01973517
02-05-1999
Edward G. Donovan, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region),) Agency.
Edward G. Donovan, )
Appellant, )
) Appeal No. 01973517
v. ) Agency No. 4D-270-1063-94
) Hearing No. 140-94-8094X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid Atlantic Region),)
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of physical disability (bilateral
carpal tunnel syndrome, neck pain, knee pain, ankle sprains and foot
pain), in violation of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791, et seq. Appellant alleges he was discriminated against
when he was denied employment at the Sanford, North Carolina Post Office
(facility) as a Distribution/Window Clerk (Clerk) after the agency
informed him that he was medically unable to perform Clerk duties.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is REVERSED AND REMANDED.
BACKGROUND
The record reveals that in or around September of 1993, appellant
was interviewed by the Postmaster (PM) for a Clerk position at the
facility. After the interview, PM instructed appellant to undergo a
medical examination and assessment (Exam). An agency contract physician
(Dr. A.) conducted the Exam, and concluded in his report dated September
8, 1993, that although appellant had a history of multiple injuries
suffered in an automobile accident, and as a paratrooper in the Army, he
considered appellant a �low risk/restriction,� for the Clerk position.
The Exam report provided that a low/risk restriction, �[appellant] is
medically qualified to perform the essential functions of the position at
the time of examination, but periodic medical follow-up is recommended.�
In reaching this conclusion, Dr. A. made specific findings that as a
result of good self rehabilitative techniques,
appellant has good ROM [Range of Movement] of the shoulders as well as the
cervical and lumbar spine areas. See Joint Exhibit 8. PM received the
Exam report, as well as medical records from the Veteran's Administration
(VA). The VA medical records contained neurologic and orthopedic
assessments of appellant conducted in June of 1992, and these assessments
documented numerous physical impairments appellant received as a result
of his service in the Army as a paratrooper and his automobile accidents.
After reviewing this information, PM was concerned about appellant's
ability to perform the essential functions of the Clerk position, and
after contacting the agency District Office, was instructed to forward
the Exam report and VA records to the District office for further review.
A second agency contract physician (Dr T.) reviewed appellant's medical
records and Exam report; and without examining appellant, on October 26,
1993, concluded in his report that appellant was �physically unsuitable
for the [Clerk] position ... [and that he could] suggest no accommodation
which would allow [appellant] to perform the functional requirements
of this position without high risk of injury to himself.� See Joint
Exhibit 4. On November 1, 1993, the agency informed appellant that he
was �tentatively found to be medically unable to perform the essential
functions of a [Clerk] position...� See Investigative File, Exhibit
4, page 25. The letter also informed appellant that as a veteran with
service-connected disabilities of more than 30%, this determination would
be reviewed by the Office of personnel Management (OPM). In response,
Dr. A. submitted a letter to OPM, stating that he had given appellant a
physical examination on August 8, 1993, and found nothing to suggest that
appellant would be unable to work at a postal window. See Investigative
File, Exhibit 5, page 27. Subsequently, however, OPM issued appellant
a letter on November 15, 1993, which sustained the agency's finding.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on December 29,
1993. At the conclusion of the investigation, appellant was provided
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
Recommended Decision (RD) finding discrimination.
The AJ first concluded that appellant was a qualified individual with
a disability based on his testimony that he had knee and ankle problems
which affected the major life activity of walking. The AJ also concluded
that the VA records and Dr. T.'s report demonstrated that appellant had a
record of a disability. The AJ then concluded that the agency articulated
legitimate, nondiscriminatory reasons for its decision to medically
disqualify appellant, namely, that its determination was based on the
conclusions of Dr. T., which were substantiated by the OPM, and that
appellant's disabilities were not compatible with the strenuous nature of
the Clerk position, which required �frequent heavy lifting, carrying,
prolonged standing and walking with repetitive wrist movements and
overhead reaching while sorting mail into distribution cases and working
a public service window.� See RD at 18. The AJ then concluded that the
agency's articulated reason was a pretext for unlawful discrimination,
as it was unreasonable to conclude that appellant could not perform
the essential functions of the Clerk position in light of Dr. A.'s
Exam report. Noting that Dr. A. specifically found that appellant could
reach above his shoulder, the AJ concluded that the agency's reliance
on the VA records that he was unable to reach above his shoulder without
significant pain was disingenuous, when the assessments contained in the
VA records were fifteen months old, and were therefore not indicative
of appellant's current medical condition. As relief, the AJ ordered
instatement at the facility, together with back pay and other benefits,
training for relevant agency management officials, and a posting notice.
