01971754
03-22-1999
Michael R. Boone, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas), Agency.
Michael R. Boone v. United States Postal Service
01971754
March 22, 1999
Michael R. Boone, )
Appellant, )
) Appeal No. 01971754
v. ) Agency No. 4E-995-1021-95
) EEOC No. 380-96-8074X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Areas), )
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had
not discriminated against him in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq., Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.,
and the Age Discrimination in Employment Act (ADEA) of 1967, as amended,
29 C.F.R. �621 et seq. The Commission accepts this appeal in accordance
with EEOC Order No. 960.001.
ISSUE PRESENTED
Whether appellant has proven by a preponderance of the evidence,
that the agency discriminated against him on the bases of race/color
(African-American), age (3/16/50) and disability (40%/disc disease),
when on May 5, 1995, he was denied employment as a Laborer Custodian
on the agency's determination that he was not medically qualified for
the position and presented a "high risk" of injury if employed in that
position.
CONTENTIONS ON APPEAL
On appeal, appellant argues that the AJ erred when she did not find
appellant was regarded as disabled, and when she found that the agency
had produced reasonable evidence proving that a substantial risk of
future harm existed if appellant was to perform the essential functions
of the job. The agency did not file any contentions in response to
appellant's appeal.
BACKGROUND
The record reveals that appellant filed his formal complaint on May 27,
1995. The agency accepted the complaint and conducted an investigation.
At the conclusion of the investigation, the agency notified appellant of
his right to request an administrative hearing before an administrative
judge (AJ) or a final decision by the agency. On August 30, 1996, at
appellant's request, a hearing was conducted at which five witnesses
testified.
At the conclusion of the hearing, the AJ issued a Recommended Decision
(RD) finding no discrimination. Specifically, the AJ found that appellant
failed to establish a prima facie case of discrimination on the bases
of race or age in that he failed to identify any similarly situated
individual not in his protected class who was treated more favorably.
The AJ also found that appellant was not disabled in that he did not
have an impairment which substantially limited a major life activity,
he was not regarded as such, and he did not have a record of such.
The AJ found that the agency had produced a significant amount of evidence
which showed that employment of appellant as a Laborer Custodian posed a
reasonable probability of substantial injury. Specifically, she cited
the fact that the agency had appellant fill out a detailed medical
history, the agency obtained two medical opinions about appellant's
risk of injury, it had a third physician review those determinations,
and the Office of Personnel Management gave an opinion that there was a
reasonable probability of substantial harm if appellant was hired as a
Laborer Custodian. In sum, the AJ found that the agency had articulated
a legitimate, nondiscriminatory reason for not hiring appellant; namely
that he posed a "high risk" of injury, which he had not shown to be
pretextual.
On November 19, 1996, the agency issued a final decision adopting the AJ's
finding of no discrimination. It is from this decision that appellant
now appeals.
A review of the record reveals that appellant originally applied for the
position of Laborer Custodian at the agency's Fairbanks, Alaska facility
in 1992, and was called in for an interview in January or February 1995.
The functional requirements of the position are, among others, heavy
lifting up to 70 lbs, heavy carrying 45 lbs and over; use of fingers,
walking (6 hrs.) standing (6 hrs.), kneeling (1hr.), and working in
excessive cold.
Following the interview, appellant was notified that he was selected
for the Laborer Custodian position and instructed to arrange a physical
examination with the agency's contract physician (Physician 1). Prior to
the examination, appellant completed a questionnaire wherein he was asked
about his prior medical history. On his questionnaire, he indicated,
among other things, that he had suffered a pinched nerve in 1991 and
had received disability payments for his neck, foot and back. For the
section which asks, "do you now or have you ever had any of the following
conditions (give dates)", appellant checked off that he had suffered from
neck stiffness, leg cramps, arthritis and bone fractures. Appellant left
blank the section which asked whether he had back surgery.<1> Appellant
marked the following areas with a negative response: painful or swollen
joints, foot trouble - flat feet, back injury or abnormality.
On February 8, 1995, appellant underwent a physical examination with
Physician 1. Appellant testified in his affidavit and during the hearing
that during the physical, he discussed his prior medical history with
Physician 1, was asked to touch his toes and perform deep knee bends.
The record reveals that Physician 1 made the following notations on
appellant's Form 2485 Medical Findings Form: under the section marked
"Physical Examination", Physician 1 indicated that appellant's upper and
lower extremities, feet and neck were normal. Under the section entitled,
"Summary of Medical Findings", wherein the doctor should indicate any
abnormalities noted in history or physical examination, Physician 1
wrote, "None. Back exam is normal. Denies any problem with lifting."
