01A21427
08-28-2003
Alfred M. Anderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alfred M. Anderson v. United States Postal Service
01A21427
08-28-03
.
Alfred M. Anderson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21427
Agency Nos. 1C-191-0012-00
1C-191-0122-00
1C-191-0089-00
Hearing No. 170-A0-8542X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and 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.
ISSUES PRESENTED
The issues presented herein are whether complainant has shown that
he was discriminated against based on his race (Black), sex (male),
disability (psychosis and back injury), and previous EEO activity when:
(1) he was scheduled to undergo a fitness for duty examination; (2)
from September 24, 1999 to May 19, 2000, the agency denied his request
for a reasonable accommodation; (3) in October 1999, his workload was
increased; (4) in October 1999, he was charged with being Absent Without
Leave (AWOL); and (5) in October 1999, he was issued a Letter of Warning.
BACKGROUND
Complainant filed three formal complaints that raised the above
issues. Following an investigation, complainant was provided a copy
of the investigative report. He requested a hearing before an EEOC
Administrative Judge (AJ). Following the hearing, the AJ issued a bench
decision finding no discrimination. The agency's notice of final action
adopted the AJ's finding of no discrimination. This appeal followed.
The record reveals that, at the time of his complaints, complainant was
a mail handler/equipment operator assigned to the Airmail Facility (AMF)
at the Philadelphia Airport. He had held the position for approximately
16 years and was under the supervision of A-1, Supervisor of Distribution
Operations on Tour II. Complainant drove a battery-operated vehicle
in order to transport mail containers. These containers were both
empty and full. Complainant also relocated equipment that was used to
transport mail to storage or staging areas, and performed mail handler
duties as requested.
In 1994, complainant was involved in a non-work related car accident,
which resulted in an injury to his back. He was off work for
approximately six or seven months and returned to full duty without any
medical restrictions. Intermittently, he experienced back pain and was
assigned duties that did not require prolonged standing or stooping such
as mail repair or forklift operations by A-1. In May 1996, complainant
had an on-the-job accident, which exacerbated his back condition and
resulted in his absence from work. Upon his return from this injury,
complaint again went back to full duty without restrictions.
During the summer of 1999, A-1 assigned complainant to perform manual
lifting duties at the Roller Tables. Subsequently, complainant obtained a
letter from his doctor, Doctor D, dated July 26, 1999, which states that
complainant, �Has a history of chronic low back pain, and a herniated
disk, which prevent him from lifting any objects greater than 10 pounds.�
Additionally, Doctor D indicated that complainant, �Should also be limited
in the amount of repetitive bending that he does.� Complainant gave the
letter to another supervisor, A-2, not A-1. A-2 initialed the letter as
received on July 27. The letter was at some point placed in complainant's
file at the Medical Unit, which was at a different location from the AMF.
From July 27, 1999, until early September 1999, complainant was assigned
to equipment operator duties, which were within the restrictions set
forth by Doctor D. According to complainant, sometime in early September
1999, A-1 tried to assign him certain manual duties at the Roller Tables.
Complainant testified at this time he informed A-1 that he had medical
restrictions on file. A-1, he maintained, sarcastically told him that
he was going �to send him downtown for a fitness-for-duty examination.�
However, according to A-1, complainant did not inform him that he had
medical restrictions on file until Friday, September 24, 1999, when he
gave him a copy of Doctor D's letter. Prior to this, A-1 maintains that
he was not aware of complainant's restrictions.
There is no dispute that, at some point on September 24, complainant was
performing forklift duties when A-1 directed him to go to the concourse
area to dump mail. Complainant performed these duties as directed, but
he also began hooking and unhooking airline carts. A-1 denied telling
complainant to perform this task. Another supervisor, A-3, confirms that
complainant was only told to dump mail. According to A-3, they already
had �a hookup man established.� Complainant does not dispute A-1's
assertion that he was only told to dump mail. He maintains, however,
that because he was the mail handler/equipment operator with the lowest
seniority, he was automatically expected to perform the task of hooking
and unhooking carts when he was sent to the concourse area. Moreover,
he indicated that, upon his arrival, C-1, a co-worker, promptly informed
A-3, who was supervising that location, that because complainant had less
seniority that she would no longer perform this task. A-3, according
to complainant, merely looked at him; therefore, he took this to mean
that he had to do it. A-3 denied that any such conversation with C-1
took place. The record contains no affidavit from C-1.
