01982635
07-17-2001
Kathleen M. Schnabele, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Mid-Atlantic Area), Agency.
Kathleen M. Schnabele v. United States Postal Service
01982635
July 17, 2001
.
Kathleen M. Schnabele,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Mid-Atlantic Area),
Agency.
Appeal No. 01982635
Agency No. 4D-210-1091-95
Hearing No. 120-95-6706X
DECISION
Complainant timely initiated an appeal from the agency's final agency
decision (FAD), concerning her 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.<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleges she was discriminated against
on the basis of her disability (anxiety, stress, depression) when on
April 13, 1994, the agency refused to accommodate her according to her
doctor's recommendations. For the following reasons, the Commission
affirms the FAD.
The record reveals that complainant was employed as a Claims and Inquiry
Clerk at the agency's Southern Maryland plant facility. Believing she
was a victim of discrimination, complainant sought EEO counseling and
subsequently filed a formal EEO complaint with the agency on November 10,
1994, alleging that the agency had discriminated against her as referenced
above. At the conclusion of the investigation, complainant was provided
a copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding no discrimination. The FAD concurred with the AJ's decision.
During the relevant time complainant worked in the Consumer Affairs and
Claims Department (CACD), as a result of a merger in October 1992 of
the Claims and Inquiry Department and the Consumer Affairs Department.
Complainant's duties, while working in the Claims and Inquiry Department
before the merger, included filling out mail loss reports, helping
customers complete insured mail reports, registering reports of mail that
was damaged or lost, and aiding other offices in completing these lost or
damaged mail reports. Complainant's duties included helping customers
over the telephone. Complainant worked primarily on the workroom floor
or in the mail cage.
As a result of the merger, complainant's Claims and Inquiry duties
continued, but she was also required to answer the Consumer Affairs
telephones. With respect to the Consumer Affairs telephones, complainant
was required only to take messages for the two employees who had
the permanent bid positions and who had previously been charged with
the responsibility of answering the telephones and resolving customer
problems.<2> Complainant was not tasked with any responsibility for
solving the problems of these customers. Nevertheless, complainant
testified that customers insisted that their problems be resolved while
they had her on the telephone. Complainant claimed that customers were
very hostile and derided her when she could not answer their questions.
She indicated that as soon as the telephone rang she would start having
an anxiety attack.
Complainant indicated she had no difficulty dealing with customers that
called on the Claims and Inquiry telephone. In addition, there was no
evidence presented by complainant that she had difficulty dealing with
people in any other setting.
Complainant has had a history of anxiety, difficulties with stress,
and depression. Prior to October 1992, she was diagnosed with anxiety
and depression and prescribed medication by Dr. A. On October 9, 1992,
Dr. B diagnosed complainant as suffering from severe stress and anxiety.
Dr. B recommended that complainant be �removed from her present position
because it is causing severe emotional stress which has led to physical
incapacitation and psychological distress.� I.F., Ex. 2A. Dr. B
recommended light duty work for complainant.
Complainant gave Dr. B's recommendation to her first-line supervisor
(Supervisor A, no known disability) and second-line supervisor (Supervisor
B, no known disability). Complainant specifically indicated that she told
her supervisor she felt �like [she] was being mentally abused when [she]
picked up that [Consumer Affairs] phone.� Tr. 53. Supervisor B declined
to remove complainant from answering the Consumer Affairs telephones,
citing personnel shortages. Supervisor B informed complainant she had to
use annual and sick leave if she did not want to continue her new duties
in the CACD. Supervisor A advised complainant to take advantage of the
Employee Assistance Program. Complainant decided to continue performing
her duties.
In February 1993, Supervisor C (no known disability) became manager of
CACD. Complainant requested that she be taken off the Consumer Affairs
telephones because of her difficulties with customers. Complainant
presented no medical documentation. Supervisor C denied the request,
citing the shortage of personnel. Supervisor C advised complainant to
bid on other jobs that did not require answering telephones and informed
complainant that she at least had to take a message and give it to the
appropriate people to resolve. In April and May 1993, complainant bid
on 13 different jobs, but was unsuccessful either because she did not
pass the required examination or because other people with seniority
were awarded the position.
Dr. A on March 25, 1994, wrote a letter recommending that complainant
be immediately removed from her telephone duties. Dr. A diagnosed
complainant as suffering from anxiety and depression and recommended that
�[I]n order to prevent serious mental and emotional damage [complainant]
must be removed from the complaints department.� I.F., Ex. 2B. Dr. A
further stated that complainant's anxiety and depression �have been
markedly accentuated by her role in receiving complaint calls.� Id.
