05960093
10-16-1998
William D. Moore, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
William D. Moore v. Department of the Army
05960093
October 16, 1998
William D. Moore, )
Appellant, ) Request No. 05960093
) Appeal No. 01944936
v. ) Agency No. 92120030
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
________________________________)
GRANTING OF RECONSIDERATION
INTRODUCTION
On November 6, 1995, William D. Moore (hereinafter referred to as
appellant) timely initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in Moore v. Dep't
of the Army, EEOC Appeal No. 01944936 (October 2, 1995). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence which
tends to establish one or more of the following three criteria: new and
material evidence is available that was not readily available when the
previous decision was issued, 29 C.F.R. �1614.407(c)(1); the previous
decision involved an erroneous interpretation of law or regulation,
or material fact, or a misapplication of established policy, 29
C.F.R. �1614.407(c)(2); and the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
For the reasons set forth herein, appellant's request is granted.
ISSUE PRESENTED
The issue presented is whether the previous decision properly determined
that appellant had failed to prove, by a preponderance of the evidence,
that the agency discriminated against him on the basis of physical
disability (back injury) when it determined that he could not perform
the "full function" of the WG-10 Mobile Equipment Metal Mechanic and
reassigned him to a WG-7 Locksmith position.
BACKGROUND
Appellant filed an EEO complaint alleging disability discrimination
when the agency reassigned him to a lower-grade position. Following an
investigation, appellant requested a hearing before an EEOC Administrative
Judge (AJ). The AJ, finding that there were no issues of material fact
or credibility to be determined, issued a recommended decision (RD)
without a hearing finding no discrimination. In its final decision
(FAD), the agency adopted the RD. Appellant appealed from the FAD.
Upon review, the previous decision affirmed the FAD.
In October 1990, appellant injured his back (lumbosacral strain) working
as a WG-9 Maintenance Mechanic at the Defense General Supply Center (DGSC)
in Richmond, Virginia. The Office of Workers' Compensation Programs
(OWCP) accepted his claim and he was placed in a light duty status.
Appellant previously had applied for a WG-10 Mobile Equipment Metal
Mechanic position at Fort Lee, Virginia. In December 1990, he was
competitively selected for the position. Hearing testimony established
that appellant performed the full duties of the position from his arrival
in January 1991 until February or March 1991.<1> In May 1991, appellant
returned to a light duty status because of his back injury.
Because appellant's injury occurred while he worked for DGSC, OWCP charged
DGSC for appellant's compensation payments while he was on light duty
at Fort Lee. In February 1992, Fort Lee notified DGSC that appellant's
physical restrictions no longer could be accommodated at Fort Lee<2>
and that appellant would be removed from the agency's rolls unless
DGSC agreed to take him back to keep him off OWCP's "Periodic Rolls."
DGSC agreed to take appellant back and created a light duty position
of WG-7 Locksmith. In September 1992, the agency offered appellant the
Locksmith position and advised that if he did not accept the position,
he would lose his employment with the agency. Appellant was reassigned to
the Locksmith position in February 1993. A decision by OWCP to supplement
appellant's salary, i.e., make up the difference between the WG-10 and
the WG-7 salary, was pending at the time of the investigation.
Appellant filed the instant complaint alleging that the agency regarded
him as having a disability which limits his ability to perform the
duties of the Mechanic position. Appellant contended that the agency
essentially had refused to accept medical documentation releasing him
for "full duty." Appellant asserted that management officials refused
to release him based on what they perceived might happen in the future,
i.e., he might reinjure himself permanently.
The "Physical Effort" section of the position description for the Mobile
Equipment Metal Mechanic states that the incumbent:
Performs frequent lifting, pushing, pulling, carrying and handling of
objects weighing 35-50 pounds, occasionally up to 75 pounds. The work
requires prolonged standing, stooping, kneeling, bending and climbing;
must reach in hard-to-get-at places and works in tiring and uncomfortable
positions.
The "Physical Effort" section of the Locksmith PD states that:
[T]his position requires the lifting and carrying of items that normally
weigh up to 15 pounds. Occasional lifting of 25 pounds may be required.
