01A05175
06-03-2003
Candyce Henderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Candyce Henderson v. United States Postal Service
01A05175
June 3, 2003
.
Candyce Henderson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A05175
Agency No. 4G-754-0135-98
Hearing No. 310-99-5584X
DECISION
Complainant timely initiated an appeal from a final agency action
concerning her 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. The appeal is accepted 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.
Complainant alleged discrimination on the bases of her race (Black)
and disability<1> (overweight) when she was denied employment.<2>
BACKGROUND
The undisputed record reveals that complainant was an applicant for
employment with the agency in Dallas, Texas. Complainant applied for the
position of Mail Handler, and was reached from the hiring register for
an interview. She was selected for the position and sent for an agency
medical examination and assessment. The agency's Medical Director (MD)
rated complainant as a �moderate risk�<3> since due to her weight (343
pounds)<4> she �may have difficulty with prolonged standing and walking.�
The duties of a Mail Handler include the ability to �load, unload and
move bulk mail and sacks. They may have to be on their feet all day in
an industrial environment. They must also be able to repeatedly lift up
to 70 pounds.� Since complainant was found to pose a moderate risk, she
was denied employment. The agency had a policy of denying employment to
any applicant who was rated a �moderate risk.� Accordingly, complainant
was informed that she would not be hired.
Complainant sought EEO counseling and filed a formal complaint alleging
that the agency discriminated against her on the bases of her race (Black)
and disability (overweight) when she was found medically unsuitable for
the position. At the conclusion of the investigation, complainant was
informed of her right to request a hearing before an EEOC Administrative
Judge (AJ) or alternatively, to receive a final decision by the agency.
Complainant requested a hearing before an AJ which was held on May
11, 2000.
The AJ concluded that complainant was not discriminated against on the
bases of race or disability since she did not prove, by a preponderance
of the evidence, that the agency's articulated non-discriminatory reasons
for its actions were pretextual or based upon discriminatory motives.
Specifically, the AJ determined that the White comparison employee (C1)
identified by complainant was not similarly situated with complainant
since C1 provided additional documentation to the agency and initiated
an EEO complaint through the EEO Manager. Moreover, the AJ determined
that there was no evidence that the responsible management official
(RMO) knew complainant's race at the time of the employment action.
In addition, the AJ noted that the evidence established that RMO
denied complainant the Mail Handler position because she was rated a
�moderate risk.� The AJ determined that the policy of the agency was
to deny employment to anyone who received such rating, but to allow
reconsideration of such denial if additional evidence was provided by
the applicant which supported a different conclusion.
The AJ also determined that based upon complainant's testimony she was
not an individual with a disability.<5>
The agency adopted the AJ's decision in its Final Action.
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).
Complainant concedes that she is not disabled. Upon our review of the
record, the Commission agrees with the AJ and finds that complainant
was not an individual with a disability under the first prong of the
definition under the Rehabilitation Act because the record does not
support a finding that complainant has an impairment that substantially
limits a major life activity.
However, the Commission finds that the AJ erred in failing to
correctly address the issue of whether complainant was regarded
as disabled. Specifically, the AJ found, without elaboration, that
complainant failed to present evidence that she was perceived to be an
individual with a disability. However, this finding is not supported
by substantial evidence. Instead, upon review of the undisputed record,
the Commission finds that the agency regarded complainant as having an
impairment which substantially limits the major life activity of working.
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). The record indicates that MD examined complainant
and concluded that complainant posed a moderate risk because she may
have difficulty with prolonged standing and walking and would only be
medically qualified for the position if she could be accommodated.
Based on MD's evaluation and rating, the agency determined that
complainant's restrictions were not compatible with the requirements of
a Mail Handler position which involves continuous standing, walking,
stretching, reaching, and repeated lifting of bulk mail weighing up
to 70 pounds. The Commission concludes that the agency thus regarded
complainant as unable to perform a broad range of jobs in various classes
requiring heavy lifting, continuous standing, walking, pushing, pulling,
bending, and reaching. See McManaway v. United States Postal Service,
EEOC Appeal No. 01993233 (August 27, 2002).
Complainant must next show that she 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
undisputed facts in the record, we find that complainant has demonstrated
that she is a qualified individual with a disability inasmuch as she
was selected for the position at issue, pending the outcome of a medical
suitability determination. The agency, however, found, based upon her
weight (343 pounds), 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). See Chevron
U.S. Inc. v. Echazabal, 536 U.S.73, 122 S. Ct. 2045 (June 10, 2002), Cook
v. State of Rhode Island, Department of Mental Health Retardation and
Hospitals, 10 F.3d 17 (1st Cir. 1993). 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 MD's assessment that complainant would be a moderate risk of
future injury if she was not accommodated. A review of MD's physical
examination indicates that complainant was overweight but normal in every
respect, that she had no current physical limitations or restrictions,
and that on one occasion in 1997 she had high blood pressure. Based on
this information, the agency determined that the strenuous duties of
the Mail Handler position would place complainant's personal health and
safety in jeopardy.
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 address the duration of the risk posed
by complainant's weight, 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.<6>
CONCLUSION
After a careful review of the record, including complainant's arguments
on appeal and arguments and evidence not specifically discussed in this
decision, the Commission affirms the final action, in part and reverses,
in part.
ORDER
1. Within sixty (60) days of this decision becoming final, the agency
shall offer complainant the position of Mail Handler or a substantially
equivalent position at an agency facility within thirty miles of
complainant's home. Complainant shall be given a minimum of fifteen (15)
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 her 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 July 28, 1998 to
the date she 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 backpay and benefits due, and shall provide relevant
information requested by the agency. If there is a dispute regarding the
exact amount of backpay and/or benefits, the agency shall issue a check
to the 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. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the Hearings Unit of the Dallas District Office.
Thereafter the Administrative Judge shall issue a decision on these
issues in accordance with 29 C.F.R. � 1614.109, and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110 within forty
(40) days of receipt of the Administrative Judge's decision. The agency
shall submit copies of the Administrative Judge's decision and the final
agency action to the Compliance Officer at the address set forth below.
4. The agency shall conduct training for its human resource personnel
at its North Texas Processing and Distribution Center, Dallas, Texas
facility 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 North Texas, Processing and
Distribution Center, Dallas, Texas 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.
May come out
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
June 3, 2003
__________________
Date
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 the North Texas Processing and Distribution, Dallas, Texas facility
(�Facility�).
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 her for the position she sought.
The facility was ordered to award the employee with a position and back
pay. This facility was also ordered to provide relevant agency officials
with training regarding their obligations under the Rehabilitation Act .
A determination as to whether complainant is entitled to compensatory
damages and attorneys was remanded to an EEOC Administrative Judge for
a hearing. 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 complainant claimed that she was regarded as disabled at the
hearing.
2 Complainant withdrew sex as a basis of discrimination at the hearing.
3 The agency defines �moderate risk� as being �medically
qualified to perform essential functions of the position only if
limitations/restrictions can be accommodated.�
4At complainant's height (5' 5"), this weight would amount to morbid
obesity.
5 The AJ also stated, without elaboration, that complainant failed
to present evidence that she was perceived to be an individual with
a disability.
6 The Commission finds no violation of Title VII because the AJ's finding
of no discrimination is supported by substantial evidence in the record.
In reaching this conclusion, we agree with the AJ in finding that
complainant failed to prove pretext or that race was a motivating factor
for its decision to rate her as a �moderate risk� and deny her employment.
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).