07A30130
07-15-2004
Dennis Yerger, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dennis Yerger v. United States Postal Service
07A30130
July 15, 2004
.
Dennis Yerger,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A30130
Agency No. 4J-460-0036-01
Hearing No. 240-A2-5024X
DECISION
Concurrent with its August 29, 2003 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
Complainant filed an EEO complaint alleging that the agency discriminated
against him based on race (African-American), sex (male), age (over 40),
and disability (partially-paralyzed hand, migraine headaches, and cluster
headaches) when it terminated his employment because it failed to provide
him with a reasonable accommodation. The complaint was investigated
and complainant was informed of his right to elect a hearing before an
EEOC administrative judge (AJ) or an immediate final agency decision
(FAD). Complainant chose the former. After a hearing, the AJ issued
a decision finding no discrimination based on race, sex, age or the
disabilities of partially-paralyzed hand or migraine headaches. However,
the AJ found discrimination based on the disability of cluster headaches.
Specifically, the AJ concluded that complainant is a qualified individual
with a disability and that the agency failed to reasonably accommodate
complainant's disability and failed to show that it would cause an undue
hardship to do so.
The AJ ordered the agency to reinstate complainant's postal employment;
give complainant an unconditional offer of placement in a grade three,
full-time Laborer Custodian position that he would have held, absent
unlawful discrimination, at the agency's Merrillville, Indiana facility;
calculate back-pay and other benefits less appropriate offsets; expunge
agency records of all documentation regarding complainant's unlawful
termination; provide complainant the effective accommodation of adjusting
his work schedule/instructions as necessary so that complainant may
address his cluster headaches when they occur at work; provide EEO
training for the agency's Merrillville, Indiana facility; and pay
$6,868.00 in past pecuniary damages and $35,000.00 in non-pecuniary,
compensatory damages.
The agency issued a FAD stating that it would not implement the AJ's
decision and appealing the decision. The agency stated that the AJ
erred when she found it liable for failure to provide a reasonable
accommodation to complainant.<1>
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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.
After a careful review of the record, we find that the agency failed to
establish that the AJ erred as to her finding that the agency failed to
provide complainant a reasonable accommodation. The findings of fact
are supported by substantial evidence, and the AJ correctly applied
the appropriate regulations, policies, and laws in determining that the
agency discriminated against complainant based on disability and did not
discriminate against complainant based on race, sex, or age. Further,
we discern no basis to disturb the AJ's remedial award. The Commission
reverses the agency's final order and remands the matter to the agency
to take corrective action in accordance with this decision and the
Order below.
ORDER
The agency is ordered to take the following remedial action within sixty
(60) calendar days after the date this decision becomes final, unless
otherwise noted below:
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall unconditionally offer to reinstate complainant to a PS-3
full-time Laborer Custodian position with a reasonable accommodation
or a substantially equivalent position at its Merrillville, Indiana
facility. Complainant shall be given a minimum of fifteen days from
receipt of the offer of reinstatement 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.
The agency shall determine the appropriate amount of back-pay, if any,
with interest; overtime pay, if any, with interest; and other benefits
due complainant, pursuant to 29 C.F.R. � 1614.501, less any appropriate
offsets. The time period for purposes of back- pay, overtime pay, and
benefits shall be from the effective date of complainant's termination,
i.e., December 2, 2000, until the date complainant accepts or declines
the non-conditional offer of reinstatement provided for in paragraph
(1) above. The complainant shall cooperate in the agency's efforts
to compute the amount of back-pay, overtime pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay, overtime
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 enforcement or clarification must be filed with the
Compliance Officer, at the address referenced in the statement entitled
�Implementation of the Commission's Decision.�
The agency shall expunge its records of all materials pertaining to
complainant's unlawful termination of December 2, 2000.
The agency shall provide complainant the reasonable accommodation
of adjusting complainant's work schedule and work environment when
he suffers a cluster headache while at work. The agency shall allow
complainant to medicate himself and rest in an appropriate environment
during the cluster headache and to compose himself once the cluster
headache subsides, before requiring him to return to work.
The agency shall pay complainant $6,868.00 in past pecuniary, compensatory
damages and $35,000.00 in non-pecuniary, compensatory damages.
The agency is directed to provide EEO training for the responsible
management officials addressing their responsibilities with respect to
eliminating discrimination in the workplace with an emphasis on disability
and the current state of law on employment discrimination.
The agency shall consider taking disciplinary action against
the management officials identified as being responsible for the
discrimination perpetrated against complainant. 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 shall pay complainant reasonable attorney's fees and costs
in accordance with the �Attorney's Fees� paragraph below.
The agency shall post copies of the attached notice in accordance with
the statement entitled "Posting Order."
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 actions in accordance with this order.
POSTING ORDER (G0900)
The agency is ordered to post at its Merrillville, Indiana 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 (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
July 15, 2004
__________________
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. occurred
at a Merrillville, Indiana facility of the United States Postal Service
(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.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against the
individual affected by the Commission's findings on the basis of
disability when the facility failed to reasonably accommodate the
individual's disability and terminated the individual. The agency
shall therefore remedy the discrimination by reinstating complainant;
paying back-pay and benefits; expunging appropriate materials from agency
records; reasonably accommodating the individual as appropriate; providing
training for responsible management officials; and paying compensatory
damages and reasonable attorney's fees, if applicable. The agency 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.
The facility 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 1614
1We note that, in a letter dated August 29, 2003, the agency informed
complainant that it would provide interim relief to him, in the form of
administrative leave effective September 6, 2003.