01971609
06-29-1999
Elizabeth Marcus, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas), Agency.
Elizabeth Marcus, )
Appellant, )
) Appeal No. 01971609
v. ) Agency No. 5T-1168-92
) Hearing No. 340-96-3438X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Areas), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of race (Caucasian), sex
(female), age (12/9/27), physical disability (neck and shoulder injury),
and mental disability (job related stress), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq. Appellant alleges she was discriminated against
when the agency terminated her employment on September 10, 1991, for
physical inability to perform the duties of the position. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED.
The record reveals that appellant, formerly a City Carrier at the agency's
Glendale, CA facility, filed a formal EEO complaint with the agency on
January 24, 1992, alleging that the agency had discriminated against her
as referenced above. At the conclusion of the investigation, appellant
requested a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ).<1> Pursuant to 29 C.F.R. � 1614.109(e),
on September 17, 1996, the AJ issued a Recommended Decision (RD) without
a hearing, finding no discrimination.
The pertinent facts of the case are as follows: on January 3, 1990,
appellant, then a City Carrier, sustained an on the job injury to her
hand, left shoulder, and left knee. On November 14, 1990, appellant was
offered a permanent rehabilitation job, which was reviewed and approved
by appellant's own physician. However, on November 29, 1990, appellant
rejected the job offer.
On December 7, 1990, appellant was notified that her rejection of the job
offer could mean termination of her benefits. Therefore, appellant was
again offered the position, which was again approved by her physician on
January 2, 1991. However, on January 6, 1991, appellant again refused
the job offer. On March 20, 1991, the Department of Labor determined
that appellant's current medical evidence failed to support continuing
disability.
On April 12, 1991, appellant was issued a Notice of Removal, charging
her with failure to Accept a Rehabilitation Reassignment Job Offer.
On July 25, 1991, appellant filed a CA-2 for job related stress.
On September 10, 1991, the agency issued appellant an amended Notice of
Removal, charging her with Physical Inability to Perform the Duties of
Your Position. Therefore, on September 20, 1991, appellant filed for
disability retirement. On October 17, 1991, appellant's psychologist
submitted a report to the agency which stated, �it is my opinion and
belief that this woman cannot be expected to serve [at the agency] or
any other available position in the federal government at the present
time given her overall psychiatric condition and the guarded prognosis
for the future.� Appellant filed the instant complaint on January 27,
1992. On May 21, 1992, appellant's disability retirement was accepted.
Following the denial of her worker's compensation claim, see supra note
1, appellant requested that her complaint be reinstated and that an
administrative judge be assigned.
In her decision, the AJ concluded that appellant failed to establish
a prima facie case of discrimination on the bases of race, sex or age,
because she failed to identify similarly situated individuals outside
of her protected classes, who were treated more favorably than others
who were unable to perform the duties of their position. Assuming,
arguendo, that appellant did raise an inference of discrimination, the
AJ found that the agency had articulated a legitimate, discriminatory
reason for its actions which appellant had failed to show was pretextual.
With respect to appellant's claim of disability discrimination, the
AJ also found that appellant failed to establish a prima facie case
of discrimination. Specifically, the AJ found that appellant had not
established that she was a �qualified individual with a disability� in
that she was unable to perform the essential functions of her position
with or without an accommodation. Specifically, the agency offered
appellant a rehabilitation job that her physician approved as being in
compliance with her medical restrictions. However, as described above,
appellant rejected the position twice. Therefore, the AJ found that
appellant had been offered a reasonable accommodation for her disability,
but rejected it.
With respect to appellant's mental disability, the AJ found that
appellant's psychologist recommended that appellant not return to work
at the agency, or within the federal government. As such, the AJ found
that appellant could not perform the essential functions of her position
with or without an accommodation. Assuming that appellant could perform
the essential functions of her position, the AJ found that the agency
issued the Notice of Removal for a legitimate reason, namely, that
although she was physically unable to perform the essential functions
of her position, she twice rejected a reassignment to a position as a
reasonable accommodation. In sum, the AJ found that appellant was not
discriminated against when she was terminated from her position.
On November 14, 1996, the agency issued a final decision adopting the
AJ's RD. Appellant makes no new contentions on appeal, and the agency
requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note the record reveals that
appellant was not qualified to perform the duties of her position
as a City Carrier, and that although the agency attempted to reassign
appellant, such attempts were unsuccessful due to appellant's refusal of a
job offer. As appellant refused the position, which was approved by her
physician, she has failed to show that the agency failed to reasonably
accommodate her physical disability. Moreover, as the AJ discussed, the
record now reveals that appellant is unable to work for the agency due to
her mental disability, and as such, is unable to perform the essential
functions of her job with or without an accommodation. Furthermore,
appellant has not presented evidence which would otherwise raise an
inference of discrimination on the bases of race, sex, age or disability.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
June 29, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1On July 25, 1991,
appellant filed a claim for compensation due to
work related stress. Thereafter, pursuant to a
negotiated settlement agreement entered into by
appellant and the agency, appellant agreed to
withdraw her EEO complaint pending the outcome
of her worker's compensation claim. By letter
dated February 14, 1996, appellant notified the
agency that her worker's compensation claim had
been denied in July 1995, and that she, therefore,
wished to pursue her EEO complaint. Thereafter,
the agency requested the appointment of an EEOC
administrative judge.