0120122250
10-04-2012
Cherita C. Grant, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Cherita C. Grant,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120122250
Hearing No. 570-2009-00724X
Agency No. 4K-200-0199-07
DECISION
On April 25, 2012, Complainant filed an appeal from the Agency's March 23, 2012 notice of final action concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's notice of final action.
BACKGROUND
Complainant worked as a City Letter Carrier. The duties of the Letter Carrier position included delivering and collecting mail on foot or by vehicle; carrying mail weighing up to 35 pounds; and loading or unloading containers weighing up to 70 pounds. On August 25 and 26, 2000, Complainant was attacked by dogs while working. Complainant suffered from cervical and lumber sprain since August 2000, which she considered to be permanent.
On August 12, 2005, while undergoing a Functional Capacity Evaluation, Complainant sprained her right arm and right chest wall. On August 18, 2005, Complainant was offered a modified assignment as a Collections Management Systems (CMS) Clerk at the CMS Unit in the Agency's Southern Maryland facility. According to the Modified Assignment Offer, Complainant's duties as a CMS Clerk were to download information from collection scanners into a computer database utilizing minimal keystrokes; retrieve reports from a computer for each route; verify scanning of collection boxes; and completion of routes using computer printouts, and count mail volume on the dock.
Beginning in January 2006, Complainant's physician found her "partially incapacitated" and placed significant restrictions on Complainant's activity, including restrictions against pushing, pulling, bending, twisting, stooping, climbing, kneeling; no prolonged sitting, standing, or walking; only intermittent lifting of more than five pounds; and no outside work. Complainant's medical provider found Complainant "totally incapacitated" from February 21, 2006, through March 12, 2006. Subsequently, Complainant's medical provider found her "partially incapacitated," but maintained the same restrictions. Complainant's assignment to the CMS unit ended on March 10, 2006. Thereafter, Complainant attempted to obtain light duty work with the Agency; however, no work was located within her restrictions.
Complainant filed an EEO complaint dated December 3, 2007, alleging that the Agency discriminated against her on the basis of disability (cervical disc) when: since March 2006, the Agency has denied her a reasonable accommodation.
The Agency dismissed Complainant's pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. In its dismissal, the Agency noted Complainant was making a collateral attack on the DOL/OWCP process. Complainant appealed the Agency's dismissal to the Commission. In EEOC Appeal No. 0120081285 (December 17, 2008), the Commission found that Complainant's claim of denial of reasonable accommodation did state a valid claim of employment discrimination based on disability. Thus, the Commission remanded the complaint for further processing.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case granted the Agency's motion for a decision without a hearing on March 12, 2012.
In his decision, the AJ found Complainant was an employee with a disability. The AJ found that Complainant had numerous, significant medical restrictions and was not able to perform the essential functions of her job. The AJ noted that Complainant's CMS Clerk position ended because she was too limited in her ability to do all the tasks required of the job. The AJ noted that Complainant was able to use the computer, but she was not able to collect red test cards or count D.C. trucks. Further, the AJ noted that her limitations made scheduling her work difficult. The AJ noted that Complainant's physician reported Complainant as "Totally Incapacitated" through March 12, 2006, and thereafter, listed Complainant as "Partially incapacitated." The AJ noted that Complainant stopped work in March 2006, and did not return. The AJ found the Agency considered reasonable accommodation for Complainant's disability; however, the Agency determined that there were no vacant, funded positions that Complainant could perform. Thus, the AJ granted summary judgment in favor of the Agency.
The Agency subsequently issued a notice of final action dated March 23, 2012. The Agency's decision fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
We note that Complainant alleged that the Agency's actions occurred because of her alleged disability. To bring a claim of disability discrimination, complainant must first establish that she is disabled within the meaning of the Rehabilitation Act. An individual with a disability is one who has, has a record of, or is regarded as having a physical or mental impairment that substantially limits one or more of her major life activities. 29 C.F.R. � 1630.2(g). In the present case, we assume Complainant is an individual with a disability.
Complainant also must show that she is a "qualified" individual with a disability within the meaning of 29 C.F.R. � 1630.2(m). We note that the discussion of "qualified" does not end at complainant's 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 consider reassignment. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Enforcement Guidance - Reasonable Accommodation), No. 915.002 (revised October 17, 2002); see also Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. Part 1630.2(o).
In the present case, the record indicates and Complainant does not dispute that she could not perform the position of City Letter Carrier. Additionally, the record reveals that Complainant was not qualified to perform the position of CMS Clerk. Specifically, the record reveals that Complainant could not perform the red test card collections or perform the dock work required under the position. According to the August 18, 2005 Modified Assignment Offer which Complainant accepted, her duties as a CMS Clerk included counting the mail volume on the dock. In her affidavit, Complainant stated that the essential functions of her position included checking the mail trucks as they arrived to make sure they were empty which required her to stand for three to four hours which violated her restriction of no prolonged standing. Complainant has not identified a reasonable accommodation that would have allowed her to perform the red test card collections or the dock work required under her CMS Clerk position.
In the present case, the Agency established that at the time of Complainant's request for reassignment, there were no vacant, funded positions within Complainant's medical restrictions. The Agency claimed that in October 2007, Complainant was offered a position as a Distribution Window Clerk on Tour 3 at the Friendship Post Office. The Agency contended that this position was within Complainant's medical restrictions; however, the Agency stated that Complainant declined this position. Complainant contends this position was not offered to her and argues that there is no Tour 3 at the Friendship Post Office. The record contains a copy of the purported assignment dated October 31, 2007; however, it is not signed by either management or Complainant. If Complainant claimed that the position was never offered to her, but it could be one she would accept, there would be a genuine issue of material fact. However, Complainant does not argue this; rather, she contends that the job does not exist, and as result, there was nothing for her to accept. In the present case, Complainant failed to show that there was a vacant funded position to which she could have been reassigned. Thus, we find the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
CONCLUSION
Accordingly, the Agency's notice of final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 4, 2012
__________________
Date
2
01-2012-2250
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122250