0120103345
02-29-2012
James B. McCullough, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
James B. McCullough,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120103345
Agency No. 4C-190-0038-10
DECISION
On August 11, 2010, Complainant filed an appeal from the July 8, 2010
final Agency decision (FAD) concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination 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.
The Commission deems the appeal timely and accepts it pursuant to 29
C.F.R. § 1614.405(a). For the following reasons, the Commission
VACATES the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Letter Carrier at the Agency’s Southwark Station in Philadelphia,
Pennsylvania. On February 10, 2010, Complainant filed an EEO complaint
alleging that the Agency discriminated against and subjected him to a
hostile work environment on the bases of race (Caucasian), disability,
sex (male), and in reprisal for prior protected EEO activity when:
1. He was denied a push cart as reasonable accommodation to do his letter
carrier duties, and
2. He received reduced hours and benefits as a result of his reassignment
under the National Reassessment Process (NRP).
On March 2, 2010, the Agency determined that the disability-based
allegation in claim (2) fell within the pending class action, McConnell
v. U.S. Postal Service, Agency Case No. 4B-140-0062-06. The McConnell
class alleges that the Agency failed to engage in the interactive process
during the NRP, in violation of the Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. § 791 et seq. As a result, the
Agency processed the disability-based portion of claim (2) separately
under Agency No. 4C-190-0024-10.1 The Agency did not subsume claim (1)
into the McConnell class, but accepted the claim only as a discriminatory
Title VII-based allegation.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
When Complainant did not request a hearing within the time frame provided
in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).
On July 8, 2010, the Agency issued a FAD finding that Complainant failed
to prove that he was subjected to race and sex discrimination, reprisal,
or a discriminatory hostile work environment as alleged. In the FAD, the
Agency failed to address claim (1) as a denial of reasonable accommodation
in violation of the Rehabilitation Act.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates his contentions that the Agency
retaliated against him for his prior protected EEO activity by removing
him from his full-time assignment. Complainant asserts that management
based their decision on a factual error as his physician never declared
him as having achieved maximum medical improvement. Moreover, Complainant
contends that the Agency reassigned him to punish him for not returning
to work quickly enough. Accordingly, Complainant requests that the
Commission reverse the FAD.
ANALYSIS AND FINDINGS
EEOC Regulations require that agencies shall develop “an impartial
and appropriate factual record upon which to make findings
on the claims raised by the written complaint.” 29 C.F.R. §
1614.108(b). In addition, the Commissions regulations explain that:
“An appropriate factual record is one that allows a reasonable fact
finder to draw conclusions as to whether discrimination occurred.” Id.
Furthermore, EEOC Regulation 29 C.F.R. § 1614.108(c)(1) provides: “The
complainant, the agency, and any employee of a Federal agency shall
produce such documentary and testimonial evidence as the investigator
deems necessary.”
A fair reading of the complaint reveals that Complainant alleged that
he was discriminated against based on race, sex, disability, and in
reprisal for prior protected EEO activity when he was reassigned pursuant
to the NRP and, in addition, that he was discriminated against based on
disability when he was denied reasonable accommodation in the form of
the use of a push cart prior to his reassignment. The Agency bifurcated
the complaint and processed both claims only as Title VII-based claims.
As a result, the Agency failed to investigate claim (1) as a denial
of reasonable accommodation allegation under the Rehabilitation Act,
and the Commission finds that the record is too inadequate to render a
determination on the merits of the denial of reasonable accommodation
allegation.
Specifically, there is insufficient evidence in the record to determine
what the essential functions of Complainant's Letter Carrier position
were and whether his physical impairment precluded him from performing
those functions, with or without an accommodation. In addition,
there is insufficient evidence in the record to determine whether the
Agency denied Complainant reasonable accommodation because the record is
unclear when Complainant requested an accommodation, to whom he requested
accommodation, and what, if any, response was given to his request.
Thus, the Commission cannot make a determination as to whether the Agency
denied Complainant's requests for reasonable accommodation. Therefore,
the Commission finds that a supplemental investigation is required to
develop the record enough for the Agency and the Commission to render
a decision on Complainant’s denial of reasonable accommodation claim.
An appropriate factual record is one that allows a reasonable fact
finder to draw conclusions as to whether discrimination occurred. See 29
C.F.R. § 1614.108(b). The investigator is required to conduct a thorough
investigation, identifying and obtaining all relevant evidence from all
sources regardless of how it may affect the outcome. EEOC Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 6-8 (Nov. 9, 1999).
Therefore, an investigator must exhaust those sources of information
likely to support both the positions of Complainant and the Agency. Id.
In particular, in investigating a claim of disability discrimination, the
Agency must ensure that the investigator “asks the right questions” of
Complainant, designed to elicit pertinent evidence on the threshold issues
of whether Complainant has an impairment; whether it affects a major life
activity; and, whether it substantially limits a major life activity.
Carr v. U.S. Postal Serv., EEOC Appeal No. 01A43665 (May 18, 2006).
Based on the above, the Commission concludes that the present record
lacks the necessary information upon which to adequately determine
if the Agency’s actions were lawful under the Rehabilitation Act.
See 29 C.F.R. § 1614.404. Therefore, the Commission remands this case
to the Agency to conduct a supplemental investigation. Finally, in light
of the Commission's remand of Complainant’s reasonable accommodation
claim, the Commission declines to fragment the complaint by addressing
Complainant's disparate treatment claims on appeal. Accordingly, the
Commission remands the entire complaint for further processing.
CONCLUSION
Based on a thorough review of the record, the Commission VACATES the
Agency's final decision and REMANDS the entire complaint to the Agency for
further processing in accordance with this decision and the Order below.
ORDER
The Agency is ORDERED to take the following actions:
1. The Agency shall conduct a supplemental investigation to develop
an adequate factual record regarding Complainant's claim of denial of
the use of a push cart as a reasonable accommodation in violation of
the Rehabilitation Act. The Agency shall ensure that the investigator
obtains all pertinent evidence needed to address Complainant's reasonable
accommodation claim including, but not limited to, sworn affidavits from
responsible management officials and other documentary evidence regarding:
a. The essential functions of the Letter Carrier position;
b. Whether Complainant was able to perform the essential functions of
his Letter Carrier position with or without an accommodation. In this
regard, the Agency shall also provide the physical requirements for the
Letter Carrier position; and,
c. How management responded to Complainant’s requests for accommodation.
2. The Agency shall ensure that the investigator completes a supplemental
investigation within sixty (60) calendar days of the date this decision
becomes final. Thereafter, the Agency shall provide Complainant
within thirty (30) calendar days from the date the Agency completes the
supplemental investigation, an opportunity to request a hearing before
an EEOC Administrative Judge. If Complainant does not request a hearing
within thirty (30) days of his receipt of the supplemental investigative
report, the Agency shall take final action consistent with 29 C.F.R. §
1614.110(b); and
3. The Agency shall submit a compliance report as referenced immediately
below. This report must include a copy of the supplemental investigative
report and either Complainant’s request for a hearing or the Agency’s
final action.
In accordance with Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), at 9-23 (Nov. 9, 1999), the Agency
shall give priority to this remanded case in order to comply with the
time frames contained in this Order. The Office of Federal Operations
will issue sanctions against agencies when it determines that agencies
are not making reasonable efforts to comply with a Commission order to
investigate a complaint.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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 (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 (Nov. 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 (R0610)
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.
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:
______________________________ February 29, 2012
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Complainant does not challenge the Agency’s decision to subsume
this claim into the McConnell class action and therefore, the Commission
shall not address the matter in the instant decision.
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01-2010-3345
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013