01993995
10-25-2001
Marcella A. Fox, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Marcella A. Fox v. United States Postal Service
01993995
10/25/01
.
Marcella A. Fox,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01993995
Agency No. 4H-370-0079-98
DECISION
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. Complainant alleged that she was discriminated
against on the basis of disability (right radial nerve neuropraxia,
heel spur, plantar fasciitis), when on August 9, 1997, she received a
notice that she would not be hired by the agency as a Distribution Clerk.
The record reveals that during the relevant time, complainant was an
applicant for employment at the agency's Winchester, Tennessee facility.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on March 21, 1998.
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 disability discrimination because she failed
to prove she had a substantial limitation to a major life activity.
Assuming complainant met this burden, the agency also found she failed
to establish she was a qualified individual with a disability. In that
regard, the agency noted that subsequent to a medical assessment performed
by the agency's contract physician, complainant was found not medically
qualified for the position of Distribution Clerk. Furthermore, an
orthopedist specialist concurred with the medical assessment. As such,
the agency found complainant was not hired for the position due to an
inability to perform the essential functions of the job, not because of
her alleged disability.
In the complaint at hand, complainant is alleging that the agency did
not hire her for the Distribution Clerk position because of her medical
condition. This is a claim of disparate treatment. In analyzing a
disparate treatment claim under the Rehabilitation Act, where the
agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we
apply the burden-shifting method of proof set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens
Village Commission. for Mental Health for Jamaica Cmty. Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C.Cir. 1999). Under this analysis, in order to establish
a prima facie case, complainant must demonstrate that: (1) she is an
"individual with a disability"; (2) she is "qualified" for the position
held or desired; (3) she was subjected to an adverse employment action;
and (4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., No. 00-1179,
2001 WL 292999 (7th Cir. March 26, 2001). The burden of production then
shifts to the agency to articulate a legitimate, non- discriminatory
reason for the adverse employment action. In order to satisfy his burden
of proof, complainant must then demonstrate by a preponderance of the
evidence that the agency's proffered reason is a pretext for disability
discrimination. Id.
Upon review of the record, the Commission finds that complainant has
failed to establish a prima facie case of discrimination based upon
his disability. As to part (1) of the analysis, EEOC Regulation 29
C.F.R. 1630.2(g) defines an individual with a disability as one who:
1) has a physical or mental impairment that substantially limits one
or more of that person's major life activities, 2) has a record of
such impairment, or 3) is regarded as having such an impairment. EEOC
Regulation 29 C.F.R. 1630.2(h)(2)(i) defines "major life activities" as
including the functions of caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
For the purposes of our analysis, we will assume complainant is an
individual with a disability.
In part (2) of the prima facie case of discrimination based upon
disability, complainant also must show that she is a "qualified"
individual with a disability within the meaning of 29 C.F.R. 1630.2(m).
See also Cleveland v. Policy Management Systems Corp., 526 U.S. 795,
119 S.Ct. 1597 (1999). The term qualified individual with a disability
means, with respect to employment, a disabled person who, with or without
a reasonable accommodation, can perform the essential functions of the
position in question. We find complainant failed to establish she is a
qualified individual with a disability because she failed to establish
she was capable of performing the essential functions of the job, with
or without an accommodation.
The only medical evidence in the record are the statements from the
agency's contract physician who reports that complainant's injury
resulted in a loss of fine motor control to her right hand and weakness
and sustained problems with her hands around the home. For example,
complainant reported having problems gripping, using the lawnmower,
and starting equipment. As such, the agency's physician reports that
complainant did not meet the functional requirements of the position
which required her to lift up to 70 pounds, carry up to 45 pounds,
and manipulate using fine motor skills. Specifically, the position
description of the Distribution Clerk position entails separation and
distribution of mail according to mail schemes, as well as performing
other functions such as tying mail, operating cancelling machines and
other duties involving fine manipulation of mail. We note complainant
provided no documentary or testimonial evidence that would dispute
the agency's assertion that she was not qualified for the Distribution
Clerk position. Furthermore, complainant offered no accommodation that
would enable her to perform the essential functions of the job.<1>
The Commission further finds that complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination. In reaching this
conclusion, we note that the preponderance of the record reveals the
agency did not hire complainant for the position because she was not
capable of performing the essential functions of the job with or without
an accommodation.
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 FAD.
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
10/25/01
Date
1We note for the record that complainant submitted a brief on appeal well
after the deadline in which to file a brief. As such, we are unable to
take arguments made on appeal into consideration, especially in light of
an absence of evidence establishing that complainant sought an extension
of time in which to file a brief.