01A12280
06-20-2002
Cynthia L. Watson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Cynthia L. Watson v. United States Postal Service
01A12280
June 20, 2002
.
Cynthia L. Watson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 01A12280
Agency No. 1B-141-0005-00
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her 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.<1> The appeal is accepted for
the Commission's de novo review 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 a Laborer/Custodian at the agency's Processing and Distribution Center
in Buffalo, New York. Complainant sought EEO counseling and subsequently
filed a formal complaint on February 22, 2000, alleging that she was
discriminated against on the basis of disability (chronic traumatic
lower back condition) when she was denied reasonable accommodation
and harassed in November 1999. The incidents giving rise to this
claim include a Notice of Proposed Separation, a threat of removal
if complainant failed to sign a Limited Duty assignment offer; and
being accused of declining the Limited Duty assignment offer. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. Complainant requested that
the agency issue a final decision.
The record demonstrates that in November 1999, the agency offered
complainant a Limited Duty assignment which was consistent with her
medical restrictions of no lifting in excess of ten pounds and no
pushing or pulling. Complainant did not respond to the offer despite
being informed that her failure to do so would be deemed a declination
of the offer. After refusing to respond to the limited duty job offer,
we note that complainant did not identify any accommodation, which she was
willing to accept, which would have enabled her to perform the essential
functions of her Laborer/Custodian position nor did she present evidence
that there was a vacant funded position, for which she was qualified
and to which she could have been reassigned.
In order to prevail on her claim of disability discrimination under
either a theory of harassment or denial of reasonable accommodation,
complainant must initially establish that she is a qualified individual
with a disability within the meaning of the Rehabilitation Act.
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). We will assume arguendo that complainant is a qualified
individual with a disability.
It is the Commission's position that if more than one accommodation is
effective, "the preference of the individual with a disability should
be given primary consideration; however, the employer providing the
accommodation has the ultimate discretion to choose between effective
accommodations.� 29 C.F.R. � 1630.9; EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act, No. 915.002, Question 9 (March 1, 1999);
Polen v. Department of Defense, EEOC Appeal No. 01970984 (January 16,
2001). Thus, while complainant is entitled to an effective reasonable
accommodation under the Rehabilitation Act, she is not entitled to the
accommodation of her choice. The Commission finds that in offering
complainant the Limited Duty assignment, the agency met its obligation
to make reasonable accommodation. 29 C.F.R. � 1630.2(o).
In order to establish a hostile work environment claim based on
disability, complainant must prove: (1) she is a qualified individual
with a disability; (2) she was subjected to unwelcome harassment;
(3) the harassment was based on her disability; (4) the harassment was
sufficiently severe or pervasive to alter a term, condition, or privilege
of employment; and (5) some factual basis exists to impute liability for
the harassment to the employer. See Fox v. General Motors, 247 F.3d 169
(4th Cir. 2001). Upon review of the record, we find that complainant's
separation was proposed because she failed to report to work; that she
was not threatened with removal if she failed to accept the Limited Duty
assignment but rather counseled as to the consequences of not signing it
in regard to her worker's compensation claim; and that if she was accused
of declining the Limited Duty assignment, it was precisely because she
failed to accept it within the time frame set forth for acceptance.
In evaluating whether harassment is sufficiently severe or pervasive to
create a hostile work environment, the conduct should be evaluated from
the objective standpoint of a reasonable person. See Enforcement Guidance
on Harris v. Forklift Systems, Inc. (March 8, 1994). The Commission
concludes that the incidents of which complainant complains were neither
sufficiently severe nor pervasive to create an objectively hostile or
abusive work environment. Accordingly, we find that complainant failed
to establish a claim of disability based harassment. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final decision,
finding 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
June 20, 2002
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.