01973755
09-12-2000
Johnny R. Williams, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Johnny R. Williams v. United States Postal Service
01973755
September 12, 2000
Johnny R. Williams, )
Complainant, )
) Appeal No. 01973755
v. ) Agency No. 1G-756-1077-95
) Hearing No. 310-96-5545X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
____________________________________)
DECISION
On April 4, 1997, complainant timely appealed the final agency decision,
dated March 14, 1997, concluding he had not been discriminated against
in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> In his complaint, complainant alleged that officials
at the agency's Dallas, Texas, Bulk Mail Center (BMC) discriminated
against him on the basis of his physical disability (medial meniscus and
degenerative arthritis in both knees) when, in August 1995, his request
for light duty was denied, and he was not allowed to return to work.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).
At the time of the events at issue, complainant was employed at the
Dallas BMC as a Mailhandler, PS-04. He had worked for the postal
service for approximately two-and-one-half years. Complainant's
medical history revealed that he had had problems with his knees for
nearly twenty years--diagnosed as medial meniscus and degenerative
arthritis--which resulted in periodic significant pain and affected
his range of motion. In 1977, he had surgery (medial meniscectomy)
on his right knee but continued to experience problems with the knee.
The agency was aware of complainant's medical condition when he was hired.
On June 17, 1994, complainant alleged he injured his left knee at work.
Medical documentation indicates that he was diagnosed with a torn medial
meniscus. Complainant filed a workers' compensation claim and returned
to work in a limited duty position subject to a variety of medical
restrictions (no lifting over twenty five pounds, no pushing more than
fifty pounds, and other restrictions on climbing, bending and stooping).
In April 1995, complainant's claim for workers' compensation was denied
because he was unable to establish that his knee condition resulted from
an injury incurred at work.
When his workers' compensation claim was denied, complainant no longer
qualified for a �limited� duty assignment. Therefore, he applied for
a �light� duty assignment. His request was reviewed by the agency's
light duty committee, comprised of management and union representatives.
The committee approved a temporary light duty assignment for complainant,
consistent with his medical restrictions. Complainant was assigned
to work in the sticks and rewrap area, the sack shakeout area, and to
operate a forklift and work in the gatehouse as needed.<2> This light
duty assignment was initially approved through June 1995,<3> at which
time complainant was instructed to submit an updated doctor's statement
if he continued to need light duty.
In late August 1995, complainant submitted a request for a �permanent�
light duty assignment, accompanied by a medical form completed by his
physician which indicated that complainant had a number of permanent
medical restrictions, including: no lifting over fifty pounds or
repetitive lifting of more than twenty five pounds; no standing or walking
for more than one-half of an eight hour shift; no more than minimal
bending, squatting or kneeling; and no climbing of stairs or ladders.
On August 28, 1995, after reviewing this update to complainant's
medical restrictions, complainant's supervisors instructed complainant
to clock out. These officials explained that the additional climbing
restriction prohibited complainant from performing the bulk of his light
duty assignment because the sack shakeout area could not be reached
without climbing stairs. At his hearing on this matter in December 1996,
complainant testified that he had still not been permitted to return to
work.
On November 20, 1995, complainant 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, complainant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) Administrative Judge (AJ).
On December 19, 1996, after a hearing at which six witnesses testified,
the AJ issued a decision concluding complainant had met his burden
of proving the agency failed to reasonably accommodate his physical
disability in violation of the Rehabilitation Act. In reaching this
conclusion, the AJ found that complainant had a physical impairment
which substantially limited one or more of his major life activities
as defined by the Rehabilitation Act. Based on this finding, the AJ
went on to conclude that when complainant was unable to perform his
regular duties because of well-documented medical restrictions, the
agency failed in its duty to provide him with reasonable accommodation
when management ignored his �consistent and frequent efforts� to secure
a reassignment to a permanent light duty position and instead placed
him in an indefinite off-duty status. Moreover, the AJ noted that
there was credible testimony that the Manager, Distribution Operations
(MDO), who handled complainant's light duty request, made statements
evidencing a discriminatory animus towards employees with disabilities
during a light duty committee meeting. Testimony indicated that these
statements included a comment that individuals with disabilities should
be �weeded out� prior to completing probation because after that they
were �hard to get rid of.� The MDO was also alleged to have said that a
physical injury ended an employee's chance for promotions and transfers.