Position requires the incumbent to frequently stand, stoop, bend, kneel,
and work in awkward positions when installing and opening locks and
emergency exit hardware on-site.
The following is a summary of the relevant medical evidence of record.
A September 1991 letter from appellant's treating physician<3> indicated
that appellant was injured in October 1990 while doing heavy lifting,
and had had lower back and left leg pain since that time. A myelogram
conducted in May 1991 revealed a minimal bulge of the "L4, 5 interspace
on the left side." The treating physician noted that when discharged,
appellant was instructed not to lift, bend, stoop or squat, and that
he should have light duty work, e.g., a desk job or work similar to
what a key maker might do. The treating physician indicated that if
appellant aggravated his back or lifted heavy objects or continually
bends, he "may well" sustain a "frank rupture" of the lumbar disc causing
injury to his back and left leg or legs, and be totally unable to work.
He noted that this could occur suddenly or over an extended period of
time by constant chronic bending, lifting, and so forth. The treating
physician said that appellant's condition could remain the same or worsen
and that in his medical opinion, it was unlikely that "he will improve
enough to ever do normal heavy labor again."
A May 1992 note bearing the treating physician's name stated that
appellant could return to full active duty without restrictions. Record
evidence established that the physician's secretary had signed the note.
In a later telephone conversation with the Human Resources (HR) Chief,
the physician advised him of what had happened and explained that he
had not intended to release appellant for full duty.
In a July 1992 memorandum, the agency's Occupational Health (OH)
physician advised that he had evaluated appellant for a return to duty.
The OH physician stated that after examining appellant and his medical
records, it was his opinion that appellant should continue under the light
duty restrictions, i.e., 25 pounds maximum lifting, minimal twisting
and bending, no prolonged standing, and so forth. The OH physician
indicated that because of "the severity of [the treating physician's]
finding in [appellant's] back, and my evaluation, these restrictions
will continue unless [the treating physician] releases [appellant]
with the notation of a specific weight lifting and activity statement,
or a statement of no weight lifting and activity limitations."
In his August 4, 1992 letter to the agency, the treating physician
said that he had recommended to appellant that he work in the Locksmith
position as "[r]egular work with lifting may aggravate or reinjure his
spine." The treating physician stated that he was discharging appellant
from his care and that he was referring appellant back to the OH physician
"for final disposition regarding [appellant's] situation."
Appellant sought a second opinion of his condition. By letter dated
August 17, 1992, the orthopedic surgeon stated that he recently had seen
appellant for an evaluation. The surgeon reported the results of his
physical examination of appellant and said that he concluded therefrom
that "this patient has achieved maximum recovery with no reminence (sic)
of any neurological deficit or disability. He has reached the state
of full activity as before his injury with no limitation of any type to
his activities."
In an August 27, 1992 internal memorandum, the OH physician stated that he
had examined appellant on July 30, 1992 and reviewed his medical records.
He indicated that appellant showed "an essentially normal examination,
with normal gait and good range of motion." The OH physician noted he
previously had advised appellant that because the treating physician
already had given a prognosis, the agency had to "respect" that opinion
unless appellant submitted current medical evidence to the contrary.
The OH physician referred to the orthopedic surgeon's August 1992
findings that appellant had recovered with no limitation of activity.
The OH physician opined that as long as appellant continued his home
fitness and therapy program and followed "good back care" in performing
his job, he should be "as capable as any employee who has had a previous
back injury, and who has recovered." The physician concluded by saying
that "[t]he final decision...rests with the employer/supervisor."
Testimony from the fact-finding conference established that because of
the "conflicting" medical information, the agency requested that the
treating physician do a final evaluation on appellant. By letter dated
November 4, 1992, the treating physician indicated that he had reviewed
the position description for the Mobile Equipment Metal Mechanic, and
also re-examined appellant. The treating physician stated that:
After my re-evaluation on examination of him on Wednesday, October 28,
1992, I have found with his improvements that he can perform all the
duties required of the position.
