07A10038
08-12-2002
Clyde A. Thomas, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Clyde A. Thomas, Jr. v. United States Postal Service
07A10038
August 12, 2002
.
Clyde A. Thomas, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 07A10038
Agency No. 4D-280-0214-99
Hearing No. 140-A0-8137X
DECISION
The agency timely initiated an appeal in conjunction with its final
agency action concerning complainant's equal employment opportunity (EEO)
complaint in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he was
discriminated against on the basis of disability (paralysis due to stroke)
and in retaliation for prior EEO activity (retaliation complaint filed
under Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq.) when, on June 29, 1999, he received a letter
stating his disability could no longer be accommodated, and as a result,
on July 2, 1999, he was constructively discharged when he was forced to
file for disability retirement. On appeal, the agency requests that the
Commission affirm its rejection of an EEOC Administrative Judge's (AJ)
finding that the agency discriminated against complainant on the basis of
his disability. For the following reasons, we reverse the agency's final
action and affirm the decision of the EEOC Administrative Judge (AJ).
The record reveals that during the relevant time, complainant was
employed as a Window Clerk, PS-05, at the agency's Raeford, North Carolina
facility. On July 21, 1998, complainant had a stroke. On November 27,
1998, he requested to return to work on light duty, consistent with
various physical restrictions. Complainant contends that the Postmaster
denied his request, but that complainant thereafter returned to work
on light duty by himself arranging for a co-worker to trade certain
duties with him. When complainant returned to work on March 1, 1999,
he performed "CFS markup" and "nixie mail" clerk duties. On June 29,
1999, complainant received a letter from the agency advising that he
could no longer be accommodated in this light duty work assignment.
Complainant filed an application for disability retirement on July 2,
1999, and retired from the agency on September 3, 1999.
Complainant sought EEO counseling and, subsequently, filed a formal
complaint on September 9, 1999. At the conclusion of the investigation,
complainant was provided a copy of the investigative file and requested
a hearing before an AJ. The AJ issued a notice of intent to issue a
decision without a hearing. The agency responded that it did not object
to issuance of a decision without a hearing, asserting that complainant
was not a qualified individual with a disability.
The AJ issued a decision without a hearing finding that complainant was
a qualified individual with a disability who had been denied reasonable
accommodation. However, the AJ further found that complainant had not
established his claim of constructive discharge. The agency's final
action implemented the AJ's decision with respect to the finding of
no retaliation, but did not implement the AJ's finding of disability
discrimination, and the agency therefore filed the instant appeal as
required under applicable regulations.
On appeal, the agency contends that when it originally accepted the
complaint, it identified it as a mixed case complaint pursuant to
29 C.F.R. � 1614.302, and advised complainant at that time that any
eventual appeal should be taken to the Merit Systems Protection Board
(MSPB), not the EEOC. However, the agency states that when subsequently
forwarding the record of investigation to complainant, it inadvertently
advised complainant that he had a right to request a hearing before an
EEOC AJ, and complainant did so. The agency contends that 29 C.F.R. �
1614.302(d)(2) and (3), required it to advise complainant that a final
agency decision would be issued within 45 days, and then issued him a
notice of rights with the final agency decision advising him that any
appeal should be filed with the MSPB, not the EEOC. The agency did
not raise this matter before the AJ, but now contends that the AJ's
decision should be rescinded and the complaint remanded to the agency
for issuance of a final agency decision with appeal rights to the MSPB.
In the alternative, the agency contends that complainant was not a
qualified individual with a disability, and that even assuming he was,
accommodating his medical restrictions would have posed an undue hardship.
Complainant contends on appeal that the AJ erred in finding no
constructive discharge, and in finding that the acts complained of were
not motivated by retaliation.
We note that the MSPB has jurisdiction over mixed case complaint claims
which allege discrimination based, among other things, on disability and
reprisal with regard to discharge. 5 C.F.R. � 1201.3. Although it is
not entirely clear whether complainant's claim is appealable to the MSPB,
since this matter has been pending in the EEO process for several years,
the Commission will assume jurisdiction over his case. The complaint is
firmly enmeshed in the EEO forum, and it would better serve the interests
of judicial economy to address it herein at this time. See, e.g., Burton
v. Department of Agriculture, EEOC Appeal No. 01932449 (October 28, 1994);
Davis v. Department of Labor, EEOC Appeal No. 01A00981 (May 21, 2002)
(claim of constructive discharge potentially appealable to the MSPB,
found to be firmly enmeshed in the EEO process).
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws.
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
affirms the agency's final action insofar as it implemented the AJ's
decision with respect to the finding of no retaliation, but reverses
the agency's final action with respect to the AJ's finding of disability
discrimination. This matter is remanded to the agency to take corrective
action in accordance with this decision and the Order below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
1. The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits (including, if applicable,
adjustments to his disability retirement benefits) due complainant
for the date upon which complainant was removed from his light duty
assignment through the date complainant's disability retirement became
effective. The amount of back pay shall be calculated, pursuant to
29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. Complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. Complainant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
2. The agency shall provide training in the obligations and duties
imposed by the Rehabilitation Act to the relevant managers and
supervisors at Raeford, North Carolina facility.
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 complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Raeford, North Carolina 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 12, 2002
__________________
Date
1The 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.