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LEGAL BRIEFS of Postal Employee Cases
(EEOC, MSPB, Appeals, District Courts)
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EEOC Cases |
MSPB |
District Courts, Other |
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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 |
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EEEOC Links |
MSPB Links |
OtherOther Federal Links |
| U.S. Courts | ||
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(disclaimer: the cases are for informational purposes and not a substitute for legal advice) |
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A letter carriers' union did not act unreasonably in deciding
not to arbitrate the grievance of an Illinois letter carrier who
was removed for submitting false medical documentation. The
union did not act unreasonably in deciding not to arbitrate her
grievance that she should have received progressive discipline
instead of being discharged. It reviewed the documentation she
provided and concluded that she could not show that her doctor
or someone from his office had written the medical note as she
claimed. The union relied on previous arbitration decisions to
conclude that the United States Postal Service (USPS) could
discharge her for a first offense of that type without resorting
to lesser discipline first. The union also did not act
discriminatorily or in bad faith. There was no evidence the
union did not take her grievance to arbitration because of her
race, sex, or for any reason other than that it did not believe
the grievance was meritorious, or that the union acted
fraudulently, deceitfully, or dishonestly. Jordan v. U.S.
Postal Service
OWCP form CA 1032 states in part
that “The kinds of services which you must report includes
such activities as carpentry, mechanical work, painting,
contracting, child care, odd jobs, etc. Report activities such
as keeping books and records, or managing and/or overseeing a
business of any kind, including a family business. Even if your
activities were part-time or intermittent, you must report
them."
Merchant v. Office of Personnel Management (2006)
On August 9, 2004, while Charles White
was attending the Mail Handler’s Union picnic in Jacksonville, Florida,
he and one of his co-workers became involved in a fight involving
deadly weapons. After conducting an investigation, the Postal Service
removed White from duty. White appealed to MSPB, which affirmed
the Postal Service's decision. The administrative judge found that,
based on White’s admissions against interest that he brandished
a knife against a co-worker, the Postal Service proved its charge
of improper conduct. The Board found that the misconduct had an
adverse effect on the efficiency of the service because, although
the misconduct did occur off-duty, it involved two agency employees,
occurred in the presence of many postal employees who were attending
a union-sanctioned event, troubled postal employees after the
fact, and put postal employees in harm’s way.
Federal Circuit Decision [PDF]
(3/21/06) - Court of Appeals Affirms Removal of Former Oakland USPS District Manager
Federal
Circuit Court Decision (PDF)
Quiles-Quiles v. Henderson, No. 05-1591, holds that PMG is not entitled to a judgment as a matter of law (and the Quiles was entitled to a statutorily-capped amount of $300,000, which the district court reduced jury award from $950,000) under the Rehabilitation Act because, the District Court found that Quiles had not shown that he was disabled. But, the First Circuit Court concludes that, “The evidence therefore ... sufficient for the jury to conclude that the Postal Service regarded Quiles as disabled because his superiors erroneously believed that he was unable to perform a broad class of jobs due to his mental impairment.” "The postmaster general also argues that he wasn’t really harassed because “that type” of people (that is, blue-collar-types) are always harassing each other" in the workplace. In sum, court concludes that the evidence was sufficient to show that he 1) was harassed; 2) because of his disability; and 3) he was retaliated against for complaining about it
(9/12/05)- Falsification of Records - Employee was removed from his position based on a charge of misrepresentation related to a forearm/wrist tendonitis condition. The MSPB sustained the removal. The employee contended that the finding that he committed a willful misrepresentation was unsupported by substantial evidence. The Court found that it was plausible that the employee’s Attention Deficit Hyperactivity Disorder could have led to the mistakes on his workers’ compensation form. The Court concluded that the agency did not satisfy its burden to establish intent to deceive on the part of the employee and reversed the decision of the MSPB.
