01960159
10-23-1998
Gregory Van Horn, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.
Gregory Van Horn v. United States Postal Service
01960159
October 23, 1998
Gregory Van Horn, )
Appellant, )
v. ) Appeal No. 01960159
) Agency No. 4-A-117-1056-94
William J. Henderson, ) Hearing No. 160-95-8200X
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Region), )
Agency. )
DECISION
Appellant timely initiated an appeal to this Commission from a final
agency decision ("FAD") concerning his complaint of unlawful employment
discrimination, in violation of Section 501 of the Rehabilitation Act of
1973, as amended, 42 U.S.C.�791 et seq. The appeal is accepted pursuant
to the provisions of EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented is whether, under the facts of this matter, the
Administrative Judge erred in issuing a Recommended Decision without
a hearing.
BACKGROUND
Appellant injured his right thumb while serving in the military,
suffering a Bennett's fracture which did not heal properly despite two
surgical procedures. In 1980, his thumb was fused together (referred
to as carpal-metacarpal fusion CMC).<1> In 1986, appellant was hired
by the agency. In 1989, appellant joined the Huntington Post Office
as a Distribution Clerk, PS-5. Sometime in 1989, appellant incurred
an on-the-job back injury and he was placed in a limited duty job
assignment.<2> His duties included crossing out incorrect bar codes using
a magic marker, hand stamping notices on mail (using only the pressure of
an index finger without repetitive pounding or pressure on the wrist),
addressing notices involving minimal writing, minimal sorting of flat
mail and studying to learn a scheme for sorting mail.
In December 1992, appellant complained of pain in his wrist. Agency
officials maintain that appellant stated that he could only answer
telephones and that (apparently after this request was denied) he then
left work of "his own accord." Appellant maintains that he did not
abandon his position, but was told that there was no work for him and
that he was ordered off the workroom floor and told to stay out of the
building.
The record indicates that at some point, appellant was placed on leave
without pay. On January 8, 1993, appellant underwent further surgery,
including a take down of his carpal-metacarpal fusion, a release of his
superficial radial nerve, a release of the first dorsal compartment and
a fascial arthroplasty.
On December 14, 1993, appellant attempted to return to work at the agency.
Appellant apparently gave his supervisor a note dated December 5, 1993,
from his physician which stated that appellant suffered from pain at the
surgical site on the thumb side of his right wrist and that he appeared
to have some degree of nerve compression to one of the main nerves of the
arm at the elbow. The physician advised that appellant could not grip
items for long periods of time or grip items with excessive force, and
that keeping his elbow flexed for long periods might exacerbate numbness
in his fingers. While noting that what tasks appellant could perform
were "to a large extent ... dependent upon what [he] finds painful,"
the physician opined that appellant should be able to take part in
filing, taking messages, doing small amounts of writing and answering
the telephone. Appellant's supervisor advised him that, inasmuch as he
had been absent for more than three weeks, he would have to be scheduled
for a Fitness For Duty examination.
By letter dated December 16, 1993, the Postmaster wrote to appellant's
physician and inquired as to the date appellant could resume the duties
of his position, as set forth in an attachment, and also inquired as to
"his work tolerance limitations which are [due] to the VA Disability."
A letter from appellant's physician dated December 22, 1993, stated that
appellant could use a magic marker to cross out incorrect bar codes,
use a hand stamping device requiring the pressure of an index finger,
address notices requiring minimal writing, sort flat sized mail,
and learn other schemes for sorting mail (i.e., the tasks required of
appellant in his prior limited duty position.) The physician noted that
appellant should not do tasks involving excessive gripping of his right
hand, repetitive flexion of his right elbow, or repetitive internal or
external rotation of his right forearm, but that activities not entailing
these movements should not cause undue pain. By letter dated December 28,
1993, the physician opined that appellant could answer the telephone and
write for periods of up to one hour followed by 10 to 15 minute breaks,
but that appellant would have difficulty sorting all types of mail,
hand stamping, and lifting bundles of letters or packages.
Appellant was sent for a Fitness For Duty examination on January 3,
1994. The agency physician stated that appellant could write for up
to one hour followed by 10 minute breaks, that he could lift up to 25
pounds while seated, and that he was not to push or pull heavy weights.
The physician noted that while there were no restrictions on appellant's
left upper extremity, the agency should "see lifting restrictions for
back injuries."
On January 24, 1994, the agency was notified that appellant was pursuing
a claim before the Office of Workers' Compensation ("OWCP") on the basis
that his agency duties had exacerbated his pre-existing thumb condition.