Subsequent to this examination, it appears a second agency physician
(Medical Officer) reviewed appellant's Form 2485 on March 3, 1995, but
there is no indication in the record that he actually examined appellant.
Under the section entitled, "Medical Assessment by Postal Medical Officer,
Medical History,", the Medical Officer wrote, "Significant Findings �
multiple orthopedic findings". Under the "Physical Findings" section
he wrote, "Limitations/Restrictions--on orthopedic [illegible]; low
[back] pain; abnormal back x-ray." Finally, under the "Risk Assessment"
section, the Medical Officer checked off the section marked, "High
Risk/Restriction: Examinee is not medically qualified to perform essential
functions of the position. Accommodations will not reduce medical risk
or restriction. By this section, the Medical Officer wrote, "multiple
orthopedic problems."
The record also contains a letter dated March 22, 1995, from an agency
nurse who sent appellant's Veteran's Administration medical record
to the agency's contracting physician. Therein, the nurse indicated
that appellant's VA medical records were previously unavailable, and
requested the contracting physician to conduct a further analysis.
Appellant's medical records and accompanying consultations from the
Veteran's Administration are not contained in the record.
By letter dated March 23, 1995, Physician 1 wrote the nurse back
and indicated that upon review of appellant's VA medical records
which contained an orthopedic consultation by a previous physician,
(VA Physician) dated March 30, 1993, there were areas of concern with
respect to appellant's condition. Specifically, Physician 1 noted
that the VA Physician had made the finding that appellant suffered from,
"chronic lower back pain with underlying disc degeneration." Physician 1
conceded, however, that based upon his own examination conducted February
8, 1995, he was unable to demonstrate any abnormality in appellant's back.
The March 23, 1995, letter to the agency also indicates that the VA
Physician's second area of concern was appellant's "patellofemoral
syndrome of the left knee with underlying chondromalacia." Again,
Physician 1 noted that during the physical examination that he had
conducted, appellant had not expressed any discomfort with his knee
and the examination was essentially normal. Based upon these findings,
Physician 1 stated that appellant:
could perform all of the functional requirements [of a Laborer Custodian]
as listed on the Form 2485 except that he probably should not be involved
in heavy lifting up to 70 lbs or heavy carrying of 45 lbs and over.
I would recommend that if he is hired that he not be assigned to a
position requiring the heavy lifting or heavy carrying.
As previously noted, the orthopedic consultation by the VA Physician
conducted in March 1993, and referenced in Physician 1's March 1995
recommendation, is not contained in the record.
Ultimately, the Medical Officer wrote the Maintenance Supervisor, who
had selected appellant for the position, by letter dated April 14, 1995.
Therein, he noted that appellant was a 40% compensable veteran. He stated
that he had reviewed Physician 1's examination of appellant as well as the
VA Physician's orthopedic consultation dated March 30, 1993. He noted
that the VA Physician's consultation noted that appellant's complaints
were "right shoulder, both wrists, both hands, lower back pain, left knee,
right leg fracture, and left foot." The Medical Officer also stated
that the VA Physician's evaluation suggested "a degenerative change at
the joint" of his right shoulder, and the "lumbar spine showed wedging
of T12 with narrowing of the L5-S1 interspace, which suggested a disc
injury with facet sclerosis at that level." Of the diagnosis listed
on the VA Physician's consultation were, "chronic low back pain with
underlying disc degeneration, patello-femoral syndrome of left knee with
underlying chondromalacia." In sum, the Medical Officer noted that,
[w]ith multiple orthopedic problems and ongoing symptamology in his
back and extremities, this gentleman is at high risk for injury and
worsening of his disabilities with a physical position such as that of
a custodian for the Postal Service. Since the functional requirements
of the position are heavy lifting up to 70 lbs, heavy carrying of 45
lbs and over, repeated bending; he is placed in a high risk category.
By letter dated May 5, 1995, the Postmaster informed appellant that he
was found not medically qualified for the position. The letter noted
that the functions of the position would, "likely worsen your physical
condition prematurely and produce further permanent medical damage to
yourself." As over a 30% compensable veteran, he was given appeal rights
to the Office of Personnel Management (OPM).