Freeman v. U.S. Postal Service (pdf)
(6/25/05)
MVS Driver Wins Reinstatement - A Special Panel that resolves disputes between EEOC and MSPB on June 23rd overruled the MSPB in Robert Boots vs. USPS. It said DOT regulations adopted voluntarily by the USPS do not override EEO rules with regard to disability discrimination. The Special Panel directed the MSPB to order the appellant’s restoration to duty and the back pay and benefits that go with it. Robert Boots was removed from his position in the USPS as a Tractor-Trailer Operator for taking an antiseizure medication that was disclosed when he was hired in 1998. He had an accident-free driving record. The DOT changed its rules in October 2000 that were subsequently used to disqualify Boots and remove him in 2002.(4/9/05) Constructive Suspension – Jurisdiction: Employee asserted that the agency constructively suspended him for more than fourteen days when, upon being cleared for duty by his personal physician after an absence due to an injury to his right knee, he was told to leave the building and was placed in a non-duty, non-pay status pending clearance from his doctor for his left knee. The AJ found that the MSPB lacked jurisdiction because the employee was only allegedly ready, willing, and able to work for less than fourteen days of his absence. The MSPB vacated and remanded the case because the MSPB has held that jurisdiction over an appeal from an alleged constructive suspension does not depend on whether the employee was ready, willing, and able to work.
MSPB, Barnes v. U.S. Postal Service (2005)
A Modified Window/Distribution
Clerk at the agency's Indiatlantic
Postal Facility, alleged that he
was discriminated against, based
on disability and prior EEO
activity (arising under the
Rehabilitation Act). After his
complaint was processed and
assigned to an administrative
judge (AJ), the AJ issued a
Summary Judgement decision,
finding that the complainant had
not met his prima facie burden.
The final agency decision (FAD)
merely implemented the AJ's
decision. The complainant appealed
to the OFO, who REVERSED the FAD,
and REMANDED it to the agency for
corrective action pursuant to
their ORDER.
The situation involved the Steward
of the Indiatlantic Post Office,
who, just three weeks after filing
an EEO complaint, found himself
being reassigned to the Suntree
Post Office because of his
"medical restrictions" (he had
already worked his assignment with
existing restrictions for some
time). The Postmaster denied any
knowledge of the complainant's
prior EEO, however, the
complainant was able to recall
with specificity, his discussion
with the Postmaster about his EEO,
as well as prove that the
Postmaster had responded to
inquiries from the agency's EEO
Dispute Resolution Office. The
EEOC found the Postmaster was not
credible.
In their decision, the EEOC found
that, "in light of the evidence,
we find that no reasonable
fact-finder could find that the
agency's articulated reasons for
reassigning complainant were
credible".
In their ORDER, the EEOC
instructed the agency to take
remedial action against the
Postmaster, including "training in
the obligation and duties imposed
by the Rehabilitation Act".
Further, "(t)he agency shall
consider taking disciplinary
action against the management
official(s) identified as being
responsible for the decision to
reassign complainant to Suntree
Post Office. 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 impose discipline".
David A. Greenidge v. John E.
Potter, PMG
Appeal No. 01A42155 (August 30,
2004)
_______________
This employee also has pending EEO
Complaints, including constructive
discharge, because of retaliation
and hostile working environment.
If you need additional
information, please feel free to
contact me.