Based on the combination of this evidence, the AJ concluded that the
agency violated its duty to reasonably accommodate complainant under
the Rehabilitation Act. On March 14, 1997, the agency issued its final
decision, rejecting the AJ's recommended decision, and entering a finding
of no discrimination. It is from this decision that complainant 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.
The Commission reviews post-hearing, factual findings by an AJ under a
substantial evidence standard. 64 Fed. Reg. 37,644, 37,659 (1999)(to be
codified at 29 C.F.R. � 1614.405(a)). 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).
As an initial matter, we note that the agency, in its final decision,
conceded that complainant is an individual with a disability as defined
by the Rehabilitation Act. Therefore, this issue is not before the
Commission on appeal, and need not be further discussed or addressed.
The dispositive issue in this case is whether the agency met its
responsibility to provide complainant with reasonable accommodations
to his disability in response to complainant's requests for permanent
light duty. While the Rehabilitation Act does not require an employer
to create a light duty position as an accommodation, it does require an
employer, absent undue hardship, to accommodate a qualified individual
with a disability by restructuring a position through redistribution
of marginal functions which he cannot perform because of disability,
or by reassigning him to an equivalent existing vacancy for which
he is qualified. 29 C.F.R. � 1614.203(g); Ignacio v. United States
Postal Service, EEOC Petition No. 03840005 (September 4, 1984), aff'd,
30 M.S.P.R. 471 (Spec. Pan. February 7, 1986). Despite the agency's
assertions to the contrary, the Commission agrees with the AJ's finding
that complainant's repeated requests for a permanent light duty assignment
were essentially ignored and, instead, the agency placed complainant in
an unpaid off-duty status. The agency has the responsibility to provide
�absolute and continuing� accommodation to complainant, �until and
unless doing so becomes an undue hardship.� Tavarozzi v. United States
Postal Service, EEOC Appeal No. 01942481 (July 8, 1996). The Commission
concurs with the AJ that the agency failed in this duty as there is no
evidence that an effort was made to conduct an individualized assessment
of complainant's abilities and limitations in an effort to determine
whether there were jobs available which he could have performed.<4> The
agency had provided complainant with temporary light duty assignments,
and there was no evidence to suggest that placing complainant on permanent
light duty would have caused an undue hardship on the agency. Based on
the evidence of record, the Commission discerns no basis to disturb the
AJ's finding of discrimination. Accordingly, it is the Commission's
decision to REVERSE the agency's final decision which rejected the AJ's
finding of disability discrimination. Since complainant's request for
relief included compensatory damages, the Commission remands the issue
of his entitlement to the AJ. In order to remedy complainant 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 thirty (30) calendar days of the date this decision
becomes final, the agency shall retroactively reinstate complainant,
with backpay, to his former position at the Dallas BMC. Prior to
reporting for duty, complainant shall provide the agency with a current
assessment of his medical condition and any current medical restrictions.
Upon receipt of this information, the agency shall assign complainant
to a position, the essential functions of which he can perform with
or without reasonable accommodation. The agency shall take all steps
necessary to ensure that, once complainant returns to work, he is
provided with reasonable accommodation to his disability.
(B) Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to award complainant back pay, with
interest, for all wages and benefits lost between the date he was
barred from working (August 28, 1995) and the date he returns to duty
or declines the offer of reinstatement. The agency shall determine
the appropriate amount of back pay, interest and other benefits due
complainant, pursuant to 29 C.F.R. � 1614.501(c). The complainant 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 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."
(C) 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 64 Fed. Reg. 37,644, 37,657 (1999) (to be
codified at 29 C.F.R. � 1614.109), and the agency shall issue a final
action in accordance with 64 Fed. Reg. 37,644, 37,657-58 (1999) (to be
codified at 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.
(D) The agency shall post at the Dallas, Texas, BMC 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.
(E) The agency shall provide training to all the management officials
responsible for this matter in their duties and obligations under the
Rehabilitation Act.
(F) The agency shall, within thirty calendar days of the date this
decision becomes final, reimburse complainant for all documented travel
expenses associated with the prosecution of his complaint.
(G) 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 complainant,
including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
September 12, 2000 ____________________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 Complainant testified that, in reality, he was only allowed to work
in the sack shakeout area.
3 It appears from the record that complainant's light duty assignment
was later extended through August 1995.
4 The Commission notes that such an assessment may have been conducted
by the light duty committee when complainant was first placed in an
temporary light duty position. However, it appears that the agency later
ignored complainant's request for a permanent light duty assignment and
the decision was made to send him home on an indefinite basis.