I have completed the SF78 Form in accordance with duties required
essential for [the Mechanic position]. Medically in regard to
[appellant's] spine since there are no restrictions placed on him in
his present position[,] [h]e may lift up to 45-50 lbs. and this is not
considered heavy labor by my determination.
Thereafter, the GM-14 Director of Logistics--appellant's fourth line
supervisor--asked the OH physician to tour appellant's worksite before
making his [the OH physician's] final recommendation regarding appellant's
return to duty. The OH physician issued a memorandum on January 14, 1993
with regard to appellant. The physician noted that his investigation
included a review of appellant's medical records, a discussion with his
second, third and fourth line supervisors, and a visit to the worksite.
The OH physician referred to the treating physician's letters, including
the November 4, 1992 letter, and asserted that there was a "consistency of
[the treating physician's] recommendations" that appellant be limited
in lifting. According to the OH physician, the worksite evaluation
showed that "the tasks of the job regularly require lifting, bending,
and awkward positions not compatible with an employee who has limitations
due to back dysfunction." The physician concluded by stating:
Based on the recommendation of [the treating physician] to limit
lifting, the strenuous nature of the job requirements ascertained from
the work site evaluation, and the statements from his supervisors that
[appellant] has not been able to fully perform his tasks, I recommend
that, unless [appellant] can be accommodated with less strenuous tasks
in his present job, he should be reassigned to a job more compatible
with his limitations.
Appellant's first, second, third and fourth line supervisors testified
during the agency's fact-finding conference. Agency officials uniformly
denied that they regarded appellant as being disabled, but asserted
that he had a physical limitation which prevented him from performing
the full range of his duties as a Mechanic. Agency officials generally
testified that even when performing light duty assignments, appellant
complained of back pain and took frequent breaks as a result of same.
The fourth line supervisor--the Deciding Official (DO)--testified that
there was a "consistency" of medical evidence from the treating physician
and the OH physician indicating that appellant has a physical limitation
based on his back injury. The DO said that the guidance he received from
the Personnel Office regarding appellant was that until the treating
physician released appellant, the agency was obligated to continue him
on limited duty. The DO indicated that appellant's job performance
was not at issue. He explained that the problem was the restriction on
lifting heavy weight and that until a physician released appellant, he
could not make the decision to return him to work. The DO referred to
the conflicting medical evidence and said that was why he asked the OH
physician to visit the worksite before making a recommendation regarding
appellant's return to duty.
With regard to the 75 pound lifting requirement, the DO testified that
he could not waive or "accommodate" appellant in this regard because he
"had no idea what the next job might be." Although the shop has various
equipment, work may need to be done in an area without such equipment,
e.g., the firing range or an accident site. The DO also asserted that
if appellant was performing work on a vehicle, he would have to remove
the battery and the "6TN batteries--which he would have to lift--weigh
70-75 pounds."<4>
During his deposition, the second line supervisor was asked when
appellant might have to lift more than 50 pounds. In response, he
explained that most of the time when there is a part that weighs that
much, "we'll take whatever precautions, like wearing a safety belt or
using a lifting apparatus or a buddy system so no one injures his back."
The second line supervisor noted, however, that barrels full of oil
weigh 200-300 pounds. An individual moving the barrels would have to
"lift a portion of them and...or...shove them. And the stress on your back
is far greater. It's over 70 pounds many of the times." The supervisor
also asserted that when two people carried a bumper weighing 60-70 pounds,
that because of the movement of the part, it was equivalent to carrying
a load of over 100 pounds. Finally, the supervisor asserted that lifting
a 40 pound battery from an awkward position "puts a greater strain than
lifting 50-60 pounds that you can get a grip on."
The GS-9 Personnel Management Specialist explained that because appellant
was injured at DGSC, "if we would return [appellant] to regular work, and
he reinjured himself, that means that DGSC would not be responsible for
him, that we [Ft. Lee] would have to be the one funding his injury."<5>
The Specialist noted the conflicting medical documentation but stated
that the recommendation of appellant's treating physician "carries the
most weight."
