01a41316
04-13-2006
Anthony P. D'Amico, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anthony P. D'Amico,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41316
Hearing No. 370-A2-2451X
Agency No. 4F-967-0021-01
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled
matter. Complainant alleged that he was discriminated against because
of his disabilities (back and stress condition), race (Caucasian),
color (white), national origin (Non-Hawaiian), and in retaliation for
engaging in prior EEO activity. Specifically, he maintained that: (1)
starting in July 2000, he was not reasonably accommodated; (2) he was
denied medical information about a co-worker; (3) he was called a name
that is considered a racial epithet in Hawaiian; (4) he was subjected
to disparate treatment and harassment; and (5) the agency improperly
disclosed medical information about him.1 Complainant also maintained
that the agency should have been sanctioned because of its protracted
handling of the investigation of his complaint.
Complainant was employed as a Distribution Window Clerk at the agency's
Kamuela Post Office in Kamuela, Hawaii. The Postmaster in charge of
the facility was A-1. A-2 was complainant's supervisor. In early 2000,
complainant has hired. Although he had previously undergone back surgery,
he was under no restrictions when he started working. The event giving
rise to complainant's complaint took place on May 26, 2000. At that
time, complainant and a fellow employee, B-1, were leaving the building.
Complainant decided to play a joke on B-1. Therefore, he went through
the door, and held it shut so that B-1 could not exit. By holding the
door shut, complainant also prevented C-1, another co-worker, from leaving
the building. C-1 yelled at complainant, and complainant opened the door.
At which time, C-1 expressed her displeasure and walked toward her car
while continuing to express her anger.
Subsequently, complainant reported the incident to A-1 and A-2.
He maintained that C-1 made a racist comment to him and made a
threatening statement, although not directly to him.2 A-1 and A-2
investigated the matter. C-1 denied making the statements attributed
to her, but she admitted being very angry with complainant. On June 29,
2000, complainant was involved in a vehicle accident while driving home
after a union meeting. The next day, complainant filed a report with
the local police accusing C-1 of tampering with his vehicle. He also
requested an investigation by the Postal Inspection Service.3
Complainant did not report to work on June 30, 2000. He filed a claim
with the Department of Labor, on or about June 30, 2000, alleging
that the incidents of May 26, and June 29, 2000 had caused him stress
to the point where he could not work.4 On July 10, 2000, A-1 offered
complainant a temporary work schedule at the Kamuela Post Office while
C-1 was absent. Complainant rejected that offer. On July 17, 2000,
A-3, an agency official, met with complainant at his home. He offered
complainant a choice of four options, which included temporary details
to three other facilities. Later that day, complainant rejected the
options that were presented to him. He indicated that he would not
consider any proposal that involved him working at another facility.
He also indicated that C-1 should be moved out of the Kamuela facility.
In a July 21, 2000 letter, complainant indicated that he was not "mentally
prepared to return to work at this time." He also indicated that he would
require a "letter of liability" prior to his returning to work.5 Finally
complainant stated that "I will not bother giving you a medical diagnosis
of my mental state, but I have signed a consent [sic] for my doctors to
discuss their diagnosis with the workman's compensation representative."
On July 29, 2000, complainant informed A-1 that he did not state that
he could not work with C-1, but that he could not work in an unsafe
environment. He also told A-1 that medical documentation to support his
absence from work could be obtained from his doctor. On August 22, 2000,
A-1 informed complainant that C-1 was not a threat to him, and that he
could offer him evening work at the Kamuela Post Office when C-1 was not
present, and that he needed to supply medical documentation in order to
support his extended absence.6 A-1 explained that agency regulations
required an employee to submit medical documentation or other evidence
of incapacity for work or absences in excess of 3 days.
According to complainant, he never received the August 22 letter.
On August 31, 2000, he wrote A-1 and accepted one of the temporary
assignments offered to him on July 17, by A-3. The record, however,
indicates that, by this time, the temporary work assignment was no longer
available.
On September 8, 2000, A-1 sent a letter to complainant indicating that
before he could return to work, he had to be cleared by his doctor and
the agency's medical unit. By letter dated September 13, complainant told
A-1 that his psychiatrist, Doctor I, found that C-1 was a threat to him.
Complainant did not provide any medical documentation that supported this
contention, however. He also indicated that he could not work at the
Kamuela Post Office. On September 14, 2000, Doctor I indicated that C-1
"could be" a threat to complainant, and that he could not return until
she was evaluated. Doctor A, the agency's Honolulu District doctor,
contacted Doctor I regarding complainant's request that C-1 be evaluated.