As Always, I Am,
J.R. Pritchett
Postal Employee Advocate
(7/29/04) Court: USPS Denial of "Limited Duty" to Pregnant PTF Employee Did Not Violate Pregnancy Discrimination Act -The crux of the PTF's argument is that the Postal Service unlawfully restricted her, as a pregnant woman, to light duty, and precluded her from limited duty, because limited duty assignments are only given to employees with on-the-job injuries. The court ruled that this argument had no merit. The court reasoned that while "it is true that the Postal Service decides who is eligible for light duty, subject to its collective bargaining obligations, the PTF erred in contending that the same is true of limited duty. "To mandate that Guarino, whose condition indisputably places her in the “light duty” category under the collective bargaining agreement, be classified as “limited duty” would be to mandate preferential treatment for pregnant employees over other workers with non-occupational injuries/illnesses. This the law forbids." Guarino v. Potter, U.S. Court of Appeals for the Fifth Circuit
(6/22/04)-EEOC: Class Certification Proper. Colorado Postmaster's formal complaint asserted that the agency's application of its merit evaluation system, which imposed a 10% cap on managers receiving a "far exceeds" rating, resulted in female postmasters being denied the opportunity to be eligible for and receive a "far exceeds" merit rating. EEOC subsequently certified a class of all female postmasters employed in 1999. EEOC modified the definition of the class to encompass: female postmasters whose performance exceeded expectations but received a "met expectations" rating due to the 10 percent cap. The class complaint, as modified, was remanded to an EEOC District Office for processing. 2001 Background of Holmes, et al. v. USPS case
The court determined that: It is well settled that "when an agency proposes to discipline an employee, it must notify the employee of the conduct with which he is charged 'in sufficient detail to permit the employee to make an informed reply.'" We have further stated that "only the charge and specifications set out in the [notice of proposed removal] may be used to justify punishment because due process requires that an employee be given notice of the charges against him in sufficient detail to allow the employee to make an informed reply." . In short, when an agency disciplines an employee, it may only do so based upon the charges in the notice of proposed removal-so that the employee knows the misconduct with which he or she is charged and may defend against the charge. The problem in this case is that there is a question as to whether this fundamental requirement of due process was met. "Thus, it is not clear whether, in this case, there has been compliance with the requirement that "only the charge and specifications set out in the [notice of proposed removal] may be used to justify punishment." O'Keefe, 318 F.3d at 1315. In other words, was __ Allen removed for the conduct with which he was charged, or was he removed for failing to cooperate with the USPS, conduct with which he was not charged? Under these circumstances, we think that the appropriate course is to vacate the decision of the Board and to remand the case to the Board for further proceedings to determine whether the agency complied with the requirements of due process" Allen v. U.S. Postal Service (Fed.Cir.2004)
(5/17/04) Appeals Court Revives Hispanic Postal Managers' Lawsuit-(Denver-AP) -- A federal appeals court reinstated a lawsuit Monday filed by seven Hispanic U.S. Postal Service managers who accuse the agency of discrimination. The Tenth U.S. Circuit Court of Appeals overruled a federal district court that dismissed the suit in 2002. The district court ruled the plaintiffs hadn’t exhausted all administrative steps before suing. The plaintiffs work in Colorado, Texas, Nebraska and New Mexico. They accuse the Postal Service of failing to inform them of advancement opportunities, granting merit raises and bonuses unequally, and retaliating against them when they complained of alleged discrimination. They filed grievances with the Postal Service and the Equal Employment Opportunity Commission in 1996.The workers filed suit in 1997 when three months passed without a decision from either agency.The plaintiffs are Longino Monreal, Felix Figueroa and Lorenzo Ortiz of Texas; David Medina and Ernest Candelaria of Denver; Richard Sanchez of Omaha, Neb.; and David Naranjo of Espanola, N.M.
Subsequently, however, the supervisor filed a complaint in federal district court, claiming that he was forced to resign in violation of the Rehabilitation Act. He further alleged that he had been diagnosed as suffering from a disability, namely alcoholism, depression and anxiety; that his behavior on September 19th was directly caused by his disability; and that he should have been given a reasonable opportunity for rehabilitation. In responding to the supervisor’s district court complaint, the Postal Service pointed out that under the pertinent laws, the supervisor should have exhausted his administrative remedies before filing suit. Specifically, the Postal Service claimed that the supervisor should have either filed a complaint with the agency’s Equal Employment Opportunity office or appealed to the U.S. Merit Systems Protection Board, and that he could not proceed with the action in federal district court until he exhausted his administrative remedies.