The next day, Saturday, September 25, complainant performed equipment
operator duties at Roller Table 3 and 4, transporting containers. Sunday,
September 26, was an unscheduled day. According to complainant, he began
experiencing back pain, on Monday, September 27, 1999, and requested
leave from work. He remained absent through October 11, 1999, on the
advice of Doctor D. At the hearing, complainant testified that pulling
on the carts and lifting heavy bags from the containers, on September 24,
1999, caused him to re-injure his back.
Upon his return to duty on October 12, 1999, A-1 convened a meeting of
the mail handler/equipment operators. A-1 informed them of changes to
their duty assignments, effective the next day. Complainant maintained
that his workload was increased as a result of these changes. He was
now responsible for equipment operator duties for Roller Table 2 and the
container loader. Complainant acknowledged that the work assignments
for the other mail handlers/equipment operators also changed, but he
maintained that his duties were increased because he opposed A-1's
efforts to violate his medical restrictions in September. The record
indicates that the other mail handler/equipment operators were white.
During the hearing, complainant testified that he was not alleging
that the increase in his workload violated his medical restrictions,
but that, with his physical limitations, he could not keep up with what
he described as performing two jobs.
Among other things, A-1 testified that complainant's duties increased
because he was lower in seniority to the other mail handlers/equipment
operators. Apparently, complainant had gone from being fourth in
seniority out of five employees to now being the lowest. A-1 also
indicated that the other mail handlers/equipment operators were supposed
to assist complainant. Complainant and C-2, a co-worker, testified that
complainant did not receive any assistance. C-2 also maintained that
Black mail handlers who were assigned complainant's duties when he was
absent, after October 12, were never given such assistance.
In September 1999, A-1 requested a fitness for duty examination
(FFD examination) for complainant. Because he was absent from work,
complainant did not actually undergo the FFD examination until October
13, 1999. A-1 wrote that the exam was sought because of �chronic low
back pain/herniated disk, and inability to lift over 10 pounds.� Prior
to reporting for the FFD examination, complainant was examined by Doctor
H, a doctor that he was referred to by Doctor D. Doctor D increased
complainant's lifting restriction to 40 pounds. Later, the agency's
Medical Unit found that complainant could perform the functions of
the mail handler/equipment operator position with limited bending and
stooping and no lifting more than 40 pounds.
On October 14, 1999, complainant was performing duties at Roller
Table 2 and the container loader. On that day, A-3 informed A-1 that
containers, assigned to complainant for transporting, had not been moved.
A-1 confronted complainant about the backup and directed him to move
the containers. Complainant refused, stating that he was being required
to do two jobs. A-1 told complainant to �clock off� and leave the AMF.
Complainant left and did not return until October 26, 1999, despite
the fact that A-1 left him a telephone message telling him to return
to work on October 15. Because complainant had not requested leave for
the period, A-1 charged him with being AWOL. According to complainant,
he left town after being told by A-1 that he was suspended. Complainant
admitted that he never contacted the AMF in order to request leave.
On October 27, 1999, A-1 issued complainant a Letter of
Warning. Complainant was charged with insubordination and failure to
follow orders. Among other things, the letter referred to the events
of October 14, 1999 and complainant's failure to report to work on
October 15. From October 26, 1999, until early March 2000, complainant
was assigned to Roller Table 2. He also performed container loader
duties as well as occasional forklift operator duties.
In March 2000, complainant gave A-1 a note, dated March 1, 2000, from
Doctor V. Doctor V asked that complainant be allowed to perform light
duty tasks due to an �acute exacerbation of a herniated L4-L5 disk, for
two three-week periods.� On March 7, 2000, complainant was assigned to
view safety videotapes at the AMF. Afterward, he was offered a limited
duty job repairing damaged mail at the Processing and Distribution Center
(PDC). This offer was made pursuant to the agency Injury Compensation
Program. Complainant accepted this offer and performed the assignment
from March 8, 2000 until the end of April 2000. Doctor V, on a March
2000 OWCP claim form, wrote that complainant's lifting restrictions were
now 10 to 20 pounds. He also indicated that complainant's sitting and
standing should be limited to four hours per day.
On April 26, 2000, Doctor V recommended that complainant return to his
assignment at the AMF and work 4 hours per day.<1> Complainant reported
to the AMF on May 2, and gave Doctor V's recommendations to A-1 and A-4,
the Manager of Distribution Operations. From May 2 to May 19, he was
assigned to work at the AMF on Roller Table 2 and the container loader
for 4 hours per day. He was also allowed to take 4 hours of leave without
pay on his scheduled workdays.
