01982730
03-28-1999
Angelo Finocchiaro, Jr. Appellant, v. William J. Henderson, General, United States Postal Service, Agency.
Angelo Finocchiaro, Jr. )
Appellant, )
)
v. ) Appeal No. 01982730
) Agency No. 4F-920-1120-96
William J. Henderson, ) Postmaster
General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
INTRODUCTION
On October 3, 1995, Angelo Finocchiaro, Jr., (hereinafter referred to
as appellant) filed an appeal with the Equal Employment Opportunity
Commission (EEOC) for review of the agency's final decision on his
complaint of unlawful disability discrimination. See �501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791.<1> The Commission
accepts this appeal in accordance with EEOC Order 960, as amended.
ISSUE PRESENTED
The issue presented is whether the record is sufficient for an
adjudication of the merits of appellant's complaint.
BACKGROUND
On May 8, 1996, appellant filed an EEO complaint alleging that the
agency discriminated against him on the basis of his physical disability
(Bilateral Epicondylitis, back and ankle injury) when he was forced to
take a modified part-time flexible (PTF) clerk position. Following an
investigation, the agency sent appellant a copy of the investigative
file and notified him of his right to a hearing. After appellant
requested an administrative hearing, the Administrative Judge issued
a decision on the record without conducting a hearing, pursuant to 29
C.F.R. �1614.109(e), finding disability discrimination. Thereafter,
the agency issued a final decision (FAD) finding no discrimination.
Appellant then filed this appeal.
Appellant worked as a full-time regular letter carrier at the agency's
Rancho Bernardo facility in San Diego County. In 1988 appellant injured
his ankle on the job. After additional work related injuries to his
arms in 1989, he received limited duty assignments. In January 1992,
his arm condition was diagnosed as Bilateral Epicondylitis and medically
determined to be permanent and stationary. It restricted his ability to
repetitively lift more than twenty pounds and from repetitive use of his
upper extremities more than thirty minutes at a time, for up to four
hours per day. After appellant injured his back in 1991, he was also
restricted from standing for more than one hour at a time. Appellant's
physician summarized these continuing restrictions in an April 18,
1995 medical report. While appellant was initially accommodated in the
mail facility, performing a variety of responsibilities, he was later
assigned to limited duty work as a full-time regular letter carrier at
the agency's Customer Service Center from October 1993 through early
February 1996, answering telephone inquiries. Appellant worked in this
capacity until he accepted a Rehabilitation Job Offer from the agency
for the position of Modified Distribution Clerk, part-time flexible
(PTF). After this February 1996 reassignment, appellant's duties remained
the same. The agency's Senior Injury Compensation Specialist indicated
that appellant could have remained in his letter carrier position on
limited duty performing the same Customer Service Center duties.
Record evidence showed that appellant was offered a PTF position, rather
than a full-time regular position, pursuant to a 1994 Arbitrator's
Decision (AD). The 1994 AD held that the agency violated the collective
bargaining agreement when it reassigned a full-time Carrier Craft employee
who was partially recovered from an on-the-job injury to full-time
regular status in the Clerk Craft.<2> The AD applied only to limited
duty employees, i.e., light duty employees were not affected by the AD.
As a result of the reassignment, appellant lost seniority and benefits,
e.g., holiday pay. Appellant requested that his full- time regular
status be restored.
ANALYSIS AND FINDINGS
Appellant's complaint raises issues of reasonable accommodation and
disparate treatment.
An agency is required to make reasonable accommodation of the known
physical and mental limitations of a qualified individual with a
disability unless the agency can show that accommodation would cause an
undue hardship. 29 C.F.R. �1614.203(c).
An individual asserting a claim of disability discrimination first must
show that he is an individual with a disability under the regulations.
EEOC Regulation 29 C.F.R. �1614.203(a)(1) defines an individual with
a disability as one who: 1) has a physical or mental impairment that
substantially limits one or more of that person's major life activities;
2) has a history of such impairment; or 3) is regarded as having such
an impairment. EEOC Regulation 29 C.F.R. �1614.203(a)(3) defines "major
life activities" as including the functions of caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.
In the April 1995 report from appellant's physician, he summarized the
aforementioned repetitive lifting, movement and standing restrictions
and indicated that appellant had significant chronic problems with his
feet, upper extremities and lower back, mostly from repetitive overuse
syndromes. He estimated that appellant had lost approximately 25% of
his pre-injury work capacity with regard to his back and 30% of his
pre-injury work capacity with regard to his use of his upper extremities.
We find the foregoing information sufficient to demonstrate that
appellant's foot, arm and back impairments are chronic in nature and
substantially limit him from performing manual tasks. Thus, appellant
meets the definition of an individual with a disability as delineated
above.
An individual also must show that he is a "qualified" individual
with a disability within the meaning of 29 C.F.R. �1614.203(a)(6).