But the court concluded that the Postal Service could not have it both ways, by asking the supervisor to sign the resignation agreement barring him from filing administrative appeals, and then arguing that his federal suit could not proceed because he had not exhausted his administrative remedies. Noting that equitable relief is appropriate “where an agency misleads or misdirects a claimant so as to prevent the claimant from seeking an administrative remedy,” the court found that equitable relief was proper in this case. “This is not to say that the Postal Service was barred from reaching a settlement with [the supervisor] in which [the supervisor] agreed to refrain from using administrative procedures,” explained the court. “However, there is surely an anomaly now in having the Postal Service insist on the exhaustion of administrative remedies, which it effectively prevented him from using.” Accordingly, the court declared the provision in the resignation agreement barring the supervisor from pursuing his administrative remedies null and void, and gave him an opportunity to pursue these administrative remedies while it stayed the district court action. The court stated further," Since the action is being stayed, as already described, there is no occasion to deal with the merits of the pleadings. The need to do so will come if and when the litigation is activated. Thus the motion of the Postal Service to dismiss the complaint for failure to assert valid claims is denied as moot." (name withheld by PR v. U.S. Postal Service, U.S. District Court for the Southern District of New York- (summary is from compilation of several legal journals and court case)
(4/18/04) Improper Disclosure of Medical Condition Unlawful-EEOC found that USPS violated the Rehabilitation Act's prohibition against the improper disclosure of confidential medical information, when it mailed a letter to approximately thirty-two Associate Office Postmasters, disclosing the Custodial Laborer's s medical diagnosis and his 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, EEOC found the disclosure to be a violation of the Rehabilitation Act. EEOC stated that the disclosure was not necessary to alert managers to restrictions on complainant's work or duties and his need for accommodation. EEOC 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. EEOC remanded the matter on the issues of compensatory damages and attorney's fees and costs. Tyson v. United States Postal Service
(4/11/04) Reasonable Accommodation- PTF Mannie succeeded in obtaining a jury trial on her claim that the actions and comments of her supervisors showed that they regarded her as mentally disabled and unable to work. The court noted that her supervisors curtailed her hours, refused her overtime, referred to her as “crazy” and “certifiable” and made several other remarks indicating that she could not be trusted to carry out job tasks. Specifically, in one instance, a supervisor stated that Ms. Mannie could not be relied upon to operate a particular piece of machinery because such work required “live bodies.” The court jumped on this statement, saying “the implication that Mannie could not be trusted to carry out tasks at work, and that she was not even a ‘live body,’ can be interpreted as an expression of ‘myth, fear, or stereotype’ in the Postal Service’s assessment of Mannie’s condition.” Mannie v. Potter, 2003 US Dist (N.D. Ill.)
(3/30/04) USPS Return-to-Duty Policy Ruled Subject to "ReHab Act"-An EEOC Administrative judge ruled that the Postal Service violated the Rehabilitation Act by Requiring an Employee with an FMLA-certificated depression/anxiety condition to provide additional medical documentation before being allowed to return to work. The decision reinforces employees protection under the Rehabilitation Act, which imposes significant restrictions on the inquiries and examinations that federal employers may try to make. It also reinforces that the restrictions "apply to all employees," and not to just those with disabilities. (excerpt from Greg Bell, Director Industrial Relations in The American postal Worker mar/apr pg. 13.
Miller v. Potter - EEOC Decision Requiring Med. Cert. Violated Rehab. Act
(3/21/04) Postal Employee Loses Court Appeal to Win Job Back-In a recent case, a postal employee was fired after he was arrested on charges he was selling drugs to postal employees inside the post office. (A woman was hired at the post office as a casual clerk and police informant. The woman was asked to assist in the investigation even though [or perhaps because] she had a criminal record. While assisting in the investigation, the woman was expected to appear for work and perform her assigned duties while simultaneously trying to learn about any drug sales inside the post office. Based upon information she learned while working at the post office, the woman soon identified the postal worker as a source for narcotics inside the post office.) The criminal case was eventually dropped and the employee asked for his job back. When the Postal Service said no, based on its policy against rehiring employees fired for misconduct, the employee sued, claiming discrimination. The Court of Appeals for the Third Circuit agreed with the Postal Service, finding no evidence of discrimination and that the manager who made the decision not to rehire was just applying the agency’s general policy. Sarullo v. United States Postal Service,
VEOA claim because she established that she was a disabled veteran. The MSPB remanded the case and instructed the AJ to provide the employee with explicit notice regarding how to establish MSPB jurisdiction over her USERRA and VEOA (Veterans Employment Opportunities Act) claims. Henderson v. USPS (2004)
"In determining whether complainant is a qualified individual with a disability, the Commission notes that there is no dispute between the parties that complainant had been successfully and safely driving commercial motor vehicles for five years. In addition, the record shows that complainant was removed from his position because his Multiple Sclerosis impairment triggered the restrictions of the DOT safety standard. An employer may require, as a qualification standard, that an individual not pose a direct threat. A "direct threat" is defined as "a significant risk of substantial harm" which cannot be eliminated or reduced by reasonable accommodation. The agency has the burden of proof regarding whether there is a significant risk of substantial harm. 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. Rather, after identifying the risk, the employer must conduct 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. This assessment must be based on objective evidence, not subjective perceptions, irrational fears, patronizing attitudes or stereotypes about the nature or effect of a particular disability or of disability generally. Relevant evidence may include input from the individual with a disability, his work history or experiences in previous positions, and opinions of medical doctors who have expertise in the particular disability or direct knowledge of the individual with the disability. If it is determined that an individual does pose a direct threat because of his disability, the employer must determine whether a reasonable accommodation would eliminate the risk of harm or reduce it to an acceptable level.
