01A32144r
04-05-2004
James E. Fuller, II, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Region), Agency.
James E. Fuller, II v. United States Postal Service
01A32144
April 5, 2004
.
James E. Fuller, II,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Region),
Agency.
Appeal No. 01A32144
Agency No. 1G-771-0160-00
Hearing No. 330-A1-8174X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, previously a mail processor at
the agency's Houston, Texas facility, filed a formal EEO complaint on
October 23, 2000, alleging that the agency discriminated against him on
the basis of disability when he was denied reasonable accommodation.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. In her decision, the AJ found that complainant
did not meet the definition of an individual with a disability under the
Rehabilitation Act because despite his five-pound lifting restriction,
"lifting is not a listed major life function and has not been looked
upon by the courts as a major life function." The AJ therefore
concluded that since complainant could not establish coverage under the
Rehabilitation Act, he was not entitled to a reasonable accommodation and
no discrimination could be found under the theory of disparate treatment.
On appeal, complainant argues that the AJ erred by failing to conduct
a hearing. Complainant further contends that the AJ failed to address
his amended claims in her decision. Complainant also maintains that
the AJ erred when she determined that he failed to show that he has an
impairment which substantially limits a major life activity.
The record reveals that complainant previously worked as a mail processor.
On May 3, 2000, he suffered an injury to his right shoulder while
at work. After observing complainant's right arm pop from the socket,
complainant's supervisor placed him in a limited duty assignment
distributing mail On May 17, 2000, a physician placed complainant
on a five-pound lifting restriction. Consequently, the agency placed
complainant on limited duty until August 2000. On August 9, 2000, a
co-worker struck complainant's right shoulder, exacerbating his right
arm injury. Pending a decision by the Office of Worker's Compensation
Programs (OWCP), complainant's second-line supervisor ordered him to
report to her office until suitable work could be found within his
medical restrictions. Complainant reported to work on August 10, 13,
14, and 15, 2000, but thereafter took leave under the Family Medical
Leave Act. On December 11, 2000, the agency offered complainant a
limited duty position as Yard Master, a sedentary position involving
limited walking, standing, pushing, bending, stooping, and lifting.
The record contains documentation dated August 9, 2000 from a physician
wherein complainant was diagnosed as having acute acromioclavicular
joint strain with ligament damage caused by new injury to his right
shoulder rotator cuff. The physician noted that the "acute, forceful
injury into the already-injured areas poses risk for permanent rotator
cuff limitations." Consequently, the physician restricted complainant
from lifting more than five pounds, reaching above his shoulder,
climbing ladders, or pulling and pushing. The physician noted that
complainant could not continue performing his previous work duties and
should be restricted from work activities that might aggravate his right
shoulder injury. The record contains another document from complainant's
physician dated August 15, 2000, wherein complainant's physician stated
that complainant must discontinue working because he reinjured his right
rotator cuff. On an OWCP form dated August 15, 2000, the physician
stated that he had treated complainant's injury with injections.
In his investigative affidavit, complainant contended that on August 10,
2000, he requested desk work as an accommodation for his shoulder injury.
He maintained that his supervisor denied this request for three months,
directed him to report to her office, and instructed him to look at
her face or at the wall during the eight hours he was at work. In her
affidavit, complainant's supervisor maintained that since complainant
could no longer case mail after his injury, all she could do was assign
him to sit in the office. The supervisor stated that complainant was
accommodated when she "instructed [him] to sit in the office until work
within his restrictions was available."
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case can
only be resolved by weighing conflicting evidence, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without
a hearing upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
Amended Claims
On appeal, complainant contends that the AJ failed to address additional
claims in her decision that were included in his Motion to Amend. The
record reveals that the AJ granted complainant's Motion to Amend his
complaint, pursuant to 29 C.F.R. � 1614.106(d). In his Motion to Amend,
complainant contended that he was subjected to discrimination on the
basis of disability when:
In July 2001, the agency issued him a Letter of Warning without going
through the correct order for discipline; and
In July 2002, the agency immediately reassigned another injured employee
to a position within his restrictions, whereas it took three months to
place complainant.
