0720070076
06-14-2012
David Shelley, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
David Shelley,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0720070076
Hearing No. 470-2006-00141X
Agency No. 1J-461-0017-06
DECISION
Following its August 27, 2007 final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether the AJ's decision properly found that Complainant was subjected to discrimination based on his disability when he was denied a reasonable accommodation and terminated.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as a Mailhandler at the Agency's Mail Processing Annex in Indianapolis, Indiana. The record reflects that on October 13, 2005, Complainant applied for a position with the Agency. The Manager, Distribution Operations (MDO) interviewed Complainant and offered him a position as a Part-Time Flexible Mailhandler on Tour 1. Complainant accepted the offer and was hired subject to a ninety-day probationary period. At the time of his hiring, Complainant did not inform the MDO or his supervisors that he was diabetic. However, he did inform the Agency's Medical Unit, and the Medical Unit determined that he could perform his duties without any restrictions.
On October 31, 2005, Complainant reported for duty with the Agency. As a Mailhandler, Complainant was required to perform a number of duties, including, but not limited to, moving mail, lifting and tying sacks of mail, loading and unloading containers of mail, and walking from machine to machine. On November 10, 2005, Complainant was converted to a full time position.
On or around November 9, 2005, Complainant noticed a blister forming on his left foot. On November 10, 2005, he observed that the condition of the blister appeared to have worsened, and he alerted the Supervisor, Distribution Operations (SDO1) of the situation. SDO1 advised him to seek medical attention. On November 11, 2005, Complainant met with a doctor who diagnosed his condition as "cellulitis secondary to infected blister." The doctor placed him on medication and advised him to return for a consultation at a later date. After he returned to work, Complainant's condition deteriorated, and SDO1 again advised him to seek medical attention.
On or around November 12, 2005, Complainant requested a light duty accommodation due to his infected foot. Later that day, Complainant's condition became observably worse, and he went to a hospital emergency room for treatment. Doctors at the hospital diagnosed him with a "diabetic ulcer," and he underwent several hours of surgery on his foot. Complainant remained in the hospital for several days, and he was re-admitted to the hospital on two more occasions for additional surgeries. His doctor wrote a note on November 12, 2005, indicating that Complainant "was hospitalized and required surgery as an emergency for a serious infection of his foot" and that he would not return to work for approximately four weeks. On November 17, 2005, Complainant received discharge forms from Bell Memorial Hospital indicating that he was given handouts discussing diabetes, post-infusion phlebitis, smoking cessation, and other materials. The discharge forms also indicated that he was prescribed medication, including insulin. On November 21, 2005, the doctor wrote a letter summarizing what had transpired and noting that Complainant was in the hospital on that date.
When Complainant failed to report to work, the Supervisor, Distribution Operations (SDO2), placed him in Absence without Leave (AWOL) status. However, after Complainant's father-in-law delivered his medical documentation to SDO1 and SDO2, he was placed by SDO2 in Leave without Pay (LWOP) status and granted extended medical leave. On November 25, 2005, Complainant was awarded a bid to Tour 3. SDO2 was assigned to be his immediate supervisor on Tour 3.
Complainant's father-in-law provided the MDO with an update regarding Complainant's status when the two men talked outside the facility where Complainant worked. Complainant himself remained in contact with SDO1 and SDO2 for the rest of the time he was on medical leave. On or around December 13, 2005, Complainant provided management with a new doctor's note indicating that he had been under the doctor's care since November 12, 2005, and that his possible return to work date was "1/1/05."1 The note further indicated that "[h]e will need to limit his walking for []2 month. This [patient] has infectious necrosis of left foot. He is unable to bear weight on it." Sometime later that month, Complainant learned that he would be returning to work with permanent physical restrictions. He orally informed SDO2 of these restrictions and his need for a modification of his duties due to his condition.
At the end of December 2005, before Complainant could return to work, SDO2 and the MDO decided to terminate him.3 On December 28, 2005, SDO2 and the MDO called Complainant and offered him the option of resigning in lieu of termination. However, he refused to resign. On December 30, 2005, SDO2 and the MDO issued Complainant a notice of termination during his probationary period for "Unsatisfactory Attendance." On January 16, 2006, Complainant was released from his doctor's care with the following permanent restrictions: no walking, climbing, or standing for more than one hour while at work.
