Karen L. Brooks, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionJun 19, 2001
01980061 (E.E.O.C. Jun. 19, 2001)

01980061

06-19-2001

Karen L. Brooks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.


Karen L. Brooks v. United States Postal Service

01980061

June 19, 2001

.

Karen L. Brooks,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Great Lakes Area),

Agency.

Appeal No. 01980061

Agency No. 4-J-606-1210-95

Hearing No. 210-97-6137X

DECISION

Complainant timely initiated an appeal from the agency's final

decision 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.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant alleges she was discriminated against on the basis of

disability (depression) when she failed a qualification program and

when the agency failed to accommodate her disability. For the following

reasons, the Commission affirms the agency's final decision.

The record reveals that complainant was working as a Distribution Clerk

at the agency's post office in North Chicago, Illinois. Complainant

was absent from work for medical reasons related to depression from

April 1994 through August 1994. While on leave, she was contacted

about a Window Clerk position opening at the Great Lakes Branch.

Complainant successfully bid on the Window Clerk position and was

sent to participate in a qualification program which consisted of ten

days of classroom preparation and five days of on the job training.

Although complainant's performance was rated satisfactory on almost

all of the training activities, her "close out" performance was deemed

unsatisfactory due to both timeliness and accuracy. As a result, she

failed to meet the minimum requirements of the qualification program.

In order to help complainant improve her "close out" skills, the agency

twice offered complainant an extra three days of training. Complainant

refused both offers. Accordingly, complainant was notified that she

was being reverted back to her prior bid position at the North Chicago

post office.

Complainant filed a formal EEO complaint with the agency on April 18,

1995, alleging that the agency had discriminated against her as referenced

above. At the conclusion of the investigation, complainant received a

copy of the investigative report and requested a hearing before an EEOC

Administrative Judge. Following a hearing, the Administrative Judge

issued a decision finding no discrimination which the agency adopted in

its final decision. On appeal, complainant contends that: (1) the agency

should have merged her removal complaint with the complaint at issue;

(2) the managers and supervisors at the North Chicago facility were

aware of complainant's impairment; (3) her failure to meet the minimum

requirements was inconsistent with her satisfactory performance; and

(4) rather than returning complainant to her bid position, the agency

should have offered an accommodation for her disability.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings

by an Administrative Judge 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 Administrative Judge's conclusions of law are subject to a de novo

review whether or not a hearing was held.

Assuming arguendo that complainant is a qualified individual with a

disability, the Commission finds that the agency stated a legitimate,

non-discriminatory reason for concluding that complainant did not meet

the minimum requirements for the job, namely that when it came to "closing

out," complainant's performance was unsatisfactory. Specifically, on

four out of five nights, complainant counted her money extremely slowly

and submitted the incorrect amount of money, each time with an error of

at least $20.00. The Commission finds that the Administrative Judge's

conclusion that the evaluating official was not aware of complainant's

disability at the time of the evaluation is supported by substantial

evidence in the record. Accordingly, we find that complainant has not

established by a preponderance of the evidence that her inability to

count efficiently and accurately was not the real reason she did not

pass the training program.

Complainant also argues that the agency should have offered her a

reasonable accommodation, in the form of re-training, that would have

enabled her to pass the qualification program. Initially, we note

that the record does not support a finding that complainant requested

a reasonable accommodation. In order to determine the appropriate

reasonable accommodation, the employer may need to "initiate an informal,

interactive process with the qualified individual with a disability

in need of the accommodation." 29 C.F.R. � 1630.2(o)(3). "While the

individual with a disability does not have to be able to specify the

precise accommodation, she does need to describe the problems posed by

the workplace barrier. Additionally, suggestions from the individual

with a disability may assist the employer in determining the type

of reasonable accommodation to provide." EEOC Enforcement Guidance:

Reasonable Accommodation and Undue Hardship Under the Americans With

Disabilities Act (March 1, 1999). The employer must be given the

opportunity to accommodate. Beck v. Univ. of Wisconsin Bd.. of Regents,

75 F.3d 1130 (7th Cir. 1996). There is nothing in the record to indicate

that the agency knew complainant needed an accommodation in order to be

successful on the qualification program.<2>

Finally, the Commission notes that complainant requested that the

Administrative Judge amend the complaint at issue to include a removal

action which occurred in November 1995. The Administrative Judge denied

both complainant's motion and complainant's request for reconsideration

of that motion after determining that the issues were not like or

related and after concluding that there was no evidence to support

complainant's contention that the EEO Counselor assured complainant that

the instant complaint would be amended. We discern no basis to disturb

the Administrative Judge's decision. Therefore, after a careful review of

the record, including complainant's contentions on appeal and arguments

and evidence not specifically addressed in this decision, we affirm the

agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 19, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1 The 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.

2 Moreover, after she failed to meet the minimum standards, the agency

twice offered complainant three additional days of training in an effort

to help her pass the qualification program. The Administrative Judge

noted that complainant rejected the agency's offer on both occasions,

contending that the offer would have required her to work twice as fast

as her trainer. The Administrative Judge found no evidence to support

that contention.