On May 19, 2000, complainant was presented with a second limited duty
job offer for a position at the PDC. The second offer provided:
regular duties as equipment operator - 4 hours daily; restrictions -
4 hours daily, as well as limited bending, 20 pounds, pushing/pulling
limitations, and 2 hour limitation reaching over the shoulder, and a
four hour sitting, walking and standing limitation.
Thus, complainant was being asked to work a total of 8 hours per day
(4 hours regular and 4 hours limited), not 4 as set forth in Doctor
V's letter. Complainant declined this offer.
Both the March and May 2000 limited duty job offers were drafted by H-1,
a Human Resources Specialist. Her specialty was Injury Compensation.
According to H-1, at the time she prepared the May 2000 job offer, on
or about May 16, she was unaware that complainant was back working at
the AMF and did not have his updated medical information.
Complainant did not return to work after May 19, 2000. On May 23, 2000,
he began being seen by Doctor D-2 at the VA Medical Center because
of stress. Complainant provided documentation indicating that he
was treated for anxiety attacks, depression, and diminished ability
to concentrate. He was prescribed various medications for anxiety.
The record also indicates that during the 1970s, while in the Navy,
complainant experienced what was referred to as a psychotic episode.
A November 2000 note from Doctor V indicated that complainant was
medically cleared to return to his �usual position at the post office,�
with restrictions only on his hours worked per day for a period of two
months. However, Doctor V indicated that his clearance was conditioned
upon complainant's VA psychiatrist. A January 8, 2001 note from Doctor
V states, in pertinent part, that, �At this point it is evident that he
has not recovered from his depression anxiety sufficiently to permit
him to return to work.� Although the record does not indicate when
complainant returned to duty, he was working at an agency facility in
Philadelphia at the time of the hearing in September 2001.
ANALYSIS AND FINDINGS
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).
Medical Examination
The Rehabilitation Act was amended in 1992 to apply the standards of the
Americans with Disabilities Act (ADA) to complaints of discrimination by
federal employees or applicants for employment. See EEOC Enforcement
Guidance on Disability-Related Inquiries and Medical Examinations
of Employees Under the Americans with Disabilities Act (Enforcement
Guidance - Disability Related Inquiries), No. 915.002 (July 26,
2000); Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities (March 25, 1997); and EEOC Enforcement Guidance
on Preemployment Disability-Related Questions and Medical Examinations
(Enforcement Guidance - Preemployment) (October 10, 1995). Because the
restrictions on employers with regard to disability-related inquiries
and medical examinations apply to all employees, and not just to those
with disabilities, it is not necessary to inquire whether the employee
is a person with a disability. Enforcement Guidance - Disability Related
Inquiries, p. 3. Instead, we focus on the issue of whether the agency's
order that complainant undergo a Fitness-for-Duty examination was lawful.
The Rehabilitation Act places certain limitations on an employer's
ability to make disability-related inquiries or require medical
examinations of employees only if it is job-related and consistent with
business necessity. 29 C.F.R. �� 1630.13(b), .14(c). Generally, a
disability-related inquiry or medical examination of an employee may be
"job-related and consistent with business necessity" when an employer
"has a reasonable belief, based on objective evidence, that: (1) an
employee's ability to perform essential job functions will be impaired
by a medical condition; or (2) an employee will pose a direct threat due
to a medical condition."<2> Enforcement Guidance - Disability-Related
Inquiries, at 15-16. It is the burden of the employer to show that its
disability-related inquiries and requests for examination are job-related
and consistent with business necessity. Id. at 15-23.
The record indicates that A-1 submitted a request for a FFD examination
for complainant. Prior to the request, A-1 maintains that he was
unaware that complainant had medical restrictions on file that might have
prevented him from performing the essential functions of his position.<3>
These restrictions, set forth in Doctor D's July 26, 1999 letter,
prohibited complainant from lifting any objects greater than 10 pounds.
A-1 testified that he submitted the FFD examination request, �Because
I felt at that point with the doctor's certificate that [complainant]
was not able to do his duties and responsibilities as [an] equipment
operator.� Although he could not recall the exact text of the Doctor D's
note, A-1 noted complainant's 10-pound weight restriction. A-1 noted,
for example, that he had discovered from another employee that the hook
that was used with the carts weighed about 15 pounds. As noted above,
the Medical Unit found that complainant could perform the functions of
the mail handler/equipment operator position with limited bending and
stooping and no lifting more than 40 pounds.
Upon review of the record and the AJ's findings of fact, we conclude that
the agency met its burden of showing that the FFD examination at issue
was job-related and consistent with business necessity. Accordingly, we
find that the examination was not a violation of the Rehabilitation Act.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
The Commission also notes that an employee must show a nexus between
the disabling condition and the requested accommodation. See Wiggins
v. United States Postal Service, EEOC Appeal No. 01953715 (April 22,1997).
