05a50148
05-20-2005
Michael P. Mearns, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael P. Mearns v. United States Postal Service
05A50148
05-20-05
.
Michael P. Mearns,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A50148
Appeal No. 07A20015
Agency No. HI-0004-07
Hearing No. 160-99-8158X
DENIAL
Michael P. Mearns (complainant) timely requested reconsideration of
the decision in Michael P. Mearns v. United States Postal Service, EEOC
Appeal No. 07A20015 (September 29, 2004). EEOC Regulations provide that
the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. � 1614.405(b), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 07A20015 remains the
Commission's final decision. The agency shall comply with the Order in
our previous decision as restated below. There is no further right of
administrative appeal on the decision of the Commission on this request.
ORDER
The agency is ORDERED to take the following remedial action:
Within sixty (60) days from the date this decision becomes final,
the agency must review its pre-employment hiring processes (paying
particular attention to its application forms, interview guidelines,
and pre-hire medical examination procedures). The agency must revise such
pre-employment hiring processes as necessary to ensure that all aspects
of such processes comply with 29 C.F.R. � 1630.13 and 29 C.F.R. � 1630.14,
and are consistent with the following: Appendix to Part 1630: Interpretive
Guidance on Title I of the Americans with Disabilities Act Section 1630.13
("Prohibited Medical Examinations and Inquiries") and Section 1630.14
("Medical Examinations and Inquiries Specifically Permitted"); Enforcement
Guidance on Disability-Related Inquiries and Medical Examinations of
Employees under the Americans with Disabilities Act (Jul. 27, 2000);
Enforcement Guidance on Preemployment Disability-Related Questions and
Medical Examinations (Oct. 10, 1995).
Within sixty (60) days from the date this decision becomes final,
the agency shall pay complainant $15,000 in non-pecuniary compensatory
damages.
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 must provide training to agency officials in the U.S. Postal
Inspection Service/Postal Police, New York, New York who are responsible
for conducting pre-employment interviews, ordering pre-employment medical
examinations, and/or making ultimate hiring decisions. This training must
educate the agency officials on their responsibilities with respect to
pre-employment disability-related inquiries and medical examinations.
See 29 C.F.R. � 1630.13 and 29 C.F.R. � 1630.14; see also Appendix
to Part 1630: Interpretive Guidance on Title I of the Americans with
Disabilities Act Section 1630.13 ("Prohibited Medical Examinations and
Inquiries") and Section 1630.14 ("Medical Examinations and Inquiries
Specifically Permitted"); Enforcement Guidance on Disability-Related
Inquiries and Medical Examinations of Employees under the Americans with
Disabilities Act (Jul. 27, 2000); Enforcement Guidance on Preemployment
Disability-Related Questions and Medical Examinations (Oct. 10, 1995).
This training is not considered disciplinary action.
The agency shall consider taking disciplinary action against the employee
identified as being responsible for the discriminatory action 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 must submit a report of compliance, as provided in
the paragraph below entitled "Implementation of the Commission's
Decision." This report must include supporting documentation (such as
the report of supplemental investigation and final agency decision on
the issue of complainant's entitlement to compensatory damages) verifying
that the above- outlined corrective actions have been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its U.S. Postal Inspection Service/Postal
Police, New York, New York 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.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
____05-20-05______________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
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 the Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et 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, U.S. Postal Inspection
Service/Postal Police, New York, New York confirms its commitment to
comply with these statutory provisions.
The United States Postal Service, U.S. Postal Inspection Service/Postal
Police, New York, New York supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under law.
The United States Postal Service, U.S. Postal Inspection Service/Postal
Police, New York, New York has been found to have discriminated against
an applicant when it made prohibited pre-employment inquires, and it
directed him to attend a prohibited pre-employment medical examination
before it provided him with a clear conditional job offer. The United
States Postal Service, U.S. Postal Inspection Service/Postal Police,
New York, New York has been ordered to provide compensatory damages to
the affected applicant and provide training to appropriate managers.
The United States Postal Service, U.S. Postal Inspection Service/Postal
Police, New York, New York 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 United States Postal Service, U.S. Postal Inspection Service/Postal
Police, New York, New York 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