The record also contains a letter from appellant's own physician dated
August 29, 1995, wherein he stated that he had reviewed the functional
requirements of the position, and had conducted a physical capacities
examination of appellant on August 17, 1995. In that letter, appellant's
physician found that appellant met the functional requirements of the
position. In his six page analysis, appellant's physician noted that
he respectfully disagreed with the agency's physician, but that he
had found that appellant could perform the functions of the position.
Although appellant's physician noted the findings of the VA Physician
in his report, he also noted that appellant reported at the time of
the August 1995 exam, that he was asymptomatic with respect to his left
shoulder, left leg, right knee, right foot, both thumbs, head, neck and
back.
On December 6, 1995, OPM concurred with the agency's assessment following
a review of the findings made by Physician 1, the Medical Officer, the VA
Physician, as well as appellant's physician. The Physician for the OPM
agreed with the agency's physicians and found that, "the constant lifting,
bending, stooping, standing and carrying weights up to 70 lbs required
in [the position] would accelerate some of the described degenerative
changes in [appellant's] skeletal system."
ANALYSIS AND FINDINGS
The Rehabilitation Act prohibits discrimination against qualified disabled
individuals. See 29 C.F.R. �1614.203. In order to establish disability
discrimination, appellant must first show that he is a qualified disabled
employee. See Prewitt v. USPS, 662 F.2d 292 (5th Cir. 1981). Pursuant
to 29 C.F.R. �1614.203, a disabled employee is one who (1) has an
impairment which substantially limits one or more major life activities,
(2) has a record of such an impairment, or (3) is regarded as having
such an impairment. Major life activities include caring for one's
self, performing manual tasks, walking, seeing, breathing, learning,
and working. 29 C.F.R. �1614.203(a)(3).
In her decision, the AJ found that appellant was not an individual with
a disability within the meaning of the regulations in that he neither
has a physical or mental impairment which substantially limits one or
more major life activity, nor does he have a record of such impairment,
nor is he regarded as having such impairment.
Although we agree with the AJ that it is questionable whether appellant's
condition constitutes a disability for purposes of the Rehabilitation
Act, that is, impairment which substantially limits a major life activity.
However, the Commission finds that the AJ erred when she found appellant
was not regarded as disabled. Specifically, the Postmaster's action
in refusing to hire appellant for a position based upon the agency
physician's findings, indicates that the agency regarded appellant as
an individual with a disability. An individual is perceived as being
disabled, whether an impairment exists or not, when the attitudes of an
employer or supervisor who regards the individual as disabled effect
him in securing, retaining or advancing in employment. E.E. Black,
Ltd. v. Marshall, 497 F. Supp. 1088 (D.Hi. 1980). Further, an employer
regards an individual as substantially limited in working if it thinks
the individual has an impairment which significantly restricts him from
currently performing a class of jobs or a broad range of jobs in various
classes. Adams v. USPS, EEOC Request No. 05920820 (August 12, 1993). In
this case, the agency believed that appellant must be limited from
engaging in heavy lifting and carrying, because his orthopedic problems in
his back and extremities put him at a high risk of injury if he engaged
in those activities. Such limiting criteria do not relate to a unique
aspect of the agency's particular working environment, but, instead,
would exclude appellant from a broad range of jobs in various classes.
Thus, we find that the agency regarded appellant as substantially limited
in his ability to work, and, as such, he is considered to be disabled
for purposes of 29 C.F.R. �1614.203 (a)(1).
Turning to the next stage of inquiry, even if an individual establishes
that he or she is "regarded as disabled" by an employer, and thereby
meets the definition of an "individual with disability," the protection
of the Rehabilitation Act is not triggered until the individual shows
that he or she is a "qualified individual with disability," that is,
a person who can perform the essential functions of the position in
question either with, or without, a reasonable accommodation. 29 C.F.R. �
1614.203(a)(6); Black, 497 F.Supp. at 1091.<2>
There is no dispute that appellant possesses the skills and experience to
perform the duties of a Laborer Custodian in that the agency selected
appellant for the position. Further, appellant testified that his
condition should not prevent him from performing the duties of the
position. Appellant's own physician conducted an examination and
physical capabilities tests on appellant and concluded that appellant
could perform the functions of the position. However, in order to be
considered "qualified," appellant must be able to perform the duties
without risk of harm to himself or others. 29 C.F.R. � 1614.203(a)(6);
see Adams, EEOC Request No. 05920820.
