01981568
03-17-1999
Robert E. Adamson, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Robert E. Adamson, Jr., )
Appellant, )
)
v. ) Appeal No. 01981568
) Agency No. 4E-852-1243-94
William J. Henderson, ) Hearing No. 350-96-8151X
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
______________________________)
DECISION
On December 22, 1997, Robert E. Adamson, Jr. (appellant), by and through
his attorney, timely appealed the final decision of the United States
Postal Service (agency), dated November 21, 1997, which concluded he
had not been discriminated against in violation of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq. In his complaint,
appellant had alleged that agency officials at the Tucson, Arizona,
Post Office discriminated against him when it regarded him as having a
physical disability and, on that basis, decided not to convert him from
a Transitional Employee position to a career appointment as a Part-Time
Flexible (PTF) City Letter Carrier on September 3, 1994. This appeal
is accepted in accordance with the provisions of EEOC Order No. 960.001.
The evidence of record established that appellant was hired by the
Tucson Post Office as a non-career Transitional Employee (TE) in March
1993. In December 1993, appellant experienced a work-related injury to
his back which required he work under medical restrictions. The record
establishes that his symptoms were gradually improving. In June 1994,
appellant transferred to another sub-station, where he was initially
assigned a walking route, carrying mail satchels weighing 35-40 lbs.
Because of concerns by his physicians that carrying the heavy satchels
would worsen his improving back symptoms, he was medically restricted
from this activity until further notice.
On the morning of August 24, 1994, the Manager of Customer Services
("Manager") notified all employees that all TE employees who were
eligible under the Veterans Readjustment Act (VRA) would be converted
to PTF career status. Appellant was one of these individuals. On the
afternoon of August 24, 1994, appellant saw his physician for a follow-up
appointment concerning his back. The physician completed a Form CA-17
for the agency which recommended that appellant avoid lifting over 30
lbs. and restricted kneeling, bending, twisting, and pulling/pushing
to a maximum of four hours per day.<1> On August 30, 1994, the Manager
informed appellant that he was not "medically fit" for conversion to a
career PTF carrier position because of his physical restrictions. On that
same day appellant contacted his physician and later submitted a letter
for his doctor explaining that the CA-17 form completed on August 24,
1994 was inaccurate because the agency had not completed the portion which
detailed the job requirements for a PTF position and he had had to guess
what was required. Therefore, the physician submitted a new Form CA-17
which indicated that appellant had no medical restrictions and was fully
capable of performing the physical duties of the PTF carrier position.
On September 3, 1994, all VRA-eligible TE employees were converted to
career PTF positions, as well as a number of new hires were made into
career positions. The only two exceptions were appellant and another TE
employee who were not converted because "both had medical restrictions
in effect that would preclude them from performing the full duties of
a letter carrier." On September 4, 1994, the Manager sent appellant
to a fitness-for-duty examination in order to obtain a second opinion
concerning his physical condition. On September 6, 1994, the agency's
contract physician examined appellant and determined that any injuries
he had previously sustained had been resolved and he was capable of
performing the full range of duties of a PTF carrier without restriction.
Despite this information, appellant was not converted to the PTF position.
On November 18, 1994, appellant's TE appointment came to an end and he
was terminated.
On November 16, 1994, appellant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against him
as referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On September 25, 1997, pursuant to 29 C.F.R. �1614.109(e), the AJ issued
a decision without a hearing, which concluded that the evidence supported
a finding of discrimination when the agency failed to convert appellant
to a career appointment because it regarded appellant as disabled and,
therefore, physically unable to perform the essential functions of the PTF
carrier position. The AJ noted that the agency persisted in its refusal
to convert appellant even when its own contract physician confirmed
appellant's doctor's opinion that his back injury had been resolved and
he was fully capable of performing in the PTF without restriction.<2>
On November 21, 1997, the agency issued its final decision in which it
rejected the AJ's finding of discrimination in this matter. It is from
this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
Based on the evidence of record, the Commission discerns no basis to
disturb the AJ's finding of discrimination. For the reasons fully
detailed in the AJ's analysis of this case, the Commission concurs that
agency officials violated the Rehabilitation Act when they failed to
convert appellant to a career position based on their unsubstantiated
belief, despite overwhelming medical opinion to the contrary, that
appellant was physically unable to perform the essential functions of the
PTF position. See Coogle v. United States Postal Service, EEOC Appeal
No. 01952577 (November 21, 1996), request for reconsideration denied,
EEOC Request No. 05970299 (January 30, 1998). Nothing raised by the
agency on appeal differs significantly from that previously raised with,
and considered by, the AJ in rendering his decision. The Commission
notes that the agency devoted the bulk of its final decision to an
argument that appellant did not have a "disability" as defined by the
Rehabilitation Act. However, this argument is misplaced because both
the AJ and appellant conceded that appellant does not have a disability.