On April 19, 2006, Complainant filed an EEO complaint alleging that he was discriminated against on the basis of disability (Diabetes) when he was terminated on December 31, 2005. At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and a notice of his right to request a hearing before an AJ. Complainant timely requested a hearing, and the AJ held a hearing on December 8, 2006.
The AJ issued a bench decision on December 15, 2006, finding that Complainant had been subjected to discrimination based on his disability when the Agency denied him a reasonable accommodation and terminated him. The AJ's decision found that Complainant was an individual with a disability for purposes of the Rehabilitation Act, finding that he was substantially limited in "standing, walking, and climbing." The AJ noted that the Agency neither disputed the doctor's medical opinion for placing Complainant on a permanent restriction nor argued that providing an accommodation would pose an undue hardship on the Agency. The AJ also questioned the credibility of the testimony provided by SDO2 and the MDO at the hearing.
The AJ found that "the issue of whether the [C]omplainant could perform the essential functions of the Mailhandler position or any reassigned position with or without reasonable accommodation was not discussed because the [A]gency did not engage in active discussion concerning his medical condition." In terms of remedies, the AJ ordered the parties to engage in discovery to determine whether Complainant could have been accommodated by the Agency and to determine his entitlement to monetary damages.
On May 10, 2007, the AJ held a hearing on damages and issued a bench decision ordering reinstatement, restoration of complainant's seniority status, removal of "[a]ny negative reference in that evaluation" from his personnel file, the posting of a notice, and an award of $5,000 in non-pecuniary compensatory damages. The AJ did not order back pay, finding that "it is reasonable to assume that had the Agency not terminated the Complainant, and had given him restrictions, he may still not be able to work. In addition, there is no credible evidence presented by the Complainant showing that he is entitled to back pay." The AJ indicated in his decision that "the problem here is that neither the [C]omplainant nor the [A]gency identified precisely what job the [C]omplainant could have been accommodated with, given his restriction."
The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that he was subjected to disability discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, the Agency contests the AJ's finding of discrimination and urges the Commission to affirm its final order. The Agency argues that management officials were unaware that Complainant was diabetic, or that his foot problems were related to his diabetic condition, when they decided to terminate his employment. The Agency argues that the AJ improperly considered Complainant's medical condition at the time of the hearing to determine that he was an individual with a disability at the time of his termination. The Agency further argues that Complainant failed to establish that he was a qualified individual with a disability because he "is unable to perform the essential functions of a [M]ailhandler." Finally, the Agency argues that Complainant never requested a reasonable accommodation, and his failure to request an accommodation prevented the interactive process from taking place.
In response, through his representative, Complainant argues that the Agency erred in refusing to adopt the AJ's decision. He argues that he properly requested a reasonable accommodation when he submitted his request for light duty in November 2005, and his father-in-law separately transmitted a request for reasonable accommodation on his behalf. He also argues that he is a qualified individual with a disability, and the Agency terminated him without entering into the interactive process. He indicates that the Agency properly placed him on medical leave but terminated him only after learning of his permanent medical restrictions. He also indicates that the Agency's failure to comply with the AJ's orders has caused him "financial and stressful hardship," and he requests that the Commission award him $5,000 "for every 30 days the [Agency] failed to bring him back to work from the [AJ's] bench decision issued May 10, 2007."
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Commission Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 9, � VI.B. (Nov. 9, 1999).
Under the Commission's regulations, an Agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause undue hardship. 29 C.F.R. � 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g);4 (2) he is a qualified individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Guidance).
Here, the AJ incorrectly based his finding of discrimination on the Agency's failure to initiate the interactive process. We note, however, that an agency's failure to engage in the interactive process does not, by itself, demand a finding that an employee was denied a reasonable accommodation. Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002). Rather, to establish a denial of reasonable accommodation, an employee must show that the failure to engage in the interactive process resulted in the Agency's failure to provide a reasonable accommodation. Id.
