Virginia C. Janise, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionSep 19, 2002
01A13359 (E.E.O.C. Sep. 19, 2002)

01A13359

09-19-2002

Virginia C. Janise, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.


Virginia C. Janise v. United States Postal Service

01A13359

September 19, 2002

.

Virginia C. Janise,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area),

Agency.

Appeal No. 01A13359

Agency No. 4G770033099

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's final decision in the above-entitled matter.

Complainant alleged that she was discriminated against in violation

of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,

42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of

1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> on

the bases of race (Caucasian), color (white), sex (female) and physical

disability (right foot injury) when on March 17, 1999, she was taken off

Carrier Route 394 after having been awarded it through the bid process.

On March 1, 2001, following complainant's request for an immediate agency

decision, the agency issued a notice of final action concluding that

complainant was not discriminated against on any of her proffered bases.

It is from this decision that complainant now appeals. For the reasons

discussed below, we vacate the Final Agency Action and find that the

agency violated the Rehabilitation Act.

Complainant sustained a stress fracture of her right foot while on the

job in September 1996, resulting in a diagnosis of permanent nerve

damage, tarsal tunnel syndrome, plantar fasciitis, and distal spur.

Complainant was restricted in walking, climbing stairs, and walking

across lawns. On some unspecified date, complainant resumed her duties

as a carrier with permanent work restrictions and on limited duty status.

Complainant worked routes as assigned with no permanent route assignment.

On February 16, 1999, complainant bid on a permanent position, Route

394, a route she had intermittently carried. As the carrier with the

most seniority, complainant's acting supervisor awarded her a permanent

assignment to Route 394 on March 17, 1999. This award was placed on hold

by the Postmaster who gave complainant fourteen days to provide a medical

certification showing that she would be able to perform the duties of

the position within six months of the bid. When complainant failed to

provide the medical certification, the Postmaster rescinded complainant's

assignment to Route 394, citing the agency's national agreement with

the carrier union. Complainant disputes the propriety of the agency's

request for medical certification and the her removal from Route 394.

We have examined the Final Agency Action at issue under the de novo

standard of review. See 29 C.F.R. � 1614.405(a). The Rehabilitation

Act does not limit the prohibitions against improper medical inquiries

to individuals with disabilities. 29 C.F.R. � 1630.14(c).<2> The

Rehabilitation Act places certain limitations on an employer's ability

to make disability-related inquiries or require medical examinations of

employees. The Commission has addressed this question and has stated

that an employer may require a medical examination of an employee

only if the examination is job-related and consistent with business

necessity. Enforcement Guidance on Disability-Related Inquiries and

Medical Examinations of Employees Under the ADA (July 27, 2000) (July

2000 Guidance), p. 5. This requirement is met when the employer has a

reasonable belief, based on objective evidence, that (1) an employee's

ability to perform essential job functions is impaired by a medical

condition; or (2) that an employee poses a direct threat due to a medical

condition.<3> See July 2000 Guidance, pp. 6-9. Objective evidence is

reliable information, either directly observed or provided by a credible

third party, that an employee may have or has a medical condition that

will interfere with his/her ability to perform essential job functions

or will result in direct threat. Id., p. 7. Where the employer forms

such a belief, its disability-related inquiries and medical examinations

are job-related and consistent with business necessity. Id.

The agency has failed to articulate, through its Final Agency Action

and affidavits, that it had any reasonable basis upon which to believe

that (1) complainant's ability to perform the essential job functions of

Route 394 was impaired by her medical condition; or (2) that she posed a

direct threat due to her medical condition. Rather, the agency relies

on the conclusions of the Postmaster who stated that complainant did

not qualify for Route 394 because of her �severe medical restrictions�

and on the Postmaster's interpretation of a Memorandum of Understanding

between the agency and the American Postal Workers Union.

We turn first to the Postmaster's interpretation of the Memorandum

of Understanding. The Postmaster asserts that the Memorandum of

Understanding required complainant to submit medical documentation showing

that she would be able to perform the duties of the position within six

months of the bid. We disagree. The Memorandum, submitted as part of the

investigative report, merely provides that �[m]anagement may at the time

of submission of the bid . . . request that the employee provide medical

certification indicating that the employee will be able to perform the

duties of the bid position within (6) months of the bid.� Investigative

Report p. 66. There is no evidence that the Postmaster was required,

under these circumstances, to insist that complainant submit such a

medical certification. The record reveals that complainant eventually

provided a medical certification indicating that she was able to perform

the carrier duties on Route 394.

We note that there is no evidence that Route 394 required complainant

to violate any of her medical restrictions. From the record it appears

that Route 394 did not violate complainant's 25 sets of stairs daily

restriction, nor did Route 394 require complainant to walk on lawns.

There is no evidence that the agency observed any performance problems

which it could reasonably attribute to complainant's medical condition.

