01A30257
04-15-2004
Shirley Isaacson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Shirley Isaacson v. United States Postal Service
01A30257
04-15-04
.
Shirley Isaacson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30257
Agency No. 4I-553-0047-01
Hearing No. 260-A2-8064X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final
order 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.
For the following reasons, the Commission affirms the agency's final
order.
ISSUE PRESENTED
Complainant alleges that the agency discriminated against her on the basis
of her disability (cerebral vascular accident-stroke) when, on March
23, 2001, she was issued a Notice of Removal based on her inability to
perform the essential functions of her position.
BACKGROUND
During the relevant time, complainant worked as an Automated Mark-up
Clerk (Clerk), Level 4, at the agency's St. Paul, Minnesota General
Mail Facility (the Facility). In May 1999, she experienced a cerebral
vascular accident and returned to work in November 1999 with limited
hours due to physical stamina issues. Complainant's physician expected
that complainant's stamina issues would resolve within a year, depending
on complainant's individualized response to therapy.
Medical documentation, dated November 3, 1999, indicated that
complainant's medical restrictions included: working two days per week
for two hours per day, lifting no more than 10 pounds, no repetitive
grasping with her right arm, and no �keying.�<1> Beginning on March 1,
2000, complainant was also allowed to load and sweep for a half hour
and key for 15 minutes each day.
The agency approved a Temporary Functional Status Report, dated December
1, 2000, restricting complainant to working four hours per day during
the first week of December, five hours per day during the second and
third weeks of December, and six hours per day thereafter. The record
reflects that from November 1999 through March 2001, the agency gradually
increased complainant's work hours, as complainant was able to tolerate.
According to complainant, during February 2001, she was working 21 hours
per week and keying up to eight hours each week.<2>
On March 14, 2001, complainant experienced left hand and forearm pain,
which she believed was a work related injury. On or about March 21, 2001,
she filed a claim with the U.S. Department of Labor's Office of Workers'
Compensation (OWCP), stating that her physician was concerned with
discoloration of her left hand and a lump on her forearm. She further
stated that her physician restricted her work hours to 15 hours per week.
The agency issued complainant a Notice of Removal on March 23, 2001,
stating that complainant had �been unable to fully perform the duties of
[her] [] position since June of 1999 as result of a non-work related
illness/injury.� The agency noted that in July 2000, the agency's
physician indicated that complainant's physical restrictions with respect
to her hand and foot appeared to be permanent. The agency explained
that no contractual provision existed providing permanent light duty
for employees with less than five years of service. Complainant was
sent home on that day.
Complainant filed a formal EEO complaint on October 3, 2001. 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 complainant failed to establish a prima facie case
of �failure to accommodate.� She further determined that complainant
was not a qualified individual with a disability because she could
not perform the essential functions of her position. She found that,
even if complainant was a qualified individual with a disability, the
agency articulated a legitimate nondiscriminatory reason for its action,
namely that it terminated complainant because she was unable to work
40 hours per week and key at least four hours per day. She concluded
that complainant failed to show that the agency's reasons were a pretext
for discrimination.<3> The agency's final order implemented the AJ's
decision.
On appeal, complainant asserts that her complaint is one of failure to
reasonably accommodate and retaliation for requesting accommodation.
She further argues that the agency made no attempt to determine
whether there were any positions available within her restrictions,
and she asserts that she should not be required to identify a vacant
position prior to enlisting the agency's assistance with respect to an
accommodation. With respect to the essential functions of the Clerk
position, she argues that there is no evidence that she was unable
to key from December 1, 2000 to March 14, 2001. She notes that the
agency concedes that it allows Clerks to work less than 40 hours a week.
Finally, she contends that the agency's action of removing her was an
act of reprisal. In this respect, she notes that the Notice of Removal
was issued two days after her request for an accommodation.
