01971770
03-10-1999
Gary Christian, Appellant, v. William S. Cohen, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Area),) Agency.
Gary Christian v. United States Postal Service
01971770
March 10, 1999
Gary Christian, )
Appellant, )
)
v. ) Appeal No. 01971770
) Agency No. 4C-190-1073-94
William S. Cohen, ) Hearing No. 170-95-8383X
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic Area),)
Agency. )
)
DECISION
INTRODUCTION
Appellant timely appealed the final decision of the United States
Postal Service (agency), concerning his complaint alleging that the
agency discriminated against him in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUES ON APPEAL
Appellant filed a formal complaint alleging that the agency discriminated
against him on the bases of his mental disability (learning disability)
when, he was terminated from his position as a part-time flexible
letter carrier, during his probationary period on December 8, 1992.
Appellant also alleges that the agency failed to provide him a reasonable
accommodation for his mental disability so that he could successfully
perform the essential functions of his position.
BACKGROUND
Following the agency's investigation of his complaint, appellant requested
a hearing with an EEOC administrative judge (AJ). Thereafter, a hearing
was conducted on October 9, 1996. Subsequently, on October 18, 1996,
the AJ issued a recommended bench decision finding no discrimination.
The agency subsequently adopted the AJ's recommended decision in a final
agency decision dated November 19, 1996.
In her recommended decision, the AJ found that appellant established
that he was a qualified individual with a disability entitled to the
protection of the Rehabilitation Act. Appellant was diagnosed in 1982
with a learning disability. As a result of his disability, appellant
reads slowly and must re-read materials several times for comprehension.
Thus, appellant learns through multiple repetition. The AJ concluded
that appellant was a qualified individual with a disability because he met
the appointment criteria for the letter carrier position, he was selected
and successfully passed the initial training without an accommodation.
The AJ further held that appellant did not establish a prima facie case
of disparate treatment discrimination although appellant was a qualified
individual with a disability, and his duties, after his termination, were
assumed by other employees who were not learning disabled. The basis
of the AJ's finding was the "undisputed" fact that appellant was not
satisfying the normal requirements of his position. Specifically, the AJ
stated that during probation, employees were expected to make mistakes.
Employees' performance was also expected to improve by not repeating
the same mistakes. Appellant routinely exceeded the average street
time, sometimes quite substantially. Moreover, the AJ noted that
appellant frequently returned undelivered mail to the post office,
without notifying his supervisor, as a result, the mail was delayed.
Despite retraining, appellant's performance problems persisted, becoming
especially pronounced on December 6, and 7, 1992. The AJ further
noted two employee comparisons, who likewise had performance problems,
but were not terminated, did not have performance problems as serious
as appellant's and that appellant did not show that either comparison
failed to show improvement in their performance.
Assuming appellant had established a prima facie case, the AJ held
that the agency articulated a legitimate, nondiscriminatory reason
for his termination. The Supervisor of Customer Service (Responsible
Official, RO) testified that appellant received training on arrival at
the agency but appellant returned undelivered mail to the post office and
mis-delivered mail. Other carriers complained about the undelivered mail
and customer complaints were received about undelivered and mis-delivered
mail.
Following appellant's poor thirty-day performance evaluation, the union
steward requested further training for appellant rather than termination.
Following three days of retraining, appellant's performance problems
continued, therefore, he was terminated.
Regarding appellant's reasonable accommodation claim the AJ found
appellant to be a credible witness when he testified stating that he gave
the RO notice of his learning disability. However, the AJ found that
appellant failed to provide management with additional information about
his specific condition, his limitations, nor did he advise management of
any accommodation he might require. Therefore, the AJ held that appellant
did not request a reasonable accommodation and did not provide the agency
with sufficient information to make an assessment of the viability of
any accommodation. The AJ further noted that the agency did not present
any testimony regarding appellant's reasonable accommodation claim.
However, the AJ went on to make what essentially amounts to an undue
hardship argument for the agency by finding the following:
" it is obvious that it would not be feasible to limit the complainant's
assignments to the same five routes for six months and then add more.
Morrisville has approximately sixty routes and which route or routes
would need assistance on a given day is unpredictable. The complainant
would be of very little value to that office under such restrictions."
Therefore, the AJ held that the agency did not violate its obligation
to accommodate appellant.
ANALYSIS AND FINDINGS
The Commission disagrees with the AJ's RD for the following reasons.
As noted by the AJ, the RO had notice of appellant's disability when
appellant informed him that he was having difficulties delivering his
route because of his learning disability. The Commission finds that during
this communication with the RO, appellant effectively demonstrated that
his disability was the reason for his failure to perform the functions
of his job. The Commission further concludes that this communication
constituted a request for a reasonable accommodation. See Notice
No. 915.002 (March 1, 1999), EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, at 8.
