01A42165
07-01-2004
Brian E. Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Brian E. Wilson v. United States Postal Service
01A42165
July 1, 2004
.
Brian E. Wilson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A42165
Agency No. 4H-300-0242-02
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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 decision.
The record reveals that during the relevant time, complainant was employed
as an Automotive Technician, PS-07, at the agency's Marietta, Georgia Post
Office. Complainant sought EEO counseling and subsequently filed a formal
complaint on July 10, 2002, alleging that he was discriminated against
on the basis of his disability when, on April 17, 2002, management denied
his request to improve his working conditions; and other employees, with
less seniority, were allowed to perform the duties complainant requested.
At the conclusion of the investigation, complainant was informed
of his right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
that he was an individual with a disability within the meaning of
the Rehabilitation Act. In addition, the FAD noted the testimony of
complainant's manager (M1) that complainant had been accommodated off
and on for two and a half years in hopes that he would eventually be
able to return to the position for which he was hired. M1 also stated
that complainant was not denied the opportunity to improve his working
conditions and that complainant was in fact encouraged to bid on positions
within his limitations, but he failed to do so.
On appeal, complainant restates his version of the facts and argues
that he has been denied a reasonable accommodation. Additionally,
complainant concedes that the agency has accommodated him in the
past with some limited duty work, however, he contends that it was
never anything that was entirely within his doctor's recommendations.
The agency requests that we affirm its FAD. As an initial matter we
note that, as this is an appeal from a FAD issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject
to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
When alleging either disability-based disparate treatment or denial
of reasonable accommodation, complainant must establish that he was
a �qualified individual with a disability� in order to be entitled
to coverage under the Rehabilitation Act. Assuming, for the sake of
argument, that complainant is an individual with a disability within
the meaning of the Rehabilitation Act, we conclude that complainant
failed to prove, by a preponderance of the evidence, that he was a
qualified individual with a disability during the relevant time period.
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.
See Van Horn v. United States Postal Service, EEOC Appeal No. 01960159
(October 23, 1998). In the instant case, M1 stated that complainant's
medical restrictions rendered him unable to perform the core duties of
the position of Automotive Technician.<1> See Report of Investigation
(ROI), at Affidavit 3; p. 79. M1 also asserted that complainant has had
the opportunity to bid on administrative positions that he could perform,
but he has declined all of these opportunities because of his inability
to drive through the Atlanta traffic. Id. Complainant does not dispute
that he was unable to perform the essential duties of the Automotive
Technician position. Complainant argues, however, that there was other
work he could perform. Specifically, on appeal, complainant states
�the work was there that I could perform but they were again refusing
to provide anything and chose to send me home instead.� Complainant's
Brief in Support of Appeal, at 1.
When there is no reasonable accommodation that would enable complainant
to perform the essential functions of the position he/she holds, it is
appropriate to consider reassignment.<2> Complainant has an evidentiary
burden to establish that it is more likely than not that there were
vacancies during the relevant time period to which he could have been
reassigned. See Barnard v. United States Postal Service, EEOC Appeal
No. 07A10002 (August 2, 2002); see also 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 wayof meeting complainant's evidentiary
burden. In the alternative, complainant need only show that: (1) he 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. See Hampton, supra.
Here, complainant failed to meet this burden. Complainant broadly
stated that there was work at the agency that he could perform within his
restrictions. Complainant has failed to establish, however, that there
was a vacant, funded administrative position, with essential functions
that he could perform, at the agency at the relevant time. The record
is also devoid of sufficiently specific evidence that complainant was
qualified to perform any administrative or other job which existed at
the agency, and that there were trends or patterns of turnover so as to
make a vacancy likely during the time period.
Accordingly, as complainant failed to establish that he could perform the
essential functions of the position he held or desired with or without an
accommodation, he failed to establish that he is a qualified individual
with a disability entitled to the protection of the Rehabilitation Act.
Accordingly, we AFFIRM the agency's findings of no discrimination.
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
July 1, 2004
__________________
Date
1 The medical documents in the record
indicate that as of approximately October 2001, complainant was limited
in the following activities: driving, working on heavy machinery, heavy
lifting, prolonged walking, kneeling, and he was instructed to avoid
severe temperature changes, fumes and dust. See ROI, at 73-78.
2 The Commission notes that reassignment is the reasonable accommodation
of last resort and is required only after it has been determined that:
(1) there are no effective accommodations that will enable the employee
to perform the essential functions of his current position, or (2) all
other reasonable accommodations would impose an undue hardship. EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act, No. 915.002, (rev. Oct. 17, 2002)
(Guidance).