In fact, prior to bidding on Route 394, complainant had carried the route

on several occasions and at least once for several consecutive days

fulfilling all of the duties in the allotted time without assistance.

As previously noted, the Postmaster indicated though his affidavit that

complainant did not qualify for Route 394 because of her �severe medical

restrictions.� But, this statement, without more, does not identify

any job functions of Route 394 which would be impaired by her medical

condition, nor does this statement identify any direct threat posed due

to complainant's medical condition.

In the absence of any evidence that the agency reasonably believed that

complainant's ability to perform the essential job functions would be

impaired by her medical condition, we find that the agency made an

impermissible request for the medical examination as a condition of

her assignment to Route 394. The record is clear, but for the agency's

improper medical inquiry as prerequisite to complainant's assignment,

she would have, as the carrier with the greatest seniority, been assigned

to Route 394. The agency makes no argument that complainant would have

been otherwise prevented from assignment to Route 394. Accordingly,

we reverse the agency's final action, find that the agency made an

improper medical inquiry, and order the agency to place complainant in

Route 394 retroactive to February 16, 1999. Since complainant would

not be entitled to any greater relief, we need not address her race,

sex, and color discrimination claims.

ORDER

Within thirty (30) calendar days of the date this decision becomes

final, the agency must place complainant in Carrier Route 394 or a

substantially equivalent position retroactive to February 16, 1999.

Additionally, the agency is ordered to award complainant back pay,

with interest if applicable, as well as any other benefits lost due to

not being awarded Carrier Route 394.

The agency must provide eight (8) hours of training to the Postmaster,

and any other agency officials in the Tobe Hahn Post Office who are

responsible for ordering medical examinations. This training must educate

the relevant agency officials on their responsibilities with respect

to eliminating discrimination in the federal workplace in general,

and on their obligations and employee rights under the Rehabilitation

Act of 1973, in particular. This training must emphasize the relevant

statutes, regulations, and policies concerning prohibited post-employment

disability-related inquiries and medical examinations.

The agency must conduct a supplemental investigation on the issue of

complainant's entitlement to compensatory damages and attorney's fees as

a result of the agency's unlawful disability discrimination. The agency

must afford complainant an opportunity to establish a casual relationship

(if any) between the prohibited post-employment disability-related

inquiry and/or medical examination at issue here, and any pecuniary

or non-pecuniary losses complainant may have suffered as a result. The

complainant must cooperate in the agency's efforts to compute the amount

of compensatory damages, and must provide all relevant information

requested by the agency. The supplemental investigation on the issue

of complainant's entitlement to compensatory damages must be completed

within forty-five (45) days of the date this decision becomes final.

The agency must issue a final agency decision on the issue of

complainant's entitlement to compensatory damages as a result of the

agency's unlawful disability discrimination, and pay any compensatory

damages it finds due to complainant. This final agency decision must

include all relevant appeal rights, and must be issued to complainant

(along with payment for compensatory damages it has found to be due to

complainant) within sixty (60) days of the date this decision becomes

final.

The agency must post the attached notice, as provided in the paragraph

below entitled �Posting Order.�

(8) 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 Tobe Hahn Post Office 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 (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.

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 19, 2002

__________________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

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

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. has occurred

at the Tobe Hahn Post Office in Beaumont, Texas, (hereinafter referred

to as �facility�) .

Federal law requires that there be no discrimination or retaliation

against any employee or applicant for employment because of that person's

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, PRIOR EEO ACTIVITYor

PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion,

compensation, or other terms, conditions, or privileges of employment.

The facility supports and will comply with such Federal law and will

not take action against individuals because they have exercised their

rights under law.

The facility has been found to have violated the Rehabilitation Act by

making an improper medical inquiry. The facility has been ordered to

give the supervisors involved training regarding the requirements of the

law referred to in this posting and to ensure that officials responsible

for personnel decisions and terms and conditions of employment will

abide by the requirements of all Federal equal employment laws.

The facility 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 in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.

2 We treat complainant as an employee as opposed to an applicant for

employment because the record indicates that she is noncompetitively

entitled to Carrier Route 394 on the basis of her seniority.

EEOC Enforcement Guidance on Disability-Related Inquiries and Medical

Examinations of Employees. (July 27, 2000) Question 4.

3 A �direct threat� means a significant risk of substantial harm that

cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. �

1630.2(r). Further, direct threat determinations must be based on an

individualized assessment of the individual's present ability to safely

perform the essential functions of the job, considering a reasonable

medical judgment relying on the most current medical knowledge and/or

best available objective evidence. Id. To assess whether an employee

poses a direct threat, the following factors should be considered: (1)

the duration of the risk; (2) the nature and severity of the potential

harm; (3) the likelihood that potential harm will occur; and, (4) the

imminence of the potential harm. July 2000 Guidance, fn.39.