01994135
03-15-2002
Leon A. Puissegur, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leon A. Puissegur, Jr. v. United States Postal Service
01994135
03-15-02
.
Leon A. Puissegur, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994135
Agency No. 1-G-701-0074-97
DECISION
INTRODUCTION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant contends on appeal that the agency discriminated against him
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e, et. seq, and Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791.
ISSUES PRESENTED
Whether complainant is an individual with a disability under the
Rehabilitation Act;
Whether the agency denied complainant the use of a chair because of his
race or disability; and
Whether the agency failed to provide complainant with a reasonable
accommodation.
BACKGROUND
Complainant filed a complaint in which he claimed that, because of his
race (white) and disability (residual effects of back and wrist injuries,
heel spurs), the agency forced him to perform his duties as a maintenance
mechanic without a chair to sit on. He identified May 13, 1997, as the
date that the purported discriminatory incident took place. The agency
investigated the complaint and thereafter notified complainant of his
right to request a hearing before the Commission. Complainant failed
to respond, and accordingly, the agency issued its final decision of no
discrimination, from which complainant now appeals.
On appeal, complainant raises several contentions. First, he maintains
that he never received notification of his right to request a hearing.
Second, he appears to be raising a claim of race discrimination. Third,
he reiterates that he is disabled under the Rehabilitation Act, and that
the agency's investigation did not address the medical documentation
that he provided to substantiate his disability status.
ANALYSIS AND FINDINGS
Notification of Right to a Hearing
After reviewing the record, we find that complainant was notified of his
right to request a hearing on October 15, 1998. In a cover memorandum
to complainant dated October 9, 1998, the agency notified complainant
that it had completed its investigation, that it was enclosing the
investigative report, and that complainant could exercise his appeal
rights. The notice specifically stated that complainant could request a
hearing before an administrative judge, but had to do so within 30 days
of receiving the investigative file. The investigative file and the
cover memorandum were sent to complainant via certified mail on October
9, 1998. A return receipt with complainant's address marked �case file�
indicates that complainant received and signed for the document on October
15, 1998. He therefore had until November 14, 1998, to request a hearing.
There are no indications in the record that he did so. Accordingly,
the agency acted properly in issuing a final decision without a hearing.
Eligibility for Rehabilitation Act Protection
To bring a claim of disability discrimination, whether under the
accommodation or disparate treatment theories, complainant must first
establish that he is an individual with a disability within the meaning
of the Rehabilitation Act.<1> An individual with a disability is
one who has, has a record of, or is regarded as having a physical or
mental impairment that substantially limits one or more of his major
life activities. 29 C.F.R. � 1630.2(g). Major life activities include
functions such as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). Standing is a major life activity. Appendix to
29 C.F.R. Part 1630 (July 1, 2000) (other major life activities include,
but are not limited to, sitting, standing, lifting, and reaching).
Complainant stated that he had problems with his lower back, with
his right wrist, and with heel spurs. He also stated that he injured
his left knee on the job in 1991. Investigative File (IF) 16; Appeal
Exhibit (AE) B. On a health care provider certification questionnaire,
complainant's physician indicated that, because of the cumulative
residual effects of these conditions over many years, complainant would
not be able to stand for longer than 45 minutes, and that the probable
duration for this condition would be life. AE A. No other evidence in
the record contradicts this medical assessment. After considering all
of the medical documentation submitted by complainant, we find, contrary
to the agency, that complainant's physical impairments substantially
limit his major life activity of standing, and consequently, that he
is disabled within the meaning of the Rehabilitation Act. See Henry
v. United States Postal Service, EEOC Appeal No. 01965235 (May 13, 1999)
(two-hour standing restriction rendered complainant substantially limited
in the major life activity of standing), cited in Franklin v. United
States Postal Service, EEOC Appeal No. 07A00025 (January 10, 2001).
In addition to establishing that he has a disability, complainant must
also show that he is qualified. A qualified individual with a disability
is one who can, with or without reasonable accommodation, perform the
essential functions of the position in question. 29 C.F.R. � 1630.2(m).