Appellant credibly testified that when the RO asked him why he was so
slow, appellant responded by stating, " I have a learning disability,"
the RO then asked appellant "You do?" and appellant responded in the
affirmative. Appellant further testified that the conversation occurred
on December 2, 1992, six days before his termination, and that he had,
on numerous previous occasions, advised his supervisors that he was a
very slow learner. The RO confirmed that appellant told him that he
was very slow. The RO further stated that even if appellant had told
him he had a learning disability, it would have made no difference to
him, as he only judges his employees' performance. We find, as did
the AJ, that the RO's testimony showed that he was not aware of his
responsibilities under the Rehabilitation Act. However, ignorance of
the law is not a viable defense to the agency's failure to perform its
obligations under the Rehabilitation Act. The overwhelming evidence
of record showed that the RO and other agency officials knew that
appellant had a problem. Moreover, appellant specifically described
his problem as a disability. If the agency questioned the validity
of appellant's statements concerning his disability, they then had an
affirmative obligation to ask appellant for reasonable documentation
about his disability and functional limitations and/or refer appellant
for a fitness-for-duty examination. Notice No. 915.002 (March 1, 1999),
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, at 12, 15. The record evidence
shows that agency officials did neither. Moreover, we note that appellant
submitted medical documentation of his disability at the hearing.
Based on the above, the Commission concludes that management officials
(RO and other supervisors) had sufficient knowledge of appellant's
disability and that there are plausible reasons to believe that his
disability could have been accommodated by the agency.
Accordingly, as the Commission's Regulations require agencies to make
reasonable accommodation to the known physical or mental limitations of
qualified disabled applicants and employees, the agency must show that to
provide such an accommodation would have constituted an undue hardship
on the operations of the agency's program. 29 C.F.R. �1614.203(c).
The Commission concludes that the agency has not met this burden.
The Commission emphasizes that the only way that the agency can show that
it was not obligated to provide a reasonable accommodation to appellant
is by proving that the specific accommodation needed by appellant--in
this case more time to deliver his routes or assignment on the same five
routes for six months and then add more--constituted an undue hardship.
This has not been shown, nor has it been argued by the agency. As noted
by the AJ, the agency did not present any testimony regarding appellant's
reasonable accommodation claim. Therefore, the Commission concludes that
the evidence of record supports a finding that the agency failed to meets
its obligations under the Rehabilitation Act and that appellant's removal,
therefore, constituted disability discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the final agency decision finding no discrimination.
The agency shall comply with the following order.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall, within thirty calendar days of its receipt of this
decision, make appellant an offer of immediate reinstatement, retroactive
to the date of his removal, to the Morrisville Post Office, Morrisville,
Pennsylvania, from which appellant was removed.
2. If appellant accepts the agency's offer of reinstatement, the agency
shall make an inquiry sufficient to determine the type and amount of
accommodation which is appropriate in this case. The agency shall conduct
an inquiry of appellant and his physician in order to determine what is
an appropriate accommodation. The process of determining the appropriate
accommodation shall be an ongoing inquiry during the probation period.
Thereafter, the agency shall provide appellant with the accommodation
determined to be appropriate to his condition at the time of his
successful completion of his probation. The Commission notes in this
regard that appellant was removed effective December 8, 1992; therefore,
7 years have passed since appellant worked with the schemes in question,
and it will be necessary, at a minimum, to provide appellant with the
mandated training time for probation employees which would place him in
the same position he was in prior to termination, in addition to whatever
else is necessary to reasonably accommodate his present condition.
3. The agency shall determine the appropriate amount of back pay
with interest, and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. The appellant 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 appellant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. The appellant 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."
4. The agency shall post copies of the attached notice at the
agency's Morrisville Post Office, located in Morrisville, Pennsylvania.
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.
6. The agency shall provide training in the obligations and duties
imposed by the Rehabilitation Act to the agency officials responsible
for the instant action.
5. 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,
and attorney fee awards paid.
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 (S0993)
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. 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 (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:
March 10, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
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 Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �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 United States Postal Service, Morrisville Post Office,
Morrisville, Pennsylvania, supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law.
The United States Postal Service, Morrisville Post Office,
Morrisville, Pennsylvania, has remedied the employee affected by the
Commission's finding by offering him reinstatement to his position
of part-time flexible letter carrier, appropriate back pay and
training in the obligations and duties imposed by Title VII to the
agency officials responsible for the instant action. United States
Postal Service, Morrisville Post Office, Morrisville, Pennsylvania,
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.
The United States Postal Service, Morrisville Post Office, Morrisville,
Pennsylvania, 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