Ernesto Abordo, et al. v. United States Postal Service
07A20066
11-06-03
.
Ernesto Abordo, et al. & the Estate of James Yell,
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A20066
Agency Nos. 1F941914497A-W & 1F941006798
Hearing Nos. 370-99-X2586-X2613 & 370-99-X2537
DECISION
INTRODUCTION
Following its March 22, 2002 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405.
After holding a hearing, an EEOC Administrative Judge (AJ) ruled that the
agency retaliated against 28 complainants<1> on the bases of previous
EEO activity by involuntarily transferring them to the San Francisco
Postal Data Center (SFPDC), and by subjecting them to ongoing adverse
actions after the transfer. The AJ also ruled that the agency failed
to reasonably accommodate seven of the complainants.<2> In addition,
the AJ ruled that the agency was liable to complainants for back pay,
compensatory damages, and attorneys fees. On appeal, the agency requests
that the Commission affirm its rejection of the AJ's decisions finding
liability and awarding relief.
ISSUES PRESENTED
Whether the AJ's findings that the agency retaliated against all 28
complainants because of their previous EEO activity in connection with
their transfer from four postal facilities in the San Francisco district
to the SFPDC on July 15 and 16, 1997 are supported by substantial evidence
of record.
Whether the AJ's findings that the agency denied reasonable accommodation
to complainants David Spector, Alfred Chircop, Jessie Byrd, Richard
Foley, Irving Hacker, Joseph Smith, and Yvonne Smith are supported by
substantial evidence of record.
BACKGROUND
Complainants contacted an EEO counselor on September 2, 1997, and filed
separate formal complaints on October 7th, each of which raised identical
claims. They identified the district director, the postmaster, and
the customer services manager as the responsible officials. The agency
investigated the complaints and thereafter referred them to the AJ for
a consolidated hearing. Due to the size of the investigative record and
the number of witnesses, a bifurcated hearing was held. In January 2002,
the AJ issued decisions finding liability and awarding various remedies.
This case grew out of a decision made by the agency's national
headquarters to phase out the special delivery function, and with it,
the special delivery messenger craft. In January 1991, the agency's San
Francisco District Office made the decision to dismantle the special
delivery unit (SDU) located in the SFPDC and to reassign special delivery
messengers to various facilities in the San Francisco district. In August
1991, the special delivery messengers who were affected by that decision
collectively filed an EEO complaint, which was held in abeyance in April
of 1994, pending the outcome of a parallel union grievance. On June 10,
1997, the arbitrator issued his decision on the grievance which resulted
in the 1991 complaint being reactivated on July 30, 1997.<3>
Between June and early July of 1997, the customer services manager
conducted a review of the special delivery function. On the basis of
the information contained in this review, the district manager made
the decision to abolish the special delivery craft and to transfer
the messengers from the various post offices in the San Francisco
district to the SFPDF, in order to provide them with work opportunities.
The transfers were carried out on July 15 and 16, 1997.
The AJ found that the transfer constituted reprisal for the 1991
complaint, and that after complainants were transferred to the SFPDC,
they were subjected to various adverse actions between 1997 and 2000,
including: being forced to work in unsanitary conditions; being subjected
to demeaning treatment by their new supervisors; being denied overtime
opportunities; and being denied opportunities to deliver express mail.
The AJ also found that complainants Spector, Chircop, Byrd, Foley,
Hacker, J. Smith, and Y. Smith were denied reasonable accommodations
for their disabilities.
ANALYSIS AND FINDINGS
On appeal, the agency challenges the AJ's liability findings and order
for relief on the merits. 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).
An AJ's conclusions of law are subject to a de novo standard of review,
whether or not a hearing was held.
ISSUE (1) - REPRISAL
Where reprisal is at issue, complainants must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and applied to reprisal in Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). They must initially
establish a prima facie case by demonstrating that they were subjected
to an adverse employment action under circumstances suggesting a
retaliatory motivation on the part of the agency officials identified
in the complaint. Furnco Construction Co. v. Waters, 438 U.S. 567, 576
(1978); Shapiro v. Social Security Admin., EEOC Request No. 05960403
(Dec. 6, 1996). They may do so by showing that: (1) they engaged
in a protected activity; (2) the agency was aware of that protected
activity; (3) subsequently, they were subjected to adverse actions by
the agency; and (4) a nexus exists between the protected activity and
those adverse actions. Whitmire v. Department of the Air Force, EEOC
Appeal No. 01A00340 (September 25, 2000).