The Specialist was asked why, after receiving the Occupational Health (OH)
physician's August 1992 letter releasing appellant for duty, the agency
requested still another opinion. In response, the Specialist stated
that "[O]kay, [the OH physician] had made a determination before then.
And it was not in the -- it was most likely in our interest, okay,
that he came back again and made another different...." He said that
appellant was sent to the treating physician again and that in November
1992, the treating physician sent the agency a letter indicating that
appellant could not lift over 50 pounds. The Specialist interpreted
the letter to mean that appellant could not perform the "full duties"
of the position.
Appellant conceded that his back injury initially was limiting, i.e.,
during the first 6 months to a year after the injury.<6> Appellant
indicated that during this time, he complained of back pain, used pain
medication, visited OH for his back problem 2-3 times, and took frequent
breaks because of back pain. Appellant explained that he continued
the breaks later on because he was a heavy smoker and because "everyone
took breaks." Appellant contended that the agency reassigned him solely
because of his inability to lift 75 pounds. Appellant pointed out that
the shop in which he worked was equipped with hydraulic lifts, jacks,
fork-lift trucks, and an overhead crane for anyone required to lift
heavy equipment. Appellant contended that no one in the shop ever lifted
more than 50 pounds. Rather, they either used the above equipment or two
employees performed the necessary job together to lift heavy objects.
In the RD, the AJ found no discrimination. The AJ noted appellant's
argument that the agency perceived him to be disabled. Because appellant
had been medically released for full duty and agency officials credibly
testified that they did not perceive him to be disabled, the AJ found that
appellant failed to show that the agency perceived him to be an individual
with a disability as defined by the Commission's regulations. The AJ
concluded that appellant had failed to establish a prima facie case
of disability discrimination. In the FAD, the agency adopted the RD.
Appellant appealed from the FAD.
Upon review, the previous decision affirmed the FAD. The previous
decision noted the parties' arguments on appeal--including the dispute as
to whether appellant was an individual with a disability. Noting agency
officials' credible testimony, appellant's release for full duty, and
the fact that appellant acknowledged that the modified Locksmith position
accommodated his medical restrictions, the previous decision stated that
it discerned no basis to disturb the AJ's finding of no discrimination.
In his reconsideration request, appellant contends that the agency
discriminated against him by treating him as though he were disabled.<7>
In response, the agency contends that appellant has not met the criteria
for reconsideration and that the request should be denied for that
reason.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. �1614.407 is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
Appellant contends that the agency regarded him as being an individual
with a disability and that it improperly reassigned him to a lower
grade position for that reason. We agree.
As a threshold matter, an employee claiming disability discrimination
must show that he is a qualified individual with a disability within
the meaning of the regulations.
The Commission's regulations define an individual with a disability as
one who (1) has a physical or mental impairment which substantially
limits one or more major life activities, (2) has a record of such
an impairment, or (3) is regarded as having such an impairment. 29
C.F.R. �1614.203(a)(1). The regulations provide three factors to consider
in determining whether a person's impairment substantially limits a
major life activity: its nature and severity; how long it will last or
is expected to last; and its permanent or long term impact, or expected
impact. See Appendix to Part 1630-Interpretive Guidance on Title I of
the Americans With Disabilities Act, �1630.2(j).
Appellant was diagnosed with lumbar back strain in October 1990. Following
his injury, appellant experienced back and leg pain for which he took
medication and attended physical therapy. Appellant also was restricted
from lifting more than 25 pounds, bending, twisting, stooping, and so on.
Appellant testified that his back problems continued for 6 months to a
year after the injury, but that his "back condition" did not limit his
life in any way at the time of the fact-finding conference (May 1993).
The more recent medical evidence in the record, i.e., August 1992 and
thereafter, indicates that appellant had recovered from his injury and,
with the possible exception of lifting more than 50 pounds, could perform
the full range of his job duties without restriction.
Appellant's back impairment was of moderate severity for approximately
6 months to a year. In May 1992, he began his attempts to obtain a
release to return to full duty. Medical documents from August 1992
on give no indication that appellant's back impairment would have
any permanent or long term impact on him. Based on these facts, the
Commission finds that appellant is unable to meet the definition of
an individual with a disability under 29 C.F.R. �1614.203(a)(1)(i).
