Daniel J. Arnow v. United States Postal Service 07A10023 11-15-02 . Daniel J. Arnow, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 07A10023 Agency No. 1A-106-1033-95 Hearing No. 160-99-8521X DECISION INTRODUCTION Following its November 7, 2000 final order, the agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405. On appeal, the agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding that the agency discriminated against complainant in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq, and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791. The agency also requests that the Commission affirm its rejection of the AJ's order to award complainant equitable relief, including attorneys fees. ISSUE PRESENTED Whether the agency discriminated against complainant on the basis of disability (herniated disc) by terminating him, effective June 23, 1995. BACKGROUND Complainant filed a formal EEO complaint in which he claimed that the agency discriminated against him on the bases of religion (Jewish), age (64), disability, and reprisal as described above. The agency investigated the complaint and thereafter referred the matter to an administrative judge (AJ). The AJ held a hearing, concluded that the agency did discriminate against complainant, and ordered appropriate relief. The agency rejected the AJ's decision and filed the instant appeal. The agency employed complainant as a distribution clerk at its processing and distribution facility in White Plains, New York. According to a letter from his physician dated July 15, 1994, complainant had been treated for back problems over many years by various doctors. The letter indicated that in December 1993, he was found to have a herniated disc. Surgery was not required, but complainant was advised not to lift objects that weighed more than 20 pounds. He was also advised to take a rest if the pain recurred after lifting on the job. Investigative File, Exhibit (Ex) 7. After receiving the doctor's note from complainant in July of 1994, the agency's medical officer recommended that complainant be scheduled for a fitness-for-duty examination. In a memorandum to the operations manager dated October 4, 1994 the plant manager stated that if the agency's medical officer concurred with the diagnosis and recommendation of complainant's private physician, he would offer complainant the opportunity to retire on disability prior to taking action to separate him. He further stated that, “the restrictions and conditions set forth in complainant's continued employment are not in the best interest of agency.” Ex. 9, p. 2. For reasons that are not specified in the record, the agency was unable to schedule the fitness-for-duty examination until October 19, 1994. The report of the examination from the agency's medical officer indicated that complainant could return to work in a restricted duty status. The report also indicated that complainant could continue to work as long as he was not required to lift more than 20 pounds. Exs. 11, 12. On November 7, 1994, complainant sent the operations manager a letter in which he stated that he had a potentially crippling back condition, and that he had been advised by his doctor to rest for a day or two whenever his back began to hurt. Complainant further stated that he hoped that the agency would, “not take action to place him in the restriction category.” Ex. 13. In a letter to complainant dated November 18, 1994, the plant manager informed complainant that: the agency's medical officer had assessed him as a moderate risk; the medical officer recommended that he be placed on permanent light duty in a clerical position, in which he would not be required to lift more than 20 pounds, lean, or bend to pick up objects; and periodic loss of work could be expected, one to two days at a time. The plant manager also stated that the agency was unable to furnish complainant with a permanent light duty assignment in accordance with the required accommodations, and that agency regulations required employees to maintain regular attendance. The plant manager further stated: In considering the uncertainty of your being able to report to work on a regular basis and the work restrictions recommended by the medical officer, we have concluded that your continued employment would not be in your best interest nor that of the Postal Service. Therefore, it is recommended that you consider [applying] for [disability] retirement. We prefer not to subject you to action to separate you from the service based on disability. However, if you choose not to apply for retirement, and cannot meet the physical requirements of the position, action would be taken to separate you from the agency based on disability. The plant manager advised complainant to let him know what his intentions were by November 29, 1994. Ex. 14. Complainant responded to the plant manager in a letter dated December 9, 1994. He stated that he had met with a disability retirement counselor, but that the counselor was unable to give him specific information as to what his benefits would be. He asked for a delay in the processing of his disability retirement application, so that he could determine what he would be receiving. Ex. 15. On January 29, 1995, the agency issued complainant a notice of separation, which indicated that complainant's removal would be effective March 3, 1995. The separation notice stated that the removal action was based on a determination that complainant's continued employment