01993435
08-27-2002
Luisito Asuncion, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Luisito Asuncion v. United States Postal Service
01993435
August 27, 2002
.
Luisito Asuncion,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01993435
Agency No. 1F-957-0063-98
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful employment discrimination 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
for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405.
For the following reasons, we reverse the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was an
applicant for employment with the agency in Sacramento, California.
Complainant applied for the position of Cleaner/Custodian, and was
rated as eligible for the position. He was selected for the position
and sent for an agency medical examination and assessment in June 1998.
The contract physician found that complainant had a history of coronary
artery disease since 1993; that he underwent coronary angioplasty on
two occasions in 1994 which resulted in a history of angina requiring
nitroglycerin; and that his heart was normal upon evaluation. The
contract physician further found that complainant had �gouty arthritis -
right foot primarily with infrequent attacks�; degenerative disc disease
of cervical spine with mild, intermittent pain; right elbow cubital
tunnel syndrome; and epicondylitis. The contract physician opined that:
(1) without more definitive information from stress EKG or angiopathy, it
would be �hard to dismiss the notion that the exertion associated with the
job functional requirements will cause chest pain or worse�; (2) �heavy
lifting, carrying, pushing and pulling are likely to cause right elbow
and entrapment neuropathy signs and symptoms�; and (3) �neck symptoms
could flare up with heavy lifting and carrying.� The contract physician
also found that recent clinic records evidenced a history of excessive
ethanol intake described as weekly binge drinking; high blood lipids
and elevated blood pressure, conditions which �are not prognostically
favorable for a young man with coronary artery disease.� The contract
physician concluded that complainant was a high risk candidate.
The agency also reviewed a 1996 rating decision from the Department of
Veterans Affairs which found that complainant's coronary artery disease
was service connected and 30% disabling and that his degenerative
disc disease was service connected and 10% disabling. The Department
of Veterans Affairs also provided the agency with 1998 diagnoses of
coronary artery disease, hypertension, hyperlipidemia, elevated ALT
of 88, rectal bleeding, presbyopia (reduced vision condition due to
advancing age), and thoracic disc disease. Based upon this evidence,
the agency determined that complainant's conditions were �serious�
and caused him to have limitations against repetitive heavy lifting,
carrying, pushing, pulling, prolonged standing and walking. The agency
concluded that under these conditions, employment as a Cleaner/Custodian
would not be in complainant's �best interest.�
Complainant sought EEO counseling and filed a formal complaint alleging
that the agency discriminated against him on the basis of disability when
he was found medically unsuitable for the position. At the conclusion
of the investigation, complainant was informed of his right to request
a hearing before an EEOC Administrative Judge or alternatively, to
receive a final decision by the agency. By letter dated February 19,
1999, complainant requested that the agency issue a final decision.
In its final decision, the agency determined that complainant failed to
prove a prima facie case of discrimination based on disability when he
was unable to demonstrate that he had been treated differently from any
other comparative employee in a similar situation. The agency further
determined that its legitimate, nondiscriminatory reason for not hiring
complainant was that he was medically assessed as a high risk candidate
for employment as a Cleaner/Custodian and that complainant failed to
prove that the explanation was a pretext for intentional discrimination.
On appeal, complainant contends that the agency did not acknowledge
his physician's progress note dated June 23, 1998 which stated that
complainant has �good exercise tolerance and should be able to continue
janitorial job without any problems.�<2> His physician also described
the coronary artery disease as �stable.�<3> The agency requests,
without comment, that we affirm its final decision.
ANALYSIS AND FINDINGS
An "individual with a disability" is 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,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). Sitting, standing, lifting, and reaching are also
recognized as major life activities. Interpretive Guidance on Title I
of the Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
Upon review of the medical evidence in the record, the Commission
finds that complainant was not an individual with a disability under
the first prong of the definition under the Rehabilitation Act because
the record does not support a finding that complainant's conditions
substantially limited any of his major life activities. However,
the Commission finds that the agency regarded complainant as having an
impairment which substantially limits the major life activity of working.
