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.