01A01542
10-10-2002
Michael J. Liddy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael J. Liddy v. United States Postal Service
01A01542
10-10-02
.
Michael J. Liddy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01542
Agency No. HQ-0005-99
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether complainant has shown that he was
discriminated against on the basis of perceived disability (back problems)
when, on August 4, 1998, he was denied employment as a Material Clerk.
BACKGROUND
The record reveals that complainant was an applicant for employment as a
Material Clerk at the agency's Material Distribution Center located in
Topeka, Kansas. He was selected for employment pending pre-employment
processing. During a physical on July 12, 1998, complainant, who had
just retired after 22 years in the Marines, indicated that he had had two
incidents of lower back problems in 1993 and 1994. In 1993, complainant
had an acute low back spasm and strain. In 1994, his condition was
described as �low back pain, mechanical.� He also had a disability rating
determination for his back that was being adjudicated by the Department
of Veterans Affairs. In order to complete the application process,
complainant was told that he needed to obtain a report indicating that
he could perform the Material Clerk position.
On July 30, 1998, Doctor B, complainant's orthopedist, wrote:
At present this gentlemen is asymptomatic with reference to his back
pathology. He has only had two episodes of minor reported difficulty with
reference to his back. I would see no reason why he could not perform the
duty requirements that are listed on his sheet of functional requirements
from the post office. One would anticipate that he would be at low risk
of major back symptomatology in the future. He does on x-ray, however,
have an area of potential lumbar instability at the L4-5 level.
Upon receipt, Doctor B's report was presented to the agency's Senior
Area Medical Director, Doctor S. On August 3, 1998, Doctor S wrote:
I would still rate him [a] moderate risk to have recurring problems if
required to do this very heavy and arduous type labor. You can still
give this veteran the benefit of a selection for this job, but if he
has any recurring back problems during the probation period, you could,
without too much difficulty, let him go.
Doctor S further wrote that:
The best plan may be to wait until his rating comes through and then, if
the VA grants him 30%, he can appeal any non-selection to OPM. I would
try to place him on more suitable hiring rolls involving less heavy duty
requirements. A functional job description not involving lifting over
50[%] and doing a lot less bending would seem more appropriate for a man
with this spondylolisthesis and potential low back instability. Can you
consider him for other reasonable accommodations under your EL-307?
Go through the usual checklist accommodation procedures as outlined
under section 330 in this same handbook.
On August 3, 1998, A-1, Manager, Employee and Labor Relations, notified
complainant that he was found to be medically unsuited for the position
of Material Clerk. A-1 noted complainant's �potential� back instability
and the risk to his personal health and safety. Complainant sought EEO
counseling and subsequently filed a formal complaint on October 5, 1998,
alleging that he was discriminated against on the basis of perceived
disability (back problems) when, on August 4, 1998, he was denied
employment as a Material Clerk. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish that
he had a disability. Additionally, the agency argued that complainant
failed to rebut the agency's reasons for denying him employment, i.e.,
that he was medically unsuited for the position of Material Clerk. On
appeal, complainant acknowledged that he was not disabled; however,
he maintained that the agency denied him employment because it regarded
him as having a disability and speculated that his alleged disability
would result in a future risk of injury.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
As a threshold matter, complainant, in order to establish his claim,
must establish that he is a �qualified individual with a disability�
within the meaning of the Rehabilitation Act.<1> An �individual with
disability� is a person who has, has a record of, or is regarded as
having a physical or mental impairment which substantially limits one or
more of that person's major life activities, i.e., caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. See 29 C.F.R. � 1630.2(j). An impairment is
substantially limiting when it prevents an individual from performing
a major life activity or when it significantly restricts the condition,
manner, or duration under which an individual can perform a major life
activity. 29 C.F.R. � 1630.2(j). The individual's ability to perform
a major life activity must be restricted as compared to the ability of
the average person in the general population to perform the activity. Id.
The agency's FAD erred in that it only examined whether complainant
had an impairment that was substantially limiting. The agency did not
determine whether complainant had a record of or was regarded as having
a substantially limiting impairment. After a review of the record,
we find that the agency did regard complainant as being substantially
limited in the major life activity of working. In order to establish
this, the evidence must show that he was seen as being substantially
limited in his ability to perform "either a class of jobs or a broad
range of jobs in various classes." 29 C.F.R. � 1630.2(j)(3)(i). In her
affidavit, A-1 indicated that complainant was disqualified on the basis
of medical suitability because he could not perform the basic functions
of a Material Clerk. However, in discussing the requirements of the
position she noted that a Material Clerk was required to work in a
warehouse environment eight hours a day, to continually lift 70 pounds,
and to continually bend and stoop. In light of the medical opinions of
Doctors B and S that complainant could perform the essential functions of
the job, A-1's assertion could only be based on a belief that complainant
was substantially limited in his ability to perform jobs requiring,
among other things, continual heavy lifting, bending and stooping in a
warehouse environment for eight hours per day. A-1's attitude would
exclude complainant from a class of jobs or a broad range of jobs in
various classes.