An agency regards an individual as substantially limited in the major
life activity of working if it thinks the individual has an impairment
that significantly restricts him or her from currently performing a
class of jobs or a broad range of jobs in various classes. 29 C.F.R. �
1630.2(j)(3).
In the instant case, the agency found that complainant's conditions were
�serious� and caused him to have �limitations against repetitive heavy
lifting, carrying, pushing, pulling, prolonged standing and walking.�
It also found him unsuitable for the strenuous requirements of the
Cleaner/Custodian position which included �heavy lifting/carrying, 8
hrs of walking/standing, working on ladders and scaffolding, and working
protracted hours.� The agency concluded that complainant posed a high
risk and was not medically qualified to perform the essential functions
of the position.
The position description stated that the basic function of the position
was to perform manual laboring duties in connection with custody of an
office or building. The duties included cleaning and any combination of
the following: (1) moving furniture and equipment; (2) un-crating and
assembling furniture and fixtures, using bolts and screws; (3) loading
and unloading supplies and equipment; (4) removing trash from work areas,
lobbies, and washrooms; (5) tending to lawns, shrubbery and the premises
of the post office and cleaning ice and snow from sidewalks and driveways;
and (6) stacking supplies in storage rooms and on shelves and completing
forms or records as required. The Commission finds that these duties
represent the actual and general duties performed by individuals working
as custodians and cleaners in both domestic and commercial settings and
both in and out of doors. We further find that custodial, cleaning
positions exist in large numbers across all sectors of the economy.
In reaching this finding, we note the 1990 Census of Population report
on occupation reflects that 2,481,545 individuals work as janitors
and cleaners and that 712,789 individuals work as maids and housemen.
We therefore conclude that custodial and cleaner positions constitute a
class of jobs. Since the agency regarded complainant as being unsuitable
to perform the duties of such a position, we find that the agency regarded
complainant as having an impairment which significantly restricted him
from performing a class of jobs.
Complainant must next show that he is a �qualified person with a
disability.� 29 C.F.R. � 1630.2(m). A �qualified individual with
a disability� is an individual who satisfies the requisite skill,
experience, education, and other job-related requirements of the
employment position and who, with or without reasonable accommodation,
can perform the essential functions of such position. Id. Based upon the
facts in the record, we find that complainant has demonstrated that he
is a qualified individual with a disability inasmuch as he was selected
for the position at issue, pending the outcome of a medical suitability
determination. The agency, however, found, based upon his conditions,
that complainant posed a direct threat and was therefore unsuitable
for employment. 29 C.F.R. � 1630.2(r).
In order to exclude an individual on the basis of possible future injury,
the agency bears the burden of showing there is a significant risk, i.e.,
high probability of substantial harm. A speculative or remote risk is
insufficient. The agency must show more than that an individual with a
disability seeking employment stands some slightly increased risk of harm.
Selix v.United States Postal Service, EEOC Appeal No. 01970153 (March
16, 2000). Moreover, such a finding must be based on an individualized
assessment of the individual that takes into account: (1) the duration
of the risk, (2) the nature and severity of the potential harm, (3) the
likelihood that the potential harm will occur, and (4) the imminence of
the potential harm. Interpretive Guidance on Title I of the Americans
With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(r). A determination
of significant risk cannot be based merely on an employer's subjective
evaluation, or, except in cases of a most apparent nature, merely on
medical reports. Rather, the agency must gather and base its decision
on substantial information regarding the individual's work and medical
histories. Mantolete v. Bolger, 767 F.2d 1416, 1422-1423 (9th Cir. 1985).
