01994458
02-12-2004
Thomas C. Masteller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Thomas C. Masteller v. United States Postal Service
01994458
February 12, 2004
.
Thomas C. Masteller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01994458
Agency No. 4-I-553-0090-98
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the following reasons, the
Commission REVERSES the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Tractor-Trailer Driver at the agency's Minneapolis Processing and
Distribution Center, Northland District facility. Complainant sought EEO
counseling and subsequently filed a formal complaint on June 26, 1998,
alleging that he was discriminated against on the basis of disability
(Multiple Sclerosis) when on February 9, 1998, he was denied medical
clearance by a postal service physician (P1) to resume his Motor Vehicle
driving duties.<1>
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
The record shows that after complainant had come back to work from being
off on sick leave for six weeks it was noticed by his supervisor (S1)
that he was coming in late on a regular basis and was having difficulty
remembering things. S1 also believed that complainant's performance
seemed to have deteriorated prior to his leave. On that basis, S1
scheduled a fitness for duty examination (FFDE) for complainant.<2>
In 1994, the agency discontinued issuing government licenses to operate
motor vehicles and required drivers to obtain a commercial driver's
license in order to operate vehicles in excess of 10,000 pounds.
Concurrently, the agency decided that all holders of such commercial
licenses had to undergo biennial physicals to insure compliance with
regulations promulgated by the Department of Transportation (DOT),
voluntarily adopted by the agency, effective January 1, 1995.<3>
Title 49 C.F.R. � 391.41, which addresses physical qualifications and
examinations for individuals operating vehicles over 10,000 pounds in
interstate commerce, states that a person is not qualified to operate
a motor vehicle over 10,000 pounds if he or she has an established
medical history or clinical diagnosis of, inter alia, neuromuscular
disease which interferes with his/her ability to control and operate a
commercial motor vehicle safely. 49 C.F.R. � 391.41(b)(7).
According to an agency physician (P1), at the initial examination,
complainant needed to have a Department of Transportation (DOT)
recertification to determine whether he could return to a driving
position. P1 stated that at the time he saw complainant, he had been
working in a driving capacity for a period of five years. After a
period of discussion, complainant finally admitted to P1 that he had
Multiple Sclerosis (MS). According to P1, based on the DOT Medical
Examination Regulations, MS is a disqualifying condition, without a
waiver.<4> Accordingly, on February 9, 1998, P1 placed complainant on a
restriction of no tractor-trailer driving. In addition, P1 recommended
that complainant's DOT certificate be pulled until such time that it
is determined that he is physically fit to return to driving duty.
Accordingly, the agency placed complainant on light duty.
Thereafter, P1 solicited the opinions of complainant's treating
physicians. The record contains a brief slip from complainant's treating
physician dated January 6, 1998, which states that complainant can return
to work without restriction. I.E. 12, p.1. Complainant asserts that
this doctor told him he could go back to tractor trailer driving, but
P1 indicated that he spoke to this physician and that he told him that
although complainant was �somewhat in recovery at this time,� he would
not �categorically approve him to drive a tractor trailer.� There is no
other written opinion from this physician in the record. A neurologist
who previously treated complainant, found in a written opinion that
complainant did not have any major deficits that he thought would impair
him in driving a truck. I.E. 6, p. 2. A third and independent physician,
requested by P1, stated that �it appears to me that he [complainant]
ought to be given a trial at his regular job since he is convinced he
can do it and since the appeal process is in line for what neurologists
consider nonsignificant findings in MS.� I.E.7, p. 3.
Notwithstanding these medical opinions, according to P1, complainant
would have to qualify for a DOT medical certificate prior to returning
to his regular duty as a tractor-trailer driver. According to P1's
understanding of the DOT regulations, since complainant has MS, he would
need a waiver before he could drive a tractor-trailer. In refusing to
recertify complainant, the agency's medical officer also indicated
that he was also relying on complainant's failure to initially be
forthcoming about his MS impairment, and the failure of other physicians
to affirmatively indicate to his satisfaction that complainant could
drive a tractor trailer.
In its FAD, the agency concluded that assuming, arguendo, that complainant
presented a prima facie case of discrimination, the agency articulated
legitimate, non-discriminatory reasons for its employment action.
