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Improper Disclosure of Medical Info Qualified Individual with a Disability Denial of Reasonable Accommodation Mail Handler Denied Job Due to Weight Distribution Clerk Not a Direct Threat: |
MSPB: USPS was wrong in deducting Union dues from backpay Demotion Disciplinary Actions Preference Eligible Reduction in Force |
Supv. Files Suit over Forced Resignation USPS violated the Rehabilitation Act- Postal Supv's Suit vs USPS Dismissed Letter Carrier loses suit against USPS Deaf Employees Class Action vs USPS Reduction in force Preference Eligible Employer May Be Sued for Disclosing FMLA-Request Contents |
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(10/23/04) EEOC
Rejects Agency Award of $5,000.00 and Awards $150,000.00 in Non-Pecuniary
Damages. Complainant appealed from the agency's final decision awarding
compensatory damages in the amount of $5,000 in connection with
complainant's claims arising from discrimination in violation of Title VII
(retaliation) and the Rehabilitation Act (herniated disc), when, inter alia,
a supervisor went on a "crusade" to remove complainant from limited duty
status, force him to request light duty and submit medical documentation to
support that request. In addition, complainant filed a second complaint,
claiming that the agency issued him a Notice of Separation - Disability. In
both instances, the Commission found discrimination and ordered the agency
to conduct a supplemental investigation into complainant's entitlement to
compensatory damages.
EEOC found, in pertinent part, that complainant established a causal
connection between the discriminatory action and the resulting harm. Several
witnesses, including his psychologist, connected complainant's emotional
distress to the agency's adverse employment actions, which dated back to
1994. In this regard, the Commission noted the AJ's conclusion that the
evidence pointed to discrimination as the reason for the supervisor's
actions, including denying complainant the opportunity to return to work
starting in 1994, and then placing him on AWOL status and eventually
removing him from his position. EEOC found that complainant presented
sufficient evidence establishing that the agency's actions caused him
depression, social withdrawal, weight gain, anxiety, sleeplessness, feelings
of hopelessness, anger, paranoia, victimization, constant fear of
unjustified job loss, loss of self- esteem, severe financial strain, loss of
his home and future home, familial strain, and the added physical pain
associated with his herniated disc. Many of these symptoms lasted for at
least 8 years, and were expected to last indefinitely.
Kloock v. United
States Postal Service, EEOC Appeal No. 01A31159 (February 5, 2004).
The appellant was removed from his position as a Motor Vehicle Operator, effective May 8, 1999, based on the charge of threatening his supervisor. On appeal, the administrative judge (AJ) sustained some, but not all, of the specifications the agency cited in support of the charge, and found that the appellant had not established his claim of racial discrimination. The AJ mitigated the penalty to a 60-day suspension.
Eventually, the Postal Service granted Samuels $29,000 of the additional back pay he requested. But he filed another appeal with the Merit Systems Protection Board, arguing that the Postal Service owed him still more, because it improperly subtracted union dues and health insurance premiums from his back pay.
According to evidence he was a member
of both APWU and NAPFE at the time of his removal. He argues, however, that
he did not have the benefit of union representation during the period
following his removal, and that he never signed any document requesting that
union dues be taken out of his back pay award.
In a Sept. 26 ruling,
the MSPB decided that as of the day the Postal Service fired Samuels, he was
not responsible for paying union dues. Upon returning to work, he never told
the agency he wished to pay dues for the time he was absent, the board
reasoned.
The Federal Labor Relations Authority
found that an agreement for dues deduction authorization no longer applies
to an employee when his employment is terminated. In the FLRAs view,
an employees decision to become a union member and to pay union dues
through automatic payroll deduction is a voluntary decision, and that, in
the absence of any statutory or regulatory constraint requiring a different
policy, the purposes of its statute are best served by a policy which gives
to an employee who is reinstated after a determination that his removal was
unwarranted or unjustified the option of having his union membership
retroactively restored. In other words, if the reinstated employee so
chooses, he would incur a retroactive obligation for the dues not paid
during the period of his removal, and the union would be obligated to
provide him with any benefits which might have accrued to him as a union
member during that period. Alternatively, he should be given the option of
joining the union as if he were a newly hired employee, in which case his
obligation to the union would begin with the signing of a new dues
authorization form.
