for the position
due to his stutter. Complainant requested that Inspector-1 confirm in
writing the reason he was being denied consideration for the position.
Inspector-1 advised him to contact the Inspection Service Operation Group
for that confirmation. The following day, complainant sent a letter
requesting that the agency provide him in writing with the reason he
was being denied consideration for the position.
During this time frame, a Manager in Human Resources advised Inspector-1
that: �absent a medical assessment that this individual's physical
disability prevents him from performing the essential functions of the
position, he cannot be disqualified due to his disability.� On August 23,
1996, the agency issued complainant a letter indicating that he would not
receive further consideration for the Postal Police Officer position.
On September 3, 1996, complainant received a letter from the agency
stating that its August 23, 1996 letter was issued in error, and that it
would continue to consider him for the position. By letter dated December
12, 1996, the agency informed complainant that he was scheduled for a
medical examination on December 18, 1996.<2> Complainant refused to take
the medical examination, and he withdrew his application, stating that
he would continue the hiring process after the EEO process was completed.
On September 7, 1996, complainant filed a formal complaint. At the
conclusion of the investigation, complainant was provided a copy of the
investigative report and requested a hearing before an AJ. Following
a hearing, the AJ found that the agency regarded complainant as an
individual with a disability based upon its perception of complainant's
speech impediment. The AJ then found that, with respect to his
application for the position, complainant presented direct evidence of
discrimination based on his disability. The AJ found that the agency
failed to proffer any evidence that it would have made the same decision
not to consider complainant for the position absent the discrimination.
The AJ awarded complainant $15,000 in non-pecuniary damages, as well as
front pay. The award of front pay was based, in part, on the AJ's finding
that complainant was not unreasonable in declining to accept the agency's
offer to continue the hiring process where the management officials
maintained (and still maintain) that complainant is not qualified
for the position due to his speech impairment. She also considered
complainant's testimony that he was less likely to meet the physical
requirements of the position at the age of 38 at the time of the hearing.
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that the AJ erred by making no finding on the issue of
whether complainant was a qualified individual with a disability, and
that complainant produced no evidence that he could perform the essential
functions of the position. The agency further contends that the AJ
disregarded testimony from the Inspectors which stressed the safety
component and emergency situations which may arise in the performance
of the duties of a Postal Police Officer. The agency also maintains
that the AJ erred in awarding complainant front pay inasmuch as there
was no evidence that complainant would have met the requirements for
the position to provide for reinstatement, and thus the award.<3>
In response to the agency's appeal, complainant contends that the
Inspectors had already made up their minds that they were not going to
consider him for the position with or without the medical examination.
Complainant also argues that courts have rejected the argument that the
burden is on the complainant to show that he would have been qualified
for a position but for the discrimination, citing Fadhl v. City and
County of San Francisco, 741 F.2d 1163 (6th Cir. 1984). He further
maintains that, while the agency attempted to suggest to the AJ that
communication skills were, in their opinion, an essential function of the
job, no mention is made of such a requirement in the job description.
Moreover, he notes that basic communication skills were a part of his
everyday life as well as a part of every job he has held. Finally,
complainant contends that, since reinstatement was not available and
ample evidence suggested that had he pursued the position he would have
been in an antagonistic atmosphere with the ultimate risk of losing his
career with the agency, the only effective remedy available was front pay.
ANALYSIS AND FINDINGS
Standard of Review
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Disability-Related Inquiries and Medical Examination
Employers are permitted to make pre-employment inquiries into the ability
of an applicant to perform job-related functions. The employer may
describe or demonstrate the job function and inquire whether or not
the applicant can perform that function with or without a reasonable
accommodation. An employer may also ask an applicant to describe or to
demonstrate how, with or without reasonable accommodation, the applicant
will be able to perform job-related functions. 29 C.F.R. � 1630.14(a).
Such a request may be made of all applicants in the same job category
regardless of disability. Such a request can also be made to an
applicant whose known disability could reasonably appear to interfere
with or prevent the performance of a job-related function, whether
or not the employer routinely makes such a request of all applicants
in the job category. Id; See Enforcement Guidance on Preemployment
Disability-Related Questions and Medical Examinations (Oct. 10, 1995)
(web version) (1995 Enforcement Guidance), EEOC Notice No. 915.002,
at 2. Under the Rehabilitation Act, however, �an employer may ask
disability-related questions and require medical examinations of an
applicant only after the applicant has been given a conditional job
offer.� Id., at 1; see also 29 C.F.R. � 1630.13(a). As the Commission
has explained:
Under the law, an employer may not ask disability-related questions and
may not conduct medical examinations until after it makes a conditional
job offer to the applicant. This helps ensure that an applicant's
possible hidden disability (including a prior history of a disability)
is not considered before the employer evaluates an applicant's non-medical
qualifications.
