01A02177
09-09-2003
Phillip K. Richardson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Phillip K. Richardson v. United States Postal Service
01A02177
09-09-03
.
Phillip K. Richardson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02177
Agency No. 4E-800-0184-99
DECISION
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. For the following reasons, the
Commission affirms, in part, and reverses, in part, the agency's final
decision.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier at the agency's Smoky Hill Station, in Aurora,
Colorado. Complainant sought EEO counseling and subsequently filed a
formal complaint on April 9, 1999, alleging that he was discriminated
against on the bases of disability (lower back, right hip, thorax,
scolitis, bipolar disorder) and reprisal for prior EEO activity when: 1)
on February 3, 1999, he was put in Emergency Placement Off-Duty, Without
Pay status; 2) on February 5, 1999, he was denied access to the facility
in order to retrieve his personal possessions; and 3) on February 10,
1999, he was reassigned to the Hoffman Heights Station and his hours
and scheduled days off were changed. Complainant's requested remedies
included compensatory damages, being returned to his duty position
at the Smoky Hill Station, and back pay and benefits for the time he
was in without pay status. 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 December 17, 1999 FAD, the agency stated that complainant had been
put in Emergency Placement Off-Duty status for �cursing, screaming and
throwing a scanner to the floor� during an incident with his supervisor
(S-1). As to issue 2, it stated that while in Emergency Placement status
complainant was not permitted to be on agency premises. Regarding issue
3, it stated that complainant was reassigned because there was not limited
duty work available for him at the Smoky Hill Station. The agency did not
analyze whether complainant had met his prima facie case of disability
or reprisal discrimination. The agency then summarily concluded that
it had articulated a legitimate nondiscriminatory reason for its action,
and that there was no evidence in the record of pretext.
Complainant did not submit any contentions on appeal. The agency requests
that we affirm its FAD.
ANALYSIS AND FINDINGS
In analyzing a disparate treatment claim 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, we
apply the burden-shifting method of proof set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). 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). Under this analysis, in order to establish
a prima facie case, complainant must demonstrate that: (1) he is an
"individual with a disability"; (2) he is "qualified" for the position
held or desired; (3) he was subjected to an adverse employment action;
and (4) the circumstances surrounding the adverse action give rise to
an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d
916 (7th Cir. 2001). The burden of production then shifts to the agency
to articulate a legitimate, non-discriminatory reason for the adverse
employment action. In order to satisfy his burden of proof, complainant
must then demonstrate by a preponderance of the evidence that the agency's
proffered reason is a pretext for disability discrimination. Id.
An individual with a disability is one who: (1) has a physical or
mental impairment that substantially limits one or more major life
activities; (2) has a record of such an impairment; or (3) is regarded
as having such an impairment. 29 C.F.R. � 1630.2(g). The Commission
has defined "substantially limits" as "[u]nable to perform a major
life activity that the average person in the general population can
perform" or "[s]ignificantly restricted as to the condition, manner
or duration under which an individual can perform a particular major
life activity as compared to the condition, manner, or duration under
which the average person in the general population can perform that
same major life activity." 29 C.F.R. � 1630.2(j)(1)(i) and (ii).
Factors considered in determining whether an individual is substantially
limited in a major life activity include: the nature and severity of the
impairment; the duration or expected duration of the impairment; and the
permanent or long-term impact, or the expected permanent or long-term
impact of or resulting from the impairment. 29 C.F.R. � 1630.2(j)(2).
Major life activities include such functions as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1630.2(i). Examples of other major
life activities include, but are not limited to, sitting, standing,
lifting, and reaching. 29 C.F.R. Part 1630 Appendix 1630.2(i). They also
include thinking, concentrating, interacting with others, and sleeping.
EEOC Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities at 5 (March 25, 1997).