as a distribution clerk would be detrimental to his health. The notice also stated that complainant had decided not to pursue the option of disability retirement. The separation notice repeated, almost verbatim, the factors set forth in the plant manager's letter of November 18, 1994: the concern that complainant's continued performance as a distribution clerk would be, “detrimental to his health;” the agency medical officer's alleged recommendation that complainant be placed in a permanent light duty clerical position that did not require him to bend or lean to pick up objects or lift more than 20 pounds; the expectation of periodic work loss of up to two days at a time; the need for employees to maintain regular attendance; and the agency's purported inability to find a position that conformed with complainant's medical restrictions. Ex. 16; HT 112. Complainant testified that his separation did not become effective until June 23, 1995. Ex. 20, p. 3; Hearing Transcript (HT) 36. Complainant filed a grievance on the removal. The matter went before an arbitrator, who found that the removal was improper and, in a decision dated June 29, 1996, ordered the agency to reinstate complainant. Ex. 19. Complainant was awarded a manual distribution clerk position, without back pay, effective November 23, 1996. Ex. 20, p. 4; HT 37-39, 41-42. The AJ concluded that the agency regarded complainant as being disabled, and that it terminated complainant based on that perception. The AJ found that complainant was able to perform the duties of his distribution clerk position, as demonstrated by the fact that he held a light duty position prior to his termination, and that he was subsequently awarded a second light duty position. The AJ also noted that the agency's concerns about complainant's attendance were speculative. On appeal, the agency contends that it did not regard complainant as having a disability. Rather, it regarded him as not being able to work as a distribution clerk. In his response to the agency's appeal, complainant did not challenge the AJ's finding of no discrimination on the bases of religion, age, or previous EEO activity. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). As a threshold matter, we must determine whether complainant is a qualified individual with a disability. An individual with a disability is one who has, has a record of, or is regarded as having an impairment that substantially limits one or more of his major life activities. 29 C.F.R. § 1630.2(g). Lifting is a major life activity. Carter v. United States Postal Service, EEOC Appeal No. 01985862 (November 27, 2001); Ricks v. United States Postal Service, EEOC Petition No. 03990009 (September 6, 2000); Thompson v. United States Postal Service, EEOC Appeal No. 01971189 (August 31, 2000). A qualified individual with a disability is one who can, with or without reasonable accommodation, perform the essential functions of the position in question. 29 C.F.R. § 1630.2(m). In this case, the AJ found that the agency regarded complainant as having a disability, based upon the agency's assessment that complainant could not lift over 20 pounds, bend, or lean because of the herniated disc diagnosis, as described in complainant's medical documentation. To be regarded as having a disability means: (1) to have a physical or mental impairment that does not substantially limit major life activities but is perceived as substantially limiting a major life activity; (2) to have a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) not having a substantially limiting impairment, but being treated as if one does. See 29 C.F.R. § 1630.2(l). The plant manager's correspondence dated October 4, 1994, reflects his intent to persuade complainant to take disability retirement, even before the results of the fitness-for-duty examination were in. The plant manager's November 18, 1994 letter to complainant makes reference to separating complainant based on disability. Moreover, in the separation notice itself, the agency acknowledges that the removal action was based on its determination that complainant's continued employment as a distribution clerk would be detrimental to his health. The agency clearly admits that complainant's perceived disability is the reason for terminating him. We therefore agree with the AJ's finding that the agency regarded complainant as having a disability. We also find that complainant is a qualified individual with a disability in that he was able to perform all of the essential functions of the distribution clerk position, with or without reasonable accommodation. In particular, we note complainant's uncontradicted hearing testimony that on the few occasions during which he had to lift more than 20 pounds, he would simply put on a back brace. HT 68, 77. We also note that complainant was subsequently reinstated into a distribution clerk position. We therefore conclude, as did the AJ, that complainant meets the statutory definition of a qualified individual with a disability under the Rehabilitation Act. Inasmuch as the agency concedes that it terminated complainant because of his disability, we proceed directly to the issue of whether the agency has satisfied its burden of proof that complainant's removal was justified by a “direct threat” to his safety. Van Parys v. United States Postal Service, EEOC Appeal No. 01991100 (August 23, 2001). 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). The agency has the burden of proof regarding whether there is a significant risk of substantial harm. See Massingill v. Department of Veterans Affairs, EEOC Appeal No. 01964890 (July 14, 2000). The agency cannot exclude qualified individuals with disabilities from employment based upon fear of a future risk of injury. Zarate v. United States Postal Service, EEOC Appeal No. 01A00415 (January 8, 2001); Holmes v. United States Postal Service, EEOC Appeal No. 01977073 (October 20, 2000). A determination as to whether an individual poses such a risk cannot be based on an employer's subjective evaluation or, except in cases of the most apparent nature, merely on medical reports. See Selix v. United States Postal Service, EEOC Appeal No. 01970153 (March 16, 2000). Rather, such a determination 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. 29 C.F.R. 1630.2(r). The agency considered none of these factors. Instead, it summarily determined that it would get complainant off the rolls, either by persuading him to take disability retirement or by separating him on the basis of disability. The medical officer's handwritten report of the results of complainant's fitness for duty examination stated that complainant should not be required to lift more than 20 pounds and could continue to work within that restriction. This was the only document from the medical officer that was present in the record. The report mentioned nothing about a permanent light duty assignment. Furthermore, the agency's concerns about his attendance were speculative at best, since complainant's attendance records for 1994 and 1995 do not show that complainant had taken significant amounts of sick leave. Ex. 17. Accordingly, the agency has not demonstrated that complainant's continued employment in his distribution clerk position posed a direct threat to safety, and his termination therefore violated the Rehabilitation Act. CONCLUSION After a careful review of the record, we discern no basis to disturb the AJ's finding of discrimination. The findings of fact are supported by substantial evidence, and the AJ correctly applied the appropriate regulations, policies, and laws. Therefore, after a careful review of the record, including arguments and evidence not specifically discussed in this decision, the Commission reverses the agency's final order and remands the matter to the agency to take corrective action in accordance with this decision and the order below. In particular, because the matter of compensatory damages was not processed in accordance with the AJ's order, we will direct the agency to do so now. ORDER The agency shall reinstate complainant to the position of distribution clerk, retroactive to the period between June 23, 1995, and November 23, 1996. 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) calendar 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 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 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." The agency shall conduct a supplemental investigation on the amount of compensatory damages to be awarded complainant. Within thirty (30) days after the date on which this decision becomes final, complainant shall submit to the agency objective evidence in support of his claim for compensatory damages.<1> No later than sixty (60) calendar days after the date that this decision becomes final, the agency shall issue a final agency decision addressing the issue of compensatory damages. The agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below. The agency shall provide 8 hours of training to the supervisory and managerial officials identified in Complaint No. 1A-106-1033-95 as being responsible for the discriminatory removal action taken against complainant, if they are still employed by the agency. The training shall focus on the rights and responsibilities of management under the Rehabilitation Act of 1973, as amended. If these individuals have left the agency's employ, the agency shall furnish documentation of their departure dates. The agency shall consider taking disciplinary action against the supervisory and managerial officials identified in Complaint No. 1A-106-1033-95 as being responsible for the discriminatory removal action taken against complainant. The agency shall report its decision. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. 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. The agency is ordered to post at its Westchester Processing and Distribution Facility in White Plains, New York, 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. 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 complainant, including evidence that the corrective action has been implemented. 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 __11-15-02________________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to complainant, complainant's representative (if applicable), and the agency on: __________________ Date ______________________________ 1Such objective evidence may include, but shall not be limited to: health care bills and receipts; statements from complainant concerning his emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character or reputation, injury to credit standing, loss of health, and any other nonpecuniary losses that are incurred as a result of the discriminatory conduct; or statements from others, including family members, friends, health care providers, and other counselors (including clergy) that address outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).