01a55870
03-07-2006
Thomas E. Workman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas E. Workman v. United States Postal Service
01A55870
March 7, 2006
.
Thomas E. Workman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55870
Agency No. 1C-251-0001-05
DECISION
Complainant filed a timely appeal from the agency's August 8,
2005 final decision concerning his complaint of unlawful employment
discrimination. In his complaint, dated January 28, 2005, complainant,
a Mail Processing Clerk, grade level 5, at the agency's Huntington
Processing and Distribution Facility, Huntington, West Virginia, alleged
discrimination based on disability (severe degenerative changes to the
lumbosacral spine) when in October 2004, he was denied a transfer to
the Custodial craft. Complainant claimed that he requested a change
of craft from a Mail Processing Clerk to a Custodian/Laborer position
because he was unencumbered; there were no Full-Time Regular position
in his current craft; no upward mobility; no preferred duty assignments
(day shift); and his military experience had already qualified him
in previous testing(s). The agency, in its decision, stated that it
did not fail to provide complainant with a reasonable accommodation.
Complainant now appeals the agency's decision finding no discrimination.
Complainant's supervisor stated that complainant had an on-the-job injury
on August 21, 2002. According to complainant's CA-17 form dated March
22, 2004, complainant had a 20-pound limit on lifting, 4-hour limit
on walking and standing (continuous and intermittent), no bending and
stooping, no kneeling and twisting, no pulling and pushing, and 4-hour
limit on reaching above the shoulder. The supervisor also stated that
in his current position, complainant was able to answer phones, perform
daily safety and security inspections, perform daily quality checks of
Express, Priority and First Class mail, and perform aviation security
and damaged mail preparation.
The Human Resources Manager stated that after his injury, complainant was
provided a clerk position with many of the essential job requirements
removed. With regard to the requested transfer, the Human Resources
Manager reviewed the circumstances of complainant's medical conditions as
to what duties complainant cannot perform and compared his limitations
to the known duties of a Custodian. The Manager indicated that the
comparisons included mopping the floor, emptying trash cans, moving cases,
and climbing ladders. Due to the physical limits on the activities
that complainant could perform and the time limits on his performance of
those activities, the Manager determined that the Custodian duties that
complainant could perform within his medical restrictions would not meet
the essential functions of the Custodian position. The Manager stated
that he denied complainant's requested transfer to the Custodian position
since complainant could not perform the essential duties of a Custodian
with or without reasonable accommodation. Furthermore, complainant
did not request an accommodation to allow him to perform those duties.
The Manager noted that complainant's idea of an accommodation appeared
to be placing him in the job and letting others do the work that would
be required.
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. For purpose of analysis, the Commission assumes
that complainant is an individual with a disability. Complainant also
must show that he is a �qualified� individual with a disability within
the meaning of 29 C.F.R. � 1630.2(m).
The record clearly indicates that complainant could not perform the
duties of his requested Custodian position with or without a reasonable
accommodation. The duties of the Custodian position included mopping
the floor, emptying trash cans, moving cases and climbing ladders.
However, complainant was restricted to no bending and stooping,
no kneeling and twisting, no pulling and pushing, including only 4
hours reaching above the shoulder, and a 4-hour limit on walking and
standing (continuous and intermittent). Based on the foregoing, the
Commission finds that complainant is not qualified as to his requested
custodian position and therefore is not a �qualified� individual with
a disability. Complainant did not request a reasonable accommodation
for the Mail Processing Clerk position. Therefore, the Commission
finds that complainant failed to establish his claim that the agency
failed to provide him with a reasonable accommodation. Furthermore,
we find no evidence that the agency was motivated by discrimination on
the basis of disability when it denied complainant's transfer request.
The Commission does not address in this decision whether complainant is
disabled under the Rehabilitation Act.
Accordingly, the agency's final decision finding no discrimination
is AFFIRMED.
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
March 7, 2006
__________________
Date