In finding that a causal connection existed between the 1991 complaint and
the decision to transfer complainants to the SFPDC, the AJ determined
the relevant date of the prior EEO activity to be June 10, 1997.
According to the AJ, the 1991 complaint was reactivated because the
arbitrator's decision did not fully resolve the matters at issue in
that prior complaint. The AJ also found that a causal connection
was established by the fact that complainants were the only employees
throughout the San Francisco district who were prohibited from delivering
express mail between July of 1997 and March of 2000. After reviewing the
record, and for the reasons discussed below, we find a lack of substantial
evidence to support the finding of the existence of a causal connection
between the adverse actions complained of and the 1991 complaint.
We address the timing issue first. The Supreme Court indicated that
actions in which an employee does not participate cannot constitute
protected activity. See Clark County School District v. Breeden,
532 U.S. 268, 273 (2001) (“The Ninth Circuit's opinion did not adopt
respondent's utterly implausible suggestion that the EEOC's issuance of
a right-to-sue letter – an action in which the employee takes no part
– is a protected activity of the employee,” . . .). The issuance of
the arbitrator's decision on June 10, 1997, like the EEOC's issuance of
the right-to-sue letter in Breeden, is an action in which none of the
complainants took part, and therefore cannot constitute prior protected
EEO activity. Moreover, the issuance of the arbitration decision and the
reactivation of the 1991 complaint were two separate events. This is
confirmed in the AJ's decision on the 1991 complaint, in which the AJ
states that the reactivation of the 1991 complaint occurred on July 30,
1997, two weeks after complainants were transferred to the SFPDC.<4>
Thus, the reactivation of the complaint could not have constituted
complainants' prior protected activity. The last time before the July
1997 transfer that the 1991 complaint was active was in April of 1994,
over three years earlier. Such a time frame precludes the possibility
of a causal connection. See Breeden, 532 U.S. at 273-74 (Action taken
20 months later suggests, by itself, no causality at all).
We now address the issue concerning express mail deliveries. The factual
record in this case does show that the former special delivery messengers
were the only employees who were not given the opportunity to deliver
express mail. The record also shows, however, that there were eight
former special delivery messengers among the complainants who were not
a party to the 1991 complaint.<5> None of these individuals were given
opportunities to deliver express mail. This alone undermines a finding
that complainants' participation in the 1991 complaint was a causative
factor in the agency's refusal to allow them to deliver express mail.
Other factors likewise undermine the AJ's causality finding. In addition
to not being allowed to deliver express mail, complainants alleged
that they were subject to other adverse actions after the transfer.
As previously noted, those adverse actions included being forced to work
in a dust-laden environment, being forced to use dirty and unsanitary
bathrooms, being treated in a harsh and demeaning manner by their
supervisor at the SFPDC, and being denied the opportunity to sign up
for overtime work. All of these allegedly adverse actions began after
complainants' transfer to the SFPDC, but before they reactivated their
1991 complaint. The AJ does not identify specific incidents tending to
show that complainants were treated any differently after the transfer
than before, or that they were treated differently than other employees
who worked at the SFPDF.
In addition to the foregoing, we note that none of the officials who were
named in the instant complaint were identified as responsible officials
in the 1991 complaint. Therefore, when taken together and considered as
a whole, the evidence of record does not support an inference of a causal
connection between complainants' 1991 EEO complaint and their transfer
to the SFPDF or any of the actions that occurred afterward. We turn
now to the AJ's findings on the issue of reasonable accommodation.
ISSUE (2) - DENIAL OF REASONABLE ACCOMMODATION
The AJ found that, in refusing to allow complainants Spector, Chircop,
Byrd, Foley, Hacker, J. Smith, and Y. Smith, to return to doing express
mail deliveries, the agency failed to provide them with a reasonable
accommodation. The AJ found that each of these complainants was an
individual with a disability, that each was a qualified individual
with a disability because he or she was able to perform the duties of
the messenger position, and that by not giving express mail delivery
opportunities to these complainants when such work was available,
the agency denied them a reasonable accommodation. After reviewing
the record, and for the reasons discussed below, we find that the AJ's
conclusions are not supported by substantial evidence. We will discuss
each complainant individually.
