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DAVIS v. FRANK

April 20, 1989

KARIN A. DAVIS, Plaintiff,
v.
ANTHONY FRANK, Postmaster General of the United States, Defendant


James H. Alesia, United States District Judge.


The opinion of the court was delivered by: ALESIA

JAMES H. ALESIA, UNITED STATES DISTRICT JUDGE

 This handicap discrimination case is before the Court for a decision on the merits following a bench trial. After hearing testimony and examining the credible evidence of record, the Court enters judgment in favor of the plaintiff, Karin A. Davis ("Davis"), and against the defendant, Anthony Frank ("Frank"), Postmaster General of the United States. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court sets forth its findings of fact and conclusions of law.

 FINDINGS OF FACT

 1. Davis is a thirty-two year old employee of the United States Postal Service ("the Postal Service"), who has been completely deaf since birth. No mechanical device or medical treatment currently available would enable her to hear. Since 1975, Davis has worked in various clerical positions at the Oak Brook Post Office. Davis is a graduate of Hinsdale High School.

 2. Frank is the Postmaster General of the Postal Service and, in that capacity, is statutorily responsible for the general administration of the Postal Service. Local postmasters are responsible for the day-to-day administration of the various post offices throughout the United States.

 3. This case arises from the Postal Service's denial of two of Davis' applications for the time and attendance clerk position in the Oak Brook Post Office.

 4. Davis filed formal complaints with the Postal Service Equal Employment Office ("the Postal Service EEO") on December 17, 1986 (as a result of the July 14, 1986 denial of Davis' first application for the time and attendance clerk position at the Oak Brook Post Office) and on March 24, 1987 (as a result of the December 30, 1986 denial of Davis' second application for the same position at the same post office).

 5. On August 13, 1987, the Postal Service EEO issued a Notice of Proposed Disposition finding no handicap discrimination.

 6. On September 2, 1987, within 15 days of her receipt of the Notice of Proposed Disposition, Davis gave notice of her intent to appeal the Proposed Disposition to an Administrative Law Judge appointed by the Equal Employment Opportunity Commission ("EEOC").

 7. On February 11, 1988, after more than 180 days had elapsed from the filing of her formal complaints with no agency decision, Davis brought this action pursuant to the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.

 8. On February 29, 1988, the Postal Service EEO terminated its processing of the complaints because of the pending litigation.

 9. Davis has worked at the Oak Brook Post Office for more than thirteen years. Her duties as a distribution clerk consist of collecting trays of mail and sorting them by route.

 10. Davis received training in postage due procedures in 1979 and received training in bulk mail procedures in 1983, and she assists in those departments on a part-time basis.

 11. Davis is able to communicate with her fellow employees and with the bulk mail customers at the Oak Brook Post Office by using a mixture of lip-reading, speech, gestures, and written notes. Gloria de Francesco ("de Francesco"), a Postal Service window technician at the Oak Brook Post Office, testified that Davis is able to sufficiently lip-read if the hearing person whose lips Davis is attempting to lip-read properly forms the words with his or her lips and if Davis is familiar with that person. De Francesco and Davis conducted a demonstration of Davis' ability to communicate in this fashion in open court.

 12. In the spring of 1986, Davis trained for a very brief period of time for a portion of the position of time and attendance clerk in the general office of the Oak Brook Post Office.

 13. During the course of this training, Gloria Meyer ("Meyer"), the former supervisor at the Oak Brook Post Office who is now a Commercial Program Specialist in marketing, advised Davis that her work was good, though Davis committed some errors in her work. According to Meyer, it was not unusual for a trainee to commit errors. Meyer further testified that Davis' deafness would make it easier for her to work on the time cards because her concentration is better than that of hearing employees. Meyer is the spouse of the former Postmaster of the Oak Brook Post Office.

 14. On July 3, 1986, the position of time and attendance clerk at the Oak Brook Post Office was posted for bid under the Postal Service's collective bargaining agreement with the American Postal Workers Union. The collective bargaining agreement provided that the position was to be awarded to the "senior qualified bidder."

 15. Davis bid on the time and attendance clerk position and was the senior bidder for the position.

 16. On July 14, 1986, the Oak Brook Post Office denied Davis' bid and awarded the position to Evelyn Belgrave ("Belgrave"), a hearing employee with the next highest seniority to Davis.

 17. On December 19, 1986, the time and attendance clerk position was again posted for bid at the Oak Brook Post Office. Davis was again the senior bidder for the job.

 18. On December 30, 1986, the Postmaster of the Oak Brook Post Office denied Davis' bid and awarded the time and attendance position to Judith Lukas ("Lukas"), a hearing employee with the next highest seniority to Davis. Lukas testified as a witness for plaintiff. Lukas stated that, in her opinion, Davis could perform all of the duties of a time and attendance clerk with the exception of answering the telephone.

 19. Gerald Kubick ("Kubick"), Superintendent of Postal Operations at the Oak Brook Post Office, also testified that Davis could probably perform the duties of time and attendance clerk with the exception of answering the telephone, although it might create some difficulty for him.

 20. The Postal Service's Standard Position Description for the time and attendance clerk position describes the "basic functions" of the position as follows:

 
Ascertains the number of hours worked and absent by each of a group of employees, distributes these hours among the significant categories of time and leave to which they are chargeable, and totals these data for reporting purposes; [is] responsible for providing information to employees on rules, regulations and policies concerning leave and pay matters; maintains assignment cards; makes studies relating to time and attendance.

 21. The Postal Service's Qualification Standards for Bargaining Unit Positions describe the educational background, experience, and proficiency requirements for a wide variety of clerical positions throughout the Postal Service, including the time and attendance clerk position. These standards also contain a requirement that all applicants have the "ability to hear the conversational voice, hearing aid permitted."

 22. When the Oak Brook Post Office posted the time and attendance clerk vacancies for which Davis applied, it included for the first time in its retyped version of the Postal Service's Standard Position Description the phrase "answers telephone" as the last of a list of miscellaneous duties and as a "basic function." Earlier postings of the time and attendance clerk's job at the Oak Brook Post Office contained no such requirement. This insertion was ordered by the Postmaster of the Oak Brook Post Office and was not negotiated with the local American Postal Workers Union representative.

 23. Although the Oak Brook Post Office claims that answering the telephone in its general office is a necessary task of the time and attendance clerk and that Davis cannot perform this task, this task can be performed by almost any single Oak Brook Post Office employee or by any group of employees, using the present telephone equipment in that post office.

 24. The fact that the Oak Brook Post Office has inserted the phrase "answers telephone" in only its two most recent postings of the time and attendance clerk position precludes Davis (the first deaf employee to train in the general office) from obtaining the time and attendance clerk position.

 25. In addition to answering the telephone, the duties of the time and attendance clerk, as described in both the Postal Service Standard Position Description and the descriptions posted by the Oak Brook Post Office, consist of completing paperwork (tallying time cards, assigning hours to proper work or leave categories, preparing reports) and communicating with employees on time and attendance issues.

 26. At the Oak Brook Post Office, completing the required paperwork is so time-consuming that if the time and attendance clerk is also required to answer the telephone, the time and attendance clerk must, on occasion, transfer her regular work to other clerks who work in the general office and ...


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