01994915
04-09-2002
Rosa I. Burgado, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rosa I. Burgado v. United States Postal Service
01994915
04-09-02
.
Rosa I. Burgado,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994915
Agency No. 1-I-531-0027-98
Hearing No. 260-99-8057X
DECISION
Complainant timely initiated an appeal from the agency's final
decision 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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges she was discriminated against on the
basis of disability (contact dermatitis) when, in February 1997, she
was not permitted to work around machines. For the following reasons,
the Commission AFFIRMS the agency's final decision.
The record reveals that complainant, a Mail Processor, PS-4, at the
agency's Milwaukee, Wisconsin facility, filed a formal EEO complaint with
the agency on December 4, 1997, alleging that the agency had discriminated
against her as referenced above. 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.
The AJ found that the record contained scant evidence of complainant's
disability. A letter dated September 9, 1996, from complainant's doctor
provided that complainant has a permanent condition called contact
dermatitis. The letter informed the agency that complainant's condition
could be controlled if her contact with industrial plastic wrapping
and boxes was reduced. Complainant was to use cotton gloves under any
other type of glove except rubber. Complainant's doctor believed that
a change of workplace to either the manual or automation unit would
control her condition. On December 20, 1996, the Department of Labor
notified complainant that her occupational disease claim was accepted
for the condition of bilateral hand eczema. Even though the Supervisor
of Distribution Operations referred to complainant's contact dermatitis
as a disability in his affidavit, complainant has provided no evidence
how her condition substantially limits a major life activity.
On October 26, 1996, complainant was awarded a bid position in the BCS-OCR
department. On October 28, 1996, a health unit statement specified her
restrictions and complainant was informed that she could wear cotton
gloves underneath surgical gloves.
On February 26, 1997, complainant was told that she could no longer
wear gloves on the machine. Complainant was given a choice of where she
wanted to work and chose the manual unit. Since that time, complainant
has worked at the light duty table in automation.
The Supervisor's Safety Handbook dated March 30, 1985, provided that
gloves must not be worn by machine operators or persons working on or
near machinery, conveyors, drills, chain drives, or similar types of
mechanical equipment. In April 1997, a personnel memorandum notified
employees that gloves must not be worn by machine operators or persons
working on or near machinery.
In June 1997, following an inspection by the Occupational Safety and
Health Administration (OSHA), the agency was given a citation for
not allowing gloves on machinery, thus causing a paper cut hazard.
Agency management contacted OSHA's national office and the office of
federal program administration, both of which supported the agency's
position that gloves pose an additional risk around moving machine parts.
OSHA granted an informal hearing and agreed that cloth or leather gloves
were not appropriate for use around machines.
Initially OSHA agreed to delete the citation if the agency allowed
employees the opportunity to wear surgical gloves. The agency argued
that the rubber belts could grab the latex material of the gloves even
if snug-fitting and cause the hand to be pulled toward the moving part.
After considering the agency's argument, the citation was withdrawn
because �even tight-fitting latex surgical gloves, posed a hazard of the
rubberized fabric adhering to the rubber machine parts pulling the mail
thereby causing the employees to sustain severe hand and finger injuries.�
Attached to the update on gloves and the OSHA complaint was an
investigation of a serious accident caused when a machine belt
caught an employee's gloved hand and pulled it into a tension roller.
An employee activated the emergency stop upon hearing the employee's cry
for help and maintenance responded to release his hand from the machine.
The employee underwent two and half hours of surgery to his left hand.
According to the hospital staff, the belt peeled the employee's skin
down and reattached itself to the employee's hand.
Assuming arguendo that complainant had a disability for purposes of the
Rehabilitation Act, the AJ concluded that she was a qualified individual
with a disability inasmuch as she was satisfactorily performing the
duties of her position while wearing gloves until February 1997.
However, the AJ then concluded that the agency showed that to permit
the wearing of gloves on the machine constituted a major undue hardship
on its operations. In support of this undue hardship analysis, the AJ
noted the Supervisor's Safety Handbook, which provided that gloves must
not be worn by machine operators or persons working on or near machinery;
OSHA's national office agreement stating that gloves posed an additional
risk around machine parts, as well as its conclusion that gloves posed
a more serious injury potential than paper cuts to an ungloved hand;
and the agency's evidence of a serious accident resulting in surgery
when a machine caught an employee's gloved hand and pulled it into a
tension roller.
After a careful review of the record, the Commission finds that the AJ
was correct when she concluded that the case was appropriate for summary
judgment and in her ultimate finding that the agency's actions were
not the result of discrimination against the complainant. However,
the Commission disagrees with the AJ's analysis of the case.
EEOC Regulation 29 C.F.R. �1630.15(b)(2) provides that an employer
may require that an individual not pose a direct threat to her health
and safety, or that of others. The Commission notes, however, that
the agency cannot exclude qualified individuals with disabilities from
employment based upon fear of a future risk of injury, without engaging
in the individualized assessment required by the Rehabilitation Act into
whether their disabilities pose a "direct threat" of substantial harm.<1>
A "direct threat" is defined as: "a significant risk of substantial
harm"which cannot be eliminated or reduced by reasonable accommodation. 29
C.F.R. �1630.2(r).
In determining whether an individual would pose a direct threat, the
factors to be considered include: (1) the duration of the risk; (2) the
nature and severity of the potential harm; (3) the likelihood that the
potential harm will occur; and (4) the imminence of the potential harm. 29
C.F.R. 1630.2(r). Therefore, in regards to complainant's claim that she
was discriminated against when she was taken off the machines, we note the
evidence in the record of an accident resulting in surgery when a machine
caught an employee's gloved hand and pulled it into a tension roller.
The agency's policy was confirmed by the Safety Captain who reiterated
management's position that gloves are not to be worn while operating
machinery. The Safety Captain stated that he often reminds employees
of the safety regulation and provided a copy of a printed reminder.
On appeal, complainant restates arguments previously made at the hearing,
namely that she has witnessed two other employees wearing gloves.<2>
However, as the AJ noted, as soon as it was brought to the Safety
Captain's attention, the two employees wearing gloves were stopped
from operating equipment. Complainant admitted that the plant safety
specialists told those employees to remove their gloves. On appeal,
complainant submits a newspaper clipping with a picture of a Mail
Processor in the Omaha, Nebraska facility wearing gloves. Besides the
fact that complainant's picture is from another facility in a different
state, this submission fails to disprove that the accommodation of
wearing gloves would not pose a direct threat to either complainant or
her fellow employees.<3> Given the findings of OSHA, as well as the
accident noted above, we agree with the agency's policy that wearing
gloves would pose a significant risk of substantial harm. In light
of the above, we find the agency acted reasonably when it determined
it could not accommodate complainant's disability by allowing her to
continue wearing gloves without posing a direct threat to herself and
to other employees. Therefore, her removal from work on the machines
does not constitute disability discrimination.
We discern no basis to disturb the AJ's ultimate finding of no
discrimination. 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 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
____04-09-02______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 We assume, without finding, for purposes of analysis only, that
complainant is a qualified individual with a disability.
2 For the first time on appeal, complainant raised the issue of
being denied overtime. However, this was not an accepted issued for
investigation and therefore, will not be addressed.
3 Complainant never argued that she should have been accommodated in
another manner.