The Commission finds that the agency should have conducted an individualized assessment of complainant rather than relying on the DOT regulations and failed to do so. The medical opinions solicited by P1 also fail to support the agency's direct threat defense and instead more likely indicate that complainant was qualified to return to his regular duty position. Moreover, while P1 also cited complainant's initial reluctance at the examination to reveal the nature of his impairment in support of his decision to invoke the DOT standard to prevent complainant's return to driving duties, the record indicates that complainant subsequently cooperated with the agency's requests for medical information.
Based on the foregoing, the Commission concludes that the agency did not meet its burden of proof with regard to whether complainant posed a significant risk of substantial harm. Consequently, we find that the agency discriminated against complainant on the basis of his disability when it reassigned him from his position as a Tractor-Trailer Operator to a light duty position without driving duties.
We also find that because this is not a case where the agency made a "good faith effort" to reasonably accommodate complainant, the agency is not relieved of its obligation to award appropriate compensatory damages. Therefore, we remand the case to the agency for a determination regarding complainant's entitlement to remedies."
Background: Craig was a letter carrier for the Service from 1971 until January 1992, when he was diagnosed with multiple sclerosis and could no longer perform that job, even with a reasonable accommodation for his condition. The Service, in order to accommodate Craig, detailed him from his home office in South Whitley, Indiana to serve as the acting postmaster at a one-man post office in Petroleum, Indiana. One complication of this arrangement was that Craig's position as a letter carrier was controlled by a collective bargaining agreement ("CBA") between the Service and the National Association of Letter Carriers, and seniority controlled promotion under the CBA. The position of postmaster, by contrast, was not controlled by a CBA. Subject to limited exceptions, those positions were permanently filled on a competitive basis, with the person best qualified getting the job. Positions as letter carriers and postmasters also had differing pay grades and levels.
Initially,
the Service overcame this obstacle by making Craig only the
acting postmaster, which allowed him, under the CBA, to
maintain the pay and benefits he earned as a letter
carrier and entitled him to a mileage allotment. Thus Craig's
total compensation was equivalent to what he would have earned
in the pay grade and level applicable to a permanent postmaster
assigned to the Petroleum office. Although Craig's multiple
sclerosis only allowed him to work six hours a day and forced
him to rest periodically on a couch in the office, he was able
to serve as acting postmaster in Petroleum because that office
averaged only 30 customers a day and had average daily sales of
less than $ 50.00. Thus, in deference to his disability, the
Service placed Craig in an unusually generous "temporary"
position for roughly seven years, from 1992 through 1999, until
he went on extended sick leave.
As well as this arrangement worked
for Craig, it was labeled temporary because the Service had been
trying to close the Petroleum office and consolidate it with
another facility. During the 1997-98 legislative term, however,
Congress passed legislation mandating that small offices like
Petroleum be kept open. The Service therefore decided that
Petroleum needed a permanent postmaster. To make matters worse,
from Craig's perspective, the Service evaluated the pay level
for its new, permanent postmaster at Petroleum and concluded
that it should be downgraded because of the small volume of
business the Petroleum office conducted. Craig was not
interested in working at the Petroleum office because that would
have meant a prospective drop of about $ 13,000 in annual pay
and the loss of the mileage compensation. The Service then
posted a public vacancy for the position in October 1998. At
roughly the same time, the Service posted three other vacancies
for the positions of postmaster in Liberty Center, Yoder, and
Zanesville, Indiana, each of which commanded more pay than the
Petroleum position.