For the same reason, the Commission also finds that appellant is unable
to meet the regulatory definition of an individual with a disability
under 29 C.F.R. �1614.203(a)(1)(ii). That is, appellant did not have
a record of a substantially limiting impairment.
The Commission finds, however, that appellant meets the
regulatory definition of an individual with a disability under 29
C.F.R. �1614.203(a)(1)(iii).
In his November 1992 evaluation, the treating physician--having reviewed
the Mechanic's position description--stated that: appellant can perform
"all the duties required of the position" and because "there are no
restrictions placed on him in his current position, [appellant] may lift
up to 45-50 pounds" (emphasis added).
Despite the medical release from the orthopedic surgeon and appellant's
treating physician, the DO requested that the OH physician tour
appellant's worksite before making a recommendation on his return to
duty. In his recommendation, the OH physician noted that the job regularly
required "lifting, bending, and awkward positions not compatible with an
employee who has had limitations due to back dysfunction." Referring to
the treating physician's lifting limitation, the "strenuous nature" of
the job requirements, and supervisor statements that appellant had not
been able to fully perform his job duties, the OH physician recommended
reassignment unless appellant could be given less strenuous duties.
Agency officials, citing to the "consistency" of the medical evidence,
concluded that appellant continued to have a lifting restriction which
prevented him from performing the full duties of the Mechanic position.
As a result, the agency's Disability Program Manager was asked to find
a position within appellant's physical restrictions for which he was
qualified to which he could be permanently reassigned. Unable to locate
a position, agency officials at Ft. Lee notified appellant that he no
longer could be accommodated there and offered him reassignment to a
lower graded position at DGSC with the caveat that he could be separated
if he refused the offer.
The Commission acknowledges agency officials' denials that they regarded
appellant as having a disability but their actions speak louder than their
words. Based on the foregoing facts, the Commission finds that agency
officials regarded appellant as being substantially limited in the major
life activity of performing manual tasks and that appellant therefore
meets the regulatory definition of an individual with a disability.
Appellant also must show that he is a "qualified" individual with
a disability within the meaning of 29 C.F.R. �1614.203(a)(6). To be
"qualified," an individual who is "regarded as" disabled must be able
to perform the essential and marginal functions of the position at issue
without reasonable accommodation.<8>
Appellant's qualifications, i.e., experience, training, and ability,
and his job performance are not at issue. Appellant was competitively
selected for the Mechanic's position. When he arrived at Ft. Lee,
he apparently performed the full duties of the position for at least
a month. Appellant's fourth line supervisor testified that appellant
was "a rather accomplished body man in his own right," and that his
performance was satisfactory.
The treating physician indicated that appellant could perform "all" the
duties of his position. Arguably, the treating physician's failure to
specifically state that appellant occasionally could lift up to 75 pounds
could indicate that appellant had a 50 pound lifting restriction. In his
testimony, appellant pointed out that the shop in which he worked was
equipped with hydraulic lifts, jacks, fork-lift trucks, and an overhead
crane for anyone required to lift heavy equipment. Appellant contended
that no one in the shop ever lifted more than 50 pounds. Rather, they
either used the above equipment or two employees performed the necessary
job together to lift heavy objects. In rebuttal, the DO testified that
the above equipment might not always be available depending on where the
work had to be performed. The second line supervisor also gave several
examples of when appellant might be expected to lift over 50 pounds.
The Commission finds that there was no evidence to show how often
appellant would be called upon to lift more than 50 pounds. Further,
although the DO testified that lifting equipment would not always be
available, the Commission finds that his testimony on this point was
largely speculative, e.g., working at the scene of an accident. Finally,
the Commission finds that appellant was not asking for a "reasonable
accommodation" with regard to lifting over 50 pounds. Rather, he was
asking to be allowed to perform the function in the same manner as other
employees in the shop. That is, to use appropriate lifting equipment
and/or to get the assistance of another employee. The Commission finds
that appellant was able to perform both the essential and marginal
functions of the position and that he therefore was "qualified." The
Commission finds that appellant was a qualified individual with a
disability within the meaning of the regulations.