By mutual agreement, Doctor H was selected to conduct the evaluation.
Doctor H determined that C-1 did not pose a threat to complainant or
any employee. This information was provided both to Doctor I and,
complainant's psychologist, Doctor J, in December 2000.
On November 13, 2000, A-1 offered complainant an assignment to the
Kailua-Kona Post Office, effective November 16. Complainant rejected the
offer. By letter dated November 15, Doctor I indicated that complainant
could not accept the offer because of a "military service connected
disability with back injury [sic]." Doctor I maintained that a long
commute in a car was contraindicated. Doctor I also indicated that
because of the "inordinate delay" in resolving complainant's concerns
about work place safety, complainant "had regressed to the point where I
do not believe it is safe for him to return to work at the present time
in any capacity." On November 30, A-1 informed complainant that the
temporary assignment presented to him on July 17 was no longer available,
and that he was unaware of a physical condition that prevented him from
traveling to Kailua-Kona. On December 6, A-1 approved complainant's
request for annual leave for February and March 2001.
On December 13, 2000, A-1 offered complainant evening work the Kamuela
Post Office. Complainant accepted the offer, but indicated that he wanted
to bring a 9mm handgun to work for protection.7 A-1 denied the request,
and, based on complainant's desire to bring a weapon into the facility,
withdrew the offer of work at the Kamuela Post Office. In a letter
dated December 20, 2000, Doctor A raised concerns about complainant's
desire to bring a gun to work with complainant's doctors. Doctors I and
J responded on January 24, 2001. In their letter, complainant's doctors
indicated that complainant's fear of physical harm was significantly
reduced and that he could return to work; however, they also indicated
that he underwent back surgery on January 18, 2001, and could not
return immediately. The agency had not been previously informed that
complainant was having surgery.
After his scheduled vacation, complainant returned to work on March
5, 2001. The only restriction was that complainant would continue to
need professional support in the form of psychiatric and psychological
services. Complainant worked until July 9, 2001 when he strained his
back at work. He strained his back again, on August 15, 2001, and did
not return to work after that date.
In addition to the above, complainant also alleged that the agency
discriminated against him when it failed to provide him with medical
information about C-1. The specific information that he sought was
the analysis of the threat assessment that was conducted after their
altercation. Complainant and his doctors only received the conclusions
and recommendations of the report, but were denied the specific details
for privacy reasons.
Finally, the record indicates that A-2, during a conversation with
C-2, another of complainant's co-workers, mentioned that complainant
was being treated by Doctor I. According to C-2, she informed A-2 that
she was taking her son to see Doctor I. In response, A-2 replied that
Doctor I was also complainant's psychiatrist. A-2 did not recall the
conversation.
Following an investigation, complainant was informed of his right to
an administrative hearing before an EEOC Administrative Judge (AJ).
Complainant elected to have a hearing. On May 7, 2003, a hearing
was held, after which the AJ issued a decision that found complainant
was not discriminated against with regard to claims (1) - (4). With
regard to claim (5), the AJ found that the agency improperly, although
unintentionally, disclosed medical information about complainant. The AJ
found, among other things, that complainant was unable to demonstrate
that the agency's untimeliness prejudiced in any way his opportunity
to attempt to meet his burden of proof or that he would have prevailed
were it not for the agency's dilatory actions. Having found that there
was "a technical violation of the medical privacy provisions of the
Rehabilitation Act," the AJ ordered the agency to provide complainant
$500.00 in non-pecuniary damages and ordered compulsory EEO training on
the Rehabilitation Act, with particular emphasis on issues of medical
privacy, to all managers and staff assigned to the Kamuela Post Office.
The agency adopted the AJ's decision.
EEOC Regulation 29 C.F.R. � 1614.405(a) provides that all post-hearing
factual findings by an Administrative Judge 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). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held. An AJ's credibility determination based on
the demeanor of a witness or on the tone of voice of a witness will be
accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable
fact finder would not credit it. See EEOC Management Directive 110,
Chapter 9, � VI.B. (November 9, 1999).
With regard to complainant's contention that he was denied a reasonable
accommodation, we will assume, for purposes of our analysis only, that
complainant is an individual with a disability as alleged. However,
at the outset, we find that he did not establish that he was entitled
to the accommodation that he sought with respect to his back condition.
The Commission has long held 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). Here, we find no connection between complainant's back condition
and the accommodations that he sought, i.e., an assignment to a different
facility or a schedule where he would not come into contact with C-1 at
the Kamuela.