The board ordered the Postal Service to calculate the union dues subtracted
from Samuels back pay and reimburse him for that sum. However, the Postal
Service was right to subtract health insurance premiums from Samuels back
pay since he was still covered by the policy even during the period when he
was not working, the board ruled.
Samuels v. U.S. Postal Service, Merit Systems Protection Board (DE-0752-99-0260-C-1), Sept. 26, 2003
The law firm of Sheller, Ludwig & Badey, P.C., has initiated a
lawsuit against Bayer Co., the manufacturer of CIPRO, seeking relief for
affected employees who experienced side effects from its use, such as:
*tendon rupture
*seizures
*intestinal problems
*tendonitis
*anxiety
*insomnia
*muscle aches
*depression *miniscal tears
Complainant Not a Direct Threat: Discrimination Found. Complainant, a distribution clerk, had been treated for back problems over many years. A letter from complainant's most recent physician stated that he had a herniated disc, and he was advised not to lift objects weighing more than 20 pounds and to rest if the pain recurred. After conducting a fitness-for-duty examination, the agency informed complainant that the medical officer had assessed him as a moderate risk. The plant manager subsequently concluded that complainant's continued employment would not be in either complainant's or the agency's best interest and terminated complainant.
EEOC Administrative Judge concluded that the agency regarded complainant as being disabled and terminated him based on that perception. On appeal, the Commission agreed with the AJ that the agency regarded complainant as disabled, based upon its assessment that he could not lift more than 20 pounds, bend, or lean, as described in his medical documentation. The Commission noted complainant's uncontradicted testimony that, on the few occasions when he had to lift more than 20 pounds, he merely put on a back brace. EEOC also noted that complainant was subsequently reinstated into a distribution clerk position and thus concluded, as did the AJ, that complainant was a qualified individual with a disability under the Rehabilitation Act. The Commission found that the agency had failed to conduct an individualized assessment, taking into account the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. Accordingly, the Commission found that the agency had failed to show that complainant's continued employment in his distribution clerk position posed a direct threat, and that his termination violated the Rehabilitation Act. As part of the relief ordered, the Commission directed the agency to investigate complainant's entitlement to compensatory damages; reinstate him retroactively; determine back pay; and consider disciplining the responsible management officials. Arnow v. United States Postal Service, EEOC Appeal No. 07A10023 (November 15, 2002).
Complainant Unlawfully Denied Reasonable Accommodation. The Commission found that the agency violated the Rehabilitation Act when it failed to provide complainant, a deaf employee who uses sign language to communicate, with an interpreter during a safety talk. The Commission found no evidence to support a finding that the provision of interpreter services would have caused an undue hardship. EEOC also noted that the agency failed to provide evidence that it attempted to contract the services of an interpreter in contemplation of the safety talk. As part of the relief ordered, the Commission directed the agency to train its management officials as to their obligations under the Rehabilitation Act; to notify complainant of his right to submit objective evidence in support of his claim for compensatory damages; and to consider disciplining the responsible management official(s). Saylor v. United States Postal Service, EEOC Appeal No. 01A05281 (November 15, 2002); see also Holton v. United States Postal Service, EEOC Appeal No. 01991307 (November 7, 2002) (denial of services of interpreter for hearing impaired employee for presentation of new automation concept violated Rehabilitation Act).