Craig soon applied for all three positions. He was not selected,
however, because he failed to complete the applications
correctly. In June 1999, the Service posted an opening at the
position of postmaster in Uniondale, Indiana, and Craig
submitted a correct application for that job. Before the Service
reached a decision on the Uniondale position, Craig's new boss,
Dawn Partridge, offered him the permanent Petroleum position,
giving him ten days to decide. On June 23, 1999, Craig wrote a
letter in which he (1) declined the Petroleum job; (2)
withdrew his application for the Uniondale position; and (3)
sought a light-duty position. Partridge responded by asking
Craig to provide a light-duty position certificate from his
doctor, which Craig did in July 1999. Partridge determined that
the Service had no such position available, and she again
offered Craig the Petroleum position. Unsuccessful talks between
Craig and the Service dragged on for a few months. In October
1999 he went on sick leave, keeping that status until May 2001,
at which time he was granted disability retirement. In November
2001, Craig filed this suit, alleging that, by failing to
reassign him to a postmaster position in Liberty Center, Yoder,
Zanesville, Uniondale, or Petroleum (the latter at higher pay
than authorized), the Service violated the Rehabilitation
Act.
Order: We agree with the district court that the Service was entitled to judgment as a matter of law because no jury could conclude that the Service failed to provide him with a reasonable accommodation.
(3/4/04) Demotion – Disciplinary/Adverse Actions: Employee appealed the agency’s decision to demote him from a supervisory position. The administrative judge (“AJ”) sustained USPS' charge against the employee but mitigated the demotion penalty to a 45-day suspension. The MSPB accepted the agency’s finding that, because the employee had intentionally failed to follow instructions, his potential for rehabilitation was poor. The MSPB also found that although USPS' normal practice when demoting a supervisor was to place the individual back in his original craft position, the employee's disability (HIV/AIDS) precluded him from returning to his original position. Based on USPS' proffered reasons for its actions, the MSPB sustained the demotion. John Doe v. U.S. Postal Service , Merit System Protection Board (2004),
Background: On December 14, 2002, the agency demoted the appellant from the position of Supervisor, Customer Services, EAS-17, to the position of Part Time Flexible Clerk, PS-5, on the charge of Failure to Follow Instructions/Improper Conduct. USPS based the charge on the following specifications: (1) that the appellant failed to follow the instructions of Jim Bluhm, Postmaster, to provide him with a plan for clearing all delayed mail either by keeping carriers late on September 6, 2002, or by bringing carriers in early on September 7, 2002; (2) that the appellant failed to follow Postmaster Bluhm’s instruction to go to lunch at 1:40 p.m. on September 6, 2002, causing coworker Lue McIntyre to stay past the end of her shift; and (3) that on September 7, 2002, the appellant delayed delivery of approximately 575 pieces of bulk mail without obtaining prior approval.
In his initial appeal, the
appellant raised the following affirmative defenses: disability
discrimination based on failure to accommodate his medical
condition; disability discrimination based on disparate
treatment; retaliation for filing a request for leave under the
Family and Medical Leave Act of 1993 (FMLA) and for requesting
accommodation under the Rehabilitation Act; and harmful error.
Following a hearing, the AJ sustained the charge, but found that
the agency had established only specifications (2) and (3) by a
preponderance of the evidence. With regard to the disability
discrimination claim, the AJ determined that the appellant was a
qualified individual with a disability (HIV infection, AIDS).
However, the AJ found that the appellant had failed to show a
causal connection between his disability and the agency’s
demotion action. With regard to the retaliation claim, the
AJ found that the appellant had failed to establish a genuine
nexus between his protected activity and the agency’s demotion
action. The AJ also rejected the appellant’s claim of harmful
procedural error, finding that, although the agency effectively
prevented the appellant’s attorneys from attending an
investigative interview, the agency would have reached the same
conclusions had the appellant’s attorneys been able to speak on
his behalf. Finally, the AJ mitigated the demotion to a 45-day
suspension and ordered the agency to provide interim relief in
the event a PFR was filed. IAF, Tab 20.
