01a20092
09-25-2003
Nancy Haley-Martinez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nancy Haley-Martinez v. United States Postal Service
01A20092
09-25-03
.
Nancy Haley-Martinez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20092
Agency No. 4F-950-0036-99
Hearing No. 370-99-X2626
DECISION
Nancy Haley-Martinez (hereinafter referred to as complainant) filed an
appeal from the August 14, 2001, final decision of the United States
Postal Service (hereinafter referred to as the agency) concerning her
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405. For the reasons that follow,
the agency's decision is AFFIRMED.
ISSUE PRESENTED
The issue presented in this appeal is whether complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her based on disability (back), national origin (Hispanic), and sex when
her request for light duty was denied in April 1998.
BACKGROUND
Complainant alleged discrimination based on disability (back), national
origin (Hispanic), and sex when she was not assigned light duty work.
In late 1997, complainant had an off-work accident that aggravated a
previous on-the-job injury to her back. After the off-work injury,
she filed a claim with the Office of Workers' Compensation Programs,
Department of Labor (OWCP), seeking supplemental compensation for her
back injury. According to agency practice, from the time she filed
her OWCP claim and while it was pending, she was eligible for limited
duty work and was assigned to a modified carrier position within her
medical restrictions. It appears that she worked for a short time and
was on leave through April 1998. While she was on leave, in March 1998,
OWCP denied her claim. Also, the agency changed the position to which
she had been assigned and returned it to a full-time carrier position,
because the new housing subdivision for which it was created had opened.
When she sought to return to work in April 1998, she was eligible for
light duty work, only; however, no light duty work was available within
her medical restrictions until February 1999, when she returned to work.
Following a hearing, the AJ found that complainant was not a
qualified person with a disability and that the agency witnesses
had credibly testified that it had no position available within her
medical restrictions. Agency witnesses stated that they searched for
another position within the facility and at other facilities, but no
positions were available that could accommodate her medical restrictions.
With regard to her claims based on sex and national origin, the AJ found
no discrimination, in that, complainant failed to present any evidence
in support of this claim.
On appeal, complainant contended that the agency should have provided
her a reasonable accommodation and found her work within her medical
restrictions at the time she was ready to return to work in April 1998.
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. Swint,
456 U.S. 273, 293 (1982). In this matter, complainant claims that the
agency discriminated against her based on disability, national origin,
and sex when it failed to afford her a reasonable accommodation in the
form of a light duty position.
Accommodation Claim
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
As a threshold matter, therefore, one claiming protection under the
Rehabilitation Act must show that s/he is a person with a disability
as defined therein. A person with a disability is one who has, has a
record of, or is regarded as having a physical or mental impairment that
substantially limits one or more major life activities. 29 C.F.R. �
1614.203(a)(1). Major life activities include caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1614.203(a)(3). In seeking an
accommodation, an employee must show a nexus between the disabling
condition and the requested accommodation. See Wiggins v. United States
Postal Service, EEOC Appeal No. 01953715 (April 22, 1997).
For purposes of further analysis, we assume, arguendo, and without
finding, that complainant established that she is an individual with a
disability and is entitled to coverage under the Rehabilitation Act.
Because complainant could not perform the core duties of her carrier
position with or without a reasonable accommodation, however, we
find, as did the AJ, that she is not a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). Nevertheless,
the discussion of �qualified� does not end at this point; a�qualified
individual with a disability,� with respect to employment, is defined
as a disabled person who, with or without a reasonable accommodation,
can perform the essential functions of the position held or desired.
29 C.F.R. � 1630.2(m). The term "position" is not limited to the position
held by the employee but also includes positions that the employee could
have held as a result of reassignment. Therefore, in determining whether
an employee is "qualified," an agency must look beyond the position to
which the employee is assigned and consider reassignment.<1>
Upon review of the record, we find that the agency met its obligation
to consider reassignment but found no vacant position which complainant
could perform within her medical restrictions and for which she was
qualified. Further, we note that complainant failed to satisfy her
burden to establish that it is more likely than not (preponderance of
the evidence) that there were vacancies during the relevant time period
into which complainant could have been reassigned. Hampton v. USPS, EEOC
Appeal No. 01986308 (July 31, 2002). A complainant can establish this
by producing evidence of particular vacancies, or, in the alternative,
complainant can show that (1) s/he was qualified to perform a job or
jobs which existed at the agency, and (2) there were trends or patterns
of turnover in the relevant jobs so as to make a vacancy likely during
the time period. Id. Complainant did not provide evidence to support
an assertion that, had the agency searched further at the relevant
time, it would have found a vacant position to which she could have
been reassigned. Accordingly, the Commission finds that complainant
failed to establish her claim that the agency failed to provide her a
reasonable accommodation.
Title VII Claims
Complainant also alleged that she was subjected to discrimination based
on national origin and sex; however, she did not present any facts that
established an inference of discrimination or establish a prima facie
case. Further, complainant did not show that other persons similarly
situated to her that had requested light duty were treated more favorably.
For all of the above reasons, and, after a review of the record, we
discern no basis to disturb the AJ's finding of no discrimination.
The AJ's findings of fact are supported by substantial evidence, and
the AJ correctly applied the appropriate regulations, policies, and laws.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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
____09-25-03______________
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
______________________________
1The agency is advised that 29 C.F.R. � 1614.203(g), which governed
and limited the obligation of reassignment in the Federal sector,
has been superseded and no longer applies. 29 C.F.R. � 1614.203(b).
The ADA standards apply to all conduct on or after June 20, 2002, and
emphasize, among other things, a broader search for a vacancy. The ADA
regulations regarding reassignment can be found at 29 C.F.R. �� 1630.2(o)
and 1630.9. Additional information can be found in the Appendix to the
ADA regulations and in the EEOC's Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act (rev. October 17, 2002) at Questions 25-31. These documents are
available on the EEOC's website at www.eeoc.gov.