01A01274
04-09-2003
Kim S. Barrier, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kim S. Barrier v. United States Postal Service
01A01274
04-09-03
.
Kim S. Barrier,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01274
Agency No. 4A-070-0140-97
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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.
ISSUE PRESENTED
The issue presented herein is whether complainant has shown that she was
discriminated against in violation of the Rehabilitation Act when she
did not receive a response to her March 1997 request to return to duty.
BACKGROUND
In December 1995, complainant was employed as a Full-Time Regular
Distribution Clerk assigned to the East Orange, New Jersey Postal
facility. The record reveals that complainant, at the times relevant
to this matter, had been employed by the agency for approximately seven
years. At the time she was hired by the agency, she had asthma. Her work
environment contained dust from letters, dirty equipment and fixtures.
On October 25, 1995, complainant experienced an asthmatic episode while
at work. On October 31, 1995, she requested, through her doctor, D-1,
a limited/light duty assignment. Among other things, she requested two
consecutive non-scheduled days and that she not be exposed to dust,
fumes, heat, cold, dampness and stress. On November 14, 1995, her
immediate supervisor requested that the postmaster, A-1, act immediately
to place complainant on leave without pay. On December 1, 1995, in
response to A-1's request, the Newark Medical officer, D-2, wrote that,
based on the restrictions that D-1 had listed, �[i]t would be practically
impossible for the post office to accommodate her limitations.� Instead
of conducting another Fitness-For-Duty examination, D-2 recommended that
complainant be offered disability separation if her limitations could
not be accommodated.
On December 5, 1995, A-1 held a meeting with complainant and her union
steward. During the meeting and in a letter, dated December 6, 1995,
A-1 informed complainant that her �restrictions [were] too severe
to accommodate.� According to complainant, she was told by A-1 not
to return to work and that she should apply for disability retirement.
Thereafter, complainant did apply for disability retirement. In a March
5, 1998 affidavit, A-1 denied recommending that complainant retire.
He also stated that complainant could not be accommodated because (1)
of the restrictions imposed by her physician; (2) job assignments were
made in accordance with the contract with the union; and (3) the nature
of the workplace was not conducive to promoting complainant's health
and safety due to the severity of her medical restrictions.
On May 29, 1996, the Office of Personnel Management (OPM) denied
complainant's disability retirement application. Among other things, OPM
opined that �[t]he medical evidence does not establish a medical condition
of the severity to prevent you from performing the essential duties of
your position or warrant your continued absence from the workplace.�
In March 1997, complainant, who had never been formally separated,
sought to come back to work. Along with her request for reinstatement,
the record contains a letter, dated May 31, 1997, from D-1 briefly
outlining complainant's medical history. D-1 indicated that complainant
had bronchial asthma, took multiple medications and had been hospitalized
on occasions after frequent asthma attacks. Although the purpose of
the letter was to indicate that D-1 had never placed complainant on
�total disability,� we note that he did not indicate that there were
any changes to the limitations that he imposed in October 1995, i.e.,
a schedule with two consecutive days off and where she would not be
exposed to dust, fumes, heat, cold, dampness and stress.
After not receiving a response, complainant filed an EEO complaint,
in June 1997, alleging that she was discriminated against based on a
perceived disability (Asthma) when:
1) on December 5, 1995, she was forced to file for disability retirement;
and
2) she had not received a response to her March 1997 request to return
to duty.
On August 18, 1997, the agency dismissed allegation (1) on the grounds
that it was untimely. There is no evidence that complainant filed an
appeal of this decision. Allegation (2) was accepted for investigation.
At the conclusion of the investigation, complainant received a copy
of the investigative report and was informed that she had the right to
request a hearing before an EEOC Administrative Judge (AJ). Because the
complainant did not request a hearing, the agency issued a final decision
finding no discrimination.<1>
ANALYSIS AND FINDINGS
As a threshold matter, complainant, in order to establish her claim, must
establish that she is a �qualified individual with a disability� within
the meaning of the Rehabilitation Act. An �individual with disability�
is a person who (1) has, (2) has a record of, or (3) is regarded as
having a physical or mental impairment which substantially limits one or
more of that person's major life activities, i.e., caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. See 29 C.F.R. � 1630.2(j). 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
a major life activity must be restricted as compared to the ability of
the average person in the general population to perform the activity.
