postalreporter - Postal Employees Newsletter --EEOC

Medical Examinations - Disability-Related
posted 9/5/02

Date Issued: August 23, 2002

Summary:

After an employee informed a supervisor that he felt threatened and that he was "being watched all the time", the supervisor sent a request to the area medical director for a fitness for duty exam. After examinations by a psychiatrist and a psychologist, the employee was found fit for duty although the psychiatrist sent a letter expressing concern about the employee's emotional stability. Both doctors recommended further treatment with a re-evaluation in one year. However, the area medical director informed the agency that the complainant could return to duty with the restriction that he seek psychiatric services at his own expense and report his progress in counseling monthly.

The employee balked at being required to pay for counseling when he was found to be fit for duty. The employee was placed in a non-duty status and then subsequently removed for failure to comply with the directive. More than a year later the employee received an evaluation rating him "unsatisfactory" although he was eligible to be rated "not rated" because he did not work during the rating period. (Because of the pending EEO complaint the employee was maintained in a "non-duty" status after his termination.)

The EEOC found that the agency did have a reasonable belief that the complainant either could not perform his job or posed a direct threat to himself or others and the referral for a fitness for duty exam was appropriate. However, because the complainant had been declared fit for duty he was no longer a threat. The additional requirements to seek psychiatric care and to report progress monthly were imposed after the employee was found fit for duty. Consequently, the agency was bound by the same requirements to demonstrate that the requirements were consistent with business necessity and whether the agency had a reasonable belief that the employee could not perform his job or posed a direct threat due to a medical condition. The EEOC found that the agency had no reasonable belief. He was determined fit for duty by doctors the agency had chosen, there was no evidence that he was unable to do his job, and there was no evidence co-workers were fearful of him. As a result, the agency violated the Rehabilitation Act by requiring the subsequent medical examinations.

The EEOC also reminded the agency that an employer may not discipline an employee for failing to comply with an improper request for medical information. As to the "unsatisfactory" rating, the EEOC found the rating constituted unlawful retaliation because the agency was unable to articulate any legitimate, non-discriminatory reason for giving an "unsatisfactory" rating when the employee was qualified for a "not rated" rating.

The EEOC ordered the agency to retroactively restore the employee with back pay and benefits due, expunge all references to his removal, change the rating, provide sixteen hours of training, and conduct a supplemental investigation on compensatory damages.

posted 7/13/02

Pay Reduction - Disparate Treatment

Date Issued: May 23, 2002

Summary:

An employee received a medical restriction providing she be allowed to sit for five minutes for every hour she worked. After the agency received the restrictions, it began to reduce the employee's pay by 30 minutes per day. The reduction was made for seven months, until the Department of Labor, Wage and Hour Division stepped in and ordered the agency to repay the employee. The employee filed a complaint seeking punitive and compensatory damages.

The Commission, reversing, the agency, found that the pay reductions occurred because of the employee's request for an accommodation. The Commission held the agency unlawfully retaliated against the employee for requesting an accommodating (sitting down) by reducing her pay for time that she actually worked. As a result the employee was not paid for all the time she worked, which constitutes an adverse employment action, what the Commission termed an "obvious type of retaliation". The Commission found no merit to the agency's articulated reason, that it was attempting to recoup break-time since the agency reduced her pay even though she did not always take the breaks.

The Commission ordered the agency to pay the employee for the hours she worked but was not paid after she requested an accommodation and remanded the matters of compensatory damages and attorney fees to the agency.

Reasonable Accommodation

Date Issued: June 12, 2002

Summary:

The agency was required to pay damages for failure to provide a chair... a Postal Service employee suffering from "planter's warts" requested a chair as an accommodation. Instead, the agency reassigned her to a limited duty position. However, the position to which she was reassigned did not provide the employee the opportunity for overtime. After going out of her way to try to resolve the problem with the agency, even to the point of the employee fixing a broken chair, the employee finally filed a complaint.

The Commission was not at all sympathetic to the agency. In no uncertain terms the Commission found that the agency "did nothing to help accommodate" the employee. As the Commission noted, providing a chair would not pose any hardship on the agency.

Regarding overtime, the agency argued that all the available overtime was in units that required standing and walking, but were unavailable to the employee because she exceeded her standing/walking limitation during her regular hours. The Commission did not find this excuse amusing. As the Commission noted, if the agency had provided her a chair during her regular hours she would not have exceeded her standing/walking limitation. Because it was the agency's failure to provide an accommodation that prevented the employee from working overtime, the Commission included an overtime award in its Order.

Reassign an employee instead of simply providing a chair cost the agency back pay with interest, including overtime, eight hours of training, and a remand for a hearing on compensatory damages and attorney fees. And, the agency was ordered to provide the employee with a chair.

posted 6/30/02

Rehabilitation Act 1973

A postal employee was diagnosed as a paranoid schizophrenic in 1980, some nine years before he began working as a window clerk for the Postal Service.

In February 1993, the employee's psychiatrist declared him unfit to work because his work environment worsened his condition. Six months later, the employee went to the post office and threatened one of his former co-workers. The co-worker told the postmaster about the incident and another co-worker contacted the police.

When police officers came to investigate the incident, the postmaster advised them of the postal employee's condition, adding that he had been discharged from the Air Force because of his condition and that he had a disability case pending against the agency.

The postmaster also told officers that the postal employee had weapons in his home. The postmaster made clear that she didn’t want any action taken against employee, but did want to make the officers aware of the threat employee had made against his former colleague.

The employee learned about the police report three years later while pursuing an Equal Employment Opportunity complaint. He then claimed that the police report and the postmaster’s revelations were the reasons why he had been arrested on weapons violations and evicted from his apartment.

An administrative judge found that the employee rights were violated under the 1973 Rehabilitation Act. According to the law, his medical information should not have been revealed. The agency did not initially accept the judge’s decision. However, on appeal, the judge’s decision was upheld. The agency was then ordered to remove any reference to the police report from its records.

posted 4/30/02

Harassment - Disability-Based

Date Issued: February 21, 2002

Summary:

The complainant alleged that her supervisor continually harassed her at work by making derogatory comments about the complainant's hearing loss in front of other post office employees and patrons. In support of her EEO complainant alleging disability-based harassment, the complainant offered corroborating evidence from other coworkers. However, her supervisor denied knowing about the complainant's hearing impairment prior to this claim and making fun of the complainant, so the agency determined that there had been no discrimination.

The EEOC reviewed the case de novo and reversed the agency decision. The EEOC found that while there was evidence supporting the complainant's allegations that the supervisor knew of her hearing impairment and made derogatory comments, there was no evidence supporting the "[s]upervisor's self-serving denial of such incidents." Further, the Commission found that, based on the totality of the circumstances, the "repeated, and rather public, harassment by [the] [s]upervisor . . . was objectively and subjectively severe and pervasive enough to have created an intimidating, abusive, offensive, and hostile work environment." Finally, the EEOC held that the agency was vicariously liable for the supervisor's harassment. The agency had failed to establish an affirmative defense because it had not shown that it had exercised reasonable care to prevent and correct the harassment or that the complainant had not taken advantage of opportunities to prevent or correct the harassment.