01993070
07-30-2002
Alvin N. DeVaughn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Alvin N. DeVaughn v. United States Postal Service
01993070
July 30, 2002
.
Alvin N. DeVaughn,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01993070
Agency No. 4D-270-0048-98
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), 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.<1>
The appeal is accepted for the Commission's de novo review pursuant to
29 C.F.R. � 1614.405. For the following reasons, we affirm in part and
reverse in part the agency's final decision.
BACKGROUND
The record reveals that complainant was an applicant for employment
with the agency in Greensboro, North Carolina. In December 1997,
complainant received a letter stating that the agency considered him
medically unsuitable for the position of Distribution & Window Clerk
and that his name was removed from the active register of eligibles.
The letter described complainant as having �pain in feet with long term
standing� and �transient swelling of hands and feet.� The agency deemed
these conditions �not compatible with the strenuous activities required
for the Distribution & Window Clerk position, which includes heavy
lifting up to 70 pounds, extensive heavy carrying 45 pounds and over
and excessive walking and standing for up to 8 hours per day casing the
mail, loading and unloading trucks and performing window service duties.
The agency concluded that postal employment would place complainant's
�personal health and safety in jeopardy.�
The agency's determination was based on the opinion of a consult
physician who never examined complainant but reviewed the agency's medical
examination and assessment and two rating decisions by the Department of
Veterans Affairs. The agency's medical examination and assessment were
performed by a private physician who found that complainant experienced
pain in his feet with long term standing and transient swelling of hands,
fingers and wrists. The private physician concluded that complainant had
no limitations or restrictions but suggested that complainant �may need
to sit occasionally and probably would not be able to perform extensive
repetitive motions with hands.�
The 1994 and 1998 rating decisions from the Department of Veterans Affairs
assigned complainant a 20% service connected disability evaluation for
�an arthralgic condition of the hands, wrists, and fingers, variously
diagnosed, manifested by pain and swelling� and a non-compensable service
connected disability evaluation for �pes planus, bilateral feet.� Based
on complainant's �pain in feet with long term standing� and �transient
swelling of hands and feet,� the consult physician found that there was
no accommodation which would permit complainant to perform the functional
requirements of heavy lifting, use of fingers and hands, and standing,
without risk.
Complainant sought EEO counseling and filed a formal complaint alleging,
under the theory of disparate treatment, that the agency discriminated
against him on the bases of his race (Black), perceived disability, and in
reprisal for prior protected activity arising under the above referenced
statutes when he was found medically unsuitable for the position.<2> 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. By letter dated July 7,
1998, complainant requested that the agency issue a final decision.
In its final decision, the agency concluded that complainant was not an
individual with a disability within the meaning of the Rehabilitation
Act because he did not have an impairment which substantially limited his
ability to work and because there was no evidence that he was regarded as
having an impairment which substantially limited a major life activity.
The agency further concluded that complainant failed to establish a prima
facie case of: (1) race discrimination because he failed to identify a
similarly situated individual of a different race who was treated more
favorably under similar circumstances; and (2) reprisal discrimination
because the named management official was unaware of complainant's prior
protected activity. Complainant did not submit a statement in support
of his appeal. The agency, without comment, requests that we affirm
its final decision.
ANALYSIS AND FINDINGS
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).
The medical evidence in the record consists of the aforementioned rating
decisions by the Department of Veterans Affairs and the evaluations
generated by the agency in order to determine whether complainant was
medically suitable for the position of Distribution & Window Clerk.
The agency's consult physician determined that complainant could not
perform the functional requirements of a Distribution & Window Clerk
position without risk. The functional requirements included heavy
lifting up to 70 pounds, extensive heavy carrying 45 pounds and over,
and excessive walking and standing for up to 8 hours per day casing the
mail, loading and unloading trucks, and performing window service duties.
In a case involving an applicant for a Clerk position at an agency
facility in Agoura, California, the Commission found that the duties
and responsibilities of a Distribution & Window Clerk include, inter
alia, primary and secondary distribution of incoming and outgoing mail;
sales of postage stamps, stamped paper, postal cards, and money orders;
accepting forms and making window delivery; verification of mailings;
assign special delivery and registered mail for delivery; check and set
post office vending machines; issue and cash foreign and domestic money
orders; rent post office boxes; provide information to customers; and
perform various clerical and administrative duties of the office. See De
Los Santos v. United States Postal Service, EEOC Appeal No. 01974430 (May
23, 2001). The Commission thus concluded that because the Distribution &
Window Clerk position is similar in nature to clerical or administrative
positions as well as retail or sales positions, the agency regarded
complainant as an individual with a disability who is substantially
limited in working in a broad range of jobs in various classes.
Upon our review of both medical assessments, the Commission finds that
complainant was not an individual with a disability under the first prong
of the definition under the Rehabilitation Act because complainant's
impairments do not substantially limit any of his major life activities.
However, an agency regards an individual as substantially limited in
the major life activity of working if it thinks the individual has
an impairment that significantly restricts him or her from currently
performing a class of jobs or a broad range of jobs in various classes. 29
C.F.R. � 1630.2(j)(3). Since the evidence of record supports a finding
that the duties of the Distribution & Window Clerk position in Greensboro,
North Carolina were sufficiently similar to those in Agoura, California,
for the reasons articulated in De Los Santos, the Commission concludes
that the agency regarded complainant as having feet and hand impairments
which substantially limit the major life activity of working in a broad
range of jobs in various classes.