That section defines qualified individual with a disability as meaning,
with respect to employment, a disabled person who, with or without
reasonable accommodation, can perform the essential functions of the
position in question. The term "position in question" is not limited
to the position held by the employee, but also includes positions that
the employee could have held as a result of reassignment.<3>
Both appellant and his physician indicated to the agency that appellant's
restrictions precluded him from carrying mail. Appellant was, however,
clearly capable of performing the limited duty assignments he received
for an extended time period as a letter carrier, initially at the station
and later at the Customer Service Center. It is also undisputed that
appellant was capable of performing the essential functions of the
modified distribution clerk position to which he was reassigned.
The Commission finds that, in the event that appellant is a qualified
individual with a disability, the evidence is insufficient to determine
whether the agency met its obligation to reasonably accommodate him under
the Rehabilitation Act. It is unclear whether appellant's position in
the letter carrier craft could have been modified or whether appellant
could have been reassigned in accordance with his medical restrictions
to another vacant position which would not have required him to give
up his full-time regular status and seniority. The record contains no
evidence to show why the agency was unable to accommodate appellant
in his letter carrier position. Notably, the only testimony in the
record from an agency official consists of an investigative affidavit
from a Senior Injury Compensation Specialist who indicated a belief
that appellant could have continued to be accommodated in his letter
carrier position. Appellant, however, asserted that he had no choice
but to accede to the transfer. On remand, therefore, the agency shall
clarify the reason why the transfer was necessary.
The record also contains no evidence to show whether there were vacant
positions--in the carrier craft or the clerk craft--for which appellant
was qualified, with or without reasonable accommodation, and to which
he could have been reassigned during the time period at issue without
giving up his full-time regular status and seniority. In this regard,
the Commission notes that the record is unclear as to whether the position
offered to appellant in February 1996 was a "new" position created by
piecing together various duties in the clerk craft or whether it was a
vacant distribution clerk position that had been restructured to allow
appellant to perform the essential functions thereof.<4>
Because of the deficiencies in the record, the Commission shall remand
the instant case to the agency for a supplemental investigation.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
VACATE the agency's final decision finding no discrimination and remand
the case to the agency for a supplemental investigation.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall provide affidavits from those individuals who were
directly involved in determining whether appellant was able to perform
letter carrier duties and in developing the February 1996 job offer.
At a minimum, the following information should be provided:
a. An explanation as to why appellant was unable to perform the essential
functions of a letter carrier position. In this regard, the agency also
shall provide the physical requirements for the letter carrier position.
b. Documentation, e.g., medical restrictions, modified job offer, and
so on, regarding any comparative employees who were offered modified
letter carrier positions and an explanation as to why appellant could
not have been offered such a position.
c. Whether, in the relevant time period, there were vacant positions in
the carrier craft or the clerk craft for which appellant was qualified,
with or without reasonable accommodation, and to which he could have
been reassigned with retention of his full-time status and seniority.
d. The agency shall provide position descriptions and the physical
requirements for any vacant positions identified pursuant to "d" above.
If there were no vacant positions to which appellant could be reassigned,
then the agency shall provide a position description and the physical
requirements for the distribution clerk position.
e. An explanation as to how the position offered to appellant in February
1996 was developed and why it was classified as a clerk craft position
rather than a carrier craft position.
f. Whether there were any PTF employees already working in the craft at
the time of the February 1996 job offer.
The supplemental investigation must be completed within 60 calendar
days of the date this decision becomes final. 29 C.F.R. �1614.108(e).
The agency then shall provide appellant with a copy of the supplemental
investigative file. Thereafter, the agency shall issue a final agency
decision within sixty (60) calendar days. A copy of the agency's notice
transmitting the investigative file to the appellant must be submitted
to the Compliance Officer, as referenced below.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such 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:
March 28, 1999
_______________ ______________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations
1The Rehabilitation Act of 1973 was amended
by Congress in October 1992 to provide
that the standards used to determine
whether nonaffirmative action employment
discrimination has occurred shall be the
standards applied under Title I of the
Americans With Disabilities Act. See �503(b)
of the Rehabilitation Act Amendments of 1992,
P.L. 102-569, 106 Stat 4344 (October 29,
1992); 29 U.S.C. �791(g).
2The AD applied only when the employee changed crafts, e.g., letter
carrier craft to clerk craft.
3Reassignment should be considered only when an accommodation is not
possible in the employee's present job or when it would cause an undue
hardship for the employer. Technical Assistance Manual, III at 24.
Reassignment should be made to a position equivalent to the one presently
held in terms of pay and other job status, if the individual is qualified
for the position and if such a position is vacant or will be vacant
within a reasonable amount of time. Id.
4Job restructuring may involve reallocating or redistributing the marginal
functions of a position. Technical Assistance Manual, III 21-22.