Complainant claimed that he has been diagnosed with bipolar disorder,
and that his mood disorder influenced his reaction to S-1, giving
rise to the incident for which he was disciplined. The record
contains a letter from complainant's psychiatrist, dated January 18,
1999, which discusses the ways in which the agency can accommodate
complainant's condition. These include suggestions to �give him a
permanent limited/light duty position,� allow him to �interact with
one management person consistently,� allow complainant to �self-manage
his job to the extent possible,� never make comments or give feedback
in front of other employees, schedule two consecutive days off, and, if
complainant manifests symptoms of mania or depression, allow him to excuse
himself from the situation in order to use techniques to get himself
under control. The psychiatrist stated that complainant had developed
a �chronic pain syndrome� pursuant to two motor vehicle accidents he had
been in during 1998, and that the pain disorder �exacerbated [his] mood
disorder which was previously in remission.� From the record, we conclude
that the major life activity in which complainant is substantially limited
is interacting with others. The January 18, 1999 letter describes that
he can experience unstable moods, �irritability with possible verbal
outbursts,� and impaired attention and concentration. A 1992 letter
from an agency psychiatric consultant states that complainant �presents
with a picture of personality disorder issues.� Complainant has been
diagnosed with the condition since the fall of 1991 and has been treated
with various medications, including lithium carbonate and Trazodone.
The record also indicates that complainant had injuries to his back
and right hip, and a lumbar strain, which necessitated placing him on
limited duty. There is, however, no testimony or evidence which speaks
to the major life activity in which complainant is substantially limited
in this respect, and we find that he has failed to establish that he
is disabled under the meaning of the Rehabilitation Act in relation to
these health conditions. We conclude that complainant has established
that he is an "individual with disability" within the meaning of the
Rehabilitation Act, with respect to his condition of bipolar disorder.<1>
We also conclude that he has established a prima facie case of disability
discrimination, in that he was a qualified individual with a disability;
complainant was performing the duties of his limited duty carrier position
at the time in question. He suffered an adverse action when he was put
in the Off-Duty status and when he was transferred to another station.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security
Administration, EEOC Request No. 05960403 (December 6, 1996) (citing
McDonnell Douglas, 411 U.S. at 802). Specifically, in a reprisal
claim, in accordance with the burdens set forth in McDonnell Douglas,
and Hochstadt v. Worcester Foundation for Experimental Biology, 425
F. Supp. 318, 324 (D.Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and
Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), complainant may establish a prima facie case of
reprisal by showing that: (1) he engaged in a protected activity; (2)
the agency was aware of his protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse action.
Whitmire v. Department of the Air Force, 01A00340 (September 25, 2000).
We find that complainant has met the elements of a prima facie case of
reprisal in that: he indicated to his supervisor that he was going to be
discussing disability issues with the Postmaster, and he had previously
filed EEO complaints; S-1 was aware of the protected activity; complainant
was subjected to an adverse action when he was put in the Off-Duty status
and when he was transferred to another station; and the incidents happened
within a close time frame.
The burden now shifts to the agency to articulate legitimate,
nondiscriminatory reasons for its actions. While the burden upon
the agency to articulate a reason is not an onerous one, Commission
precedent holds that the agency must set forth with sufficient clarity,
reasons for its actions such that complainant has a full and fair
opportunity to demonstrate that those reasons are pretext. See Parker
v. United States Postal Service, EEOC Request No. 05900110 (April 30,
1990); Lorenzo v. Department of Defense, EEOC Request No. 05950931
(November 6, 1997). We first note that the reasons proffered by the
agency in its FAD for its actions in issue 1, that complainant cursed,
screamed and threw a scanner to the floor, were never given in the
form of sworn testimony. Despite the EEO Investigator's two requests
to S-1 to complete affidavits, none were ever filled out. The record
contains proof that S-1 received both requests. The agency provided
no explanation as to why S-1 failed to submit an EEO investigative
affidavit after being given two opportunities to do so. Therefore,
the agency has not presented evidence of its reasons, other than the
statements made to the EEO Counselor, which is what was relied upon as
�evidence� in the FAD. We note that the copy of the Emergency Placement
Off-Duty, Without Pay letter, dated February 3, 1999, does not contain
a description of the incident for which it was issued. It summarily
states that the reason for the placement is �injurious to yourself or
others.� We find, however, that complainant has effectively made an
admission against interest, when he admitted in his affidavit to cursing
at his supervisor, and to telling S-1 �to do something most of us would
find physically impossible.� In the absence of testimony from S-1,
we deem complainant's testimony to support the agency's legitimate,
nondiscriminatory reason for its actions in issue 1. As to issue 2, we
find it is inherent in the concept of Emergency Placement in Off-Duty
status, as that status is defined in the agency regulations contained
in the record, that a person would not be permitted on agency premises
until their status had changed back to a normal duty status.
As the agency's legitimate, nondiscriminatory reasons for issues 1 and
2 were supported by the record, we turn to whether the complainant
has established that those reasons were pretext for discrimination.