The agency contends that there is nothing in the record to indicate
that complainant had reached maximum medical improvement and requested
an accommodation of her permanent condition which would allow her to
perform the essential functions of her position. It also maintains
that it did engage in the interactive process with complainant, and
that complainant failed to show that her restrictions were modified
to allow keying for more than 10-15 minutes per day. In this regard,
it notes that complainant's coworkers, unlike complainant, were able to
key mail for extended periods of time. It contends that reprisal cannot
be inferred from its actions as the agency accommodated complainant
for over a year and a half, and removed her once it became clear that
no reasonable accommodation would allow her to perform the essential
functions of her position.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
As stated above, complainant alleges that the agency failed to provide
her with a reasonable accommodation in the form of a light duty position.
When the agency determined that a light duty position was no longer
available for her and that she could no longer perform the essential
functions of her position, they removed her. Accordingly, the Commission
will address these claims as a complaint against the agency for failure to
provide a reasonable accommodation. 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 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).
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that
she is an "individual with a disability." We shall assume, arguendo
that complainant established that she is an individual with a disability
covered by the Rehabilitation Act.
Complainant also must show that she is a "qualified" individual with
a disability within the meaning of 29 C.F.R. � 1630.2(m). The agency
argues and the AJ determined that complainant is not a qualified
individual with a disability because she could not perform the core
duties of her Clerk position, which included keying between four to six
(4-6) hours a day and working 40 hours a week. Complainant contends that
there is no evidence that keying between 4-6 hours a day is an essential
function of the Clerk position. Moreover, she asserts that she was not
restricted from keying between December 1, 2000 through March 14, 2001,
and the agency allows Clerks to work less than 40 hours a week.
We find that keying mail for 4-6 hours a day is an essential function of
the Clerk position. Indeed, the Position Description for the Automated
Markup Clerk, PS-04, lists operating or keying the electro-mechanical
operator paced machine as the Functional Purpose of the position.
In addition, complainant's manager (Manager) averred that he required
someone who could move 900 to 1,200 pieces of mail each hour, and he
further testified that, to even qualify for the position, a minimum keying
productivity of 500 pieces per hour is required. The record reveals that,
beginning on March 1, 2000, complainant was able to key for 15 minutes
each day. Although the Temporary Functional Status Reports (Reports),
dated October 6, 2000, December 1, 2000, and February 2, 2001, only list
restrictions as to the number of hours complainant could work each day,
the record is devoid of any evidence that complainant's restriction
with respect to keying had been changed by her physician. Moreover,
to the extent that complainant actually exceeded her restrictions of her
own initiative, the Manager testified that complainant informed him at
one point that she was keying 5 pieces of mail per hour, and the record
reflects that complainant keyed under 400 pieces of mail per hour.
Complainant also alleges that the agency allowed Clerks to work less than
40 hours a week. The record reflects, however, that these coworkers were
not similar to complainant. One coworker identified by complainant keyed
30 hours per week and worked 40 hours per week; another coworker was only
temporarily on limited duty, and she then keyed 30 plus hours each week;
and a third coworker keyed the entire 6 hours she worked each day and
was covered by the Family and Medical Leave Act (FMLA).<4> Based upon
the record, we find that, since complainant keyed substantially less mail
than that required for efficient use of the electro-mechanical operator
paced machine, she has failed to show that she is qualified as to her
Clerk position.
We also find that the reduced schedule which complainant was seeking
and which complainant held for over a year and half was not an actual
position, but rather, as stated in the Reports, a temporary position to
continue until complainant recovered. Although a schedule is presented in
the Report, there is no position description or salary included therein,
and it is clear from the record that complainant's duties did not comprise
an existing position, but rather had been culled specifically for the
purpose of providing complainant with work in the circumstances.<5>
Saul v. United States Postal Service, EEOC Appeal No. 01970693 (May 10,
2001) (The Rehabilitation Act does not require the agency to consider
accommodating complainant's restrictions by creating a "make work"
limited duty assignment because such an assignment is not a vacant,
funded position.). In light of the foregoing finding that complainant
could not perform the essential function of the Clerk position, we do
not reach the issue of whether the agency should have continued to grant
complainant the reduced schedule which she sought as an accommodation.