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that he
is a qualified �individual with a disability." See 29 C.F.R. � 1630.2(g)
and 29 C.F.R.� 1630.2(m). For purposes of our analysis, we will assume,
arguendo, that complainant was able to establish that he was a qualified
individual with the disabilities alleged. We find, however, that the
record does not indicate that he was denied a reasonable accommodation.
As noted in the AJ's findings of fact, complainant, after he submitted
Doctor D's July 26, 1999 letter to a supervisor, was assigned equipment
operator duties until September 1999.<4> There is no dispute that these
duties were within complainant's medical limitations. On September
24, 1999, A-1 asked complainant to go to the concourse and dump mail.
Complainant maintains that his medical restrictions were violated
when he had to hook and unhook airline carts. However, there is no
persuasive evidence that any management official ever told complainant
to perform this task. As noted above, A-1 denied telling him to do so.
A-3 denied hearing A-1 tell complainant to do so. He also denied telling
complainant to do so himself either directly or otherwise. By his own
testimony, complainant never claimed that he was told to hook and unhook
carts by A-1 or A-3. According to him, he did so because he had less
seniority than C-1 and felt that it was required. Furthermore, other
than saying that some of the bags that he had to lift that day were
heavy, complainant provided no objective evidence that the duties he
was directed to perform on September 24, i.e., dumping mail, required
him to lift objects that exceeded his 10-pound lifting restriction.
We also note that complainant did not indicate that he ever informed
A-1 or A-3 that some of the bags may have been heavier than 10 pounds.
On Monday, September 28, complainant experienced back pain and was off
work until October 12. Upon his return, he was again assigned equipment
operator duties, which were within his restrictions. In March 2000, in
accordance with Doctor V's recommendations, the agency offered complainant
a limited duty position at the Philadelphia PDC. Complainant performed
these duties until May 2000, when his limitations were changed. From
May 2 through May 19, 2000, complainant, based on the recommendation
of Doctor V, worked at the AMF for 4 hours per day. We note that,
notwithstanding his belief that his workload was excessive, complainant
does not maintain that the agency violated his medical restrictions from
October 12, 1999 through May 19, 2000.
Finally, the limited duty job offer that complainant was provided in
May 2000 did exceed the medical restrictions set forth in Doctor V's
letter of April 26, 2000. Doctor V indicated that complainant should
only work 4 hours per day. The offer was for 8 hours. However, the
AJ correctly found that the Injury Compensation Specialist, H-1, made
this offer. She testified that she did not have complainant's updated
medical information when the offer was made. Therefore, it is reasonable
to conclude that H-1 made an error. However, even if H-1 did not err,
we note that A-1 and A-4 never required complainant to work more than 4
hours per day when he worked at the AMF from May 2 through May 19. Thus,
we find no evidence that he was denied an accommodation by management.<5>
Accordingly, the Commission finds that complainant failed to establish
his claim that the agency failed to provide him with a reasonable
accommodation.
Remaining Claims of Discrimination
Complainant also alleged that he was subjected to disparate treatment
on the bases of race, sex, disability and reprisal when: on October 12,
1999, his workload doubled, on October 14, 1999, he was charged with
being AWOL, and on October 27, 1999, he was issued a Letter of Warning.
After a careful review of the record, we discern no basis to disturb
the AJ's finding of no discrimination as to these remaining issues.
The findings of fact are supported by substantial evidence, and the AJ
correctly applied the appropriate regulations, policies, and laws to
these claims.
CONCLUSION
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
AFFIRMS the agency's final order finding no discrimination.
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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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
____08-28-03______________
Date
1According to the complainant, he had only intended to work four hours
per day for about six weeks, after which, he felt he could return to a
full 8-hour day.
2"Direct threat" means a significant risk of substantial harm that
cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. �
1630.2(r).
3Notwithstanding A-1's contention that he personally was not aware
of complainant's medical restrictions, the agency, as the employer,
is presumed to be aware of the fact that A-2 received Doctor D's July
26 letter and that this information was on file at the Medical Office.
4The position description for the mail handler/equipment operator
position indicates that the functional purpose of the position is to
�operate a jitney, fork-lift or pallet truck for the movement of mail,
and perform other mail handler functions as required.�
5In its Enforcement Guidance on Workers' Compensation and the ADA,
No. 915.002 (September 3, 1996), the Commission recognized that the
standards and requirements for workers' compensation laws are different
from the purposes and standards of the ADA.