01A03475
02-26-2002
Mary C. Kalbfell v. U.S. Postal Service 01A03475 02-26-02 .Mary C. Kalbfell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary C. Kalbfell v. U.S. Postal Service
01A03475
02-26-02
.Mary C. Kalbfell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03475
Agency No. 1C151010298
Hearing No. 170-99-8159X
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
on the basis of disability (Cervical Strain Syndrome, Synovitis
and Post-Traumatic Fibromyalgia) in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. For the
reasons stated herein, the agency's FAD is reversed and remanded.
ISSUE PRESENTED
The issue on appeal is whether complainant has established that the
agency discriminated against her on the above-referenced basis when it
terminated her employment with the agency.
BACKGROUND
Complainant was employed as a Mail-handler, PS-4, at a Pennsylvania
facility of the agency. In March 1988, while pushing a nutting
truck<1> weighing approximately 800 pounds including mail stacked on
it, complainant suffered a sharp pain in her chest, a rapid heart beat,
and tightness in her neck.<2> As a result of complainant's on-the-job
injury, she received partial disability benefits from the Office of
Workers' Compensation (OWCP) and was placed on limited duty<3> at work.
In January 1996, OWCP terminated complainant's disability benefits,
after approximately seven years, because it determined that complainant
no longer experienced the residual effects of a work-related injury.
Complainant then was placed on light duty pending the result of her
appeal to OWCP, which was denied in January 1997. In March 1998, the
agency notified complainant of her removal from the agency, effective
April 17, 1998, stating that she was physically unable to perform the
duties of her position. A medical report indicated that complainant
was limited to four hours duty per day, no lifting over five pounds,
no repetitive arm motion, pushing, pulling, or carrying. Complainant,
believing she was a victim of discrimination, sought EEO counseling and,
subsequently, filed a complaint alleging that the agency discriminated
against her based on disability (Cervical Strain Syndrome, Synovitis and
Post-Traumatic Fibromyalgia) when it terminated her employment because
of her medical restrictions.
The agency stated that complainant's employment was terminated because
her impairment was permanent instead of temporary, the latter of which
light duty is designated for. It further stated that complainant was
unable to perform the essential functions of her position and that no
position was available which could accommodate her medical restrictions.
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 under a disparate treatment analysis. The AJ concluded
that complainant failed to establish a prima facie case of discrimination
because she failed to show that her impairment was permanent and that
those similarly situated to her were treated more favorably. The agency
issued a FAD concurring with the AJ's finding of no unlawful employment
discrimination based on disability. This appeal followed.
ANALYSIS AND FINDINGS
The Commission finds that the merits of this case are better determined
under a reasonable accommodation analysis rather than a disparate
treatment one. Reasonable accommodation describes modifications to the
manner under which a position held is customarily performed that enable a
qualified individual with a disability to perform the essential functions
of his/her position.
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act (1999) (Enforcement Guidance).<4>
The Rehabilitation Act of 1973 prohibits discrimination against qualified
disabled individuals. See 29 C.F.R. � 1614.203. In order to establish
disability discrimination, complainant must first show that: (1) she is
an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2)
she is a qualified individual with a disability pursuant to 29 C.F. R. �
1630.2(m); and (3) the agency failed to provide a reasonable accommodation
although to do so would not pose an undue hardship on its operations.
Enforcement Guidance.
Although there is considerable medical evidence that complainant's
limitations are long term, the AJ found that complainant's impairments
were not permanent. The next issue is whether complainant was a
qualified individual with a disability, i.e., was she able to perform
the essential functions of the position at issue herein. 29 C.F.R. �
1630.2(m). The agency stated that complainant could not perform the
essential functions of her position but complainant stated otherwise and
it appears that the agency was able to accommodate her for several years.
The record is not fully developed on this issue. The record is also
not fully developed on the agency's efforts to reassign complainant to a
vacant position. Accordingly, we find that summary judgment should not
have been granted in this matter because genuine issues of material fact
exists. See Kenney v. Department of the Army, EEOC Request No. 01994419
(July 7, 2000)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-9 (1986).
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, we VACATE the agency's finding
of no discrimination based on disability. As such, this case is REMANDED
to the agency for processing in accordance with this decision and the
order below.
ORDER
The agency shall request the Hearings Unit of the appropriate EEOC
field office to schedule a hearing. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted to
the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with the regulation set forth
at 29 C.F.R. 1614.109 and the agency shall issue a final action in
accordance with the regulation set forth at 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
_____02-26-02_____________
Date
1A �nutting truck� is a wheeled container consisting of a platform and two
slatted ends to restrain loads, used to move or store small quantities
of mail within a postal facility. The container may be moved by hand
or by tractor.
2The record revealed that the March 1988 incident may have resulted
from the aggravation of two injuries complainant suffered in 1986 while
unloading mail trucks and dispatching bulk mail
containers, hampers, and nutting trucks. The record further revealed
that, in November 1988, complainant experienced a reoccurrence of her
March 1988 injury.
3�Limited duty� is the duty provided to an employee who has physical
limitations, identified by a qualified physician, resulting from an
on-the-job injury/illness. It differs from �light duty,� which is duty
provided to an employee who has physical limitations, identified by a
qualified physician, resulting from an off-the-job injury/illness.
4The 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.