0120100833
08-04-2011
Lamarna L. Connor, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Lamarna L. Connor,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120100833
Hearing No. 410-2009-00084X
Agency No. 4H-300-0238-08
DECISION
Complainant filed an appeal from the Agency’s November 12, 2009
final order concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Rural Letter Carrier at the Agency’s Stockbridge Post Office
facility in Stockbridge, Georgia. On August 4, 2008, Complainant filed
an EEO complaint alleging that the Agency discriminated against her on
the bases of disability (back and knee) and reprisal for prior protected
EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. On May 12, 2008, Complainant was assigned duties outside of her
medical restrictions, and not allowed to return to her prior assignment.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
requested a hearing and the AJ held a hearing on September 17, 2009.
The AJ issued his Decision on November 2, 2009 (AJ Decision).
In his Decision, the AJ found no dispute between the parties regarding
Complainant’s status as a qualified individual with a disability.
Complainant, along with other employees with disabilities, had been
assigned to the “COR” or Carrier Operational Results program at the
end of April 2008. That position, the AJ noted, included driving and
part sitting in a vehicle to evaluate carrier routes. AJ Decision at 9.
Complainant claimed that she could not perform the COR tasks because of
her back. Id. at 9, 10. The AJ found that Complainant suffered from a
back condition that restricted her ability to lift. However, the AJ found
the evidence conflicting regarding how many pounds Complainant was unable
to lift and how many hours she was able to sit. Id. The AJ observed
that Complainant’s medical documentation indicated that Complainant
was restricted to lifting not more than 20 pounds in one report, but not
more than 30 lbs in another report. A report dated May 13, 2008, which
is after Complainant was assigned to the COR program, indicated that
Complainant was restricted to sitting not more than 50% of the time,
though an earlier report from January 2008 restricts Complainant’s
sitting to 25% of the time. Id. at 15. The AJ noted that the Agency
official assigning Complainant to the COR program did not see the January
2008 medical report until July, 2008. Id. Complainant’s restrictions
were, therefore, unclear at the time of the incident identified in
the complaint. The AJ found that Complainant did not establish a prima
facie case of disability or reprisal discrimination because Complainant
failed to show that she was assigned to work that violated her medical
restrictions. AJ Decision at 14.1 The AJ concluded that Complainant
did not show that she was subjected to discrimination as alleged.
The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected her to
reprisal or disability discrimination as alleged.
ANALYSIS AND FINDINGS
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. Swaint, 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.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (November
9, 1999).
While the Rehabilitation Act does not require an employer to create a
light duty position as an accommodation, it does require an employer,
absent undue hardship, to accommodate a qualified individual with a
disability by restructuring a position through redistribution of marginal
functions which he cannot perform because of disability, or by reassigning
him to an equivalent existing vacancy for which he is qualified. Williams
v. U.S. Postal Serv., EEOC Appeal No. 01973755 (Sept. 11, 2000); Flowers
v. U.S. Postal Serv., EEOC Appeal No. 01984878 (Sept. 9, 1999); Lowery
v. U.S. Postal Serv., EEOC Appeal No. 01961852 (Oct. 31, 1997); Ignacio
v. U.S. Postal Serv., EEOC Petition No. 03840005 (Sept. 4, 1984), aff'd,
30 M.S.P.R. 471 (Spec. Pan. Feb. 7, 1986). The Commission has also stated
that "the employer and the individual with a disability should engage
in an informal process to clarify what the individual needs and identify
the appropriate reasonable accommodation." See EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, No. 915.002 , (Oct. 17, 2002), at p. 11. See also Crider
v. Dep’t of Veterans Affairs, EEOC Request No. 05960632 (Oct. 16, 1998).
In the instant case, we find the AJ’s Decision is supported by
substantial evidence in the record. We assume as did the AJ, without so
finding, that Complainant was a qualified individual with a disability
and that the Agency does not dispute that Complainant is disabled.
However, we observe the conflict in Complainant’s medical restrictions
as evidenced by a document entitled, “Work Status” dated January 31,
2008, (Record on Appeal (ROA) at 696). That report limits Complainant to
lifting no more than 30 pounds and to sitting fifty percent of the time.
However a similar document, also entitled “Work Status” and dated
January 31, 2008, limits Complainant to lifting no more than 20 pounds
and to sitting 25% percent of the time. ROA at 682. We find the evidence
supports the AJ’s conclusion that Complainant’s medical restrictions
were unclear at the time she was asked to perform the COR duties in
May 2008. We find no reason to disturb the AJ’s determination that
Complainant failed to show that she was subjected to discrimination
as alleged.
CONCLUSION
We therefore we AFFIRM 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
August 4, 2011
__________________
Date
1 The AJ also noted that Complainant later accepted a modified job offer
and returned to work at another location on June 24, 2008.
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0120100833
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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