Rather, the AJ based his conclusion that discrimination had occurred on
a finding that the agency's actions were motivated by that fact that it
regarded appellant as having a disability.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision which rejected the AJ's
finding of disability discrimination. In order to remedy appellant for
its discriminatory actions, the agency shall, comply with the following
Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall make an unconditional offer of reinstatement to
appellant of the career position of PTF Letter Carrier at the Tucson,
Arizona, Post Office. If appellant accepts this offer, he shall be
provided any retraining necessary to perform in the position. He shall
also be provided retroactive seniority and any other employment benefits
lost as a result of the agency's discriminatory actions.
(B) Within sixty (60) calendar days of the date this decision
becomes final, the agency is directed to award appellant back pay,
with interest, for all wages and benefits lost as a result of his
unlawful termination. The agency shall determine the appropriate amount
of back pay, interest and other benefits due appellant, pursuant to
29 C.F.R. � 1614.501. The appellant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the agency. If there is
a dispute regarding the exact amount of back pay and/or benefits, the
agency shall issue a check to the appellant for the undisputed amount
within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The appellant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
(C) The agency shall post at the Tucson, Arizona, Post Office 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.
(D) The agency shall provide immediate training to the agency officials
responsible for the matters at issue concerning their duties and
obligations under the Rehabilitation Act.
(E) The agency shall conduct a supplemental investigation pertaining
to appellant's entitlement to compensatory damages incurred as result
of the agency's discriminatory actions which resulted in appellant's
termination. See Feris v. Environmental Protection Agency, EEOC Appeal
No. 01934828 (August 10, 1995), request to reopen denied, EEOC Request
No. 05950936 (July 19, 1996); Rivera v. Department of the Navy, EEOC
Appeal No. 01934157 (July 22, 1994); Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993). See also, Cobey Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998); Jackson v. United States Postal Service, EEOC Appeal
No. 01923399 (November 12, 1992), request for reconsideration denied,
EEOC Request No. 05930306 (February 1, 1993). The agency shall afford
appellant sixty (60) days to submit additional evidence in support
of his claim for compensatory damages. Within thirty (30) days of
its receipt of appellant's evidence, the agency shall issue a final
decision determining appellant's entitlement to compensatory damages,
together with appropriate appeal rights.
(F) 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 back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. �2000e-16� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that you have the right to file a civil action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS DAYS of the date you filed your complaint with the agency,
or filed your appeal with the Commission. If you file a civil action,
YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE
OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY
HIS OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result
in the dismissal of your case in court. "Agency" or "department"
means the national organization, and not the local office, facility or
department in which you work. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of the
Court. Filing a request for an attorney does not extend your time in
which to file a civil action. Both the request and the civil action
must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
March 17, 1999
_________________ _____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
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 the Rehabilitation Act of 1973, as amended, 29
U.S.C. Sect. 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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Tucson, Arizona, Post Office supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Tucson Post Office has been found to have discriminated against the
individual affected by the Commission's finding when it failed to convert
him to a career position on the basis of its unsubstantiated perception
that he was medically unable to perform the essential functions of
the position. The Commission has ordered that this individual be
reinstated with an appropriate back pay award and a determination
of his entitlement to compensatory damages. The Tucson Post Office
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all Federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The Tucson Post Office 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 16141 The evidence indicates that the form should have
been filled out by the agency before it was presented to the physician
with a description of the tasks the employee was expected to perform in
his position. However, the form completed by appellant's physician on
August 24, 1994, was blank.
2 The AJ also found the agency failed to establish an after-acquired
evidence defense. As the agency did not contest this finding in its
final decision or on appeal, the Commission will affirm the AJ's finding
in this regard without comment.