Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jun 20, 2013

0120113575 (E.E.O.C. Jun. 20, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120113575

Hearing No. 470-2010-00171X

Agency No. 4J-460-0116-09

DECISION

On July 8, 2011, Complainant filed an appeal from the Agency’s June 24, 2011 final order
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. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at
the Agency’s Post Office in Dyer, Indiana. In March 2009, Complainant fell while working
and broke her wrist and a tooth. She was subsequently diagnosed with significant back
problems and told not to report back to work. Complainant filed an EEO complaint alleging
that the Agency discriminated against her on the basis of disability when in June 2009 she was
not allowed to return to work and in July 2009 her route was adjusted. 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. Over Complainant's objections, the AJ assigned to
the case granted the Agency’s motion for summary judgment and issued a decision on June 9,
2011.

In his decision, the AJ found it undisputed that Complainant had developed severe medical
restrictions, including no lifting, pushing, pulling over ten pounds, no bending below knee
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height, no stretching or twisting and seated work only. The AJ further found it undisputed that
Complainant’s route was modified during a district wide readjustment process because of
declining mail volume and that the route remained a combination of mounted and walking
delivery.

As a letter carrier, Complainant was expected to case and deliver the mail, duties that require a
significant amount of physical agility. The AJ thus found it undisputed that Complainant could
not perform the essential functions of her carrier position; she did not identify a reasonable
accommodation that would have permitted her to do so; and she did not identify a vacant
funded position for which she was qualified and to which she could have been reassigned.
Thus, even assuming that Complainant was an individual with a disability within the meaning
of the Rehabilitation Act, the AJ concluded that Complainant was not a qualified individual
with a disability and thus not entitled to the Act’s protections. The Agency subsequently issued
a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged. This appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.

In order to establish entitlement to coverage under the Rehabilitation Act, Complainant must
prove that she is a qualified individual with a disability. A qualified individual with a disability
is an individual with a disability who can perform the essential functions of the position she
holds or desires, with or without accommodation. Upon review of the record, we find that the
AJ’s grant of summary judgment was appropriate, viewing the claim as both an instance of
disparate treatment and a denial of reasonable accommodation, because there is no dispute
about the fact that Complainant could not perform the essential functions of her position with
or without accommodation and she did not identify a vacant funded position for which she was
qualified and to which she could have been reassigned.

The Rehabilitation Act does not require the Agency to create a job. Because Complainant
failed to prove that she was a qualified individual with a disability, the Agency is not liable for
any violation of the Rehabilitation Act under the circumstances presented herein. We discern
no basis to disturb the AJ’s decision, and we AFFIRM the Agency’s final order.

0120113575

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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
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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

June 20, 2013
Date