01981545
05-10-2001
Christy D. Conkle, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Christy D. Conkle v. United States Postal Service
01981545
May 10, 2001
.
Christy D. Conkle,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01981545
Agency No. 4G-7301079-96
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that she was discriminated against based on race (Caucasian),
sex (female) and disability (knee injury/chondromalacia of the patella)
when she was told that there was no work available consistent with her
medical restrictions, and on December 8, 1995, was placed in a non-duty
status for four months.
The record reveals that during the relevant time, complainant was employed
as a letter carrier at the agency's Midwest City Branch facility in
Oklahoma City, Oklahoma. Complainant sustained an on-the-job injury
on March 3, 1995, and was medically released to return to duty on May
16, 1995, with the restriction that she could not carry Buyer's Guides
because the weight would aggravate her knee injury. She returned to
work with this restriction, but her condition subsequently worsened,
and in November, 1995, her physician advised the agency that complainant
was restricted as follows: (1) no lifting in excess of ten pounds; (2)
standing/walking for maximum four hours per day; (3) use of left foot
only for repetitive movement; and (4) no squatting, climbing, kneeling, or
twisting. See Record of Investigation Exhibits 6 and 9. The agency was
subsequently advised that complainant's worker's compensation claim had
been denied. Accordingly, complainant was advised that she was no longer
eligible for a limited duty position, and would be required to apply for
light duty with supporting medical documentation if her restrictions
were to be continued. See ROI Exhibit 10. The agency concluded that
complainant could not perform the duties of her letter carrier position
or any other vacant existing position given her medical restrictions.
On December 8, 1995, she was therefore placed in a non-duty status.<2>
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on April 17, 1996.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of disparate treatment based on race or sex because the
employees outside her protected classes whom she alleged were treated more
favorably were not similarly situated to her. The FAD also found that
even assuming arguendo complainant had established a prima facie case
of race or sex discrimination, management had proffered a legitimate
non-discriminatory reason for its actions which complainant had not
demonstrated to be a pretext for discrimination. The FAD further found
that complainant failed to establish that she was an "individual with a
disability" within the meaning of the Rehabilitation Act, and that even
assuming arguendo that she was, she was not a "qualified" individual
with a disability because she could not perform the essential functions
of her position or any other existing vacant position to which she could
be reassigned.
On appeal, complainant contends that various other employees with
on-the-job injuries and similar medical restrictions were permitted
to continue working, whereas she was placed in a non-duty status.
The agency has submitted no response on appeal.
As a threshold matter, we find that in analyzing whether complainant is an
"individual with a disability" within the meaning of the Rehabilitation
Act, the FAD erred by limiting the inquiry to whether complainant was
substantially limited in the major life activity of working. See FAD
at 5-6. An individual with a disability is one who (1) has a physical
or mental impairment that substantially limits one or more major life
activities, (2) has a record of such impairment, or (3) is regarded as
having such an impairment. Major life activities include, but are not
limited to, caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. Sitting, standing,
lifting, and reaching are also recognized as major life activities.
Interpretive Guidance on Title I of the Americans With Disabilities Act,
Appendix to 29 C.F.R. � 1630.2(i); see also Haygood v. United States
Postal Service, EEOC Appeal No. 01976371 (April 25, 2000); Selix v. United
States Postal Service, EEOC Appeal No. 01970153 (March 16, 2000).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability
to perform the major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id. In order to demonstrate that one is substantially
limited in the major life activity of working, the evidence must establish
that complainant is substantially limited in her ability to perform
"either a class of jobs or a broad range of jobs in various classes."
29 C.F.R. � 1630.2(j)(3)(i).
Moreover, such limitations must be long-term or potentially long-term,
as opposed to temporary, in order to render one an individual with a
disability. See generally EEOC Enforcement Guidance on the Americans
With Disabilities Act and Psychiatric Disabilities (March 25, 1997) at
question 10. However, "some conditions may be long-term, or potentially
long-term, in that their duration is indefinite and unknowable or is
expected to be at least several months. Such conditions, if severe,
may constitute disabilities." Id. at question 7.
Applying the foregoing legal standards, we concur with the FAD's
ultimate conclusion that the evidence does not establish complainant
was an individual with a disability. The record establishes that
although complainant was deemed unable to work from March 3 - May 16,
1995, when she returned to work after that 2 �-month period, her only
medical restriction was not carrying Buyer's Guides. According to the
Work Tolerance Limitations form signed by complainant's physician on
November 10, 1995, when her condition worsened, her new limitations,
including lifting no more than ten pounds, would be necessary "until
[worker's compensation] authorized surgery." ROI at Exhibit 6.
The ROI also includes a second form signed by complainant's physician on
December 9, 1995, stating that these restrictions would continue until
complainant's next appointment on January 25, 1996, when presumably they
would be reassessed. ROI at Exhibit 13. The record does not indicate
whether complainant's restrictions continued, and if so, for how long.
The record also does not indicate whether these restrictions remained
in place when complainant returned to work after four months in off-duty
status. Accordingly, the evidence does not establish that complainant's
restrictions were of sufficient duration to render her substantially
limited in lifting, working, or any other major life activity under the
foregoing standard.<3>
Moreover, we find that the FAD properly concluded that complainant failed
to establish a prima facie case of race or sex discrimination. While
comparative evidence is usually used to establish disparate treatment,
complainant need only set forth some evidence of acts from which, if
otherwise unexplained, an inference of discrimination can be drawn. Furnco
Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). The comparator
employees identified by complainant were not similarly situated because,
unlike complainant, their medical restrictions were different. Moreover,
their worker's compensation claims were accepted, and it was for this
reason that the agency created limited duty assignments for them.<4>
Absent any other evidence from which an inference of discrimination
could be drawn, the FAD correctly concluded that complainant failed to
establish a prima facie case of race or sex discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal as well as arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 10, 2001
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2Complainant contends that her non-duty status lasted four
months. Thereafter she prevailed on her worker's compensation appeal,
and returned to duty until she was terminated on unrelated grounds.
See Conkle v. United States Postal Service, EEOC Appeal No. 01A02268
(June 8, 2000).
3Although in light of this disposition we do not reach the issue of
whether complainant is a "qualified" individual with a disability and
the scope of the reasonable accommodation obligation, we note that
the FAD contained several errors in its statements of law regarding
these issues. For further reference the agency may wish to refer to
EEOC Policy Guidance on Executive Order 13164: Establishing Procedures
to Facilitate the Provision of Reasonable Accommodation (October 20,
2000), and EEOC Enforcement Guidance: Reasonable Accommodation and Undue
Hardship Under the Americans With Disabilities Act (March 1, 1999).
4While "an employer may not avoid its obligation to accommodate an
individual with a disability simply by asserting that the disability did
not derive from occupational injury," Bradley v. United States Postal
Service, EEOC Appeal No. 01962747 (October 22, 1998), an employer is
permitted to create light duty positions for those injured on the job
but not those injured off the job, as long as it does not make such
a distinction between on and off the job injuries where it maintains
reserved light duty positions. See EEOC Enforcement Guidance on Workers'
Compensation and the ADA (September 3, 1996) at questions 27-28;
McCutcheon v. United States Postal Service, EEOC Appeal No. 01A00408
(January 8, 2001).