Complainant must next show that he is a �qualified person with a
disability.� 29 C.F.R. � 1630.2(m). A �qualified individual with
a disability� is an individual who satisfies the requisite skill,
experience, education, and other job-related requirements of the
employment position and who, with or without reasonable accommodation,
can perform the essential functions of such position. Id. Based upon
the facts in the record, we find that complainant has demonstrated
that he is a qualified individual with a disability inasmuch as he was
selected for the position at issue, pending the outcome of a medical
suitability determination. The agency, however, found that complainant
posed a direct threat and was therefore unsuitable for employment.
29 C.F.R. � 1630.2(r).
In order to exclude an individual on the basis of possible future injury,
the agency bears the burden of showing there is a significant risk, i.e.,
high probability of substantial harm. A speculative or remote risk is
insufficient. The agency must show more than that an individual with a
disability seeking employment stands some slightly increased risk of harm.
Selix v.United States Postal Service, EEOC Appeal No. 01970153 (March
16, 2000). Moreover, such a finding must be based on 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. Interpretive Guidance on Title I of the Americans
With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(r). A determination
of significant risk cannot be based merely on an employer's subjective
evaluation, or, except in cases of a most apparent nature, merely on
medical reports. Rather, the agency must gather and base its decision
on substantial information regarding the individual's work and medical
histories. Mantolete v. Bolger, 767 F.2d 1416, 1422-1423 (9th Cir. 1985).
The agency made its decision to find complainant unsuitable for employment
based on the consult physician's assessment. The agency made this
determination in spite of the fact that the consult physician had never
examined complainant but relied on a private physician's evaluation.
However, review of the private physician's physical examination indicates
that complainant had no current physical limitations or restrictions.
Having carefully considered the evidence of record, the Commission finds
that the agency failed to meet its burden of showing a high probability
of substantial harm. The agency's finding of unsuitability was not
explained in any detail, nor did it include any individualized assessment
addressing the duration of the risk posed by complainant's conditions,
the nature and severity of the potential harm, the likelihood that the
potential harm will occur, and the imminence of the potential harm.
Since the Commission finds that there is no evidence to support the
agency's conclusion that complainant posed a direct threat, we conclude
that the agency's denial of employment to complainant was in violation
of the Rehabilitation Act.<3>
CONCLUSION
After a careful review of the record, including arguments and evidence not
specifically discussed in this decision, the Commission affirms in part
and reverses in part the agency's final decision. The record establishes
that the agency failed to investigate complainant's entitlement to the
compensatory damages he requested. Accordingly, the agency shall conduct
a supplemental investigation as to complainant's claim for compensatory
damages.
ORDER
1. Within sixty (60) days of this decision becoming final, the agency
shall offer complainant the position of Distribution & Window Clerk or
a substantially equivalent position at an agency facility within thirty
miles of complainant's home. Complainant shall be given a minimum
of fifteen 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 award complainant back pay with interest and other
benefits due complainant, for the period from December 1, 1997 to the date
he enters into or declines to enter into duty. The agency shall determine
the appropriate amount of back pay with interest and other benefits
due complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty
(60) 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 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. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of his right to submit
objective evidence (pursuant to the guidance given in Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support
of his claim for compensatory damages within forty-five (45) calendar
days of the date complainant receives the agency's notice. The agency
shall complete the investigation on the claim for compensatory damages
within forty-five (45) calendar days of the date the agency receives
complainant's claim for compensatory damages. Thereafter, the agency
shall issue a final decision pursuant to 29 C.F.R. � 1614.110(b).
4. The agency shall conduct training for its human resource personnel
at its Greensboro, North Carolina facilities regarding their obligations
under the Rehabilitation Act.
5. The agency is 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 verifying that the
foregoing corrective actions have been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Greensboro, North Carolina 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
July 30, 2002
______________________________
Frances M. Hart Date
Executive Officer
Executive Secretariat
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 this facility
in Greensboro, North Carolina.
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.
This facility was found to have violated the Rehabilitation Act
when it failed to establish that an applicant for employment posed
a direct threat that would disqualify him for the position he sought.
The facility was ordered to award the employee with a position, back pay,
and proven compensatory damages and attorney fees. This facility was
also ordered to provide relevant agency officials with training regarding
their obligations under the Rehabilitation Act . 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: _________________
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 This is complainant's second formal complaint with the agency alleging
discrimination when he was found medically unsuitable for a position.
In its final decision in DeVaughn v. United States Postal Service,
EEOC Appeal No. 01983352 (May 18, 2000), the Commission concluded that
complainant was not discriminated against on the bases of his race or
his perceived disability associated with the swelling of his hands and
fingers. Of note in EEOC Appeal No. 01983352, the Commission concluded
that the agency did not regard complainant as substantially limited
in the major life activity of working because although it found him
medically unsuitable for the position of Letter Carrier, it reinstated
complainant to the hiring register for consideration for less strenuous
agency positions such as Distribution & Window Clerk, Distribution
Clerk/Machine, Flat Sorter Machine, Mail Handler, Mail Processor and Mark
Up Clerk. In the instant case, by contrast, we note that complainant's
name was removed from the agency's hiring registers altogether.
3 The Commission finds that complainant failed to set forth evidence
from which a reasonable fact finder could draw an inference of race
discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576
(1978). Further, although the final agency decision contradicts the
named management official's admission that she was aware of complainant's
prior protected activity because he named her in his prior complaint,
we agree with the agency that complainant failed to establish a prima
facie case of reprisal discrimination. In reaching this conclusion,
we find that complainant failed to establish a nexus exists between the
protected activity and the Human Resource Specialist's signing of all
letters relating to non-selection for employment within the jurisdiction
of the Greensboro, North Carolina district which is comprised of more
than 420 facilities. See Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 26, 2000).