1995 Enforcement Guidance, at 1-2.
Here, the agency could have asked complainant if he could perform the
essential functions of the Postal Police Officer position, or required
him to demonstrate his ability to perform the essential functions of the
position, such as de-escalating potentially violent situations, using
firearms and walkie-talkies, and giving directions and information orally.
The Rehabilitation Act permits such requests, as they go to an applicant's
ability to perform the essential functions of a specific position.
See, e.g., 29 C.F.R. � 1630.14(a); 1995 Enforcement Guidance, at 10
(providing that if an �employer requires applicants to lift a thirty
pound box and carry it twenty feet,� this �is not a medical examination
[but] is just a test of whether the applicant can perform this task�).
In addition, after giving complainant a clear conditional job offer,
the agency could have questioned complainant regarding his speech
impediment and/or evaluated it. See, e.g., 29 C.F.R. � 1630.13(b);
see also 1995 Enforcement Guidance, at 13 (noting that �[a]fter giving
a job offer to an applicant, an employer may ask disability-related
questions and perform medical examinations,� and that a �job offer may be
conditioned on the results of post-offer disability-related questions or
medical examination�). Instead, before allowing complainant to describe
and/or demonstrate how he would perform the essential functions of the
position, Inspector-1 advised complainant on July 8, 1996 that he would
no longer be considered for the position due to his speech impediment.
Then, by letter dated December 12, 1996, the agency notified complainant
that he was scheduled for a medical examination without providing him
with a clear conditional job offer.<4>
Based upon the above stated evidence, we find that the agency exceeded
the allowable parameters of the Rehabilitation Act when: (1) on or about
July 8, 1996, without asking complainant to demonstrate or describe how
he could perform the essential functions of the position, the Inspectors
determined and advised complainant that he would no longer be considered
for the position due to his speech impediment; and (2) more than five
months later, on December 12, 1996, the agency improperly directed
complainant to attend a medical examination before it provided him
with a clear conditional job offer. We note that, although the agency
may have scheduled the medical examination in an effort to remedy its
past mistake, the agency scheduled the examination without providing
complainant with a conditional job offer. Moreover, the Postal Police
Officer position announcement states that �[a]pplicants who qualify
on the [written] examination and are in the area of consideration for
employment will be scheduled for a drug test and a medical examination,�
and Inspector-2 testified that an applicant is not offered a Postal
Police Officer position until he or she passes the medical examination
and all other areas of background investigation have been fulfilled.
Report of Investigation (ROI), Aff. A, Att. 13 (emphasis added); Hearing
Transcript (HT), at 128. Therefore, we find that this agency activity
was a form of prohibited disability discrimination and a violation of the
Rehabilitation Act. See, e.g., Dereyna et al. v. Department of the Navy,
EEOC Appeal No. 01980077 (January 19, 2001).
Moreover, due to the prohibited pre-employment medical examination, the
agency must correct its pre-employment process to comply with Commission
Regulations. See Nolan v. Department of the Army, EEOC Appeal No. 01975113
(Nov. 1, 2000); see also McKinley v. Department of the Army, EEOC Appeal
No. 01933326 (September 8, 1994); aff'd on reconsideration, EEOC Request
No. 05950027 (December 8, 1995) (finding disability discrimination
by agency officials who made prohibited preemployment inquiries, but
concluding that the complainant would not have been selected absent
the prohibited inquiries, and ordering the agency to correct its
pre-employment process).
The Commission has found that an employer's asking of improper
pre-employment questions can cause an actual injury to complainant.
See Nolan v. Department of the Army, supra, citing BMW of North America,
Inc. v. Gore, 517 U.S. 559, 575, 582 (1996). Based upon the record
before us, we find that the AJ properly determined that complainant is
entitled to compensatory damages in the amount of $15,000.
Non-Selection
The Commission further finds, however, that complainant failed to prove
that he would have been selected for the position. Complainant testified
that he refused to continue the hiring process because Inspector-1 had
already informed him that he would not get the position, and he believed
that he would not be allowed to return to his Letter Carrier position if
he failed the required ten-week training or his six-month probationary
period. Hearing Transcript, at 46-47. The record reflects that, on
September 3, 1996, complainant received a letter from the agency stating
that its August 23, 1996 letter was issued in error, and that it would
continue to consider him for the position. Since complainant chose
not to continue the hiring process after the agency insured him that
they would consider him for the position, we find that complainant has
failed to prove by a preponderance of the evidence that he would have
been selected for the position. In addition, to the extent that there
is no evidence that complainant would have met the requirements for the
position, the award of front pay was inappropriate.