In addition, the agency found that complainant failed to prove that the
agency's reasons were a pretext for employment discrimination.
FINDINGS AND ANALYSIS
As a threshold matter, complainant must establish that he is a "qualified
individual with disability" within the meaning of the Rehabilitation Act.
An "individual with a disability" is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such impairment; or (3) is regarded as having such
an impairment. 29 C.F.R. � 1630.2(g). Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). Sitting, standing, lifting, and reaching are also
recognized as major life activities. Interpretive Guidance on Title I of
the Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
A "qualified" individual with a disability is one who satisfies the
requirements for the employment position he holds or desires and
can perform the essential functions of that position with or without
reasonable accommodation. 29 C.F.R. � 1630.2(m). The determination as
to whether an individual has an impairment which substantially limits a
major life activity is made on a case by case basis. Bragdon v. Abbott,
524 U.S. 624 (1998); Interpretive Guidance on Title I of the Americans
With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(j).
Complainant was diagnosed with MS. This condition meets the
definition of an impairment under the Rehabilitation Act. However,
we find insufficient evidence in the record, indicating whether or
not complainant is substantially limited in a major life activity as a
result of his MS. Since the evidence of record does not indicate that
complainant is substantially limited in other major life activities,
we will consider the major life activity of working. The major life
activity of working should only be considered if an individual is not
substantially limited with respect to any other major life activity.
Interpretive Guidance on Title I of the Americans With Disabilities Act,
Appendix to 29 C.F.R. � 1630.2(j).
The inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working.
29 C.F.R. � 1630.2(j)(3)(i). To be substantially limited in the major
life activity of working, one must be precluded from more than one type of
job, a specialized job or a particular job of choice. Sutton v. United
Airlines, Inc., 527 U.S. 471 (1999). Commission precedent has held that
driving commercial motor vehicles as defined in the DOT regulations
is a class of jobs. Surprenant v. United States Postal Service, EEOC
Appeal No. 01996186 (July 27, 2001), request to reconsider denied,
EEOC Request No. 05A11071.<5> Moreover, the Commission concluded in
Surprenant that because complainant's impairment made him ineligible
to drive commercial motor vehicles subject to the DOT regulations,
complainant was significantly restricted from working as a driver of
commercial motor vehicles as compared to the average person having
comparable training, skills and abilities. Id. Similarly, in the
present case, complainant's Multiple Sclerosis renders him ineligible
to drive commercial motor vehicles, subject to the DOT regulations as
well as all vehicles to which the agency has voluntarily applied the
DOT standards. Consequently, complainant is significantly restricted
from working as a driver of commercial motor vehicles as compared to
the average person having comparable training, skills and abilities.
Accordingly, the Commission concludes that complainant is an individual
with an impairment which substantially limits the major life activity
of working. 29 C.F.R. � 1630.2(g)(1).
In determining whether complainant is a qualified individual with
a disability, the Commission notes that there is no dispute between
the parties that complainant had been successfully and safely driving
commercial motor vehicles for five years. In addition, the record shows
that complainant was removed from his position because his Multiple
Sclerosis impairment triggered the restrictions of the DOT safety
standard. An employer may require, as a qualification standard, that an
individual not pose a direct threat. A "direct threat" is defined as
"a significant risk of substantial harm" which cannot be eliminated or
reduced by reasonable accommodation. 29 C.F.R. � 1630.2(r). The agency
has the burden of proof regarding whether there is a significant risk of
substantial harm. See Massingill v. Department of Veterans Affairs,
EEOC Appeal No. 01964890 (July 14, 2000). A determination as to
whether an individual poses such a risk cannot be based on an employer's
subjective evaluation or, except in cases of the most apparent nature,
merely on medical reports. See Selix v. United States Postal Service,
EEOC Appeal No. 01970153 (March 16, 2000). Rather, after identifying
the risk, the employer must conduct an individualized assessment of
the individual that takes into account: (1) the duration of the risk;
(2) the nature and severity of the potential harm; (3) the likelihood
that the potential harm will occur; and (4) the imminence of the
potential harm. 29 C.F.R. � 1630.2(r). This assessment must be based
on objective evidence, not subjective perceptions, irrational fears,
patronizing attitudes or stereotypes about the nature or effect of a
particular disability or of disability generally. Relevant evidence may
include input from the individual with a disability, his work history or
experiences in previous positions, and opinions of medical doctors who
have expertise in the particular disability or direct knowledge of the
individual with the disability. If it is determined that an individual
does pose a direct threat because of his disability, the employer must
determine whether a reasonable accommodation would eliminate the risk
of harm or reduce it to an acceptable level.
