Joyce Pulphus, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 12, 2002
01996920 (E.E.O.C. Sep. 12, 2002)

01996920

09-12-2002

Joyce Pulphus, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Joyce Pulphus v. U.S. Postal Service

01996920

September 12, 2002

.

Joyce Pulphus,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01996920

Agency No. 4-J-606-0035-98

Hearing No. 210-99-6259X

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

basis of disability (herniated disc disorder and frozen shoulder) in

violation of Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq. For the reasons stated herein, the agency's

FAD is reversed and remanded.

The issue on appeal is whether complainant has established that the

agency discriminated against her on the above-referenced basis when

it treated her disparately and failed to accommodate her based on her

medical restrictions by terminating her employment.

During the period in question, complainant was a Carrier, PS-6, at

an Illinois facility of the agency. In January 1994, complainant

experienced an injury when she slipped and fell on ice while

delivering mail. She exacerbated the injury in April 1994 when she

fell again. Complainant was on injury-related leave for approximately

eight months. When complainant returned to work in April 1995, the

agency placed her on light duty.<1> In a certificate dated March 29,

1995, complainant's physician stated �[N]o lift[ing] over 10 lbs,

no work above shoulder level, no standing longer than 15 minutes

continuously, no sitting longer than 1 hour consistently, [and] no

working at unprotected heights. . . . Light duty to be in effect for up

to 30 days.� Complainant's physician reiterated the same restrictions

in certificates dated September 11, 1995 and February 8, 1996. In a

report dated March 4, 1996, complainant's physician stated �Continue

current work restrictions. It is my medical opinion that [complainant]

will likely never return to full duty as a mail carrier because of the

lifting and carrying involved. She is pursuing a full time position

as a clerk.� Complainant continued on light duty instead of working

her regular carrier position. During the occasions that complainant

was on light duty, she performed such tasks as answering the telephone,

working with registered letters, ordering supplies, maintaining inventory

control of equipment, and casing mail for different delivery routes.

In February 1997, the agency sent complainant for a fitness for duty

examination (FFDE), which revealed that complainant was �high risk� and

�not medically qualified to perform essential functions of the [carrier]

position.� Subsequently, the agency issued complainant a letter stating

that she was unfit for duty as a Carrier, but that she could request a

change of craft to a suitable position or apply for disability retirement.

Complainant opted to request a change of craft to a suitable position,

if available, and if unavailable, to apply for disability retirement.

The agency issued complainant a letter informing her of three potential

reassignment positions at a different agency facility � Flat Sorter

Machine Operator, Mail Processor, and Distribution Clerk. Complainant

stated that she expressed an interest in the positions in writing<2>

within six days after receiving the agency's letter, but the agency

failed to respond. Several months later, the agency issued complainant

a Notice of Proposed Separation, which was made final in September 1997.

Complainant, believing she was a victim of discrimination, sought EEO

counseling and, subsequently, filed a complaint.

The agency stated that all light duty employees of the facility at issue

were sent for FFDEs and an employee was issued an option letter if the

FFDE deemed he/she unfit for duty in his/her position. The agency

explained that complainant's FFDE revealed that she was unable to

perform the duties of her carrier position, so she was given an option

letter to apply for positions in other crafts or to apply for disability

retirement. The agency stated that it then sent complainant a letter

indicating potential reassignment positions at another facility, however,

it later determined that the positions were not available. The agency

stated further that an agency medical officer compared complainant's FFDE

with the position descriptions for the potential reassignment positions

and determined that complainant was physically unable to perform the

duties of any one of the three positions. Also, the agency stated that

complainant was denied disability retirement, so, because both offered

options were unavailable, complainant was removed from employment.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). The AJ issued a decision without a hearing, finding no

discrimination. Specifically, the AJ found that complainant was not an

individual with a disability in that she was not substantially limited

in a major life activity. The AJ found further that the agency did not

treat complainant disparately and that it did accommodate complainant.

The agency issued a FAD concurring with the AJ's finding of no unlawful

employment discrimination. This appeal followed.

As a threshold matter in a case of disability discrimination under a

failure to accommodate or disparate treatment theory, the complainant must

demonstrate that she is entitled to protection under the Rehabilitation

Act, i.e., a qualified individual with a disability. See 29 C.F.R. �

1630.4. Determinative to such demonstration is whether an individual

can perform the essential functions of the position he/she actually held

or a position(s) he/she could have held as a result of reassignment.

See 29 C.F.R. � 1630.2(m); Linton v. U.S. Postal Service, EEOC Appeal

No. 01992741 (July 11, 2001). It is undisputed that complainant could

not perform the essential functions of her Carrier position with or

without reasonable accommodation. The agency stated it, consequently,

informed complainant of three potential reassignment positions at

another facility; however, complainant failed to respond to its notice.

The agency stated that it later discovered that the positions were not

available and that an agency physician determined that complainant was

physically unable to perform the functions of the potential reassignment

positions. Complainant stated otherwise. Specifically, complainant

stated that she expressed an interest in the three positions within

six days after receiving the agency's letter, which should have been

sufficient time for them to still be available, and that she could have

performed clerk duties, which is the category under which the potential

reassignment positions fell. The record is not sufficiently developed on

these issues. Accordingly, we find that summary judgment should not have

been granted in this matter because genuine issues of material fact exist.

See Kenney v. Department of the Army, EEOC Request No. 01994419 (July 7,

2000)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-9 (1986).

After a careful review of the record, we vacate the agency's finding of

no discrimination based on disability and remand the matter to the agency

for processing in accordance with this decision and the order below.

ORDER

The agency shall request the Hearings Unit of the appropriate EEOC field

office to schedule a hearing in an expeditious manner. The agency is

directed to submit a copy of the complaint file to the EEOC Hearings Unit

within fifteen (15) calendar days of the date this decision becomes final.

The agency shall provide written notification to the Compliance Officer at

the address set forth below that the complaint file has been transmitted

to the Hearings Unit. Thereafter, the Administrative Judge shall issue

a decision on the complaint in accordance with the regulation set forth

at 29 C.F.R.

� 1614.109 and the agency shall issue a final action in accordance with

the regulation set forth at 29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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

September 12, 2002

__________________

Date

1At the Postal Service, �limited duty� is the duty provided to an

employee who has physical limitations, identified by a qualified

physician, resulting from an on-the-job injury/illness. It differs from

�light duty,� which is duty provided to an employee who has physical

limitations, identified by a qualified physician, resulting from an

off-the-job injury/illness. Based on the record, complainant was on

light duty for several years prior to her 1994 injury.

2We note that the agency indicated that complainant failed to respond to

its letter citing three potential reassignment positions and that the

Administrative Judge stated in her decision that the record was void

of evidence which would show that complainant followed through on the

agency's option letter.