Complainant's physician indicated that, notwithstanding his inability to
stand for more than 45 minutes, complainant would be able to work a full
schedule and his condition and treatment would not cause him to be absent
from work for an extended period of time. The physician estimated that
complainant would not need more than four visits to a doctor in any given
year for treatment. AE A. In an earlier medical evaluation dated March
2, 1989, a contract physician who evaluated complainant's condition for
injury compensation purposes stated that complainant was able to perform
at the medium work level of activity and ultimately found him able to
perform the essential functions of the maintenance mechanic position.
AE C. Accordingly, we find that complainant is a qualified individual
with a disability.
Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must
initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978).The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Although this test developed in the context of Title VII, it applies to
disparate treatment claims brought under the Rehabilitation Act where
the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination. See Heyman
v. Queens Village Committee for Mental Health for Jamaica Community
Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179
F.3d 929, 933-34 (D.C.Cir. 1999).
Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. In this
case, complainant may establish a prima facie case of discrimination
on the bases of race and disability by demonstrating that: (1) he
is a member of a statutorily protected racial group; (2) he is an
"individual with a disability"; (3) he is "qualified" for the position
held or desired; (5) he was subjected to an adverse employment action;
and (6) the circumstances surrounding the adverse action give rise to an
inference of discrimination because of his race or disability status.
See Lawson v. CSX Transportation, Inc., 2001 WL 292999, F.3d
(7th Cir. 2001); Potter v. Goodwill Industries of Cleveland, 518 F.2d 864,
865 (6th Cir. 1975).
We find that complainant has satisfied the first element of his prima
facie case, since he is white. We also find, as previously discussed, that
complainant has established the second and third elements of the prima
facie case, in that he is disabled and is qualified for the maintenance
mechanic position. We also find that the removal of the chairs from
the workroom floor in May 1997 could be construed as an adverse action.
However, the record does not show that the chairs were removed under
circumstances suggesting discrimination. Pursuant to a longstanding
policy, the plant manager made the decision to remove all unnecessary
chairs from the work area, and that this decision affected all of the
division's employees regardless of racial grouping or disability status.
IF 38, 45-46. Complainant has not presented any documents or affidavits
which contradict the statements made by the operations manager and
the plant manager, or which undermines their credibility as witnesses.
We therefore find that complainant has not established a prima facie
case of discrimination with respect to the removal of the chairs from
the workroom in May 1997.
Assuming, however, that a prima facie case had been established, the
burden of production would then shift to the agency to articulate a
legitimate, nondiscriminatory reason for the adverse employment action.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). In order to satisfy his burden of proof, complainant would
ultimately have to demonstrate by a preponderance of the evidence
that the agency's proffered reason is a pretext for race or disability
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993); Pavelka v. Department of the Navy, EEOC Request No. 05950351
(December 14, 1995). In this case, the record clearly and conclusively
establishes that, pursuant to a longstanding policy of keeping unnecessary
chairs out of the work area, the plant manager made the decision to have
those chairs removed, so that the employees' presence in the work area
could be increased and service improved. Records provided by the agency
show that individuals of various racial groups, as well as disabled and
non-disabled employees, were equally affected by the decision. IF 55-75.
As to the comparative employee that complainant identified in his appeal,
complainant claims that this individual had been given accommodations
due to his disability but provides absolutely no documents or statements
describing the circumstances under which this individual was treated
differently. Complainant has not stated, for example, that this
individual was given a chair to sit on while he was not. As previously
noted, both black and white employees were treated equally under the
no-chairs policy. He has not presented any evidence, other than his own
unsubstantiated assertions, tending to show that the agency's articulated
reason for removing the chairs was a pretext for discrimination, on
any basis. We now address complainant's claim that the agency failed
to accommodate his disability.
Reasonable Accommodation
The agency is required to make reasonable accommodation to the known
physical and mental limitations of a qualified individual with a
disability unless the agency can show that the accommodation would
cause an undue hardship upon its operations. 29 C.F.R. � 1630.9(a);
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, EEOC Notice No. 915.002,
2-7 (March 1, 1999). Once the agency becomes aware that an employee is
requesting a reasonable accommodation, it may be necessary to engage in
an informal, interactive process with the individual in order to identify
his limitations as well as potential accommodations that could overcome
those limitations. 29 C.F.R. � 1630.2(o)(3). This interactive process
should be a problem-solving approach that includes: an analysis of the
job to determine its purpose and essential functions; consultations
with the disabled individual; an assessment of the effectiveness of
potential accommodations; and consideration of the disabled individual's
preferences. 29 C.F.R. pt.1630, app. � 1630.9. The exact nature
of this dialogue will vary according to the particular circumstances.