David Spector: To bring a claim of failure to reasonably accommodate a
disability, a complainant must first establish that he is an individual
with a disability within the meaning of the Rehabilitation Act. An
individual with a disability is one who has, has a record of, or is
regarded as having a physical impairment that substantially limits one or
more of her major life activities. 29 C.F.R. § 1630.2(g). Major life
activities include functions such as caring for one's self, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. 29 C.F.R. § 1630.2(i). Other major life activities include,
but are not limited to sitting, standing, and lifting. 29 C.F.R. § 1630,
Appendix to Part 1630 - Interpretive Guide on Title I of the Americans
with Disabilities Act, § 1630.2(i). In July 1997, Mr. Spector was already
in a permanent limited duty assignment due to the residual effects of
several herniated discs in his spinal column. Mr. Chircop testified that
in July of 1997, his limitations included: lifting above 35-40 pounds;
alternate standing and sitting; and no overhead work due to tendonitis in
the shoulder. HT2 1023. He also testified that he sometimes experienced
numbness in his right hand, and that he sometimes had problems writing.
HT2 1024. The Commission has held that an inability to lift 25 pounds
does not establish that the individual was substantially limited in the
major life activity of lifting. Ricks v. United States Postal Service,
EEOC Petition No. 03990009 (September 6, 2000). Mr. Spector has likewise
failed to provide details with respect to any of his other limitations,
such as how long he had to sit or stand before alternating or how long
he was unable to write. Medical documentation pertaining to Mr. Spector
indicates that he was treated for dyspepsia, and that in June of 1998,
he was in continuation of pay status due to hernia-related pain.
The record thus does not support a finding that Mr. Spector was
substantially limited in his ability to sit, stand, reach, or write.
We therefore find that the AJ erred in concluding that Mr Spector was an
individual with a disability under the Rehabilitation Act in July of 1997.
Alfred Chircop: At the time of the transfer in July 1997, Mr. Chircop
had tendonitis and rotator cuff problems. His medical restrictions
included engaging in repetitive motion and lifting more than 25 pounds.
HT1 169-70, HT2 31-34. For the purpose of this analysis, we will
assume that Mr. Chircop is an individual with a disability. We must
now determine whether he is a qualified individual with a disability.
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 the first place, the AJ erred
in identifying the special delivery position as the position in question.
That position had been abolished. The position in question was the clerk
position at the SFPDC, to which Mr. Chircop and the other complainants
were reassigned. Mr. Chircop testified that his restrictions precluded
him from sorting mail for any extended period of time, the core function
of the clerk position. HT1 169-70, HT2 61-62. He is therefore not
qualified with respect to the clerk position. The term “position”
includes not only the position actually held by the employee, however,
but also positions to which the employee could be reassigned. See Hampton
v. United States Postal Service, EEOC Appeal No. 01986308 (July 31, 2002).
To establish his entitlement to a reassignment, the employee must show
that a vacancy existed or was likely to open up during the relevant
time frame. See id. at p. 6 (“. . .complainant need only show that he
was qualified to perform a job which existed at the agency and that there
were turnover patterns in the relevant jobs so as to make a vacancy likely
during the relevant time period”). Mr. Chircop had submitted a request
for a temporary light duty assignment, but was informed on July 28, 1997,
that no such assignment was available. Between July and October of 1997,
he made inquiries every few weeks, but was repeatedly told that there was
no job available that conformed to his medical restrictions. HT1 172.
Mr. Chircop has not shown that a vacancy existed to which he could have
been reassigned. The AJ therefore erred in concluding that Mr. Chircop
was a qualified individual with a disability.
As to the remaining complainants, we will assume that they were
individuals with disabilities. Under the Commission's regulations, an
agency is required to make reasonable accommodation to the known physical
and mental limitations of a qualified individual with a disability unless
the agency can show that accommodation would cause an undue hardship.29
C.F.R. § 1630.9(a); Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, EEOC Notice
No. 915.002, 2-7 (October 17, 2002). For the reasons discussed below,
we find that the AJ erred in finding that the agency failed to reasonably
accommodate complainants Byrd, Foley, Hacker, Y. Smith, and J. Smith.
Jessie Byrd: Mr. Byrd's claimed disability was the residual effect of
injuries that he sustained in a 1989 accident. He was under a 10-pound
lifting restriction. HT1 662, HT2 1089. The agency allowed Mr. Byrd
to remain at the Napoleon Street facility and answer the telephone.
He did so between July 15, 1997, and August of 2000, at which time he
resumed delivering express mail. HT1 663, HT2 1096-97, 1103-04. We find
that the agency reasonably accommodated Mr. Byrd.