The agency filed a Petition for Review (PFR), arguing that the
AJ erred in mitigating the penalty. With its pleading, the
agency certified that it had complied with the interim relief
order by reinstating the appellant to his EAS-17 position and
initiating the process to pay him back pay at the EAS-17 rate
retroactive to the effective date of the initial decision. The
agency did not, however, submit evidence of compliance. PFR File
(PFRF), . The appellant subsequently filed a motion to dismiss
the agency’s PFR on grounds of untimeliness and noncompliance
with the AJ’s interim relief order. PFRF, Pursuant to 5
C.F.R. § 1201.115(b)(2), we issued a show-cause order requiring
the agency to submit evidence of its compliance with the interim
relief order. PFRF, . The agency filed a response to the
show-cause order, including an SF-50 confirming that the
appellant had been reinstated to his EAS-17 position. PFRF,
In short, the agency has provided a reasoned explanation of its
penalty determination, and the Board will not disturb it.
The demotion is sustained
In the Court of Appeals 10th Circuit's decision:
A person
with a protected disability establishes a prima facie case of
discriminatory discharge "by demonstrating that: (1) she was
qualified, with or without reasonable accommodation, to perform
the essential functions of her job; and (2) her employer
terminated her employment under circumstances giving rise to an
inference that the action was based on her disability." Selenke
v. Medical Imaging of Colorado, 248 F.3d 1249, 1259 (10th Cir.
2001). To establish the second prong, an employee must show a
nexus or "at least a logical connection" between his disability
and the termination. See Greene v. Safeway Stores, Inc., 98 F.3d
554, 558 (10th Cir. 1996). "Establishment of the prima facie
case in effect creates a presumption that the employer
unlawfully discriminated against the employee."
"We also affirm the district court's judgment on the
accommodation claim. Under the Rehabilitation Act,
discrimination may include 'not making reasonable accommodations
to the known physical or mental limitations" of disabled
individuals. 42 U.S.C. 12112(b)(5)(A) (1995). We have held that
federal employers like USPS "must play a considerable role in
ensuring that every reasonable effort is made to find suitable
jobs for disabled employees."
Woodman v. Runyon, 132 F.3d 1330, 1344 (10th Cir. 1997). But we
have also held that "[w]ithout question, employees must come
forward with that information they are best placed to know the
fact and nature of their disability and their wish to be
accommodated."
(Tesh vs
USPS)
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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"T
hey fired me just because I wanted my rights under family leave," complained Marlene Whately, a former postal letter carrier. "My daughter was only 19 and needed me badly right after her C-Section. "I bet they were trying to punish me just because they think I took too many days off a long while back.""I remember how much I needed help right after I had the same thing years ago," said Marlene’s friend in the Postal Service, Marie Washington. "It would have helped a lot to have that leave then, because I was always worried that my husband would lose his job since he took so much time off to help me."
Was Whately* unjustly deprived of her rights in the Family Medical Leave Act?
FACTS:
A letter carrier working for the U.S. Postal Service in Indiana sued the USPS for allegedly violating the Family Medical Leave Act. She had been denied a request for family medical leave and was subsequently terminated. The termination was based both on irregularities in her leave application and a history of unsatisfactory attendance. An arbitrator upheld the termination and the employee then filed this suit in the U.S. District Court. The Postal Service moved for dismissal of the case, claiming that the employee could not establish essential elements of her claim.The family medical leave issue began on October 26, 1999, when the employee informed her acting supervisor of her need to be absent from work on November 9, 1999, to assist her 19-year-old daughter with a Caesarian section. The daughter’s doctor had also faxed a request to the Postal Service asking family medical leave for the employee to assist her daughter the day of the operation and for two weeks thereafter.
The employee allegedly never received the proper leave paperwork, but she did leave a "generic" request for 80 hours of leave on her supervisor’s desk.
The supervisor found the request and left a message at her home stating that the request did not meet the criteria for leave and she should report to work the following day. She was marked as absent without leave.
An investigation by a postal investigator was launched, and interviews revealed that the doctor had not signed the document. The employee was issued a notice of termination on December 28, 1999. An arbitrator sustained the termination.