(Although OWCP initially accepted his claim in July 1994, by notice dated
October 14, 1994, appellant was informed that his claim was denied.)
By letter dated January 26, 1994, the Postmaster informed appellant that
his request for "limited duty has been denied since we just received
your [OWCP claim for compensation] and [appellant had] not worked at the
[agency] since 12/03/92 for your VA DISABILITY." Appellant was instructed
that if he "would like to request light duty" to submit a written request,
and to "provide the medical documentation stating prognosis, diagnosis
and expected return to full duty." On January 27, 1994, appellant
requested light duty, referencing his physician's previous letters.
By letter dated January 28, 1994, the Postmaster replied as follows:
Light Duty assignment for injuries off the job are only given for short
periods of time. Since your doctor indicated you will never be able to
assume full duty this request is denied.
This office does not have any light duty available that is consistent
with your requirements.
Your Doctor stated: At present his condition is such that he is unable
to perform sorting or stamping of mail, frequent or persistent grabbing
of objects and activities that require frequent rotation of the forearm.
If the above restrictions are not maintained, further disability will
occur.
Also, please note that light duty is available for only deserving
employees. For the last five years you have been in attendance for only
just over one year. This type of record does not indicate a deserving
employee.
Appellant sought EEO counseling and alleged that the agency's failure to
provide him with a limited or light duty position constituted a failure to
accommodate his physical disability. Appellant contended that the agency
could accommodate him by lowering the mail case, providing a back support
chair, and providing equipment which would allow him to sort left-handed.
Appellant also complained that the agency had not considered reassignment,
even though he had completed window clerk training, accountable mail
clerk training and rates, prices and weights training. Appellant also
noted that he possessed a BA degree which could possibly qualify him for
positions in Employee Assistance Counseling, Human Resources, Personnel
or the EEO Office.
The agency accepted and investigated appellant's complaint. In his
affidavit, the Postmaster stated that:
...The Postal Service is not responsible for providing employees
with light duty work, especially if it placed the employee at risk
of reinjuring himself. [Appellant] was provided with a Limited Duty
assignment for his back. But due to the limitations of his off the job
injury and the risk of an assignment causing him pain, we are unable
to provide him with a job assignment. [Appellant] states that other
employees were given job assignments, while he was not. This is not true.
Everyone in the [facility] who was hurt on the job was given Limited
Duty assignments, as was appellant.
Pursuant to appellant's request, the agency submitted the matter to
an EEOC Administrative Judge ("AJ") for a hearing. Before the AJ, the
agency moved for the issuance of a recommended decision ("RD") without a
hearing (see 29 C.F.R. �1614.109(e)(1)), arguing that while appellant's
impairment did not substantially limit a major life activity and, thus,
that appellant was not a qualified individual with a disability as defined
in the Commission's Regulations. Appellant opposed the agency's motion,
arguing that he was a qualified individual with a disability, and that
"one-handed" work existed in the agency facility and could be provided
to him without posing an undue hardship.
In his RD, the AJ found that appellant's impairment, which prevented him
from performing tasks such as pulling, pushing and gripping or grabbing
items or flexing his right elbow in a repetitive way, limited his ability
to perform a range of manual tasks in a broad and significant way.
Accordingly, the AJ concluded that appellant was an individual with
a disability as defined in the Commission's Regulations. However,
the AJ noted that two of the physicians who evaluated appellant found
that he would either have "difficulty" hand stamping and sorting mail
or found that he could not perform these tasks at all. In addition,
the AJ noted that appellant also did not believe that he could perform
these tasks. Concluding that these tasks constituted essential functions
of appellant's position, the AJ ruled that appellant was not able to
perform the essential functions of his position and, thus, was not a
qualified individual with a disability under the Commission's Regulations.
Accordingly, the AJ granted the agency's request for the issuance of
an RD without a hearing, and found that appellant was not subjected to
discrimination.
In its FAD, dated September 6, 1995, the agency adopted the RD. On
appeal, appellant argues that the AJ erred in issuing a decision without
a hearing. Appellant reiterates his contention that "one-handed work"
existed within the applicable facility and, thus, that it would not pose
an undue hardship to the agency to accommodate appellant's impairment.
Appellant also contends that a position which he could perform
was available at another agency facility within the commuting area.
Appellant requests that the Commission decide this matter on the merits,
rather than remanding his complaint for a hearing. In its comments
on appeal, the agency notes that it does not believe that appellant's
impairment constitutes a disability. In any event, the agency contends
that appellant "was [not] responsive to the non-discriminatory reason
articulated by the agency concerning his light duty request [and,
therefore] did not show that there should be an ultimate finding of
discrimination."