Richard Foley: Mr. Foley injured his back in an accident. He was unable
to walk without experiencing significant leg pain, and was restricted
in sitting and standing. After the transfer, he was assigned to a
mail-sorting position at the SFPDF. The position required Mr. Foley
to use an elevated rest bar, but he was unable to continue doing so
after several months because of the intense pain he was experiencing.
Management allowed him to use a flat restbar after he presented a doctor's
note indicating that he needed one. HT1 272-74, HT2 196-98, 225. He
was also required to, “do the round-up,” which consisted of walking from
case to case, picking up mail, and putting it into carts. The extended
walking for up to 45 minutes further aggravated his impairment, and,
in December of 1997, after he presented another doctor's note, he was
excused from doing the round up. HT1 273-74, HT2 196-98. These were
the only accommodations that Mr. Foley asked for, and both requests
were granted. HT2 225. We therefore find that the agency reasonably
accommodated Mr. Foley.
Irving Hacker: Mr. Hacker experienced kidney failure and needed
dialysis treatments. Since the transfer in July of 1997, he was
given various light duty assignments. He was also given significant
flexibility regarding his need to sit and stand, and was also given
flexible scheduling around his dialysis treatments. HT2 484, 487, 505.
We therefore find that the agency reasonably accommodated Mr. Hacker.
Joseph Smith: Mr. Smith sustained a back injury in 1994, and experienced
tendonitis as a result of an on-the-job injury to his hand. A work
status report dated July 25, 1997, indicated that Mr. Smith was under
a lifting restriction of between 5 and 25 pounds, and could not engage
in repetitive motion with his right hand. He was restricted by his
physician from working more than 1.5 hours per day. HT1 196-97.
He stated at one point that he was unable to hold a piece of paper.
HT1 194. He also testified that he could not sit in a chair or stand
in one spot for too long without experiencing extreme pain. HT1 198,
HT2 95-96. The agency allowed him to work in the primary letter sorting
operation at the SFPDC, and to remove any mail from circulation that did
not have stamps. HT1 199-200. He was not required to work longer than
an hour and a half per day. HT1 196, 200. After reviewing the record,
we find that the agency provided Mr. Smith with a reasonable accommodation
that was consistent with his medical restrictions.
Yvonne Smith: Ms. Smith sustained a back injury as a result of a
traffic accident in 1984, and reaggravated that injury in March of 1997.
She was unable to lift more than 20 pounds. HT2 675-77, 700. For the
first three months after the transfer, she was not given any work to do,
but remained in a pay status. After three months, she was sent over
to the expedited services unit within the SFPDC, where she was given
work that entailed answering customer complaints and helping out with
express mail. She was allowed to use a special chair in her work area,
pursuant to a doctor's prescription. HT1 443-44, HT2 713. We therefore
find that the agency reasonably accommodated Ms. Smith.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order
finding no discrimination.
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 (S0900)
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. 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 (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
__11-06-03________________
Date
1The complainants are: Ernesto Abordo; Chester
Blanson; Caesar Borela; Jessie Byrd; Thomas Chan; Alfred Chircop; Philip
Dancel; Steve Ferreboef; Richard Foley; Lucky Fong; Georgette Gibbons;
Charles Goodrich; Irving Hacker; Jane Hamataka; Richard Harrington;
Robert Huey; Gregory James; Vincent Marcelinni; Jeffrey McNevin; Michael
Sampson; Marston Schultz; Joseph Smith; Yvonne Smith; Michael Sneathen;
David Spector; Sedalia Thomas; Lee Williams; and James Yell. Mr. Yell
passed away in 2002, and his estate was substituted as a party.
2 Those complainants include: David Spector; Alfred Chircop; Jessie Byrd;
Richard Foley; Irving Hacker; Joseph Smith; and Yvonne Smith.
3In July of 1999, the AJ assigned to hear the 1991 complaint, who is
also the AJ who heard the instant complaint, issued a decision without
a hearing finding in favor of the agency. The complainants in the 1991
complaint, most of whom are parties to the instant complaint, sued the
agency in Federal court, and in September of 2002, the court granted
the agency's motion for summary judgment.
4 See Robert Black, et. al., v. United States Postal Service, EEOC
Hearing Nos. 370-98-X2335 - X2363 (March 21, 2002), p. 12 (On July 30,
1997, following the arbitration decision, the complainants renewed their
requests for a hearing. . .).
5Those complainants include: Ernesto Abordo, the named complainant herein;
Jessie Byrd; Thomas Chan; Lucky Fong; Jane Hamataka; Marston Schultz;
Joseph Smith; and James Yell.
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