Upon review of the matter, we first note that in his Motion to Amend,
complainant stated that claim 1 is the subject of a separate complaint
that he filed but later withdrew. Although the AJ did not address claim 1
in her decision, we dismiss this matter pursuant to C.F.R. � 1614.107(a),
which provides for the dismissal of matters that state the same claim
previously raised through the EEO process. See Curtis v. United States
Postal Service, EEOC Appeal No. 01A31685 (January 23, 2004) (affirmed
dismissal of complainant's complaint for stating the same matter that
had previously been withdrawn by her in another complaint); see also
Tellez v. Department of Transportation, EEOC Request No. 05930805
(February 25, 1994)(where a complainant "knowingly and voluntarily
withdrew his complaint .... the Commission considers the matter to have
been finally abandoned"). Regarding amended claim 2, we find that this
matter was properly addressed by the AJ in her decision under the theory
of disparate treatment. Accordingly, we review the AJ's decision on
these matters below.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. 1630.9.
The Commission also notes than an employee must show a nexus between
the disabling condition and the requested accommodation. See Wiggins
v. U.S. Postal Service, EEOC Appeal No. 01953715 (April 22, 1997).
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. � 1630.2(g). The Commission has defined
"substantially limits" as "[u]nable to perform a major life activity
that the average person in the general population can perform" or
"[s]ignificantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major
life activity." 29 C.F.R. � 1630.2(j)(i) and (ii). Major life activities
include such functions as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. EEOC
Regulation 29 C.F.R. � 1630.2(i).
After a careful review of the record, we first find that the AJ
incorrectly concluded that lifting is not a major life activity. The
Commission has recognized lifting as a major life activity. Interpretive
Guidance on Title I of the Americans With Disabilities Act, Appendix
to 29 C.F.R. � 1630.2(i); See also Rice v. Department of the Navy, EEOC
Petition No. 03A20013 (April 18, 2002); Haygood v. U.S. Postal Service,
EEOC Appeal No. 01976371 (April 25, 2000). Here, the record reveals that
complainant's physician diagnosed him as having acute acromioclavicular
joint strain and on May 17, 2000, placed him on a five-pound lifting
restriction for four months. The record further reveals that
after complainant's reinjury, the physician placed complainant on a
total lifting restriction for an indefinite time period and described
complainant's condition as a "total disability." Complainant's physician
later modified his restriction on December 1, 2000 to lifting ten pounds,
no work above the chest level, and no reaching above the chest level.
The physician determined that because of complainant's reinjury, he could
not operate a motor vehicle and should be assigned limited work duty.
Therefore, we find that contrary to the AJ's conclusion, the record
contains sufficient evidence to create an issue of fact regarding whether
complainant is an individual with a disability.
Nonetheless, even assuming that complainant was an individual with
a disability, we find that the issuance of a decision in favor of
the agency without a hearing was appropriate because complainant did
not present sufficient evidence from which a reasonable fact-finder
could conclude that he was a qualified individual with a disability.
A "qualified individual with a disability" is an individual with a
disability who satisfies the requisite skill, experience, education and
other job related requirements of the employment position such individual
holds or desires, and who, with or without reasonable accommodation, can
perform the essential functions of the position. 29 C.F.R. � 1630.2(m).
The term "position" is not limited to the position held by the employee,
but also includes positions that the employee could have held as a result
of reassignment. Therefore, in order to determine whether complainant
is "qualified," the fact finder must assess whether, with or without
accommodation, complainant could perform the essential functions of
any position which he could have held as a result of job restructuring
or reassignment. See Hawkins v. United States Postal Service, EEOC
Petition No. 03990006 (February 11, 1999).