Complainant gave Dr. A's letter to Supervisor C, who still declined
to remove complainant from her telephone duties. However, Supervisor
C eventually acquired another employee to help answer the telephones
in the office. This additional employee resulted in complainant being
fourth in line to answer the telephones. Supervisor C also tried several
times to find another position for complainant outside CACD, but was
unsuccessful for various reasons. Complainant declined a temporary
Window Clerk assignment that did not involve answering telephones,
that was offered to her through Supervisor C's efforts.
On April 13, 1994, complainant filed a workers' compensation claim,
alleging employment related stress and anxiety from her duties in
answering the phones for the Consumer Affairs section of the office.
In the claim application, complainant explained that she had a ��passive'
personality which is not a good quality for this particular line of
work.� I.F., Ex. 3C. The claim was approved by the Department of Labor
on April 7, 1995, and complainant was compensated for the time that she
was away from work.
On or before May 27, 1994, complainant filed a grievance with the Shop
Steward, because she was still answering the Consumer Affairs phones.
Supervisor C testified that sometime in May 1994, she no longer required
complainant to answer the Consumer Affairs phones. Tr. 170-73.
Complainant testified that Supervisor C may have excused her from
answering phones at �the very end of May, when [she] was already totally
out of it.� Tr. 64.
However, complainant disputed whether there was ever a time that she
was not forced to answer the Consumer Affairs telephones. Tr. 65.
In June 1994, complainant started seeing a psychiatrist, Dr. C (no
known disability), who also referred her to a psychotherapist. Dr. C
informed complainant that her condition was chronic and would last longer
than a year. Complainant was further informed that her illness was
employment-related and that she needed monthly psychiatric attention
and weekly psychotherapy. Dr. C diagnosed complainant as suffering
from bipolar affective disorder. C. Ex. 4. Complainant testified that
she informed Supervisor C of Dr. C's diagnosis over the telephone in
June 1994. Tr. 32.
Complainant became addicted to one of the drugs prescribed for her anxiety
by Dr. A. On June 1, 1994, complainant was ill and out on sick leave.
On June 6, 1994, she admitted herself to the hospital for the treatment
of her addiction. Tr. 36. On June 26, 1994, complainant returned to
work. It is not clear from the record what her responsibilities were
upon her return. However, complainant was not answering the Consumer
Affairs phones.
On July 5, 1994, complainant was assigned a new duty at the Central
Forwarding System (CFS) as an accommodation. Her work at CFS was
computer-related and did not involve answering the telephone. Two hours
after returning to work that day, complainant had a break down and was
unable to perform her duties. She started crying and was sent home by
the office nurse.
On August 17, 1994, complainant's grievance was resolved. The agency
agreed to place complainant in a position which did not involve answering
telephones. On August 25, 1994, complainant returned to work. The agency
placed complainant in the loose-in-the mail cage, at the General Mail
facility, in the agency's Southern Maryland facility.
The AJ concluded that complainant failed to establish a prima facie
case of disability discrimination. More specifically, the AJ concluded
that complainant was not a person with a disability within the meaning
of the Rehabilitation Act. The AJ found that complainant did not
provide evidence to demonstrate that her severe stress and anxiety
substantially limited a major life activity. The AJ found that the
evidence supported the point that complainant disliked the Consumer
Affairs aspect of her job, e.g., customers who telephoned the Consumer
Affairs section of the office and had been shuttled from office to office,
were angry, and demanded that their problems be addressed immediately by
the Consumer Affairs section. However, the AJ concluded that this did
not demonstrate that complainant was disabled within the meaning of the
Rehabilitation Act. The AJ specifically examined whether complainant was
substantially limited in her ability to interact with others and in her
ability to work, but was unpersuaded that complainant was substantially
limited in those major life activities.
The AJ then concluded that even if complainant could demonstrate that she
was disabled, she could not show that she was �otherwise qualified.� The
AJ found that complainant could not make this showing because she could
not perform one of the essential functions of her job in CACD�answering
the Consumer Affairs telephone. The AJ pointed out that complainant
had indicated that the Consumer Affairs work was a substantial portion
of her job and that the duties became more and more important. Tr. 50.
Accordingly, the AJ emphasized that complainant was essentially seeking
permission to forego performing an essential function of her job.