As stated, the Medical Officer, after review of Physician 1's examination
and appellant's medical history, concluded that appellant posed a high
risk of injury due to "multiple orthopedic problems." The Commission notes
that the agency cannot exclude qualified individuals with disabilities
from employment based upon fear of a future risk of injury, without
engaging in the individualized assessment required by the Rehabilitation
Act into whether their disabilities pose a "direct threat" of substantial
harm. Specifically, EEOC Regulation 29 C.F.R. �1630.15(b)(2) provides
that an employer may require that an individual not pose a direct
threat to her health and safety, or that of others. However, in order
to exclude an individual on the basis of a possible future injury, the
agency must show more than that an individual with a disability poses a
slightly increased risk of harm. Rather, a "direct threat" is defined as:
"a significant risk of substantial harm" which cannot be eliminated or
reduced by reasonable accommodation. 29 C.F.R. �1630.2(r).
A determination as to whether an individual poses a significant risk of
substantial harm cannot be based on an employer's subjective evaluation or
speculation, but must rely on objective, factual evidence, including the
individual's experience in previous similar positions, and the opinions of
medical doctors, rehabilitation counselors, or physical therapists. See
Appendix to 29 C.F.R. Part 1630. The employer must identify the specific
risk posed by the individual, and conduct an individualized assessment
of the individual's present ability to safely perform the essential
functions of the job. In determining whether an individual would pose
a direct threat, the factors to be considered include: 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. 29 C.F.R. �1630.2(r); see also Adams, EEOC Request
No. 05920820. Furthermore, the employer must gather, and base its
hiring decision on, substantial information regarding the individual's
work and medical history, and it may not rely merely on its subjective
evaluation or on medical reports. Manolete v. Bolger, 767 F.2d 1416,
1422-23 (9th Cir. 1985).
Given that the burden of establishing reasonable probability of
substantial harm rests with the agency, the Commission finds that after a
careful review of the facts in this case as well as Commission decisions,
we find the agency has not met its burden in this case. Specifically, we
find, contrary to the AJ's findings, that the agency has failed to present
sufficient evidence that there is a significant risk of substantial harm.
Although the agency ultimately determined that appellant was not medically
qualified for the position, Physician 1, the only agency physician who
actually examined appellant, also found that appellant's upper and lower
extremities, feet and neck were normal, and that his back exam was normal.
Upon review, the Medical Officer failed to explain in any detail, nor did
he include a specific statement addressing the nature and severity of the
risk posed by appellant's condition. Rather, he stated that appellant
suffered from "multiple orthopedic problems" and did not specify the
nature, duration of any risk that appellant may suffer from if employed
in the position.
It was only upon review of appellant's medical records from an
examination conducted by the VA Physician two years prior, when Physician
1 determined that appellant was not medically suitable. In his March 23,
1995 letter, Physician 1 stated that appellant could probably perform
all of the essential functions of the job except the heavy lifting of
70 lbs or more. As such, we find that appellant's medical records and
orthopedic consultation from the VA Physician essentially served as the
basis for his denial of medical suitability. Given the consultation's
importance in the agency's decision, as well as the OPM decision, we find
it suspect that it is not contained in the record. The absence of the
VA Physician's 1993 consultation from the record serves to demonstrate
that the agency has not fulfilled its burden. We also find that the
agency has failed to identify the specific risk involved, nor did the
agency state the duration, probability or imminence of the risk involved.
Appellant's own physician stated that following an examination conducted
June 27, 1995, and a physical capabilities examination on August 17,
1995, he found appellant met the functional requirements of the job.
The physical capabilities examination revealed, among other things,
that appellant's floor to knee lifting was a maximum of 122 pounds with
20 reps at 72 lbs; floor to waist lifting was a maximum of 102 pounds;
waist to above shoulders was a maximum of 35 lbs; and both pushing and
pulling from a standing position was a maximum 202 lbs. Despite this
and the recommendation that appellant met the functional requirements of
the position, there is no evidence that anyone with the agency contacted
appellant's physician in an attempt to reconcile the opinions.
Necessary to the determination as to whether appellant posed a direct
threat involves an analysis of prior work history. Here, appellant
testified that while serving in the Air Force, he worked several details
in janitorial service without problems. Appellant's witnesses testified
at the hearing as to his previous employment as a janitor in 1985-1987,
as well as some part time work as a janitor in 1993. They testified
that appellant performed janitorial duties such as vacuuming, dusting,
emptying trash, and stocking. Furthermore, he had to operate a buffer
in a two story building without an elevator such that he was required
to lift the buffer up ten or twelve steps to get to the next floor.