Reduction-in-Force (RIF) : MSPB consolidated the appeals of six employees as the employees made similar allegations that they were demoted by USPS a reduction in force (RIF). The MSPB found that the employees either (1) did not have their positions abolished when they bid to and accepted lower-grade jobs, (2) had their jobs abolished but were never assigned to positions at a lower grade than their former positions, or (3) bid to and accepted lower-grade positions after their positions were abolished but without the agency ever having expressly told them that they would not be assigned to positions at their former grade levels. In none of these instances were the employees subject to a RIF demotion appealable to the MSPB under the applicable regulations and case law. Accordingly, the MSPB held that none of the appeals were within the MSPB's jurisdiction and dismissed each of the appeals. Burger, et al. v. United States Postal Service (2003),
Previous Decision: Burger v USPS, Docket Number DE-0351-00-0167-1-1, the board held that "even if the appellants bid to lower-level positions, they did so under circumstances clearly indicating that there were no positions at their current grade levels to which they were entitled under the collective bargaining agreement. In other words, the agency's demoting the appellants to lower-graded positions was the functional equivalent of confirming that there were no positions at their former grade levels to which they were entitled."
posted 6/21/03
Reduction-in-Force (RIF): Employee received notice that he would be involuntarily reassigned. Because he chose not to bid on any posted assignments, he was arbitrarily assigned to the automation section at his current pay and grade. Employee appealed this assignment to the MSPB, which dismissed the appeal for lack of jurisdiction. Employee argued that the agency conducted a reduction in force (RIF) when it reassigned him. The Federal Circuit Court affirmed the dismissal because employee was merely reassigned at the same pay and grade, not subject to a RIF, and reassignment of a preference eligible postal employee to a position at the same pay and grade is not appealable to the MSPB. Hoard v. U.S. Postal Service (Fed.Cir.2003)
Background: Hoard was a flat sorter machine clerk for the U.S. Postal Service in Portland, Oregon, when he received notice on June 29, 2001, that he would be involuntarily reassigned due to the impact of automation. Because he chose not to bid on any posted assignments, he was arbitrarily assigned to the automation section at his current pay and grade on August 31, 2001. On December 1, 2001, Hoard appealed this assignment to the board, which dismissed the appeal for lack of jurisdiction. Hoard argues that the Postal Service conducted a reduction in force (RIF) when it reassigned him. A RIF occurs when an agency "releases a competing employee from his or her competitive level by furlough for more than 30 days, separation, demotion, or reassignment requiring displacement." 5 C.F.R. § 351.201(a)(2). Because Hoard was merely reassigned at the same pay and grade, he was not subject to a RIF, and "reassignment of a preference eligible postal employee to a position at the same pay and grade is not appealable to the Board." See Roche v. U.S. Postal Serv., 80 F.3d 468, 471 (Fed. Cir. 1996). Accordingly, the board properly dismissed his appeal for lack of jurisdiction." An employee who has been furloughed for more than 30 days, separated, or demoted by a reduction in force action may appeal to the Merit Systems Protection Board." 5 C.F.R. § 351.901. 6/21/03
MSPB Supports Union's Position Veterans' Preference Issues
3/26/02
Last year, the national union initiated an appeals process providing legal assistance for members who are preference eligible veterans and who have suffered reductions in grade due to USPS excessing and reassignment. The reductions that occurred with the introduction of the FSM 100 and the TACS systems replaced higher-level preference eligible employees without affording them their rights under the law.
The Merit Systems Protection Board (MSPB), which has jurisdiction over these cases, recently ruled in support of the union's position in several of the early cases.
In Burger v USPS, Docket Number DE-0351-00-0167-1-1, the board held that "even if the appellants bid to lower-level positions, they did so under circumstances clearly indicating that there were no positions at their current grade levels to which they were entitled under the collective bargaining agreement. In other words, the agency's demoting the appellants to lower-graded positions was the functional equivalent of confirming that there were no positions at their former grade levels to which they were entitled."
In Blees v USPS, Docket Number CH-0351-01-0520-1-1, the board ruled that, "In Di Pietro, the Postal Service made the same argument it does here, that an assignment to a lower graded position with retained pay does not constitute a demotion. The board concluded that De Pietro suffered a demotion, notwithstanding his receipt of indefinite retained pay, with his assignment to a lower graded position. Accordingly, I find the agency released the appellant from his competitive level and assigned him to a lower-graded position without benefit of the RIF [reduction in force] procedures to which he was entitled."