Complainant testified that S-1 goaded him into a reaction when he
canceled his appointment with the Postmaster. Complainant stated that
he was attempting to keep an appointment with the Postmaster regarding
disability issues, which S-1 knew was the reason for the meeting.
Complainant also stated that his reaction to S-1, cursing at him, was
�a manifestation of the disease from which I suffer, which was clearly
aggravated� by S-1. We find that this is not enough to show that S-1
engaged in unlawful discrimination against complainant. An employer may
discipline an individual with a disability for violating a workplace
conduct standard, even if the misconduct resulted from a disability.
EEOC Enforcement Guidance on the Americans with Disabilities Act
and Psychiatric Disabilities (March 25, 1997) at 29. The agency
was not required to excuse complainant's misconduct as a form of
reasonable accommodation. Stewart v. Department of the Interior,
EEOC Petition No. 03980128 (March 11, 1999). See also Brooks v. Small
Business Administration, EEOC Petition No. 03980014 (September 24, 1998)
(employers not required to excuse violation of uniformly- applied conduct
or job performance standards as a form of reasonable accommodation).
Complainant did not introduce any evidence to show that others who
engaged in conduct similar to his were not disciplined in a like manner.
With respect to issue 3, in which complainant was transferred to a
different station, the agency stated that there was no work within
complainant's limitations at Smoky Hill. There is no affidavit from S-1
regarding this issue either, and the FAD again relies on information from
the EEO Counselor's report. The copy of the letter ordering complainant
to report to a different work station does not contain any explanation
of why it was being ordered. As the agency has not met its burden,
and complainant has established a prima facie case of disability and
reprisal discrimination, we find that complainant has shown that the
agency engaged in discrimination against him when he was transferred to
a different station.
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we affirm the
FAD with respect to issues 1 and 2 and reverse the FAD with respect to
issue 3, for the foregoing reasons, and remand the matter to the agency.
ORDER (D0403)
The agency is ordered to take the following remedial action:
1) The agency shall conduct a supplemental investigation on the issue
of complainant's entitlement to compensatory damages and shall afford
complainant an opportunity to establish a causal relationship between the
incident of discrimination and any pecuniary or non-pecuniary losses.
See West v. Gibson, 119 S. Ct. 1906 (1999); Cobey Turner v. Department
of the Interior, EEOC Appeal Nos. 01956390 and 01960518 (April 27,
1998). The complainant shall cooperate in the agency's efforts to compute
the amount of compensatory damages, and shall provide all relevant
information requested by the agency. The agency shall give complainant
thirty (30) calendar days to respond to its request for information.
The agency shall issue a final decision on the issue of compensatory
damages, with appeal rights to the Commission. 29 C.F.R. � 1614.110.
The supplemental investigation and issuance of the final decision shall
be completed within one hundred and twenty (120) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below.
2) Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to conduct training on Title VII's
prohibitions against reprisal and on the Rehabilitation Act for
the management official (specifically, S-1) who was found to have
discriminated against complainant. The agency shall address this
employee's responsibilities with respect to eliminating discrimination in
the workplace and all other supervisory and managerial responsibilities
under equal employment opportunity law. Documentation evidencing
completion of such training shall be submitted to the Compliance Officer
within thirty (30) calendar days thereafter.
3) The agency shall consider taking disciplinary action against S-1,
who was identified as being responsible for the discriminatory action
perpetrated 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 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 Smoky Hill Station, Aurora,
Colorado 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.
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.
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 (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
___09-09-03_______________
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 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 Smoky Hill Station, Aurora, Colorado
confirms its commitment to comply with these statutory provisions.
The Smoky Hill Station, Aurora, Colorado supports and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
The Smoky Hill Station, Aurora, Colorado has been found to have
discriminated against an employee when the agency transferred the
employee to another station. The Smoky Hill Station, Aurora, Colorado has
been ordered to provide compensatory damages to the affected employee,
and provide training regarding the Rehabilitation Act to appropriate
managers. The Smoky Hill Station, Aurora, Colorado 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 Smoky Hill Station, Aurora, Colorado 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 Complainant and the agency signed a settlement agreement on July 12,
1999, to resolve a separate EEO complaint, in which the parties agreed
that complainant has been diagnosed with bipolar disorder. The settlement
also returned him to the Smoky Hill Station.