Such a request could not be a �reasonable� accommodation. The AJ thus
stressed that an employer is not required to accommodate an employee
by eliminating an essential function of her job. The AJ concluded
that excusing complainant from answering the Consumer Affairs phones
was a hardship for CACD and there was no acceptable accommodation for
complainant that would have rendered her a qualified individual with
a disability. As such, according to the AJ, complainant could not make
a prima facie case of disability discrimination.
Finally, the AJ found that even if complainant were deemed a qualified
person with a disability, the evidence showed that the agency made a
good faith effort to accommodate her. Conversely, the AJ found that
complainant had not demonstrated that the efforts of the agency were
not made in good faith. In the AJ's view, the complainant could not,
in any event, be due compensatory damages for the agency's actions in
this matter.
In its FAD, the agency concurred in the AJ's decision. Complainant, on
appeal, argues that the record and the AJ's credibility determinations
do not support the AJ's decision and the FAD. In response, the agency
restates the position it took in its FAD and requests that we affirm
its FAD.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
The Rehabilitation Act prohibits discrimination against qualified disabled
individuals. See 29 C.F.R. � 1630. Under the Commission's regulations,
an agency is required to make reasonable accommodation of the known
physical or mental limitations of an otherwise qualified applicant or
employee with a disability, unless the agency can demonstrate that the
accommodation would impose an undue hardship. 29 C.F.R. � 1630.9(a).
One bringing a claim of disability discrimination must first establish
that s/he is a member of the class of persons protected by the
Rehabilitation Act, i.e., a qualified individual with a disability.
An �individual with a disability� is defined as someone who: (1)
has a physical or mental impairment which substantially limits one
or more of such person's 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)(1)-(3).
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)(1)(i) and (ii). In determining
whether an individual is substantially limited in a major life activity
one must consider �[t]he nature and severity of the impairment�, �[t]he
duration or expected duration of the impairment�, and �the permanent
or long term impact, or the expected permanent or long term impact of
or resulting from the impairment.� 29 C.F.R. � 1630.2(j)(2)(i), (ii),
and (iii). �Major life activities� include functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. � 1630.2(i). Examples of
other major life activities include, but are not limited to, sitting,
standing, lifting, and reaching. 29 C.F.R. Part 1630 Appendix �
1630.2(i). They also include thinking, concentrating, interacting with
others, and sleeping. EEOC Enforcement Guidance on The Americans with
Disabilities Act and Psychiatric Disabilities at 5 (March 25, 1997).
Complainant has not shown that she is substantially limited in any
major life activity, has had a history of being substantially limited
in any major life activity, or that the agency regarded her as being
substantially limited in any major life activity. Complainant has,
at best, shown that she has been substantially limited in answering the
telephone involving the Consumer Affairs lines. Complainant acknowledged
that she did not have problems answering the telephone involving Claims
and Inquiry lines or in any other environment.
The AJ addressed whether complainant was substantially limited in her
ability to interact with others. The AJ found that it was undisputed that
after the merger, complainant did not have any difficulty dealing with
the customers that called on the Claims and Inquiry lines. The AJ cited
to a letter complainant wrote to an Injury Compensation Specialist, soon
after filing the Workers Compensation claim, stating that she could answer
her own telephones, although she wanted to be removed from answering
the Consumers Affairs telephone lines. The AJ noted that complainant
produced no evidence that she had difficulty in interacting with people
in her personal life. The AJ thus concluded that the only limitation
complainant had was in answering the Consumer Affairs telephone lines,
and that this was not a major life activity.
The AJ also addressed whether complainant was substantially limited in
her ability to work because of her difficulty with the task of answering
the Consumer Affairs telephone lines. The AJ correctly pointed out
that EEOC regulations and interpretive guidance state �an individual is
not substantially limited in working just because he or she is unable to
perform a particular job for one employer, or because he or she is unable
to perform a specialized job or profession requiring extraordinary skill,
prowess or talent.� 29 C.F.R. Part 1630 App. � 1630.2(j). The AJ thus
noted that complainant was not impaired in her ability to do the job of
a Claims and Inquiry Clerk. The AJ noted that complainant frequently
provided service to customers by telephone. On the other hand, the
AJ noted that complainant was unable to answer telephone calls from
customers seeking Consumer Affairs service and take a message for
the other employees in the office. In essence, in the AJ's view,
complainant had difficulty completing one task associated with one
job, and that the task did not constitute a broad range of duties or
even represent responsibilities in a broad range of jobs. Thus, the
AJ concluded that complainant could not be deemed to be substantially
limited in her ability to work.
