01A04492
07-29-2002
Karen D. Love, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Karen D. Love v. United States Postal Service
01A04492
7/29/02
.
Karen D. Love,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 01A04492
Agency No. 1-H-329-0014-98
Hearing No. 150-98-8594X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her equal employment opportunity (EEO) 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, an applicant for the position of
Flat Sorter Machine Operator at the agency's Mid - Florida Processing
and Distribution Center, filed a formal EEO complaint on February 4,
1998, alleging that the agency had discriminated against her on the
bases of disability (hypertension, sinus, abdominal hysterectomy with
bilateral salpinigoophorectomy) and reprisal for prior EEO activity
when on December 23, 1997, she received a letter finding her medically
unsuitable for the position of Flat Sorter Machine (FSM) Operator.
In her affidavit and at the administrative hearing, complainant averred
that when she worked for the agency as a LSM Operator in 1994, she had
the same medical impairments, yet she received medical clearance and
had no problem performing her job. In fact, complainant averred that
while she worked for the agency as a LSM Operator and subsequently
as a Casual employee, she did not miss a day of work. The agency's
Medical Officer (MO) on the other hand disputes that complainant had
the same impairments and/or same level of severity. In addition to the
medical impairments listed by complainant as basis of this complaint,
the record evidence establishes that complainant also has a history of
Reflex Sympathetic Dystrophy (RSD)<1> of her right arm, degenerative
disc disease, chest wall pain, and allergic rhinitis. In its letter
of medical unsuitability dated December 19, 1997, the agency indicated
that complainant's medical impairments were incompatible with the
strenuous activities of the FSM position, which included lifting up
to 70 pounds, carrying up to 45 pounds, repeated bending, twisting,
pushing and pulling. As an FSM Operator, complainant was also expected
to operate an electro-mechanical machine. FSM Operators were required
to perform repetitive keying and had to process 45 items per minute with
an accuracy rate of 98%. On August 7, 1998, the Office of Personnel
Management (OPM), affirmed the agency's determination that complainant's
medical condition presented an unacceptable safety and health risk.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding no discrimination. Specifically, the AJ found that
complainant was disabled within the meaning of the Rehabilitation
Act, because she suffered from multiple impairments that substantially
limited her major life activities. Nonetheless, the AJ went on to find
that complainant posed a direct threat of substantial harm to herself
and others. In reaching this finding, the AJ took note of the agency
official's testimony that the FSM position required repetitive keying,
which complainant admitted that she could not do without constant pain.
Further, the AJ found that complainant's degenerative disc disease in her
neck and her lower back had worsened to the point where her impairments
were inconsistent with the duties of an FSM Operator.
With respect to complainant's claim of reprisal, the AJ found that the
time period between 1995, when complainant first engaged in EEO activity,
and the agency's finding that complainant was medically unsuitable for
the FSM position in December of 1997, was too remote for complainant
to establish a causal link between the two events. Consequently, the AJ
found that complainant failed to establish a prima facie case of reprisal.
In a final order dated April 6, 2000, the agency implemented the AJ's
decision. On appeal, complainant mainly restates arguments previously
made at the hearing. Complainant also contends that the AJ erred when she
relied heavily on the MO's testimony as to the effects of complainant's
RSD on her right arm and the condition of her cervical spine. Complainant
also submitted a letter from OPM in another case in which it found that
the agency had not submitted sufficient evidence to support its decision
that complainant was medically unsuitable for a Letter Carrier position.
In response, the agency states that the position it took in its final
order is correct and requests that we affirm it.
ANALYSIS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
In determining whether an individual would pose a direct threat, the
factors to be considered include: (1) the duration of the risk; (2) the
nature and severity of the potential harm; (3) the likelihood that the
potential harm will occur; and (4) the imminence of the potential harm.
See 29 C.F.R. � 1630.2(r); see also Massingill v. Department of Veterans
Affairs, EEOC Appeal No. 01964890 (July 14, 2000) (the Commission held
that an agency cannot exclude qualified individuals with disabilities
without engaging in an individualized assessment into whether their
disabilities pose a direct threat of substantial harm). Therefore, in
regard to complainant's claim that she was discriminated against when
she was not hired for the FSM position, we note that the record contains
documentation from complainant's VA hearing showing that she was not
medically fit to work. Additionally, we take cognizance of the agency's MO
testimony who, after examining complainant's medical examination for the
FSM position, concluded that complainant's RSD and her degenerative disc
disease made her unable to perform as an FSM Operator. Consequently,
we find the agency acted properly when it found that her medical
conditions posed a direct threat to her or other employees and found
her not medically suitable for the FSM Operator position. See Parker v.
Department of the Navy, EEOC Appeal No. 01981917 (November 23, 2001).
On the issue of reprisal, we see no reason to disturb the AJ's findings
that the complainant did not show a causal relationship between the
agency's actions and her filing an EEO complaint in 1998. The evidence
supported the AJ's conclusion that more likely than not, her medical
condition, rather than her prior EEO activity, caused the agency to find
her not medically suitable for the FSM Operator position.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
were in retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's documented impairments.
We discern no basis to disturb the AJ's decision.
CONCLUSION
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 order.
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
7/29/02
__________________
Date
1 RSD is a medical condition which results in chronic pain to the lower
and upper extremities. It affects the impaired persons ability to engage
in repetitive motion such as keying.