In his decision, the AJ found that Complainant was an individual with a disability and that he was not afforded a reasonable accommodation. However, the AJ did not address whether Complainant was a qualified individual with a disability, finding that whether Complainant could perform the essential functions of his position "was not discussed" due to the Agency's failure to initiate the interactive process. "[L]iability nevertheless depends on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation that would enable the [individual with a disability] to perform the job's essential functions." Barnard v. U.S. Postal Serv., EEOC Appeal No. 07A10002 (Aug. 2, 2002) (citations omitted). Therefore, we find that the AJ committed an error of law by finding that Complainant was denied an accommodation and terminated in violation of the Rehabilitation Act without first determining whether he was a qualified individual with a disability covered under the Act.
Assuming, arguendo, that Complainant was an individual with a disability within the meaning of the Rehabilitation Act, we note that a qualified individual with a disability is defined as an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. � 1630.2(m); see also Struthers v. Dep't of the Navy, EEOC Appeal No. 07A40043 (June 29, 2006) (complainant has the threshold burden of establishing that she is a qualified individual with a disability).
Upon review, we find that Complainant failed to establish that he was a qualified individual with a disability. The record reflects that Complainant's Mailhandler position required him to perform numerous duties that required him to regularly stand or walk, including, but not limited to, walking between machines, lifting sacks of mail, and loading and unloading containers of mail. Complainant testified at the hearing that his duties included "[s]tanding, walking from machine to machine, unloading full bags and replacing them with empties and moving mail containers where they needed to go." However, Complainant had a permanent medical restriction during the relevant time period limiting him to one hour of standing, walking, or climbing while at work. Complainant has not shown that he could perform the essential functions of his position with or without accommodation for his restrictions.
Although a probationary employee such as Complainant may not be denied reassignment as a reasonable accommodation solely on the basis of probationary status, the probationary employee nonetheless must have established that he is a "qualified individual with a disability." Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002), Q. 25.
The Commission's enforcement guidance on reasonable accommodation addresses this situation, noting that "an employee with a disability is eligible for reassignment to a new position, regardless of whether s/he is considered 'probationary,' as long as the employee adequately performed the essential functions of the position, with or without reasonable accommodation, before the need for a reassignment arose." Id.
While there is no bright-line test to determine how long the employee must perform the essential functions of the position with or without reasonable accommodation to be eligible for reassignment, "the longer the period of time in which an employee has adequately performed the essential functions, with or without reasonable accommodation, the more likely it is that reassignment is appropriate if the employee becomes unable to continue performing the essential functions of the current position due to a disability." Id.
The Guidance continues:
If, however, the probationary employee has never adequately performed the essential functions, with or without reasonable accommodation, then s/he is not entitled to reassignment because s/he was never "qualified" for the original position. In this situation, the employee is similar to an applicant who applies for a job for which s/he is not qualified, and then requests reassignment. Applicants are not entitled to reassignment.
In this case, Complainant worked for the Agency for only seven days before stopping work on account of his disabling condition. There is no reasonable accommodation that would enable Complainant to perform the essential functions of the Mailhandler position. Under the circumstances, Complainant is not eligible for reassignment, because he was never qualified for the position for which he was hired, i.e., there is no reasonable accommodation that would allow him to perform the essential functions of the Mailhandler position. See id., at Ex. B.
Because Complainant has not demonstrated that he could perform the essential functions of the position for which he was hired, we find that has not established that he is a qualified individual with a disability. Accordingly, we find that the AJ erred in finding that complainant established a prima facie case of disability discrimination, and we AFFIRM the Agency's final order declining to implement the AJ's decision finding discrimination and awarding remedies.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
June 14, 2012
Date
1 The December 13, 2005, note erroneously stated that his possible return to work date was January 1, 2005. The record suggests that the doctor intended to list a return date of January 1, 2006.
2 The December 13, 2005, note is illegible as to the number of months complainant would need to limit his walking.
3 The AJ found that SDO2 and the MDO provided inconsistent testimony at the hearing regarding who ultimately made the decision to terminate Complainant.
4 Under the law in effect at the time of the alleged discrimination, an "individual with a disability" was one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g). 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). The definition of an "individual with a disability" has since been modified by the ADA Amendments Act (ADA-AA) of 2008, PL 110-325 (S 3406) (Sept. 28, 2008), effective January 1, 2009; see 29 C.F.R. � 1630.2 (rev. July 1, 2011). Because the events at issue occurred prior to the effective date of the ADA-AA, the previous standard applies.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20013
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