Kim L. Dartez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 28, 2003
01A23345 (E.E.O.C. Oct. 28, 2003)

01A23345

10-28-2003

Kim L. Dartez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Kim L. Dartez v. United States Postal Service

01A23345

October 28, 2003

.

Kim L. Dartez,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A23345

Agency No. 4E-852-0125-98

Hearing No. 350-A0-8268X

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 was a Letter Carrier at the

agency's Pecos Station in Phoenix, Arizona. On November 12, 1997,

complainant injured herself while on her route. She filed a claim with

the Office of Workers Compensation Programs (OWCP) which was accepted.

During the relevant time, complainant was restricted from working above

her shoulder with her arms and hands; from lifting over twenty-five

pounds; and frequent neck extension/flexion. Beginning November 12,

1997 until December 17, 1997, the agency provided complainant with a

limited duty assignment. The agency provided her with a platform so

that she did not have to reach over her head when casing mail. Further,

other carriers would be asked to assist complainant if she needed to

lift over twenty-five pounds. Complainant's OWCP claim was later denied.

On March 3, 1998, complainant's physician indicated that her position

as a letter carrier would be unsuitable for her and that she needed a

permanent light duty assignment. Therefore, complainant requested another

assignment she could perform within her limitations. Complainant's

manager (Manager) found no positions within the Pecos Station. He then

sent an e-mail out to other facilities asking if there were any jobs

available within complainant's restrictions. The Manager did not receive

any responses. Complainant also searched within the agency for another

position. When no position could be located, the Manager recommended

complainant's situation to the agency's Reasonable Accommodation

Committee (RAC). The RAC convened to discuss complainant's situation.

Finding that there was insufficient information to provide complainant

with an effective accommodation, the RAC requested further medical

documentation clarifying complainant's limitations and requirements.

The RAC did not receive a response from complainant and, therefore,

was unable to further consider her request. Then, complainant took a

disability retirement effective February 26, 1999.

Complainant filed a formal EEO complaint on June 15, 1998, alleging that

the agency had discriminated against her on the basis of disability

(neck injury) when the agency failed to prove her with a reasonable

accommodation between March 3, 1998 and February 26, 1999, the effective

date of complainant's disability retirement. 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 bench decision finding no discrimination.

During the hearing, the AJ determined that complainant had established

that she is an individual with a disability covered under the

Rehabilitation Act for the purpose of defeating the agency's motion for

summary judgment. However, at the conclusion of the hearing, in his

bench decision, the AJ concluded that complainant failed to establish a

prima facie case of discrimination based on disability. Specifically,

the AJ found that complainant in fact did not demonstrate that she

is an individual with a disability for purposes of coverage under the

Rehabilitation Act. Therefore, the AJ determined that complainant failed

to show that the agency violated the Rehabilitation Act. The agency's

final order implemented the AJ's decision.

On appeal, complainant argues that the AJ denied her the ability to fully

develop her case. Complainant also notes that the AJ did not allow her

to present background information that led to the discriminatory events.

Complainant also claims that the AJ erred when he found that she was

a qualified individual with a disability during the hearing but in his

bench decision concluded that she had not met her burden with respect

to coverage. Finally, complainant argues that the evidence within the

record shows that, if the AJ had completed his analysis beyond the issue

of whether complainant was an individual with a disability, he would

have found in her favor. In response, the agency restates the position

it took in its FAD, and requests that we affirm its final order.

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.

Initially, the Commission notes that the AJ provided complainant an

opportunity to develop her claim of failure to provide a reasonable

accommodation from March 3, 1998 to February 26, 1999. Complainant

attempted to bring in information regarding events that occurred prior

to the events raised within her complaint. We note that complainant has

not shown how this information is relevant to the complaint at hand.

Therefore, we find the AJ's ruling excluding such information was

appropriate.

Under the Commission's regulations, federal agencies are required to make

reasonable accommodation for the known physical and mental limitations

of a qualified individual with a disability, unless the agency can

show that to do so would be an undue hardship on its operations. See 29

C.F.R. 1614.203(c). This can include, but is not limited to, making work

facilities accessible, restructuring or modifying an employee's job,

or obtaining special equipment. See id. Determining an appropriate

reasonable accommodation for an employee with a disability should be

an interactive process involving both the employee and the employer.

29 C.F.R. 1630.9; see also EEOC Enforcement Guidance on Reasonable

Accommodation under the Americans with Disabilities Act, No. 915.002

(rev. Oct. 17, 2002) at Question 5. However, it is generally the

responsibility of the individual with a disability to inform the employer

that he or she needs an accommodation, and an employer may request medical

documentation of the need for accommodation in cases where the need for

accommodation is not obvious. Id.

The record indicates that complainant met with the RAC so that a

reasonable accommodation could be identified. Based on the medical

documentation provided by complainant, from November 12, 1997, the

agency appeared to have been providing complainant with accommodations

that should have permitted her to perform her letter carrier duties.

However, despite those accommodations, complainant indicated that

she continued to experience pain when performing her duties. The RAC

convened to discuss complainant's situation. It appeared to the RAC

that the agency had furnished complainant with a position within her

restrictions, however, it was not effective. In order for the RAC to

determine what other reasonable accommodations were needed, it sought

more medical documentation from complainant. Complainant did not furnish

this information. Hence, the RAC and the agency were unable to determine

what, if any, accommodation would be reasonable for her. Accordingly, we

find that, even assuming complainant is an individual with a disability,

her failure to provide the documentation resulted in the RAC's inability

to locate an appropriate accommodation.<1> Accordingly, we find that

the agency was in compliance with the Rehabilitation Act.

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

October 28, 2003

__________________

Date

1Complainant claimed that she gave the agency an updated medical note

dated July 29, 1998. This claim was refuted by the agency and a member

of the RAC testified that the document was never received. The document

was part of the investigative file and provided by complainant as part of

her appeal to the Office of Personnel Management regarding her disability

retirement. Therefore, we find that complainant has not shown that she

provided the agency with updated medical documentation as requested by

the RAC.