In addition, we find that complainant was "qualified" for the Material
Clerk position, since the record indicates that he was selected for
employment pending pre-employment processing. The only bar to his
employment was A-1's perception that he was unsuitable because of his
back problems. Accordingly, we find that complainant is a "qualified
individual with a disability" under the Rehabilitation Act.
Inasmuch as the agency admits that it denied complainant employment
because of the condition of his back, we need not apply the indirect
evidence method of proof utilized in the FAD. We will proceed to the
issue of whether the agency has satisfied its burden of proof to establish
that its disparate treatment of complainant based on his disability
was justified by a "direct threat" to his safety. A "direct threat"
is defined as "a significant risk of substantial harm" which cannot be
eliminated or reduced by reasonable accommodation. 29 C.F.R. � 1630.2(r).
The agency cannot exclude qualified individuals with disabilities from
employment based upon fear of a future risk of injury. Zarate v. United
States Postal Service, EEOC Appeal No. 01A00415 (January 8, 2001); Holmes
v. United States Postal Service, EEOC Appeal No. 01977073 (October
20, 2000). Rather, the agency must make an individualized assessment
of whether the individual poses a "direct threat" of substantial harm,
taking into account: (1) the duration of the risk; (2) the nature and
severity of the potential harm; (3) the likelihood that the potential harm
will occur; and (4) the imminence of the potential harm. 29 C.F.R. �
1630.2(r); Massingill v. Department of Veterans Affairs, EEOC Appeal
No. 01964890 (July 14, 2000); Selix v. United States Postal Service,
EEOC Appeal No. 01970153 (March 16, 2000).
In the instant case, the record reveals that, based on the medical
information that was available to it, the agency erred when it
concluded that complainant was medically unsuited for employment.
Both complainant's own orthopedist and the agency's physician stated
that complainant could perform the duties of the Material Clerk position
with low or moderate risk, respectively. There was no evidence of a
�significant risk of substantial harm.� In fact, Doctor S wrote, in a
March 15, 1999 letter to an agency official, that:
I am wondering why the VA rating decision was not obtained by
[complainant]. I suggested reasonable accommodation efforts be made via
our EL-307. It seems to me that if we had ever received the VA rating
decision, that Topeka might have been able to accommodate him way back in
September 1998[,] he might have had an excellent chance for being hired.
We hire many veterans with disabilities and accommodation is a �way of
life' for the USPS. The delay in hiring could have been reduced to just
a couple of months during the time needed to collect what we needed to
fairly and equitably required [sic] to process his risk assessment.
(Emphasis added).
Notwithstanding Doctor S' assertion that complainant was disabled and
needed an accommodation, his letter indicates that the agency did not
demonstrate that employing complainant as a Material Clerk, in August
1998, would have posed a direct threat to his safety. By Doctor S' own
admission, the agency did not have sufficient information to make that
determination when A-1 denied complainant employment.<2> Consequently,
the denial of employment to him violated the Rehabilitation Act.
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, the Commission reverses the
agency's final decision. The agency will take the remedial actions set
forth in the ORDER below.
ORDER (D0900)
The agency is ordered to:
Within thirty (30) calendar days of the date this decision becomes final,
offer complainant a position as a Material Clerk, effective August 3,
1998, or a substantially equivalent position. Complainant shall be given
a minimum of fifteen (15) days from receipt of the offer of placement
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.
2. The agency shall determine the appropriate amount of back pay, and
other benefits due complainant, pursuant to 29 C.F.R. � 1614.501, no later
than sixty (60) calendar days after the date this decision becomes final.
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."
3. The agency is directed to provide a minimum of (8) eight hours of
remedial EEO training to A-1 with special emphasis on the Rehabilitation
Act.
4. Consider taking disciplinary action against A-1 for her decision
to not employ 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 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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Material Distribution Center located
in Topeka, Kansas 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 (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.
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.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
____10-10-02______________
Date
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, as amended,
29 U.S.C. � 791et 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The United States Postal Service, Material Distribution
Center (the Center) located in Topeka, Kansas confirms its commitment
to comply with these statutory provisions.
The Center supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under the law.
The Center has been found to have discriminated against an employee
when it regarded him as being disabled and denied him a position as a
Material Clerk. The Center has remedied the employee affected by the
Commission's decision by offering him employment, awarding back pay
and other benefits commensurate with what he would have received had he
not been discriminated against. The Center will ensure that officials
responsible for making personnel decisions and establishing the terms
and conditions of employment will abide by the requirements of the
Rehabilitation Act.
The Center 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
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2We do note, however, that in the letter, which was written after
complainant had already filed his EEO complaint, Doctor S opined that
complainant �has a combination of objective low back abnormalities as
proven by x-rays which, taken together and added to the recurrence of
low back pain plus his need for disability with the VA, indicates he
has a very real and direct risk of more low back trouble.