01983512
05-14-1999
Craig W. Cameron, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/ Western Region), Agency.
Craig W. Cameron, )
Appellant, )
)
v. ) Appeal No. 01983512
) Agency No. 4F-907-1221-95
William J. Henderson, ) Hearing No. 340-96-3627X
Postmaster General, )
United States Postal Service, )
(Pacific/ Western Region), )
Agency. )
______________________________)
DECISION
On April 2, 1998, Craig W. Cameron (appellant) timely appealed the final
decision of the United States Postal Service (agency), dated March 3,
1998, concluding he had not been discriminated against in violation
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
In his complaint, appellant had alleged that officials at the agency's
post office in Venice, California, failed to provide him with reasonable
accommodation to his mental disability (bi-polar affective disorder)
when he was returned to a Letter Carrier position on July 18, 1995,
and was also denied consecutive days off. This appeal is accepted in
accordance with the provisions of EEOC Order No. 960.001.
At the time the matters at issue arose, appellant had worked at the
Venice Post Office as a Letter Carrier since 1986. The record reflects
that appellant was hired by the postal service as a disabled veteran
based on his bi-polar affective disorder. Appellant was considered by
the Department of Veterans Affairs (VA) to have a 40% disability, and
took regular medication to control his condition. In 1990, appellant
was detailed to a clerk assignment at the Marina Mail Sectional Center
because of problems he was having with his supervisor which had escalated
to the point where appellant was hospitalized. It is undisputed that
these problems arose out of appellant's disability. Appellant remained in
the detail for five years, working the day shift, Monday through Friday,
until March 1995, when he returned to his position as a Letter Carrier
in Venice.
The transfer back to Venice was the result of complaints by the union
representing clerks that allowing non-clerk personnel to perform clerk
duties was in violation of the agency's collective bargaining agreement.
At the time, appellant was given the option of changing crafts and
becoming a clerk, or returning to Venice as a Letter Carrier. Appellant
chose to return to Venice as a Letter Carrier in order to retain his
seniority in that craft. After working in several carrier assignments,
in October 1995, appellant successfully bid on the A.M. Inter-Station
Run Carrier position, with the hours of 5:30 a.m. to 2:30 p.m. In this
position, appellant had Sundays off and one other day which rotated.
Therefore, he had consecutive days off only two out of every six weeks
(Sunday-Monday and Saturday-Sunday).
Appellant requested that the agency change his designated days off to
two consecutive days each week in order to accommodate his disability.
He testified that he needed the time to relax and regroup, which enabled
him to focus more positively on life. The Manager of Customer Service
in Venice confirmed that in July 1995, appellant's doctor told her
that appellant would benefit from two consecutive days off. Moreover,
in a February 6, 1996 memorandum, appellant's VA physician advised the
agency that having two days off in a row would allow appellant to unwind
and keep his stress level down. The agency denied appellant's request
on the basis that changing his days off would violate the collective
bargaining agreement and disrupt the schedules of the other carriers
and the relief carrier.
The record indicates that the local collective bargaining agreement
provided: "All Regular Carriers shall be on a five day work week, with
rotating days off, unless the circumstances of individual bid assignments
dictate otherwise." The Vice President of the union representing the
carriers testified that a change in appellant's days off would not be
a problem for the union. The Vice President went on to detail how the
change could be accomplished without violating the collective bargaining
agreement and minimizing the disruption on other workers, including using
a Part-Time Flexible (PTF) employee, with no fixed schedule, to perform
appellant's duties on Saturdays. The Vice-President pointed to the fact
that the P.M. Inter-Station Run Carrier, whose duties were identical
to appellant's, had fixed consecutive days off (Saturdays and Sundays).
This occurred originally because no stations were opened on Saturdays.
However, although the stations later all adopted Saturday hours, this
employee continued to have Saturdays and Sundays off.
On October 23, 1995, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against him as
referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On December 18, 1997, following a hearing at which four witnesses
testified, the AJ issued a decision concluding appellant had been had not
established a violation of the Rehabilitation Act when he was returned to
a carrier position in Venice in July 1995.<1> However, the AJ found the
agency failed in its duty to reasonably accommodate appellant's disability
when it denied his request for two consecutive days off. In reaching
this conclusion, the AJ held that the agency failed to meet its burden
of establishing that this requested accommodation would have caused an
undue hardship on its operations. The AJ pointed to the fact that the
P.M. Inter-Station Carrier position, with duties essentially the same as
appellant, had fixed consecutive days off. The AJ reasoned that although
this originated in historical differences between the two positions,
those differences no longer existed and the continuing existence of the
P.M. position schedule showed that a fixed schedule with consecutive days
off could be done without undue hardship on the agency. The AJ also noted
that although the agency claimed it could not grant the accommodation
due to the provisions of the collective bargaining agreement, the union
Vice-President testified that no such violation would occur and that the
union had no objections to the proposed change in appellant's schedule.
On May 3, 1998, the agency issued its final decision rejecting the
AJ's conclusion that it had unlawfully failed to provide appellant with
reasonable accommodation to his disability in the form of two consecutive
days off. It is from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
Based on the evidence of record, the Commission discerns no basis to
disturb the AJ's finding of disability discrimination. Nothing raised by
the agency in its final decision or on appeal differs significantly from
the arguments presented to, and considered by, the AJ when she issued
her decision. After conducting an independent review of the record, the
Commission concurs with the AJ's finding that the agency failed to meet
its burden of establishing that granting the requested accommodation
would have caused an undue hardship on its operations. Despite, the
agency's main assertion that giving appellant two consecutive days off
would have violated the collective bargaining agreement, the evidence of
record does not support this claim. See also, "EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans With
Disabilities Act," EEOC Notice No. 915.002 at 59 (March 1, 1999).
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision which rejected the
AJ's finding of unlawful failure to provide appellant with reasonable
accommodation to his disability. In order to remedy appellant for its
discriminatory actions, the agency shall, comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within fifteen (15) calendar days of the date this decision becomes
final, the agency is directed to provide appellant, in his current bid
position, with a work schedule which gives him two consecutive days off.
(B) The agency shall provide immediate training to the officials
responsible for its actions in this matter regarding their obligations
and responsibilities under the Rehabilitation Act.
(C) The agency shall post at the Venice, California, 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.
(D) If appellant has been represented by an attorney (as defined by 29
C.F.R. �1614.501 (e)(1)(iii)), he is entitled to an award of reasonable
attorney's fees incurred in the processing of her complaint and/or this
appeal. 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.
(E) 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 of the
agency's calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
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 an 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 EIGHTY (180)
CALENDARS 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:
May 14, 1999
_________________ __________________________________
DATE Carlton M. Hadden, Acting Director Office of
Federal Operations
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 the Rehabilitation Act of 1973, as amended, 29
U.S.C. Sect. 791 et seq., has occurred at this 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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Venice, California, Post Office supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Venice, California, Post Office has been found to have discriminated
against the individual affected by the Commission's finding on the
basis of his disability when his request for two consecutive days off
was denied. The Commission has ordered that this individual be granted
a schedule with two consecutive days off as a reasonable accommodation
to his disability. The Venice, California, Post Office 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.
The Venice, California, Post Office 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: _________________
29 C.F.R. Part 16141 There is no indication in appellant's submissions
on appeal that he is contesting the AJ's finding on this issue.