After a careful review of the record, we also do not find that the
agency denied complainant a reasonable accommodation with regard to
his stress condition. In order to establish his claim of disability
discrimination, complainant must also establish that he is "qualified"
within the meaning of the Rehabilitation Act. A qualified individual with
a disability is one who can, with or without reasonable accommodation,
perform the essential functions of the position in question. 29 C.F.R. �
1630.2(m). We note in this regard that at various times during the
process complainant and/or his doctors indicated that he was unable to
work in any capacity. For example, we note complainant's July 21, 2000
letter indicating that he was not "mentally prepared" to return to work;
and Doctor I's November 15, 2000 letter indicating that complainant had
regressed to the point where he did not believe that it was safe for him
to return to work in any capacity. Doctor J also wrote, on November 22,
2000, that "it is my opinion that currently [complainant] is unable to
work at any Post Office. His psychological adjustment has deteriorated."
Complainant, in a letter dated January 13, 2001, told A-1 that, "it was
his doctor's decision" as to when he would be able to return to work.
Doctors I and J did not inform the agency that complainant could return
to work until January 24, 2001. We note, however, that in their letter
the doctors indicated that complainant had undergone surgery on January
18th and that this would prevent his immediate return to work. Thus,
the agency was told to contact complainant in order to actually determine
when he was cleared to return to work. We find that complainant has not
established that he was qualified to perform the essential functions
of his position during the period in question. Because we find that
complainant has not established that he was qualified, the agency was
under no obligation to provide him with an accommodation.
With respect to complainant's claim that he was denied medical
information about C-1, we find that the agency articulated a legitimate
non-discriminatory reason for not providing the analysis of C-1's threat
assessment, i.e., it would have violated C-1's rights if the analysis
was released to complainant. We find no evidence of pretext.
With regard to claims (3) and that portion of claim (4) alleging
harassment, we find that the record contains substantial evidence
to support the AJ's determination that the matters alleged, whether
considered individually or together, did not constitute harassment.
Among other things, the AJ found that the specific incidents described by
complainant could not be characterized as "abusive, severe or pervasive,"
and did not alter the conditions of his employment as to implicate Title
VII, the Rehabilitation Act or other reprisal related allegations.
With respect to that portion of claim (4) alleging that complainant was
subjected to disparate treatment based on race, color, national origin and
disability and reprisal, we agree with the AJ that the record contains no
evidence that would create an inference that he was treated differently
than any other similarly situated employee with regard to his work place
assignments and work schedules.
Finally, we note that on appeal neither party has contested the AJ's
finding of discrimination regarding claim (5); therefore, we will not
address this matter further in this decision.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal and matters not expressly referenced
herein, it is the decision of the Equal Employment Opportunity Commission
to affirm the final agency order because the Administrative Judge's
findings and conclusions are supported by the record.
ORDER (C0900)
The agency, within 60 calendar days of the date of this decision, is
ordered to take the following remedial action:
1. The agency shall issue to complainant a check in the amount of
$500.00 for payment of non-pecuniary compensatory damages.
2. The agency shall provide compulsory EEO training on the Rehabilitation
Act, with particular emphasis on issues of medical privacy, to all
managers and staff assigned to the Kamuela Post Office. The Commission
does not consider training to be a disciplinary action.
3. The agency shall consider taking disciplinary action against A-2.
The agency shall report its decision. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Kamuela Post Office 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.
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 (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
____04-13-06______________
Date
1 The record indicates that complainant withdrew a previous EEO
claim (Agency Case No. 4F-967-0029-00) alleging race and color-based
harassment/hostile work environment.
2 C-1 reportedly stated that, "If I had a gun I could shoot him."
3 The local police found no evidence that C-1 tampered with complainant's
vehicle. Furthermore, the Postal Inspectors found: (1) no evidence that
C-1 tampered with complainant's vehicle; (2) that she had not threatened
his life; and (3) she was not a threat to complainant's safety.
4 This claim was ultimately denied.
5 In an earlier correspondence, complainant indicated that he wanted
documentation assuring him that the agency took full responsibility
should something happen to him.
6 In a letter dated September 12, 2000, A-1 acknowledged that the
agency, on August 22, was already in receipt of medical documentation
substantiating complainant's absence. He also indicated that complainant
was still required to obtain a clearance from his doctor before he
returned to work.
7 In a December 5th letter, complainant claimed that he had received
death threats.
??
??
??
??
2
01A41316
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
9
01A41316