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, EEOC Notice No. 915-002
(March 1, 1999), p.13.
On July 11, 1996, after the agency implemented its no-chairs policy,
complainant and three other employees wrote a letter to the maintenance
manager and the operations manager in which they specifically stated that
they had various disabilities, including heel spurs, knee problems, and
back problems, and that as an accommodation, they needed to use chairs
to sit in while on the job. IF 48. The maintenance manager responded
by letter to all four employees on July 15, 1996, and to complainant
individually the next day. In his response, the maintenance manager
reiterated his intent to remove all chairs from the work area. He also
stated that complainant and the other employees would be given chairs
if it was required in their job descriptions. IR 50-51. On December 19,
1996, complainant wrote another letter, this time to the maintenance and
operations supervisors as well as the maintenance and operations managers.
He again listed his disabilities and requested that he be accommodated
by being allowed to use a chair. IR 52-53.
All four agency officials stated in their affidavits either that they were
unaware that complainant had a disability or that complainant failed to
submit adequate medical documentation in support of his request for an
accommodation. IF 24, 30-31, 36-38, 42-44. In addition, the operations
manager and the maintenance manager both stated that complainant had to
request light or limited duty if he needed an accommodation, but did not
do so. IF 37, 43. However, complainant's letters of July and December
1996 clearly and unmistakably put those officials on notice that he was
requesting an accommodation. By December 1996, nearly six months before
the incident that gave rise to this complaint, complainant had made all
four officials aware of his need for an accommodation.
After they received complainant's December 1996 letter, the officials in
question, to the extent that they were unsure of whether complainant was
disabled or whether he needed an accommodation, should have, at minimum,
asked complainant to submit medical documentation in support of his
accommodation request. There are no indications in the record that any
of the management officials ever made such a request of complainant.
Likewise, there are no indications that any of those officials ever
asked complainant what types of accommodations he would need, or
otherwise attempted to engage in the interactive process contemplated
in the Commission's regulations. Moreover, the agency has not cited
any authority for its proposition that an individual must be in light or
limited duty status in order to request an accommodation for a disability.
Therefore, since an effective accommodation existed, we find that the
agency failed to provide complainant with a reasonable accommodation.
The burden is now on the agency to show that providing a chair to
complainant would impose an undue hardship upon its operations.
This the agency has not done. The managers stated that there was a
policy in effect of discouraging the use of chairs in the work area,
due to the fact that the mechanics had to constantly be on their feet and
moving around in order to properly monitor the machinery. IF 38, 43-44.
However, since the agency at one time had chairs in the work area, the
cost of putting chairs back in the work area is minimal. The agency
has not presented any evidence that providing a chair to complainant in
order to accommodate his disability would have impose an undue hardship
upon its operations. Accordingly, we will enter an order directing the
agency to provide complainant with a chair.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to reverse the agency's final
decision, because the preponderance of the record evidence establishes
that discrimination occurred.
ORDER (D0900)
The agency is ordered to take the following remedial action:
If complainant is still employed as an electronics technician at the
Processing and Distribution Center at 701 Loyola Avenue, New Orleans,
Louisiana, the agency shall immediately provide complainant with a chair
as a reasonable accommodation for his disability.
The agency shall provide eight (8) hours of training to the individuals
identified in Complaint No. 1G-701-0074-97 as the responsible management
officials, if they are still employed by the agency. The training
shall focus on the rights of employees and the obligations of management
under the Rehabilitation Act of 1973, with emphasis on how to determine
whether one is an individual with a disability and providing reasonable
accommodations. If these individuals have left the agency's employ,
the agency shall furnish documentation of their departure dates.
The agency shall consider taking disciplinary action against the
management officials identified in Complaint No. 1G-701-0074-97 as being
responsible for its failure to provide complainant with a reasonable
accommodation. 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. If these
individuals are no longer employed, the agency shall provide documentation
of their departures.
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.
The agency shall post at its Processing and Distribution Center at 701
Loyola Avenue, New Orleans, Louisiana, 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.
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 documentation that the corrective
action has been implemented.
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 (R0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
____03-15-02______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees.