E.E.O.C. Office of Federal Operations Scott Dana, Appellant, v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service (Western Region), Agency. Appeal No. 01921641 Agency No. 5-1-1131-4 Hearing No. 091-88-X1650 June 11, 1993 DECISION INTRODUCTION On February 13, 1992, Scott Dana (hereinafter referred to as appellant), through his representative, filed an appeal from the final decision of the United States Postal Service (hereinafter referred to as the agency) concerning his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. and 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791, et seq. For the reasons that follow, the agency's decision is VACATED and REMANDED.1 ISSUE PRESENTED The issues presented in this appeal are: (1) Whether appellant's appeal of the agency's remedial action is timely filed; (2) Whether the agency has properly implemented the finding of disability and retaliation discrimination that it adopted on May 19, 1988. BACKGROUND On October 30, 1982, appellant filed a formal complaint of discrimination alleging that he was denied the position of distribution clerk at the Berkeley, California, postal facility based on his disability (40% service connected disability-knee) and in reprisal for prior EEO activity. After an investigation, the agency issued a Notice of Proposed Disposition (PD) on February 24, 1986, finding no discrimination. Appellant requested a hearing, which was held on February 16, 1988 before an EEOC Administrative Judge (AJ). The AJ issued a Recommended Decision (RD) that found that the agency had discriminated against appellant based on an erroneous and biased perception that he was disabled and in reprisal for his prior EEO activity. The AJ ordered that appellant be awarded (1) the next opening for a distribution clerk in the Berkeley, California, Post Office; (2) back pay from the date that he would have been employed pursuant to his July 1982 application; and (3) attorney's fees and related costs. On May 19, 1988, the agency adopted the RD as its final agency decision (FAD). In its FAD, the agency stated that appellant would be offered the next Distribution Clerk position at the Berkeley facility, with a 90-day probationary period, as is required of all new employees, and that appellant would be awarded appropriate back pay from the date he would have been employed pursuant to his July 1982 application. Appellant was also awarded attorney's fees and costs. On September 7, 1988, appellant underwent a fitness-for-duty (FFD) examination with the agency's Medical Officer (MO) in order to determine whether the agency would offer him the Distribution Clerk position.2 At his FFD, appellant produced two Office of Worker's Compensation Programs (OWCP) medical reports from two different physicians. The OWCP form duty status report from physician No. 1, a neurologist, dated October 27, 1988, indicated that appellant had no medical restrictions.3 The OWCP form duty status report4 from physician No. 2, dated September 20, 1988, indicated that appellant could work eight hours a day with the following restrictions: sitting/intermittent/two hours a day; walking/intermittent/two hours a day; lifting/intermittent/one hour a day; bending/intermittent/one hour a day; squatting/intermittent/ one hour a day; climbing/intermittent/one hour a day; kneeling/ intermittent/one hour a day; twisting/intermittent/one hour a day; standing/intermittent/one hour a day; may lift up to 20-50 lbs.; no pushing, pulling or twisting; and will need vocational rehabilitation services such as testing, counselling, training or placement to return to work. The Berkeley Postmaster indicated, in a February 8, 1989 letter to appellant, that he knew of no reasonable accommodation that would allow appellant to perform Distribution Clerk duties at the Berkeley facility. He stated that he based this decision on the medical restrictions listed above by physician No. 2 and on appellant's past medical history of repeated tissue injuries and surgeries. The Postmaster also indicated that he also relied upon the fact that the Berkeley facility was now under Area Mail Processing (AMP). He explained that this meant that all the distribution of mail that Distribution Clerks normally performed was now done in Oakland and sent directly out to their carriers for delivery. The Postmaster gave no further elaboration of the specific manner in which the duties of Distribution Clerks at the Berkeley facility had changed. The letter indicated, however, that he would be willing to reconsider this decision if appellant had any thoughts to offer on the matter and also stated that he was unable to offer appellant a Distribution Clerk position at the Berkeley facility 'at this point in time.' Subsequently, in April, May and June 1989 and in January 1990, the agency sought information from appellant to determine its back pay liability, including information on appellant's gross wages, worker's compensation receipts, unemployment compensation, other income, and dates of availability. The agency determined that the liability period began on July 10, 1982, the date of appellant's interview, and ended on the date of the February 8, 1989 medical unsuitability determination. The record indicated that appellant completed two questionnaires mailed to him by the agency relating to his pending backpay award. Appellant also responded to the agency's inquiries on August 1, 1989, by providing the agency with a copy of a letter he sent to OWCP requesting records of all payments made to him since 1982. Appellant also submitted copies of the payroll records he had recently received from OWCP together with a note from him apologizing for the delay in providing the records and attributing the delay to the OWCP. On December 12, 1989, appellant appealed to the Commission, asserting that the agency had not awarded him a position or given him back pay. His appeal was closed as prematurely filed, and he was advised to furnish the requested information to the agency. See Scott Dana v. USPS (WR), Appeal No. 01900977 (April 16, 1990). In a letter dated July 31, 1990 to the agency's Minneapolis Data Center, the Berkeley Postmaster set forth his position that no financial compensation was due appellant because he accrued wages or other payments in lieu thereof to offset any earnings as a distribution clerk or because appellant was not ready, willing and able to perform the duties of the postal position.5 In letters to the Berkeley Postmaster and to the agency's Minneapolis Data Center, each dated November 20, 1990, appellant disagreed that he was not entitled to back pay, asserted that he was 'ready, willing and able' to work at the local post office, and requested that he be offered a job forthwith.6 Appellant also asked the agency's Minneapolis Data Center to issue a decision so that he could proceed to the next stage of the appeal process. On November 30, 1990, the agency's Data Center responded to appellant's letter indicating that it had requested additional information from the Berkeley Postmaster regarding appellant's back pay claim. On December 6, 1990, the Berkeley Postmaster offered to review appellant's medical status and requested updated medical information. Appellant acknowledged this letter and indicated that he would be in touch with the Postmaster shortly regarding his request that appellant submit to another FFD. Appellant again indicated that the matter of back pay remained unresolved and suggested that the matter be submitted to the Commission for decision. There is no further indication in the record that any action was taken by the agency from January through July of 1991. In an August 15, 1991 letter to the Berkeley Postmaster, appellant demanded action on his back pay claim and job placement within three weeks. There is no indication that the agency took any action regarding appellant's back pay claim during the period of time from August 1991 until March 1992. On February 13, 1992, appellant filed this appeal alleging that the agency had failed to comply with its obligation pursuant to the AJ's RD and its own FAD to provide appellant a job and appropriate back pay. On March 17, 1992, the agency informed appellant, without providing a specific calculation, that he was not entitled to back pay since he had received offsetting compensation and was unavailable for work. On appeal, appellant argues that his receipt of worker's compensation benefits is 'wholly irrelevant' to his back pay claim, since he remained 'ready, willing and able to perform his duties at the (agency).' He contends that the job from which he draws worker's compensation is a different trade and activity and, even if he could not perform that job, he could work at the agency. In response, the agency asserts that it informed appellant that he was medically unsuited for the position and could not safely perform the essential features of the job with or without reasonable accommodation. Further the agency asserts that it had articulated sound reasons why appellant was not entitled to back pay. Finally, the agency asserts that appellant's appeal to the Commission is untimely because he waited almost three years before appealing the issue of his medical unsuitability and two years since the Berkeley Postmaster's letter of July 31, 1990 before appealing his back pay claim. ANALYSIS AND FINDINGS This matter involves the question of the agency's compliance with the relief afforded on its finding of discrimination. In this regard, where a finding of discrimination has been reached by the agency, the Commission retains jurisdiction over any remedial issues arising from such a finding, including the matter of the agency's compliance with the remedial action granted in its FAD. Barbara J. Jelks v. USPS(WR), EEOC Request No. 05910608 (September 12, 1991). The appropriate course of action for an appellant who believes that the agency has failed to carry out the remedial action it ordered in its FAD lies in a direct appeal to the Commission regarding such noncompliance pursuant to 29 C.F.R. 1613.231(a)(3) of the Commission's regulations. Barbara J. Jelks v. USPS(WR), supra. The relative timeliness of such an appeal is an issue that must be determined on a case by case basis with due regard for the specific factual circumstances presented. In such appeals, the appropriate question to be answered regarding timeliness is whether the complainant acted in a manner that demonstrates a prudent regard for his/her rights. Id. First, this decision will consider the agency's claim that appellant's appeal of the remedial action provided by the agency is untimely filed. The agency argues, on appeal, that appellant waited three years to appeal the agency's February 8, 1989 letter regarding his alleged unsuitability for the Distribution Clerk position at the Berkeley facility and two years to appeal the Postmaster's July 1990 letter indicating his belief that appellant was not entitled to back pay. We find that the agency's arguments on this point are erroneous, in that the record plainly reflects that appellant initially appealed the agency's alleged failure to carry out the proper remedial action to the Commission in December 1989. Further, the agency's February 8, 1989 letter to appellant did not indicate that it was, in any respect, a final decision of the agency not to offer employment to appellant. In fact, the letter expresses a willingness to reconsider this decision if appellant had 'any thoughts on the matter' and stated only that appellant would not be offered a position 'at this time.' The record further indicates that during the period of time between the agency's February 1989 letter and appellant's December 1989 appeal, appellant was occupied in attempting to obtain a decision from the agency regarding his backpay award. Also, the Commission finds that the Berkeley Postmaster's July 1990 letter to the Minneapolis Data Center clearly does not, in any manner, constitute a final agency decision on the matter of appellant's back pay award. Finally, the record indicates that after the April 1990 closure of his first appeal to the Commission, appellant repeatedly sought a final decision from the agency regarding its failure to afford him the subject remedial action. Receiving no such determination, appellant properly filed this appeal, thus acting in a manner that demonstrates a prudent regard for his rights. Jelks, supra. In view of the foregoing circumstances, the Commission finds appellant's appeal of these remedial action issues timely. We now proceed to address the substance of appellant's appeal. In the case before us, appellant seeks a determination of the agency's compliance with the relief ordered in its FAD. The May 19, 1988 FAD directed that appellant be awarded the next opening for a distribution clerk in the Berkeley Post Office and back pay from the date of his interview on July 10, 1982. Appellant contends that the agency has not complied with the remedial provisions in the FAD. Where a finding of discrimination is made, an appellant is entitled to be made whole for economic injury due to the agency's discriminatory action. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1977). Thus, an appellant should be compensated for all times when he/she is available to work. Further, 'make whole' relief for an appellant who has been improperly nonselected for a particular position based upon unlawful discrimination clearly includes an unconditional offer of employment in the subject position or a substantially equivalent position. See 29 C.F.R. 1613.271(a)(3), 1614.501(a)(3). There is no requirement that the victim of discrimination receiving that position submit to a fitness for duty examination as a precondition of receiving the relief to which he/she is entitled. Therefore, the Commission finds that the agency has acted improperly in requiring appellant to submit to such an examination as a precondition to making him the offer of employment it clearly awarded to him in its May 1988 FAD. While the agency argues that the Medical Officer's 1985 and 1988 unsuitability determinations indicate that appellant would not be able to perform the essential functions of the Distribution Clerk position, this does not eliminate its legal obligation to implement the relief adopted in the FAD. Also, the Commission notes that notwithstanding the MO's 1985 determination, which the agency now asserts indicated that appellant could not have performed the duties of the Distribution Clerk position, the agency's 1988 FAD clearly stated that appellant would be offered the position. Despite the agency's unequivocal promise in that FAD, no such offer has been forthcoming. Moreover, the agency's 1985 and 1988 determinations appear to be mainly based upon the MO's view that appellant's medical history indicates he would be prone to sustain injuries that would prevent him from performing the essential functions of the position rather than upon any clear indication that his present limitations preclude his ability, with or without reasonable accommodation, to perform the essential functions of the subject position or a substantially equivalent position. Although the agency's MO also bases his 1988 decision to find appellant unsuitable for employment on the limitations set forth by physician No. 2 in his OWCP report, there is no medical evidence in the record stating that these particular limitations are permanent in nature and there is also no indication from the record that the agency, in any respect, explored means by which such limitations might be accommodated.7 Furthermore, although the agency has indicated that the duties of the Distribution Clerk position at the Berkeley facility have been altered in some manner, the record does not conclusively establish that the job appellant sought or a substantially equivalent position does not exist. Based on the foregoing, the Commission finds that the agency has improperly failed to afford appellant the 'make whole' relief he is entitled to by virtue of the agency's finding that he has been discriminated against in his July 1982 nonselection for a Distribution Clerk position at the agency's Berkeley facility. Therefore, the Commission orders that the agency immediately offer appellant a Distribution Clerk position at the Berkeley facility or a substantially equivalent position with retroactive seniority and appropriate benefits. If the Distribution Clerk position that appellant initially applied for is no longer available, the agency may offer appellant a substantially equivalent position at another facility within a reasonable commuting distance. With regard to appellant's back pay claim, the agency denies compensation on the grounds that appellant received interim earnings and he was otherwise unavailable for work. The record shows that during the back pay period, appellant received wages and payments under claims of worker's compensation, state disability compensation and unemployment compensation. The agency seeks to deny appellant's entitlement to back pay on the basis of these receipts. The Commission has determined that certain interim earnings may be deducted from gross wages. See 29 C.F.R. Part 1613, App. A, Policy Statement of Remedies and Relief for Individual Cases of Unlawful Discrimination. The Commission has held that with regard to unemployment compensation, such payments may not be deducted from a back pay award. Collick-Brown v. Department of the Navy, EEOC Appeal No. 01910904 (March 26, 1991). In Collick-Brown, the Commission indicated that it relied on the Third U.S. Circuit Court of Appeals decision in Craig v. Y & Y Snacks, Inc., 721 F.2d 77 (3d Cir. 1983), which held that although the legislative history of Title VII did not specifically address whether unemployment compensation is to be regarded as deductible 'interim earnings,' guidance could be found in the National Labor Relations Board (NLRB) practice of awarding back pay. The Court held that since the NLRB's refusal to deduct unemployment benefits has been upheld by the United States Supreme Court,8 and the Title VII back pay provision was based on the NLRA's back pay provision, employers in Title VII cases could not deduct unemployment compensation as an offset from back pay awards. Craig, 721 F.2d at 82-85. With regard to compensation under worker's compensation laws, the courts have held that back pay remedies for discrimination are not precluded so long as relief does not result in double recovery for wages. Miller v. Bolger, 802 F.2d 660, 664 (3d Cir. 1986); Davis v. USPS, EEOC Petition No. 04900010 (November 29, 1990). In calculating back pay awards, therefore, that portion of worker's compensation payments attributable to lost wages should be deducted from gross back pay. Wreford v. USPS, EEOC Request No. 05890055 (June 29, 1989); EEOC v. Blue and White Service Corp., 674 F. Supp. 1579 (D. Minn. 1987).9 Finally, the Commission notes that at least one federal court has found that state disability benefits may be offset from a back pay award pursuant to a finding of disability discrimination under a state Fair Employment and Housing Act. See Ackerman v. Western Electric Company, Inc., 643 F. Supp. 836 (N.D. Cal Dist. Ct. App. 1986), aff'd, 860 F.2d 1514 (9th Cir. 1988). Therefore, we find that the agency may properly deduct such benefits from appellant's back pay award. The agency further argues that because appellant was collecting worker's compensation and state disability benefits, he was incapacitated for employment and not available for work. Appellant contends that he was available since incapacity for one job did not render him incapacitated for work at the agency. The agency is not required to compensate appellant for periods when he was not able to perform the Distribution Clerk position. However, it cannot deny back pay solely on the basis that appellant's receipt of any amount of worker's compensation benefits for his inability to perform the duties of the machinist position at Mare Island, rendered him unavailable for work in the Distribution Clerk position. The agency must determine, based on an examination of appellant's medical records, medical status, and the job requirements, if and when he was not able to perform the position and unavailable for work during the periods that he collected OWCP or state benefits before it can deny him back pay for such periods. The agency carries the burden of proof to show that appellant was not ready, willing and able to work. See Day v. Mathews, 530 F. 2d 1083, 1085 (D.C. Cir. 1976); Kaplan v. International Alliance of Theatrical and Stage Employees, etc., 525 F.2d 1354, 1363 (9th Cir. 1975). In this regard, the agency is advised that Title VII and the Rehabilitation Act place a statutory duty on the individual who was discriminated against to mitigate the employer's damages by making a reasonable effort to find other suitable employment. Rhodes v. United States Postal Service, EEOC Petition No. 04900002 (January 4, 1990). In order to fulfill this duty to mitigate, appellant is required to seek substantially equivalent positions, that is, positions that afforded virtually identical promotional opportunities, compensation, job responsibilities, working conditions and status as the position of which appellant was discriminatorily deprived. See Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1527 (11th Cir. 1991); Sellers v. Delgado Community College, 839 F.2d 1132, 1138 (5th Cir. 1988). The agency must prove that petitioner failed to exercise reasonable efforts to find work. In order to meet its burden, the agency must prove by a preponderance of the evidence that: (1) the damage suffered by appellant could have been avoided, i.e., that there were suitable positions available which appellant could have discovered and for which he was qualified; and (2) appellant failed to use reasonable care and diligence in seeking such a position. Ann C. Ferguson v. United States Postal Service, EEOC Appeal No. 01912608 (December 16, 1991) request to reopen denied, EEOC Request No. 05920329 (June 30, 1992); Patricia L. Truran v. United States Postal Service, EEOC Request No. 05901087 (December 28, 1990). The reasonableness of appellant's diligence must be evaluated in light of the individual characteristics of the appellant and the job market. See Sellers v. Delgado Community College, 907 F. 2d 1189, 1193 (6th Cir. 1990); Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614, 624 (6th Cir. 1983). For those periods when appellant was available for work at the agency, and for which the agency has not proven that appellant failed to mitigate his damages, the agency must afford appellant his back pay less those payments that may lawfully be excluded from gross back pay, i.e., the portions of worker's compensation benefits attributable to wages and state disability benefits. We are cognizant that appellant has not been completely cooperative with the agency in its attempts to calculate his back pay. Nor has the agency acted with due speed in processing the information which has been made available to it. Nevertheless, the agency must revisit its back pay determination and provide appellant a thorough and comprehensive analysis of his back pay claim, including documentary support for any specific period for which back pay is denied. Appellant's obligation, likewise, does not cease; we direct him to cooperate fully with the agency by promptly providing any and all information, documentation, and releases that may be requested. CONCLUSION Accordingly, the agency's decision is VACATED AND REMANDED. ORDER (D1092) The agency is ORDERED to take the following remedial action. (1) The agency is directed to offer appellant the Distribution Clerk position at issue or a substantially equivalent position within reasonable commuting distance within ten days of the agency's receipt of this decision. If appellant accepts this offer, he shall be afforded retroactive seniority and benefits he would have accrued if he had served in the present position as of the date in July 1982 on which he would have entered on duty if he had been selected. The agency shall make every effort to provide appellant with reasonable accommodation, if necessary for him to assume the essential functions of the subject position. (2) The agency shall determine the appropriate amount of backpay for the time period from July 10, 1982 until the date of appellant's entry on duty into the Distribution Clerk position, or if appellant declines the agency's offer of employment, the date that the offer is declined by appellant (with interest) and other benefits due appellant, pursuant to 29 C.F.R. 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The appellant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay, interest, 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.' (3) 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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K1092) 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. 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 this complaint. 29 C.F.R. 1614.501(3). 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 (3) 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1092) 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. RIGHT TO FILE A CIVIL ACTION (R/A1092) 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: (1) WITHIN THIRTY (30) CALENDAR DAYS of receipt of the final decision by the agency on your complaint subsequent to this remand; or (2) AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your complaint with the agency, or your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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 (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: Frances M. Hart Executive Officer Executive Secretariat Footnotes 1 29 C.F.R. Part 1614 (57 Fed. Reg. 12634) became effective October 1, 1992. This rule revises the way federal agencies and the Equal Employment Opportunity Commission will process administrative complaints and appeals of employment discrimination filed by federal employees and applicants for federal employment. However, since the events giving rise to this complaint occurred prior to the effective date of Part 1614, the Part 1613 regulations are applicable to this appeal. 2 The record also contains a December 17, 1985 medical examination determination by the agency's MO conducted for the purpose of determining appellant's medical suitability for the Distribution Clerk position. In this determination letter, the agency's MO found appellant to be medically unsuitable for the position of Distribution Clerk at the Berkeley facility. The MO indicated that he was disregarding the results of an examination by another physician, which offered no specific medical findings and characterized appellant as a healthy person. The MO instead found appellant to be medically unsuitable for the Distribution Clerk position based upon his past medical history of easy bruiseability, knee, thigh, and ankle surgeries, mid and lower back problems, surgical correction of bilateral carpal tunnel syndrome, and the possibility that appellant was suffering from a connective tissue condition known as Ehler's-Danlos syndrome, which had been associated with spontaneous bleeding into the joints, skin, and tissue. The MO noted that notwithstanding appellant's continued participation in sports and the fact that he had previously worked as a machinist at the Mare Island Naval Shipyard, appellant's medical history indicated that he would be prone to a significant on-the-job injury and/or having an exacerbation of his disease process. 3 On December 2, 1984, appellant filed a claim for worker's compensation under Claim No. A13-765027 when he injured his wrist in August 1984 while employed at the Mare Island Naval Shipyard. This claim was rejected on August 10, 1988, as unrelated to his employment situation. It is this condition which is the subject of the doctor's statement dated October 27, 1988. 4 While this report was filled out utilizing the OWCP duty status report form, there is no indication in the record that it was filled out and submitted to OWCP in connection with a particular OWCP claim. The record does reflect, however, that appellant was awarded workers compensation benefits in connection with a January 21, 1983 on-the-job injury. 5 The Postmaster contended, that during the backpay period from July 1982 through February 1989, appellant was not entitled to any backpay for the following reasons: (1) Appellant earned more compensation working at the Mare Island Naval Shipyard during a portion of 1983 than he would have earned if he had worked at the agency and also earned some compensation during 1987 while working for Pacific Business Data Corporation; (2) Appellant was disabled from duty during portions of 1983 and 1984 as a result of an on-the-job injury he sustained at the Mare Island facility on January 21, 1983 and therefore was not ready, willing, and able to work at those times; (3) Appellant was disabled for portions of 1984 due to corrective surgery for non-job-related carpal tunnel syndrome and was therefore not ready, willing, and able to work at those times; (4) Appellant collected unemployment compensation during several periods of time from 1985-1988, after his March 29, 1985 termination from his Machinist position at Mare Island for disability reasons; (5) Appellant collected OWCP benefits for disability from his machinist position at Mare Island during 1985 and 1986. (6) He collected state disability benefits for portions of 1987; (7) He was determined by the agency's MO to be medically unsuitable for the Distribution Clerk position in 1985 and 1989. 6 In support, appellant enclosed physician No. 1's October 27, 1988 report. By letter dated December 6, 1990, the agency rejected the relevance of this report, which it had previously reviewed. 7 The agency is advised, that it is not obligated to keep appellant in the Distribution Clerk position, if it becomes clear after he reports for work, that he cannot perform its essential functions with reasonable accommodation. 8 NLRB v. Gullett Gin Co., 340 U.S. 361 (1951). 9 In EEOC v. Blue and White Service Corp., the Court distinguished between worker's compensation and unemployment compensation by explaining that workers compensation is awarded in two separate components, lost wages and reparations for physical impairment. Id. at 1583.