Defining "pregnancy" as related to family leave employee rights
D
ECISION: The U.S. District Court observed that summary judgment dismissals are inappropriate if real doubts remain and if a reasonable jury could rule in favor of the employee here. The court noted that the employee’s daughter had been told by her doctor to remain in bed for the two week recovery period requested by the employee. The daughter testified that her doctor had said she would need regular help in caring for her basic needs, and her mother had assisted in these tasks. This reasonably could define the daughter’s condition as "incapable of self care" under the Family Medical Leave Act.Though the Postal Service argued that courts typically do not consider pregnancy alone to be a "serious medical condition," this case does not deal with the standard discomforts associated with pregnancy.
It involved the incapacity immediately following a surgically-facilitated delivery. The court previously expressly stated that "any incapacity due to pregnancy, which might include the delivery itself, is a serious health condition...and that an employee is entitled to leave for it."
The court saw no reason to depart from this assumption and cannot conclude that as a matter of law the employee’s daughter’s surgical delivery did not qualify as an incapacity due to pregnancy. The court therefore denied the Postal Service’s motion for summary judgment as to the claim that the employee was not entitled to leave under the Family Medical Leave Act.
(USPS, U.S. District Ct, So. District of Ind., Indianapolis Div., Case No. IPO1-1645-C-B/S, )*Names and dialogue are fictitious, but facts and ruling are based on a real case.
Source: Federal Employees News Digest
postalreporter: The following are excerpts from the actual court case
Analysis
The FMLA establishes two categories of protections for employees. First, the Act contains prescriptive protections that are expressed as substantive statutory rights, which provide eligible employees of a covered employer the right to take unpaid leave for a period of up to twelve work weeks in any twelve-month period for a serious health condition, as defined by the statute. King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999); 29 U.S.C. § 2612(a)(1). To ensure the availability of this guarantee, the FMLA declares it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided." 29 U.S.C. § 2615(a)(1); King, 166 F.3d at 891.
Entitlement claim
When an employee alleges that the employer interfered with her substantive rights under the FMLA, we require her first to "establish[ ], by a preponderance of the evidence, that [s]he is entitled to the benefit [s]he claims." Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997). The FMLA permits an eligible employee to take leave "to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." 29 U.S.C. § 2612(a)(1)(C). The statute provides that, in order for an employee to qualify for FMLA leave to care for an adult child, that child must be "incapable of self-care because of a mental or physical disability." 29 U.S.C. § 2611(12).
Employer May Be Sued for Disclosing FMLA-Request Contents
2/21/03
An employee may sue his employer if the contents of his medical certification under the Family and Medical Leave Act (FMLA) are disclosed to his coworkers, a federal appeals court ruled Feb. 7. The court overturned the trial court's ruling that the employer was entitled to summary judgment because of insufficient evidence that the coworkers' knowledge of the employee's health information stemmed from his FMLA submittal. The case is Doe v. U.S. Postal Service, No. 01-5395 (D.C. Cir., Feb. 7, 2003).
"John Doe," an HIV-positive maintenance worker at the USPS Brentwood facility, revealed his condition to the U.S. Postal Service (USPS) in an FMLA certification that he submitted to the USPS in response to a threat of disciplinary action for missing several weeks of work. Although Doe had never revealed his status at work beforehand, he alleged, it was "common knowledge" among his coworkers when he returned.
Doe sued the USPS under the 1974 Privacy Act and 1973 Rehabilitation Act, both of which restrict federal agencies' disclosure of personal information. The USPS sought summary judgment in its favor, arguing that Doe had not offered sufficient evidence that one of its employees had disclosed medical information from his FMLA certification form. Regarding the Rehabilitation Act, which applies the confidentiality requirements of the Americans With Disabilities Act (ADA) to federal agencies, the USPS also contended that Doe's FMLA submittal was a voluntary disclosure, not an employer "inquiry" governed by the ADA.
The district court agreed with the USPS, but the D.C. Circuit reversed this ruling and sent the case back to the lower court for trial. Doe's circumstantial evidence that the disclosures occurred after his FMLA request and were attributed to a manager responsible for reviewing such request was sufficient to avoid summary judgment, the appellate court ruled. Secondly, Doe's disclosure to the USPS was not truly voluntary because it was necessary to avoid disciplinary action and meet FMLA's requirements, so it is subject to the Rehabilitation Act's limits on re-disclosure, the court held.