The agency made its decision to find complainant unsuitable for employment
based on the contract physician's assessment that complainant was not
medically qualified for the job because he was a high risk candidate
with serious medical conditions in whose interest employment at the
agency would not be for the best. This conclusion was based on a
physical examination and review of the medical records provided by the
Department of Veterans Affairs. There is no evidence that the agency
considered the opinion of complainant's own physician or any evidence
regarding complainant's work history since he was diagnosed with coronary
artery disease in 1993. Moreover, the contract physician's report is
characterized by speculation, in light of the absence of definitive
information from a stress EKG or angiopathy, concerning the likelihood
of complainant having �chest pain or worse.� He also states that heavy
lifting, carrying, pushing and pulling are likely to cause symptoms,
but there is no explanation as to what the nature and severity of those
symptoms might be.
Having carefully considered the evidence of record, the Commission
finds that the agency failed to meet its burden of showing a high
probability of substantial harm. The agency's finding of unsuitability
was not explained in detail, nor did it address the duration of the risk
posed by complainant's coronary artery and degenerative disc disease,
the nature and severity of the potential harm, and the imminence of the
potential harm. Since the Commission finds that there is no evidence to
support the agency's conclusion that complainant posed a direct threat,
we conclude that the agency's denial of employment to complainant was
in violation of the Rehabilitation Act.CONCLUSION
After a careful review of the record, the Commission reverses the
agency's final decision. The record establishes that the agency failed
to investigate complainant's entitlement to the compensatory damages
he requested. Accordingly, the agency shall conduct a supplemental
investigation as to complainant's claim for compensatory damages.
ORDER
1. Within sixty (60) days of this decision becoming final, the
agency shall offer complainant the position of Cleaner/Custodian or a
substantially equivalent position at an agency facility within thirty
miles of complainant's home. Complainant shall be given a minimum
of fifteen days from receipt of the offer of placement within which
to accept or decline the offer. Failure to accept the offer within
the time period set by the agency will be considered a rejection of the
offer, unless complainant can show that circumstances beyond his control
prevented a response within the time limit.
2. The agency shall award complainant back pay with interest and other
benefits due complainant, for the period from June 1998 to the date he
enters into or declines to enter into duty. The agency shall determine
the appropriate amount of back pay with interest and other benefits
due complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty
(60) days after the date this decision becomes final. The complainant
shall cooperate in the agency's efforts to compute the amount of back
pay and benefits due, and shall provide 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. The 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.�
3. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of his right to submit
objective evidence (pursuant to the guidance given in Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support
of his claim for compensatory damages within forty-five (45) calendar
days of the date complainant receives the agency's notice. The agency
shall complete the investigation on the claim for compensatory damages
within forty-five (45) calendar days of the date the agency receives
complainant's claim for compensatory damages. Thereafter, the agency
shall issue a final decision pursuant to 29 C.F.R. � 1614.110(b).
4. The agency shall conduct training for its human resource personnel
at its Sacramento, California facilities regarding their obligations
under the Rehabilitation Act.
5. The agency is 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 verifying that the
foregoing corrective actions have been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Sacramento, California 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 (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.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
August 27, 2002
__________________
Date
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 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. has occurred at this facility
in Sacramento, California.
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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have violated the Rehabilitation Act
when it failed to establish that an applicant for employment posed
a direct threat that would disqualify him for the position he sought.
The facility was ordered to award the employee with a position, back pay,
and proven compensatory damages and attorney fees. This facility was
also ordered to provide relevant agency officials with training regarding
their obligations under the Rehabilitation Act . This facility 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 and will not retaliate against employees
who file EEO complaints.
This facility will comply with federal law and 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 There is no information in the record about complainant's physician's
background, nor is it clear if this physician had been treating
complainant on a regular basis and if so, for what duration. Similarly,
the record does not indicate whether this physician was familiar with
the duties of the position at issue herein.
3 We note that complainant submitted a copy of a September 31, 1998 letter
to the Office of Personnel Management (OPM) as his statement in support
of the instant appeal. Because complainant had a service connected
disability of 30% or more, complainant was entitled to OPM's review of
the agency's determination as to medical unsuitability. The record does
not reveal whether OPM affirmed or reversed the agency's determination.