Appellant testified that he worked as a school bus driver during
1992-1993. As a bus driver, he was required to inspect under the bus
and under the hood, sometime three times daily. This required him to
get down on his knees to inspect underneath the bus, and step up on the
bus so as to gain access to the hood.
Appellant testified that he was capable of performing the duties of
the position including cleaning, scrubbing of floors, waxing, cleaning
sidewalks of snow, removal of snow with snow blower, as well as lifting
70 lbs and carrying 45 lbs. Although the AJ noted that appellant's prior
janitorial positions did not involve snow removal, appellant testified
that as a resident of Alaska, he has cleared his own walkway without
problems.
After a careful review of the record, we find, contrary to the AJ, that
the agency failed to meet its burden of showing there was a reasonable
probability of substantial harm if appellant was employed in the position.
We make this finding in light of the agency's failure to conduct an
individualized, physical assessment of appellant's abilities to perform
the essential functions of the job in 1995. Rather, the decision was
based on a two year old medical consultation which was not introduced
into the record. Furthermore, the agency failed to make a specific
finding of unsuitability, and failed to identify the risk of injury
to appellant should he perform the duties of the Laborer Custodian.
Accordingly, based upon a review of the record herein, the Commission
finds that appellant was discriminated against on the basis of disability
when it failed to hire him for the position.
As for appellant's allegations of discrimination based on age and race,
we find that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
Appellant raised no new contentions on these allegations in his statement
on appeal. We discern no basis in which to disturb the AJ's finding of
no discrimination on the bases of age or race.
CONCLUSION
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's finding of no discrimination on the
basis of physical disability. We AFFIRM the agency's final decision with
respect to its finding of no discrimination on the bases of race and age.
The agency is directed to comply with the ORDER below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
Within thirty (30) calender days from the date this decision becomes
final, the agency is directed to offer appellant a Laborer Custodian
position, or a substantially comparable position, retroactive to the
date in 1995 when appellant would have commenced working had he passed
his physical examination, with all appropriate back pay and benefits,
including seniority, as directed below. Appellant will be required to
serve the usual probationary period.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) 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."
The agency shall conduct a supplemental investigation on the issue
of appellant's entitlement to compensatory damages, and provide
him with an opportunity to develop the record with respect to this
claim. Specifically, he shall be afforded an opportunity to establish
a causal relationship between the discrimination and any pecuniary or
non-pecuniary losses.<3> Thereafter, the agency shall issue a final
decision on the amount of compensatory damages owed to appellant, if
any. 29 C.F.R. �1614.110. The supplemental investigation and issuance
of the final decision must be completed within 120 calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance officer, as referenced below.
The agency shall post a notice as directed below.
The agency is to pay appellant's reasonable attorney's fees as directed
below.
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.
The agency is ordered to provide training in the obligations and duties
imposed by the Rehabilitation Act to all agency personnel and contract
physicians involved with medical suitability determinations.
ATTORNEY'S FEES (H1092)
If appellant 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.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Fairbanks, Alaska 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.
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. �1614.604(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 22, 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
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that a
violation 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 that 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 Post Office, Fairbanks, Alaska Facility (hereinafter
referred to as "facility") supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law.
The facility has been found to have discriminated on the basis of
physical disability, when it found that an applicant for employment was
not medically suitable for the position of Laborer Custodian, without
producing sufficient evidence that the applicant posed a direct threat
to the applicant's health and safety, or to that of others. The agency
was ordered to offer the applicant the position, or a substantially
similar position, with all back pay, including benefits and seniority.
Furthermore, the agency was ordered to conduct a supplementary
investigation into the applicant's request for compensatory damages.
The agency was further ordered to pay the applicant's reasonable
attorney's fees, post this notice, and take corrective action in the
form of training for the responsible officials.
The facility 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: _________________
1The AJ noted, however, that appellant's omission was unintentional;
he has never had back surgery.
2We note, however, that if an individual is regarded as having a
disability, as opposed to having a disability in fact, reasonable
accommodation is not required. Crisostomo v. Dept. of the Treasury,
EEOC Appeal No. 01933372 (September 1, 1994); Mansell v. Dept. of the
Air Force, EEOC Appeal No. 01891189 (June 11, 1993).
3See Commission Policy Guidance on Compensatory and Punitive Damages
Available under �102 of the Civil Rights Act of 1991 (July 14, 1992) and
Kathleen A. Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993) for the type of evidence needed to establish
pecuniary and non-pecuniary losses and their causal relationship to the
discrimination.