01984878
09-09-1999
Ronnie J. Flowers, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Ronnie J. Flowers, )
Appellant, )
)
v. ) Appeal No. 01984878
) Agency No. 1-H-304-1009-95
William J. Henderson, ) Hearing No. 110-97-8344X
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
______________________________)
DECISION
On June 5, 1998, Ronnie J. Flowers (appellant) timely appealed the final
decision of the United States Postal Service (agency), dated May 6, 1998,
concluding he had not been discriminated against in violation of Title VII
of the Civil Rights Act 0f 1964, as amended, 42 U.S.C. �2000e et seq.,
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
In his complaint, appellant had alleged that officials at the agency's
Bulk Mail Center in Atlanta, Georgia, discriminated against him on the
bases of his sex (male) and/or physical disability (degenerative disc
disease, exacerbated by a back injury) when his requests for a light
duty assignment were denied. This appeal is accepted in accordance with
the provisions of EEOC Order No. 960.001.
The record establishes that appellant had been employed by the agency
since 1989 at the Atlanta Bulk Mail Center as a Mailhander. His duties
included sorting mail, which often involved pushing, pulling and lifting
large sacks of mail weighing in excess of 70 lbs. In mid-1992, he began
experiencing chronic lower back pain and began on-going treatment
with an orthopedic surgeon. In 1993, with the assistance of an MRI,
appellant was diagnosed with L3-L4 degenerative disc disease, with
bilateral lateral gutter spinal stenosis. Medical evidence indicated
that this condition was chronic, required ongoing physical therapy,
and that his condition would be exacerbated by heavy lifting, prolonged
standing, squatting and certain repetitive motions. Appellant was also
placed on a regime of muscle relaxers and pain relievers.
Despite his back condition, appellant appears to have been working
full-time for the agency until February 1994, when he was in a severe
automobile accident and injured his shoulder, back and neck. He was
initially unable to work at all. However, on February 25, 1994,
appellant submitted a request for temporary light duty accompanied by
a certificate from his physician containing many medical restrictions,
including a prohibition against even moderate (15-45 lbs.) lifting.
Several weeks later, on March 14, 1994, appellant submitted a modified
doctor's certificate, which contained fewer restrictions and allowed
moderate lifting. On March 23, 1994, the agency denied appellant's
request, citing as a reason that there was no light duty work available
within appellant's medical restrictions. In May, June and August 1994,
appellant submitted additional requests for light duty, with the number
of restrictions apparently being reduced as time wore on, but the agency
continued to deny his requests. A union representative testified that
he spoke with the Manager in August 1994, who told him that appellant
had too many medical restrictions to be employed in light duty.
On September 1, 1994, appellant submitted another request for a light
duty assignment, which included a doctor's certification with eleven
restrictions: no working on ladders or scaffolding; no heavy lifting
over 45 lbs.; no heavy carrying over 45 lbs.; no pulling or pushing; no
crawling; no walking for more than 4 hours during a shift; and no standing
or kneeling for more than 2 hours during a shift.<1> Appellant's request
was again denied. Finally, on December 2, 1994, appellant submitted a
modified medical certificate which contained four restrictions: no working
on ladders or scaffolding; no crawling; no heavy lifting over 45 lbs.;
and no heavy carrying over 45 lbs. Upon receipt of this certificate,
the agency approved appellant's request for light duty and appellant
continued to work until February 1995, when the agency decided it no
longer had work for appellant within his medical restrictions.
From that time until September 1996, when appellant's physician released
him to return to full duty, appellant continued to request light duty,
with medical documentation that contained various restrictions, including
lifting and carrying restrictions. On some occasions, the agency provided
appellant with temporary light duty assignments, and on other occasions
it did not. When it did not, unavailability of work within appellant's
current medical restrictions was cited as the reason. The Manager also
testified that he was not really persuaded by the validity of appellant's
medical restrictions because they kept changing.
On November 2, 1995, appellant 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, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On December 23, 1997, following a hearing at which eight witnesses
testified, the AJ issued a decision concluding appellant had been
discriminated against on the basis of his physical disability when the
agency failed to consistently provide him with a light duty assignment
between September 1994 and September 1996.<2> In reaching this
conclusion, the AJ found no evidence that the agency made a good faith
effort to assess the appellant's job skills, his medical restrictions,
the work environment and the agency's resources, and make an informed
determination whether it could provide appellant with an assignment
without creating an undue hardship on its operations. Prior to September
1994, the AJ was persuaded by the evidence submitted by the agency that
there was no work available for appellant because of the nature and extent
of his medical restrictions. However, the AJ found that as appellant's
medical restrictions lessened over time, the agency failed to conduct
any real continuing assessment to determine if what type of work was
available which he might do. The AJ also noted that the applicable
collective bargaining agreement required the agency to provide for
no less than six light duty positions at the facility. The evidence
established that for much of the period in question, there were actually
less than six individuals occupying those light duty positions.