The discussion of �qualified� does not end at complainant's Clerk
position. The term �qualified individual with a disability,� with respect
to employment, is defined as a disabled person who, with or without a
reasonable accommodation, can perform the essential functions of the
position held or desired. 29 C.F.R. � 1630.2(m). The term "position"
is not limited to the position held by the employee, but also includes
positions that the employee could have held as a result of reassignment.
Therefore, in determining whether an employee is "qualified," an agency
must look beyond the position which the employee presently encumbers.
Accordingly, the agency should have considered reassignment in this
case. We note that 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.<6>
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
complainant could have been reassigned. Hampton v. United States
Postal Service, EEOC Appeal No. 01986308 (August 1, 2002). Clearly,
complainant can establish this by producing evidence of particular
vacancies. However, this is not the only way of meeting complainant's
evidentiary burden. In the alternative, complainant need only show that:
(1) he or 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. Id.
Complainant argues that the agency made no attempt to determine
whether there were any positions available within her restrictions,
and she asserts that she should not be required to identify a vacant
position prior to enlisting the agency's assistance with respect to an
accommodation. In his affidavit, complainant's supervisor (Supervisor)
testified that, on January 24, 2000, he suggested that she seek a position
in the �030 prime.� He averred that complainant responded negatively
to that offer. We find, however, that even if the agency did not offer
complainant a 030 prime position, complainant failed to satisfy her burden
of identifying any vacancies at the time of her request. Complainant has
not provided any evidence to support an assertion that, had the agency
searched inside or outside the Clerk craft at the relevant time, it would
have found a vacant position to which she could have been reassigned.
Moreover, the responsible management officials (RMOs) testified that they
considered other positions at or below complainant's level, including mail
processor, mail handler, and custodian, but they determined that these
positions were much more strenuous than complainant's Clerk position,
thus they did not offer any of these positions to her.
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.
With respect to complainant's claim that the agency retaliated against her
for requesting an accommodation, complainant may establish a prima facie
case of reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of her protected activity; (3) subsequently, she
was subjected to adverse treatment by the agency; and (4) a nexus exists
between the protected activity and the adverse action. See Whitmire
v. Department of the Air Force, Appeal No. 01A00340 (September 25, 2000).
The record reflects that the agency accommodated complainant for over
a year and a half. Moreover, on January 24, 2001, the RMOs met with
complainant to express their concern that she was not able to perform
the essential functions of her position. While complainant meets the
first three prongs necessary to establish a prima facie case of reprisal,
we find that a causal connection does not exist between complainant's
request for an accommodation and her removal.
Based on our de novo review of the entire record in this case, the
Commission concurs with the AJ's determination that summary judgment was
appropriate, and we find that the AJ's decision accurately sets forth
the facts giving rise to the complaint. We further conclude that the
AJ correctly determined that complainant failed to prove that she was
subjected to disability discrimination when she was removed from her Clerk
position. Accordingly, the Commission affirms the agency's final order.
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
____04-15-04______________
Date
1 The identified functional purpose of a CFS Clerk is to operate an
electro-mechanical operator paced machine to process mail undeliverable
as addressed. The operation of this machine is referred to as keying.
2 Complainant's supervisor averred that a Clerk in complainant's position
needed to key at least four hours a day. Complainant's manager opined
that a Clerk needed to key between five to six hours per day.
3 We find that the AJ's analysis regarding complainant's request
for a reasonable accommodation was incorrectly framed as a disparate
treatment claim.
4 The record reflects that complainant exhausted all of her FMLA leave
during her illness.
5 The agency was not obligated to consider part-time work as an
accommodation where such an accommodation would have required the agency
to create a position consisting of the duties complainant sought to
perform. Accordingly, this case is distinguishable from cases where an
individual with a disability seeks to perform her currently-held position
or an existing vacant position on a part-time basis as an accommodation.
See, e.g., EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans With Disabilities Act (March 1, 1999)
at question 22.
6 The 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) at Questions 25-30.
These documents are available on the EEOC's website at www.eeoc.gov.