In both cases the Postal Service cited the memorandum of understanding between the USPS and APWU permitting the reassignment of preference eligible employees to vacancies at the same level or at a higher level or to the position of the most junior non-preference eligible employee at the same grade. The board rejected this argument.
In Capece v USPS, Docket Number NY-0351-02-0042-1-1, the board found that, "the undisputed facts establish that the appellant voluntarily accepted a lower-graded position with saved pay. Granted, he was concerned that if he did not bid for a lower-graded position, the agency would have assigned him to another PS-6 position but on the night shift, despite the fact that he had worked on the day shift for several years. The fact remains that the agency assured him that he would have obtained a PS-6 position had he declined to bid for a lower-graded position. Thus, he understood that he had a choice. Simply because his choice was an unpleasant one does not render the action involuntary," the board said.
In its decisions the board has established clear precedents that preference eligible employees may not be removed from their competitive level with an offer of saved grade absent a RIF. The APWU National Agreement prohibits a reduction in force of protected employees.
Preference eligible employees who have suffered reductions in grade who have not initiated MSPB appeals should do so and contest management's right.
William Burrus
President
UPDATE #50 September 20, 2001 (APWU website)
Another BIG MSPB win for preference eligibles who were reduced in grade without the implementation of the RIF procedures. As previously reported in the UPDATE, the Veterans Preference Act requires that a preference-eligible employee may be reduced in grade only through the RIF procedures and when reduced must be provided notice of appeal rights to MSPB. The APWU national agreement prohibits a RIF of any employee on the rolls on November 20, 1998, or who has achieved six years of continuous service. Nevertheless, postal management has reduced preference eligibles in grade without conducting a RIF or notifying employees of their appeal rights.
In a previous UPDATE, I informed the membership of a landmark MSPB decision deciding that a preference-eligible employee who bid to a lower lever position must be restored to his previous grade 6 because of the USPS failure to abide by MSPB regulations. The most recent decision is Ernest M. Yohn, III v United States Postal Service, dated September 10, 2001. The employee was a former LSM operator whose job was abolished and after being declared unassigned, he bid to a lower level position. After reading the information provided in the UPDATE, he filed an MSPB appeal.
The administrative law judge ruled that an assignment to a lower-grade position constitutes a RIF demotion even when the employee voluntarily applies for or is offered an assignment to that position, as long as the assignment was made after the agency had informed the employee that his original position had been abolished and that he had not been selected for assignment to a position at his former grade level.@
In defending their actions, the Postal Service argued that "the appellant did not have to bid on the lower grade position but could have remained indefinitely in his unassigned regular clerk position at the same grade and pay. In addition, it states that there were vacancies at the PS level 6 grade for which he could have successfully bid based on his seniority. And it refers to the fact that he acknowledged on appeal that he bid for the lower-graded position for personal reasons.@
Charlie Robbins, President of the Palm Beach Area Local, and Eileen Meginley, Steward, are responsible for this major win and are to be congratulated.
Bill Burrus
Executive Vice President
Improper
Disclosure of Medical Condition Unlawful
The Commission found that the agency violated the Rehabilitation Act's
prohibition against the improper disclosure of confidential medical
information, when it sent a letter to other Postal installations disclosing
complainant's medical diagnosis and symptoms. The agency had sent the letter
in an attempt to find complainant a job that could be performed during a
particular shift as a reasonable accommodation. Noting that the
Rehabilitation Act permits managers to be informed of necessary restrictions
on the work or duties of the employee and necessary accommodations, the
Commission found the disclosure to be a violation of the Rehabilitation Act.
The Commission stated that the disclosure was not necessary to alert
managers to restrictions on complainant's work or duties and his need for
accommodation. The Commission reiterated to the agency that the
Rehabilitation Act does not limit the prohibitions against improper
disclosure of confidential medical information, and improper medical
inquiries, to individuals with disabilities. The Commission remanded the
matter on the issues of compensatory damages and attorney's fees and costs.
Tyson v. United
States Postal Service, EEOC Appeal No. 01992086 (August 23, 2002).
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