Reassignment is the reasonable accommodation of last resort and is
required only after it has been determined that: (1) there are no
effective accommodations that will enable the employee to perform the
essential functions of his current position, or (2) all other reasonable
accommodations would impose an undue hardship. EEOC's Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, Number 915.002, Reassignment, (as
revised October 17, 2002) ("Reasonable Accommodation Guidance").
Former EEOC Regulation 29 C.F.R. � 1614.203(g), the governing regulation
at the time of complainant's reassignment request, states that when an
employee becomes unable to perform the essential functions of his or her
position even with reasonable accommodation due to a handicap, an agency
shall offer to reassign the individual to a funded vacant position located
in the same commuting area and serviced by the same appointing authority,
and at the same grade or level, the essential functions of which the
individual would be able to perform with reasonable accommodation if
necessary unless the agency can demonstrate that the reassignment would
impose an undue hardship on the operation of its program.
In Hampton v. United States Postal Service, the Commission clarified its
position regarding the standard for assessing liability for reassignment.
EEOC Appeal No. 01986308 (July 31, 2002). The Commission determined
that in the context of reassignment, 29 C.F.R. � 1614.203(g) places the
evidentiary burden on the complainant to show that he is a "qualified
individual with a disability." Complainant has the burden in such
reassignment cases to establish by a preponderance of the evidence that
there were vacancies during the relevant time period into which he could
have been reassigned. See id. Although 29 C.F.R. � 1614.203(g) has been
superseded by 29 C.F.R. � 1614.203(b), and no longer applies to cases
arising on or after June 20, 2002, the Commission will continue to use
29 C.F.R. � 1614.203(g) as the standard for assessing liability where,
as here, the events at issue arose before June 20, 2002.<1>
In this case, it is undisputed that complainant could not perform the
essential functions of the mail processor position which he held when
he requested an accommodation. Complainant maintains that after his
injury on August 9, 2000, he asked his supervisor for a reassignment
to desk work. Complainant maintains that his supervisor's response was
that the only accommodation available to him was to sit in her office and
look at her or the walls for the entire work day until he was ultimately
reassigned in December 2000. Complainant's supervisor contends that since
complainant could no longer case mail after his injury, all she could
do was assign him to sit in the office until a reassignment was found.
We note that although complainant contends that "the accommodations
[sic] that I require is desk work," he did not provide any evidence that
there was a vacancy for such a position during the relevant time period.
Therefore, even assuming that complainant was an individual with a
disability, we find that he failed to provide any evidence from which
a reasonable fact-finder could conclude that there were vacant, funded
positions, that existed at the agency at the time of his injury for which
he was qualified to be reassigned or that there were trends or patterns
of turnover in such positions so as to make a vacancy likely during the
relevant time period. Moreover, we note that the record reveals that
the agency reassigned complainant multiple times in the year 2000 in
an ongoing effort to find positions that matched his changing physical
condition, but found it very difficult to find work for complainant after
his physician restricted him from a wide array of work activities that
could aggravate his right shoulder injury. Furthermore, to the extent
complainant is also alleging that the agency discriminated against him on
the basis of disability when he was denied reassignments that were granted
to others, his failure to establish that he was a qualified individual
with a disability under the Rehabilitation Act also extinguishes his claim
that he was subjected to disparate treatment on the basis of disability.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 5, 2004___________________
Date
1We reiterate that 29 C.F.R. � 1614.203(g), which governed and limited
the obligation of reassignment in the Federal sector, has been superseded
and no longer applies. 67 Fed. Reg. 35732 (5/21/02), to be codified
as 29 C.F.R. 1614.203(b). The ADA standards apply to all conduct on
or after June 20, 2002, and emphasize, among other things, a broader
search for a vacancy. The ADA regulations regarding reassignment can
be found at 29 C.F.R. 1630.2(o) and 1630.9. Additional information
can be found in the Appendix to the ADA regulations and in the EEOC's
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, No. 915.002, at Questions
25-31 (rev. October 17, 2002). These documents are available on the
EEOC's website at www.eeoc.gov.