The ability to work is substantially limited if the complainant is
�significantly restricted in the ability to perform either a class of jobs
or a broad range of jobs in various classes as compared to the average
person having comparable training, skills and abilities.� 29 C.F.R. �
1630.2(j)(3)(i). The regulations also make clear that �[t]he inability
to perform a single, particular job does not constitute a substantial
limitation in the major life activity of working.� Id. The evidence of
record with regard to complainant's limitations answering the Consumer
Affairs telephones, while having no problems with answering the Claims
and Inquiry telephones, does not support a finding that complainant was
substantially limited in the major life activity of working.
Finally, we note that even if an employee with an occupational injury
has a �disability� as defined by a workers' compensation statute,
s/he may not have a �disability� for ADA purposes. EEOC Enforcement
Guidance on Workers' Compensation and the ADA (September 3, 1996) at 2
(Workers' Compensation and the ADA). In order for an individual to be
considered a person with a disability for ADA purposes, s/he must meet
the ADA definition. Id. Thus, even though complainant's impairment
was found to have resulted in an occupational injury under the workers
compensation statute does not dictate that she is a person with a
disability under the ADA. See also Wailer v. Department of Defense, EEOC
Request No. 0540919 (April 6, 1995) and Bailey v. U.S. Postal Service,
EEOC Appeal No. 01952545 (Individuals are not necessarily regarded as
individuals with disabilities, as defined by the Rehabilitation Act, even
though they may have been provided with a limited duty assignment because
of an on-the-job injury or because they received an award from OWCP).
A person who has filed a workers' compensation claim does not
necessarily have a disability under the �record of� portion of the
ADA definition. Workers' Compensation and the ADA at 2. A person has
a disability under the �record of� portion of the ADA definition only
if s/he has a history of, or has been misclassified as having, a mental
or physical impairment that substantially limits one or more major life
activities. Id. at 2-3. There is evidence in the record to support a
finding that complainant had a record of being substantially limited in
a major life activity.
A person with an occupational injury has a disability under the �regarded
as� portion of the ADA definition if s/he: (1) has an impairment that
does not substantially limit a major life activity but is treated by an
employer as if it were substantially limiting, (2) has an impairment that
substantially limits a major life activity because of the attitude of
others towards the impairment, or (3) has no impairment but is treated
as having a substantially limiting impairment.� Workers' Compensation
and the ADA at 3-4.
Far from regarding complainant as substantially limited, the agency
was trying to have the complainant do more, not less. The agency's
actions limiting complainant's responsibilities with the Consumer Affairs
telephones were driven by complainant, not the agency.
Accordingly, we conclude that substantial evidence supports the
AJ's finding that complainant was not a person with a disability.
We therefore point out that the ADA does not require an employer to
provide a reasonable accommodation for an employee, who does not have
a disability as defined by the ADA. See Workers' Compensation and the
ADA at 15.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's FAD.<3>
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
July 17, 2001
Date
1 The 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.
2 It is not entirely clear whether complainant was initially (October
1992) required by the agency to resolve the problems of the Consumer
Affairs customers. Nevertheless, it is clear that her responsibilities
with regard to answering their telephone calls were considerably less than
the responsibilities of the employees with the permanent bid positions.
3 We also agree with the AJ that the ADA does not require an employer
to reallocate the essential functions of an employee's position
(job restructuring by eliminating employee's essential function(s))
as a reasonable accommodation. EEOC Enforcment Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act
(March 1, 1999) at 25. (Guidance on Reasonable Accommodation and Undue
Hardship). We note, however, that the question of whether a person is a
�qualified individual� is not limited to the job complainant held. See 29
C.F.R. � 1630.2(m) (�position such individual holds or desires, and who,
with or without accommodation, can perform the essential functions of such
position�) (Emphasis added). The ADA specifically lists �reassignment to
a vacant position� as a form of reasonable accommodation. This type of
reasonable accommodation must be provided to an employee who, because of
a disability, can no longer perform the essential functions of his/her
current position, with or without reasonable accommodation, unless
the employer can show that it would be an undue hardship. Guidance on
Reasonable Accommodation and Undue Hardship at 37. To this extent the
AJ erred in his analysis of reasonable accommodation for complainant and
consequently whether the agency made a good faith effort to accommodate
complainant. Nevertheless, since we agree with the AJ and the agency
that complainant was not a person with a disability under the ADA,
the error was harmless.