The Commission's Technical Assistance Manual On the Employment Provisions
(Title I) for the Americans with Disabilities Act explains the purpose
and application of the definition's third prong:
This part of the definition protects people who are "perceived" as
having disabilities from employment decisions based on stereotypes,
fears, or misconceptions about disability. It applies to decisions
based on unsubstantiated concerns about productivity, safety, insurance,
liability, attendance, costs of accommodation, accessibility, workers'
compensation costs, or acceptance by co-workers and customers.
If an employer makes an adverse employment decision based on
unsubstantiated beliefs or fears that a person's perceived disability
will cause problems in areas such as those listed above, and cannot show
a legitimate, nondiscriminatory reason for the action, that action would
be discriminatory....
Id. at II-10 & 11.
The agency--despite a medical release from appellant's treating physician
and an orthopedic surgeon--followed the OH physician's recommendation
that appellant be reassigned to another position. The Commission finds
that the agency did so based on its unsubstantiated belief that appellant
would reinjure himself in the future and that it (Fort Lee) would be
responsible for making compensation payments to OWCP. In this regard,
the Commission notes the testimony of the Personnel Specialist which
essentially indicated that the agency requested a recommendation from
the OH physician even though appellant already had been released for
duty by two physicians because it was in the agency's best interest to
get a different opinion. That is, it was in Fort Lee's best interest
not to return appellant to full time duty because it (Fort Lee), rather
than DGSC, would be responsible for future OWCP payments in the event
that appellant reinjured himself.
Based on the foregoing, the Commission finds that the agency is unable
to articulate a legitimate, nondiscriminatory reason for reassigning
appellant to a lower-grade position and that the reassignment therefore
was discriminatory.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response, the previous decision, and the entire record, the Commission
finds that appellant's request for reconsideration meets the criteria of
29 C.F.R. �1614.407(c), and the request hereby is GRANTED. The decision
in EEOC Appeal No. 01944936 (October 2, 1995) hereby is REVERSED.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1) Within thirty (30) days after the date on which this decision becomes
final, the agency shall place appellant in the WG-10 Mobile Equipment
Mechanic position at Fort Lee, Virginia.
2) The agency shall provide training for the agency officials involved in
this case regarding their responsibilities under the Rehabilitation Act.
3) The agency shall determine the appropriate amount of backpay
with interest and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. The appellant shall cooperate in the
agency's efforts to compute the amount of backpay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of backpay 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."
4) The agency is ORDERED to post at its Fort Lee, Virginia 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.
5) 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 backpay and other benefits due appellant,
including evidence that the corrective action has been implemented.
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(c) (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.
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.
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 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 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 (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:
Oct. 16, 1998
Date Frances M. Hart
Executive Officer
1Appellant was allowed to leave work early 3 times a week to attend
physical therapy for his back injury.
2Record evidence established that the agency's Disability Program
Manager unsuccessfully searched for a position to which appellant could
be reassigned.
3The treating physician was the Professor and Chairman for the Division
of Neurosurgery at the Medical College of Virginia in Richmond, Virginia.
4The DO also testified that during a conversation which occurred shortly
before appellant's return to DGSC, appellant told him that he was "very
frequently lifting heavy weights," and that they discussed his being a
weight lifter and the fact that he can pick up weights significantly in
excess of 50 pounds.
5The GM-13 HR Chief gave similar testimony on this point.
6Although appellant contended that he performed both light and
regular job duties, record evidence generally did not support his
contention. Appellant's performance appraisal indicated that he was
on light duty and witness testimony established that the first line
supervisor was vigilant about ensuring that appellant did not exceed
his medical restrictions.
7Appellant did not raise a claim for compensatory damages.
8Reasonable accommodations are intended to eliminate workplace barriers.
When an employer regards an employee as having a disability, the only
barrier restricting the employee is the employer's discriminatory
attitude. If the employer's attitude is changed, there are no other
workplace barriers to be modified.