The agency's FAD rejected the AJ's RD and instead concluded that appellant
was not discriminated against when the agency medically disqualified him
for a Clerk position. On appeal, appellant contends that the AJ's RD
should be reinstated, and that he only requires a stool to accommodate
him in the Clerk position. The agency stands on the record and requests
that we affirm its FAD.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission agrees with the AJ's
ultimate finding that appellant was a victim of discrimination on the
basis of physical disability. While we agree with the agency's finding
that appellant was not an individual with a disability as defined by
the Rehabilitation Act, see 29 C.F.R. � 1630.2(j),<1> we nevertheless
agree with the AJ's finding that appellant had a record of a disability
pursuant to 29 C.F.R. � 1613.702(a)(2). The Commission further notes
that while the AJ did not formally find that appellant was regarded as
an individual with a disability, the AJ's conclusion indicates that the
agency so regarded appellant in his RD.
In addition, the AJ noted that Dr. T. referenced appellant's bilateral
carpal tunnel syndrome when he concluded that appellant was not medically
suited for the Clerk position. See Joint Exhibit 4. We find that
Dr. T. regarded appellant as an individual who could not perform the
manual task of sorting mail because of this diagnosis. Additionally,
Dr. T.'s findings listed a number of physical symptoms and impairments,
including injuries to his hands, right shoulder, knees, ankles, feet,
cervical spine, lumbar spine, as well as blackout spells, diabetes
mellitus, stomach disorder, and a benign leg and nerve tumor which,
taken together, suggest that more likely than not, he considered
appellant not suited for those positions which would require lifting,
carrying, reaching, performing manual tasks, standing, walking and
muscular coordination. See Coogle v. United States Postal Service,
EEOC Appeal No. 01952577 (November 21, 1996) (complainant regarded as
substantially limited in major life activity of manual tasks when the
agency concluded that he could not perform work involving intermittent
standing and walking, and frequent light to moderate lifting; and further,
that these physical requirements were not limited to a Letter Sorting
Machine operator trainee, but are �ordinary requirements of a broad
range of positions in a variety of job classifications�).
Furthermore, having carefully considered the evidence of record, the
Commission finds that to the extent the agency regarded appellant as
an individual with a disability, it failed to show how his current
physical condition presented a significant risk of substantial harm.
The Commission agrees with the AJ's conclusion that the agency failed
to justify its reliance on fifteen month old medical assessments, when
appellant's most recent Exam by Dr. A. indicated that he could perform
the essential functions of the Clerk position without any accommodations.
We further find that the agency only conducted a limited, individualized
assessment of appellant's ability to perform the essential functions of
the Clerk position, and this limited assessment was insufficient, given
the conflicting reports of Dr. A. and Dr. T., to medically disqualify
him because he allegedly could not perform the essential functions of
the Clerk position. See Mantolete v. Bolger, 767 F.2d 1416, 1422 (9th
Cir. 1985); Meza v. United States Postal Service, EEOC Appeal No. 01933328
(December 21, 1993); Cooper v. United States Postal Service, EEOC Appeal
No. 01922979 (May 6, 1993); see also 29 C.F.R. � 1630.15(b)(2) and 29
C.F.R. � 1630.2(r).
Finally, we note that appellant testified at the hearing, and argued on
appeal, that he needed a stool to accommodate him in the Clerk position.
While the need for a stool does not render appellant a qualified
individual with a disability, we note that the record shows that Clerks
regularly utilize a rest bar, which can be adjusted at a slant so that
employees can lean in the equivalent of a sitting position and sort mail.
Appellant would be entitled to similar treatment. See FAD at page 7,
footnote 5.
CONCLUSION
After a careful review of the record, including appellant's arguments on
appeal, the agency's response, and arguments and evidence not specifically
discussed in this decision, the Commission REVERSES the FAD and REMANDS
the matter to the agency to take remedial actions in accordance with
this decision and the ORDER below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall retroactively instate appellant to the Clerk position
from the effective date the position was filled by another candidate.
Appellant shall also be awarded back pay, seniority, within grade
increases, cost of living increases, and other employee benefits from
the date of the effective instatement.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due appellant, pursuant to
29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The appellant shall cooperate in the
agency's efforts to compute the amount of back 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 and/or
benefits, the agency shall issue a check to the appellant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The appellant 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."
2. The agency is directed to conduct a minimum of sixteen (16) hours of
EEO training for the Postmaster, Dr. T., and other relevant management
officials, including the Manager of Human Resources referenced in Joint
Exhibit five, who were found to have discriminated against appellant.
The agency shall address these employees' responsibilities with respect
to the Rehabilitation act, and eliminating discrimination in the
workplace, specifically that no employees or applicants for employment
are medically disqualified without a thorough individualized assessment
of their current medical condition, and without making specific findings,
where applicable, that the existence of a direct threat as defined by
the Commission's Regulations, precludes employment with the agency.
3. The agency shall remove and destroy from appellant's personnel and
medical files any adverse documents which relate to his having been
medically disqualified for a Clerk position.
4. 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.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Sanford, North Carolina 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 (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.
ATTORNEY'S FEES (H1092)
If appellant 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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:
February 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 We note that none
of appellant's other physical impairments rise
to the level of substantially limiting impairments
as defined by the Rehabilitation Act.