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provide the medical certification, the Postmaster rescinded complainant's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.