01A14465
11-26-2002
Betty J. Harris, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Betty J. Harris v. United States Postal Service
01A14465
November 26, 2002
.
Betty J. Harris,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A14465
Agency No. 4G-780-0322-00
Hearing No. 310-A2-5191X
DECISION
In July 2001, complainant filed an appeal with the Commission. At the
time complainant filed the appeal, the agency was in the process of
investigating whether it had violated Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq, as alleged in complainant's November 22, 2000
formal equal employment opportunity complaint. In response to the appeal,
the Commission requested that the agency submit the complaint file.
The Commission ultimately received the complaint file approximately
fourteen months later, after an EEOC Administrative Judge had conducted
a hearing and issued a decision finding no discrimination, which the
agency had adopted in its final order. Although complainant did not
file a timely appeal after the agency took final action, because the
Commission did not dismiss the premature appeal and the entire complaint
file has now been received, the Commission is issuing this decision.<1>
The Commission's standard of review is articulated at 29 C.F.R. �
1614.405(a). Accordingly, all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as �such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.�
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An Administrative Judge's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
At issue in this case is whether complainant was denied light duty
on the bases of her race (Black), sex (female), and in reprisal for
prior protected activity and whether the agency failed to provide
complainant reasonable accommodation, absent undue hardship.<2> The
record reveals that complainant worked as a letter carrier at an agency
facility in Bellmead, Texas. Complainant testified that in May 1998 she
had a breakdown at work due in part to the fact that her supervisors
were counseling her about her work performance and because she was in
constant, chronic physical pain. It appears that she was permitted to
work a light duty assignment until approximately August 1998 when she
was informed that there was no longer any light duty work available.
It also appears that the denial of light duty coincided with the denial
of complainant's workers compensation claim. Complainant never returned
to work but continued to submit requests for light duty.
The Administrative Judge concluded that complainant did not establish a
prima facie case of race, sex or reprisal discrimination in regard to the
denial of light duty based on complainant's failure to present sufficient
evidence from which such an inference of discrimination could be drawn.
We affirm this conclusion because the Administrative Judge's factual
findings are supported by substantial evidence, and there is no evidence
from which we can infer discriminatory animus. See Furnco Construction
Corp. v. Waters, 438 U.S. 567, 576 (1978).
We now turn our attention to the Administrative Judge's finding that the
agency did not violate the Rehabilitation Act. Initially we note that
the Administrative Judge erred when she applied the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973) to a claim alleging the denial of reasonable accommodation.
While the McDonnell Douglas analysis is appropriate when determining
whether complainant was subjected to disparate treatment on the basis
of her disability, see Heyman v. Queens Village Comm. 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), complainant does not
have to prove that the agency was motivated by discriminatory animus
in order to prevail on a claim concerning reasonable accommodation.
Rather, under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o)
and (p). It is complainant's burden to prove, by a preponderance of
the evidence, that she is a qualified individual with a disability,
and it is the agency's burden to establish undue hardship.<3>
An individual with a disability within the meaning of the Rehabilitation
Act is one who (1) has a physical or mental impairment that substantially
limits one or more major life activities, (2) has a record of such
impairment, or (3) is regarded as having such an impairment. Major life
activities include, but are not limited to, caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. Sitting, standing, lifting, and reaching are also recognized
as major life activities. See Interpretive Guidance on Title I of the
Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
The Administrative Judge found that complainant had the following
impairments: fibromyalgia; sprained shoulder, elbow, back, and leg; and
carpal tunnel syndrome and that her restrictions included no lifting over
five pounds; no bending, stooping, climbing, or reaching above the head;
and a two hour per day limitation on standing, walking, and sitting.
For purposes of this analysis, we assume arguendo that complainant was
an individual with a disability.
A "qualified individual with a disability" is an individual with a
disability who satisfies the requisite skill, experience, education and
other job related requirements of the employment position such individual
holds or desires, and who, with or without reasonable accommodation, can
perform the essential functions of the position. 29 C.F.R. � 1630.2(m).
With respect to whether complainant is a qualified individual with a
disability, the inquiry is not limited to the position actually held
by the employee, but also includes positions that the employee could
have held as a result of job restructuring or reassignment.<4> See Van
Horn v. United States Postal Service, EEOC Appeal No. 01960159 (October
23, 1998).
The Administrative Judge credited complainant's testimony that she could
no longer perform the essential functions of her letter carrier position.
We find that complainant failed to rebut the agency's finding that there
was no accommodation which would have enabled complainant to do so.
The Rehabilitation Act does not require an agency to reallocate the
essential functions of a position as a form of reasonable accommodation.
See EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, (revised October 17,
2002) at Job Restructuring. The Administrative Judge further found
that complainant failed to establish that there existed a vacant,
funded position for which she was qualified and to which she could
have been reassigned. In reaching this conclusion, the Administrative
Judge found that complainant failed to rebut the agency's finding that
it sought a position for complainant within her restrictions but was
unable to locate one. Upon review of the record, we find that the
Administrative Judge's findings are supported by substantial evidence.
Although complainant named other duties performed by agency employees,
such as, �markup at timekeeper, security on back dock at truck, filing
at casual work, data process at special services, passport job, red room
work, handing out keys and accountables, and answering the telephone,� she
presented no evidence that she could perform the essential functions of
her own position or those of any vacant, funded position with or without
reasonable accommodation.
We therefore conclude that complainant failed to carry her burden of proof
to establish, by a preponderance of the evidence, that she was a qualified
individual with a disability within the meaning of the Rehabilitation Act.
See Bielfelt v. United States Postal Service, EEOC No. Appeal 01A10475
(June 19, 2002). Therefore, after a careful review of the record,
including arguments and evidence not specifically addressed in this
decision, we affirm 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
November 26, 2002
__________________
Date
1 Since neither party brought the issue of complainant's premature appeal
to the Commission's attention, we deem the parties' rights to submit a
statement in support of or in response to the appeal, hereby waived.
2 The record establishes that complainant participated in prior protected
activity, but it is not entirely clear whether such activity arose under
Title VII or the Rehabilitation Act.
3 We note that the Administrative Judge was correct in determining
that the agency's reliance on the distinction between light and limited
duty was inappropriate. �An employer may not avoid its obligation to
accommodate an individual with a disability simply by asserting that the
disability did not derive from occupational injury." Bradley v. United
States Postal Service, EEOC Appeal No. 01962747 (October 22, 1998).
A worker's compensation determination, though potentially relevant
evidence, is never dispositive regarding an individual's rights or the
agency's obligations under the Rehabilitation Act. See EEOC Enforcement
Guidance: Workers' Compensation and the Americans With Disabilities Act
(September 3, 1996) at question 15.
4 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.
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.