ANALYSIS AND FINDINGS
As a threshold matter, one bringing a claim of disability discrimination
must show that he is a qualified individual with a disability within the
meaning of the Rehabilitation Act and that the agency either treated
him less favorably than individuals not within his protected group or
that it failed to make a reasonable accommodation to his disability.
Mackey v. U.S. Postal Service, EEOC Appeal No. 01931771 (April 28, 1994).
EEOC Regulations provide that 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 an impairment, or
(3) is regarded as having such an impairment. 29 C.F.R. �1614.203(a)(1).
Major life activities include caring for one's self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. 29 C.F.R. �1614.203(a)(3). Here, the AJ found that
appellant's physical impairment substantially limited his ability to
engage in a wide range of manual tasks and, thus, that appellant is
an individual with a disability. Federal agencies are prohibited from
discriminating against qualified individuals with disabilities. A federal
agency must give full consideration to the placement and advancement of
qualified individuals with disabilities and shall be a model employer
of individuals with disabilities. 29 C.F.R. �1614.203(b). The agency
shall make reasonable accommodation to the known physical or mental
limitations of a qualified employee with a disability unless the
agency can demonstrate that the accommodation would impose an undue
hardship on the operation of its program. 29 C.F.R. �1614.203(c).
A qualified employee with a disability is one who can safely perform
the essential functions of the position in question with or without
reasonable accommodation. 29 C.F.R. �1613.203(a)(6).
The Commission finds that the AJ erred in failing to consider whether
the agency's actions constituted a failure to provide appellant with the
reasonable accommodation to which he was entitled. While the AJ found
that appellant's disability precluded him from performing the duties of
a Distribution Clerk, the term "position in question," as contained in
29 C.F.R. �1614.203(a)(6), is not limited to the position actually held
by the employee, but also includes positions that the employee could
have held as a result of job restructuring or reassignment. See 29
C.F.R. �1614.203(c)(2)(ii) and (g). While Federal law does not require
that an agency create a new position for a disabled individual, the agency
must consider reassignment to a vacant position that the individual is
qualified to perform. See Owens v. U.S. Postal Service, EEOC Petition
No. 03930129 (December 17, 1993). Accordingly, the AJ should not have
rendered a decision in the agency's favor without consideration of this
issue.
Further, because we determine the record to be inadequate to resolve
this issue, we find that the AJ erred in issuing a Recommended Decision
without a hearing. Accordingly, this matter is remanded to the agency
for further processing as set forth below.
The Commission further notes that in its comments on appeal, the agency
queries the correctness of the AJ's ruling that appellant met his burden
of establishing that his impairment substantially limited a major life
activity. Nothing in this decision is intended to preclude a de nova
hearing on appellant's complaint, including a careful consideration of
the threshold question of whether appellant's impairment, at the time
in question, substantially limited a major life activity.
CONCLUSION
Based upon a thorough review of the record, and for the reasons set
forth above, the Commission concludes that the AJ erred in issuing a
Recommended Decision without a hearing. Consequently, it is the decision
of the Commission to VACATE the FAD and to REMAND this matter to the
agency for further processing in accordance with the following ORDER.
ORDER (A1092)
Accordingly, the FAD is VACATED and the complaint is hereby REMANDED
to the agency for further processing. The agency shall request the
appointment of an EEOC Administrative Judge to conduct an investigative
hearing within thirty (30) calendar days of the date this decision
becomes final. Following the investigative hearing and issuance of the
Recommended Decision, the agency shall process this matter in accordance
with applicable regulations. A copy of the agency's notice transmitting
the investigative file to the Administrative Judge must be submitted to
the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS-ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Oct 23, 1998
________________ ___________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated
which found that a violation of Section 501 of the Rehabilitation Act of
1973, as amended, 42 U.S.C.�791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The United States Postal Service (Central Illinois District facility),
Bedford Park, Illinois, supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under law.
The United States Postal Service (Central Illinois District facility),
Bedford Park, Illinois, has been found to have discriminated against the
individual affected by the Commission's finding. The United States Postal
Service (Central Illinois District facility), Bedford Park, Illinois,
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The United States Postal Service (Central Illinois District facility),
Bedford Park, Illinois, will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
____________________
Postmaster
Date Posted: _____________________
Posting Expires: _________________
1 This fusion actually improved the condition of the thumb, to the
extent that his veteran's disability award was reduced from 20% to 10%.
2 Generally, the agency's assignments to occupationally-injured
employees are denoted "limited duty assignments," whereas assignments
to non-occupationally-injured employees are denoted "light duty
assignments."