01984658
08-29-2002
Kimberly S. Caldwell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kimberly S. Caldwell v. United States Postal Service
01984658
August 29, 2002
.
Kimberly S. Caldwell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984658
Agency No. 4C-430-0050-97
Hearing No. 220-97-5303X
DECISION
The 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.
The complainant alleges she was discriminated against on the basis of
disability (myasthenia gravis) when it failed to reasonably accommodate
her disability by denying her request for a transfer on February 21, 1997.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that the complainant, a part-time Flexible Distribution
Window Clerk at the agency's Jackson, Ohio Post Office, filed a formal
EEO complaint with the agency on April 18, 1997, alleging that the agency
had discriminated against her as referenced above. At the conclusion of
the investigation, the 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.
The AJ concluded that the complainant failed to establish a prima
facie case of disability discrimination in that she was not a qualified
individual with a disability. The AJ noted that pursuant to Commission
regulations her request for reassignment to the Columbus, Ohio Post
Office was inconsistent with the contractual agreement between the agency
and the American Postal Workers Union regarding local reassignments.
Specifically, the AJ found that the complainant had not been employed
at the Jackson, Ohio Post Office for at least twelve months prior to
her request for a transfer, as required by the bargaining agreement.
The record showed that upon completion of the twelve month �lock-in�
period, the agency did transfer the complainant.
The agency's final decision implemented the AJ's decision.
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).
The Rehabilitation Act requires an agency to make reasonable
accommodations for the known physical or mental limitations of an
otherwise qualified applicant or employee with a disability, unless
the agency can demonstrate that the accommodation would impose an
undue hardship on the operation of its business. To bring a claim of
disability discrimination, the complainant must first establish that she:
(1) has a physical or mental impairment that substantially limits one
or more major life activities; (2) has a record of such impairment; or
(3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g).
Major life activities include, but are not limited to, caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1630.2(i). In this case, the AJ found
that the complainant established that she suffered from a neurological
impairment which is probably myasthenia gravis and that she has a record
of the same impairment. The AJ also noted that when her condition is
aggravated she has problems breathing, seeing and being fatigued.
As a threshold matter, the Commission agrees with the AJ, that the
complainant is an individual with a disability within the meaning of the
regulations. In this case, the AJ found that the complainant established
that she suffered from a neurological impairment which her physician
characterized as an uncertain diagnosis of myasthenia gravis and that
she has a record of the same impairment. The AJ also noted that when her
condition is aggravated she has problems breathing and seeing, and becomes
fatigued. The complainant testified that after five months of driving
the 150-mile round trip a day she started experiencing paralysis in her
neck, blurred vision and fatigue on a daily basis while driving to work.
In a letter dated February 3, 1997, the complainant's physician stated
that she was having episodic complaints of double vision and fatigue and
that a transfer to a Post Office closer to her home would clearly benefit
her, as her condition is likely exacerbated by the current commute.
Accordingly, the evidence supports a determination that the complainant
was substantially limited in at least the major life activity of seeing
due to her neurological condition.
The complainant must also show that she is a �qualified� individual with
a disability within the meaning of 29 C.F.R. � 1630.2(m). This section
defines the term �qualified individual with a disability� as meaning,
with respect to employment, a disabled individual who, with or without
a reasonable accommodation, can perform the essential functions of the
position held or desired. We agree with the AJ's determination that the
complainant is not a qualified individual with a disability due to the
fact that her request for reassignment to the Columbus, Ohio Post Office
was inconsistent with the contractual agreement between the agency and
the union regarding reassignments. The complainant had not been employed
at the Jackson, Ohio Post Office for at least twelve months prior to
her request for a transfer, as required by the bargaining agreement.
The Commission's regulations governing reassignment of federal employees
states that Postal Service workers with disabilities shall not be
considered qualified for reassignment to the extent that it would be
inconsistent with the terms of a collective bargaining unit. See 29
C.F.R. � 1614.203(g).
Recently, the Supreme Court rendered its decision in U.S. Airways,
Inc. v. Barnett, 535 U.S. ___ (2002), wherein the Court held that the
Americans with Disabilities Act, in the ordinary run of cases, does
not require an employer to assign an employee to a particular position
when another employee is entitled to that position under the employer's
�established seniority system.� Further, the Court held that if the
employee requesting the reasonable accommodation of reassignment can
show special circumstances in their particular case to demonstrate that
the assignment is reasonable, they may defeat summary judgment in favor
of the employer.
We have no occasion in this decision to address Barnett's impact on
the agency's obligation to make a reassignment in this case, since
the complainant has failed to show that a vacancy was more likely
than not available in the Columbus, Ohio facility. In a reassignment
case, a complainant has an evidentiary burden to establish that it is
more likely than not (a preponderance of evidence) that there were
vacancies during the relevant time period into which she could have
been reassigned. Yvonne Hampton v. United States Postal Service, EEOC
Appeal No. 01986308 (August 1, 2002). The complainant can establish this
by producing evidence of particular vacancies. Id. In the alternative,
the complainant need only show that: 1) s/he was qualified to perform a
job or jobs which existed at the agency, and 2) that there were trends
or patterns of turnover in the relevant jobs so as to make a vacancy
likely during the time period. Id. The complainant indicated that a
supervisor at the Columbus facility would testify that he was willing to
accept her if she were transferred there. However, this supervisor never
testified at the hearing, and there is no other evidence from which we
can conclude that it is more likely than not that a vacant position at
the facility was available during the relevant time period.
Therefore, after a careful review of the record, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M701)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
August 29, 2002
__________________
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.