The Commission finds that the agency should have conducted an
individualized assessment of complainant rather than relying on the DOT
regulations and failed to do so. See Surprenant, supra. The medical
opinions solicited by P1 also fail to support the agency's direct threat
defense and instead more likely indicate that complainant was qualified
to return to his regular duty position. Moreover, while P1 also cited
complainant's initial reluctance at the examination to reveal the nature
of his impairment in support of his decision to invoke the DOT standard
to prevent complainant's return to driving duties, the record indicates
that complainant subsequently cooperated with the agency's requests for
medical information.
Based on the foregoing, the Commission concludes that the agency did
not meet its burden of proof with regard to whether complainant posed
a significant risk of substantial harm. Consequently, we find that the
agency discriminated against complainant on the basis of his disability
when it reassigned him from his position as a Tractor-Trailer Operator
to a light duty position without driving duties.
We also find that because this is not a case where the agency made a
"good faith effort" to reasonably accommodate complainant, the agency is
not relieved of its obligation to award appropriate compensatory damages.
See Teshima v. United States Postal Service, EEOC Appeal No. 01961997 (May
5, 1998). Therefore, we remand the case to the agency for a determination
regarding complainant's entitlement to remedies.
Accordingly, and for the reasons set forth above, we REVERSE the agency's
final decision and remand the case in accordance with the Order below.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) days of the date of this decision, the agency shall
offer complainant reinstatement as a Tractor-Trailer Operator, or if
no such position is available, to a substantially equivalent position
for which he qualifies. Complainant shall be given a minimum of 15
days from receipt of the offer of placement within which to accept or
decline the offer. Failure to accept the offer within the time period
set by the agency will be considered a rejection of the offer, unless
complainant can show that circumstances beyond his control prevented a
response within the time limit.
2. 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."
3. The agency shall provide training to all the management officials
responsible for this matter in their duties and obligations under the
Rehabilitation Act.
4. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. 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. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
5. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant,
through counsel, shall submit a request for attorney's fees and costs
in accordance with the Attorney's Fees paragraph set forth below.
No later than sixty (60) days after the agency's receipt of the
attorney's fees statement and supporting affidavit, the agency shall
issue a final agency decision addressing the issues of attorney's fees,
costs, and compensatory damages. The agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below.
6. 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 complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Minneapolis Processing and
Distribution Center, Northland District 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
February 12, 2004
__________________
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 the agency's
Minneapolis Processing and Distribution Center, Northland District
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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The facility was found to have discriminated against an employee on the
basis of disability. The facility was ordered to take remedial action
consistent with its obligations under the Rehabilitation Act and the
Commission's regulations and to pay proven compensatory damages and
attorney's fees. This 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 and will not retaliate against employees who file EEO complaints.
This facility will comply with federal law and 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 In his formal complaint, complainant checked off both disability and
age as alleged bases of discrimination. However, the record indicates
that complainant did not intend to raise a claim of age discrimination.
We note that complainant does not state otherwise on appeal.
2 We note that the FFDE is not at issue herein.
3 The agency was not required to comply with these regulations
because under 49 C.F.R. � 390.3(f)(2), the Federal Motor Carrier
Safety regulations do not apply to transportation performed by the
Federal Government, and the United States Postal Service, a quasi
private corporation, is a federal agency under the Executive Branch of
the Federal Government. However, "for reasons of safety," the agency
elected to comply with these regulations. Relief from the regulations
adopted by the agency is solely within the agency's authority.
4Excerpts from the DOT Medical Examination guide relied upon by P1
corroborate that MS is treated as a disqualifying condition. Investigative
Exhibit (I.E.) 13, Pp. 2-3.
5 The request for reconsideration in Surprenant, EEOC Request No. 05A11071
is being issued concurrently with this decision.