Id.<2> In the present case, we shall assume, arguendo, that complainant
established that she was an individual with a disability covered by the
Rehabilitation Act.
Notwithstanding the specific allegation delineated above, i.e., that
complainant did not receive a response to her March 1997 request to
return to duty, the real matter at issue is whether the agency failed to
provide complainant a reasonable accommodation which would have allowed
her to return to work. 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 the accommodation would cause an undue hardship.
29 C.F.R. � 1630.9. The Commission also notes that an employee must show
a nexus between the disabling condition and the requested accommodation.
See Wiggins v. United States Postal Service, EEOC Appeal No. 01953715
(April 22,1997).
Complainant must show that she is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). This section
defines the term qualified individual with a disability as meaning, with
respect to employment, a disabled person who, with or without a reasonable
accommodation, can perform the essential functions of the position held
or desired. We find that complainant has not established that she was a
qualified individual with a disability with respect to her Distribution
Clerk position. Complainant maintained that, as an accommodation, the
agency should have provided her with a light duty position which included
a schedule with two consecutive days off and where she was not exposed
to dust, fumes, heat, cold, dampness and stress. She failed, however,
to establish that there was a way she could return to her position of
Distribution Clerk and not be exposed to any one of these conditions.
We further note that the record was devoid of evidence that complainant's
medical condition had improved and that her requested accommodation was
no longer necessary. Since there is no evidence that complainant could
have been accommodated with respect to her Distribution Clerk position,
we find that reassignment to a position outside the Clerk craft would
have been the only possible reasonable accommodation. Therefore, we
turn to the issue of reassignment outside the Clerk craft.
In determining whether complainant was �qualified," the agency had an
obligation to look beyond the Distribution Clerk position. Because
this case arose prior to June 20, 2002, the Commission will apply 29
C.F.R. � 1614.203(g), its prior regulation regarding reassignment.<3>
The complainant has an evidentiary burden in such reassignment cases to
establish that it is more likely than not (preponderance of the evidence)
that there were vacancies during the relevant time period into which
she could have been reassigned. Clearly, complainant can establish
this by producing evidence of particular vacancies. However, this is
not the only way of meeting the evidentiary burden. In the alternative,
complainant need only show that: (1) she was qualified to perform a job
or jobs which existed at the agency, and (2) that there were trends or
patterns of turnover in the relevant jobs so as to make a vacancy likely
during the time period.
We find that complainant failed to establish that there were vacant
positions outside of the Clerk craft which met her restrictions or
for which she was qualified. Moreover, she failed to provide any
other evidence to support an assertion that, had the agency searched
outside the Clerk craft at the relevant time, it would have found a
vacant position to which she could have been reassigned. Based upon
our review, we conclude that complainant was not a qualified individual
with a disability. Accordingly, the Commission finds that complainant
failed to establish her claim that the agency failed to provide her with
a reasonable accommodation.
CONCLUSION
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, the Commission AFFIRMS the
agency's final decision.
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
_____04-09-03_____________
Date
1Complainant filed a grievance against the agency. In November 1998,
an arbitrator found that the agency violated its contract with the
union and ordered it to restore any benefits that complainant would
have received during her period of inactivity. On appeal, the agency
indicated that complainant was subsequently returned to full-time work
at the East Orange, NJ facility.
2While complainant, in her affidavit, indicated that management perceived
her as being disabled, on appeal, her attorney maintained that �management
acted as it did due to her handicap of asthma, for which she was not
accommodated.� We also note the medical information provided by D-1
and the light duty request that complainant resubmitted in March 1997.
The totality of the evidence indicates that complainant is claiming
that she either has or has a record of having a substantially limiting
impairment.
3The agency is advised 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 (March 1, 1999, as revised,
October 17, 2002) at Questions 25-31. These documents are available on
the EEOC's website at www.eeoc.gov.