CONCLUSION
Accordingly, we reverse the agency's final decision, finding no
discrimination, and we remand the case in accordance with this decision
and the Order below.
ORDER
The agency is ORDERED to take the following remedial action:
Within sixty (60) days from the date this decision becomes final,
the agency must review its pre-employment hiring processes (paying
particular attention to its application forms, interview guidelines,
and pre-hire medical examination procedures). The agency must revise such
pre-employment hiring processes as necessary to ensure that all aspects
of such processes comply with 29 C.F.R. � 1630.13 and 29 C.F.R. � 1630.14,
and are consistent with the following: Appendix to Part 1630: Interpretive
Guidance on Title I of the Americans with Disabilities Act Section 1630.13
("Prohibited Medical Examinations and Inquiries") and Section 1630.14
("Medical Examinations and Inquiries Specifically Permitted"); Enforcement
Guidance on Disability-Related Inquiries and Medical Examinations of
Employees under the Americans with Disabilities Act (Jul. 27, 2000);
Enforcement Guidance on Preemployment Disability-Related Questions and
Medical Examinations (Oct. 10, 1995).
Within sixty (60) days from the date this decision becomes final,
the agency shall pay complainant $15,000 in non-pecuniary compensatory
damages.
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.
The agency must provide training to agency officials in the U.S. Postal
Inspection Service/Postal Police, New York, New York who are responsible
for conducting pre-employment interviews, ordering pre-employment medical
examinations, and/or making ultimate hiring decisions. This training must
educate the agency officials on their responsibilities with respect to
pre-employment disability-related inquiries and medical examinations.
See 29 C.F.R. � 1630.13 and 29 C.F.R. � 1630.14; see also Appendix
to Part 1630: Interpretive Guidance on Title I of the Americans with
Disabilities Act Section 1630.13 ("Prohibited Medical Examinations and
Inquiries") and Section 1630.14 ("Medical Examinations and Inquiries
Specifically Permitted"); Enforcement Guidance on Disability-Related
Inquiries and Medical Examinations of Employees under the Americans with
Disabilities Act (Jul. 27, 2000); Enforcement Guidance on Preemployment
Disability-Related Questions and Medical Examinations (Oct. 10, 1995).
This training is not considered disciplinary action.
The agency shall consider taking disciplinary action against the employee
identified as being responsible for the discriminatory action against
complainant. The agency shall report its decision. If the agency decides
to take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline.
The agency must submit a report of compliance, as provided in
the paragraph below entitled "Implementation of the Commission's
Decision." This report must include supporting documentation (such as
the report of supplemental investigation and final agency decision on
the issue of complainant's entitlement to compensatory damages) verifying
that the above- outlined corrective actions have been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its U.S. Postal Inspection Service/Postal
Police, New York, New York 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__09-29-04________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
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 the Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., has occurred
at this 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The United States Postal Service, U.S. Postal Inspection
Service/Postal Police, New York, New York confirms its commitment to
comply with these statutory provisions.
The United States Postal Service, U.S. Postal Inspection Service/Postal
Police, New York, New York supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under law.
The United States Postal Service, U.S. Postal Inspection Service/Postal
Police, New York, New York has been found to have discriminated against
an applicant when it made prohibited pre-employment inquires, and it
directed him to attend a prohibited pre-employment medical examination
before it provided him with a clear conditional job offer. The United
States Postal Service, U.S. Postal Inspection Service/Postal Police,
New York, New York has been ordered to provide compensatory damages to
the affected applicant and provide training to appropriate managers.
The United States Postal Service, U.S. Postal Inspection Service/Postal
Police, New York, New York 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 United States Postal Service, U.S. Postal Inspection Service/Postal
Police, New York, New York 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 Postal police officers carry firearms. They prevent loss or damage
of postal property and mail; patrol postal premises and confiscate
items as needed; respond to emergencies including accidents, illness,
fire, unrest and to other circumstances threatening life or property;
de-escalate potentially violent situations; intercede in physical
assaults; and effect arrests of individuals involved in the violation
of federal laws on Postal Service property.
2 According to Inspector-2's testimony during the hearing, an applicant
is not offered a Postal Police Officer position until he or she passes
the medical examination and all other areas of background investigation
have been fulfilled.
3 The record reflects that complainant remained employed at the agency
as a Letter Carrier.
4 Complainant testified that he refused to take the medical examination
and continue the hiring process because: (1) Inspector-1 had already
informed him that he would not get the position, and (2) he believed
that he would not be allowed to return to his Letter Carrier position if
he failed the required ten-week training or his six-month probationary
period. Hearing Transcript, at 46-47.