On May 6, 1998, the agency issued its final decision rejecting the
AJ's conclusion that it had unlawfully failed to provide appellant with
reasonable accommodation to his disability in the form of an assignment
to a light duty position. It is from this decision that appellant
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.
Based on the evidence of record, the Commission discerns no basis to
disturb the AJ's finding of disability discrimination. Nothing raised
by the agency in its final decision or on appeal differs significantly
from the arguments presented to, and considered by, the AJ when he issued
his decision. The Commission is unpersuaded by the agency's assertion
that appellant's condition was temporary in nature and, therefore, not a
disability within the meaning of the Rehabilitation Act. The agency also
incorrectly argued that appellant was not a "qualified" individual with
a disability because he was unable to perform his original Mailhandler
duties. A determination of whether or not an individual is qualified
must take into account the provision of reasonable accommodations,
including reassignment. 29 C.F.R. �1614.203(a)(6). The Commission
concurs with the AJ that the agency's duty to reasonably accommodate
appellant under the Rehabilitation Act included an attempt to reassign
appellant to a suitable position. See Dudley v. United States Postal
Service, EEOC Request No. 05920572 (May 13, 1993); Ignacio v. United
States Postal Service, EEOC Petition No. 03840005 (September 4, 1984),
aff'd, Special Panel No. 1 (February 27, 1986). While the agency's
assertion that it did not have to create a new position is true, the
agency was required to make a good faith effort to locate a suitable
vacant and funded position for appellant. See Lowery v. United States
Postal Service, EEOC Appeal No. 01961852 (October 31, 1997). As the AJ
correctly noted, it is precisely the agency's lack of effort in searching
for such a position which resulted in the finding of discrimination.
The applicable collective bargaining agreement provided for light duty
positions, and the agency never provided sufficient explanation for why,
when such positions were available, appellant was not placed in one
of them.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision which rejected the
AJ's finding of unlawful failure to provide appellant with reasonable
accommodation to his physical disability. In order to remedy appellant
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 sixty (60) calendar days of the date this decision becomes
final, the agency is directed to restore to appellant any wages lost
(with interest), leave used and/or other benefits lost due to the
agency's discriminatory actions for September 1, 1994 through September
1996, when appellant returned to full duty.
(B) The agency shall provide immediate training to the officials
responsible for its actions in this matter regarding their obligations
and responsibilities under the Rehabilitation Act.
(C) The agency shall post at the Atlanta, Georgia, Bulk Mail Center
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.
(D) If appellant has been represented by an attorney (as defined by 29
C.F.R. �1614.501 (e)(1)(iii)), he is entitled to an award of reasonable
attorney's fees incurred in the processing of her complaint and/or this
appeal. 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.
(E) The agency shall conduct a supplemental investigation pertaining
to appellant's entitlement to compensatory damages incurred as result
of the agency's discriminatory actions in this matter. See Feris
v. Environmental Protection Agency, EEOC Appeal No. 01934828 (August
10, 1995), request to reopen denied, EEOC Request No. 05950936
(July 19, 1996); Rivera v. Department of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994); Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993). See also, Cobey Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998); Jackson v. United States Postal Service, EEOC Appeal
No. 01923399 (November 12, 1992), request for reconsideration denied,
EEOC Request No. 05930306 (February 1, 1993). The agency shall afford
appellant sixty (60) days to submit additional evidence in support
of his claim for compensatory damages. Within thirty (30) days of
its receipt of appellant's evidence, the agency shall issue a final
decision determining appellant's entitlement to compensatory damages,
together with appropriate appeal rights.
(F) 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 appellant,
including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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 9, 1999
_________________ _______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat NOTICE TO EMPLOYEES
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 Rehabilitation Act of 1973, as amended, 29
U.S.C. Sect. 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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Atlanta, Georgia, Bulk Mail Center supports and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
The Atlanta, Georgia, Bulk Mail Center has been found to have
discriminated against the individual affected by the Commission's
finding on the basis of his physical disability when his request for
a reassignment to a light duty position was denied. The Commission
has ordered that this individual be awarded back pay with interest,
as well as restoration of leave and other benefits lost as a result of
the agency's actions. In addition, the Commission ordered the agency
to investigate the individual's claim for compensatory damages and
provide training to the responsible management officials. The Atlanta,
Georgia, Bulk Mail Center 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
and will not retaliate against employees who file EEO complaints.
The Atlanta, Georgia, Bulk Mail 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 16141 It appears that on September 20, 1994, appellant's
doctor modified the restriction on standing and kneeling to no more than
4 hours during a shift.
2 On the other hand, the AJ found insufficient evidence of disparate
treatment based on sex. Appellant has not challenged this finding
on appeal. Therefore, the Commission will not address it further in
this decision.