0120093459
07-11-2012
Kelsey D. Seymour, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Kelsey D. Seymour,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093459
Agency No. 1K-234-0007-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the Agency's July 2, 2009 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, complainant was employed as a Casual Clerk, GS-07, at the agency's Norfolk Processing and Distribution Center in Norfolk, Virginia. The record shows that Complainant's main duty is to run the flat sorter machine.
On January 17, 2009, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of disability (epilepsy) when:
on October 9, 2008, he received a letter from the District Reasonable Accommodation Committee (DRAC) informing him that there was no work available for him within his medical restrictions and denied his request to return to work.
The record reflects that Complainant had been diagnosed with epilepsy when he was fifteen years old. Complainant indicated that he visits a neurologist once a year when he is "seizure- free," and that he visits a neurologist every six months when he has seizures. Complainant has little or no warning of an impending seizure. Complainant acknowledged that he was not supposed to drive vehicles or climb ladders because of his condition. The record indicates that Complainant may have decided not to take medication for his epilepsy because of the potential side effects.
On December 4, 2007, Complainant had a seizure at work, resulting in a fall to the floor and a split brow that required six stitches. The Supervisor Distribution Operations (SDO) stated that on this date, Complainant "was found on the floor at the Flat Sorter #3 . . . first aid responders and the paramedics were called and he was taken to the hospital by ambulance." SDO further stated that, in addition to the December 2007 incident, there were previous incidents in which Complainant had seizures at work, fell into the aisle and was discovered by other employees. After being out of work for approximately one month due to the December seizure, Complainant submitted "Return to Duty" paperwork and was allowed to return to work. When Complainant returned to work, his medical restrictions were as follows: no driving, no climbing a ladder, and no operating of the flat sorter for a six-month period.
On May 24, 2008, Complainant had another seizure while working and was out of work. When he was ready to return to work, Complainant filled out the requisite paperwork and submitted the necessary medical documentation to DRAC for review in support of an accommodation for his medical condition where he could avoid working around machinery, including the flat sorter machine. Complainant apparently suggested that he be allowed to manually sort mail. The record reflects that DRAC determined that due to the frequency and unpredictability of his seizures, there was no accommodation presently available to Complainant to safely perform his duties. As a result, on October 9, 2008, he received a letter from the DRAC informing him that there was no work available for him within his medical restrictions and denying his request to return to work.
The Chairperson (CP) of the DRAC stated that Complainant was referred to the DRAC "due to several seizures or black outs he had at work." CP stated that on August 13, 2008, the committee met with Complainant concerning his request for reasonable accommodation. CP stated that Complainant suggested that he could be accommodated "if he was only assigned to manually separate mail. However, casual employees need to be available to perform a full range of duties, which include working with or near machinery. Casual employees are utilized to supplement the workforce where needed." CP stated that on October 9, 2008, the DRAC sent a letter to Complainant informing him that it was not feasible for the DRAC to accommodate him. Specifically, CP stated "an accommodation was not feasible because . . . casual clerks need to be available to perform a full range of duties, many of which involve working with or near machinery. Also, even if he was accommodated as requested, it did not remove the risk of an unpredictable seizure which could cause him to fall to the floor and injure himself or another employee. Reassignment was also not possible for the reasons indicated above."
Following the investigation of his complaint of discrimination, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on July 2, 2009, pursuant to 29 C.F.R. � 1614.110(b), finding no discrimination had been proven under the Rehabilitation Act. The instant appeal followed.
ANALYSIS AND FINDINGS
Complainant's disability discrimination claim is one of failure to accommodate. A person claiming discrimination on the basis of a disability must show as a threshold matter that he was a qualified individual with a disability. EEOC Regulation 29 C.F.R. � 1630.2(g) defines an individual with a disability as one who has a physical or mental impairment which substantially limits one or more of such person's major life activities; has a record of such an impairment; or is regarded as having such an impairment.1 Assuming Complainant is an individual with a disability as a result of his epilepsy, in order to show that he was "qualified," Complainant must show that he can perform the essential functions of the position in question, with or without reasonable accommodation, and that he meets the experience or education requirements of the position. 29 C.F.R. � 1630.2(m). In appropriate circumstances, a determination must also be made as to whether the individual poses a danger to self or others. Where failure to accommodate a disability is alleged, an appellant must also show that he requested an accommodation, and must make a facial showing or at least give plausible reasons to believe that the disability can be accommodated.
In this case, the evidence of record supports a finding that Agency management had a reasonable belief, based on objective evidence, that Complainant was not qualified for his position as a casual clerk because he posed a direct threat to himself due to his medical condition. See Enforcement Guidance, Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (ADA) (March 1, 1999) (Guidance), at question 38 ("if an employee with a disability, with or without reasonable accommodation, cannot perform the essential functions of the position, or poses a direct threat in the absence of medication, treatment, or an assistive device, then s/he is unqualified).
The evidence shows that Complainant had had several seizures at work and was found on the floor by coworkers. On December 4, 2007, Complainant had another seizure and fell near a flat sorter machine, splitting his brow, and had to be taken to the hospital by ambulance where he received six stitches. He was released to return to work with the restriction of not working on the flat-sorter for a six month period. Before the end of the six-month period, on May 24, 2008, Complainant had another seizure at work, was found in an aisle, and paramedics were again called. It is undisputed that Complainant has little or no advance notice of an impending seizure, and a seizure normally causes him to fall to the floor. As a casual clerk, Complainant was required to constantly work around machinery, including the flat sorter machine. Based on his history of having unpredicted seizures at work and falling to the floor and injuring himself, the Agency has supported its conclusion that he was not qualified for his position because he posed a danger to himself. Moreover, as a casual, non-permanent employee, there is no evidence that there was another position to which he could have been transferred where he could have worked more safely.
Accordingly, the Commission AFFIRMS the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
July 11, 2012
__________________
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
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0120093459
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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