01A04669
03-05-2003
Rosalee Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rosalee Walker v. United States Postal Service
01A04669
03-05-03
.
Rosalee Walker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04669
Agency Nos. 4J-606-0079-97
4J-606-02201-97
Hearing Nos. 210-99-6504X
210-99-6505X
DECISION
Complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision (FAD) of
the agency concerning her allegation that the agency violated � 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted by the Commission in accordance with 29 C.F.R. �
1614.405.
The issue presented in this appeal is whether complainant proved, by a
preponderance of the evidence, that she was discriminated against based
on sex (female), disability (depression) and reprisal for engaging in
protected EEO activity when: (1) she was placed in a non-paid leave
status from February 1995 until May 2, 1996; (2) she was assigned work
inconsistent with her medical restrictions starting May 29, 1996; (3)
she was placed in a non-paid leave status beginning May 29, 1996; (4) her
medical documentation was not accepted during the period of May 1996 to
November 1996; and (5) she was issued a removal notice on March 11, 1997.
The record indicates that complainant, a Letter Carrier in Chicago,
Illinois, was robbed at gun point while performing her official duties.
As the result of trauma, she was hospitalized from December 9 - 16, 1994.
She requested a transfer to a new facility. In a December 1994 letter,
her physician indicated that complainant could not return to work at that
time, and that it �was important for her health� to be stationed indoors
at a different facility without much standing. In a February 1995 letter
her physician, noting that she had not been able to work since December
28, 1994, indicated that she was suffering from major depression and
that she was being treated with psychotherapy and pharmacotherapy. The
agency approved complainant's transfer request in February 1995.
In February 1995, the agency's Chicago District Medical Officer, (B-1),
upon reviewing complainant's medical documentation cleared her for duty
as of February 13, 1995. Complainant did not report to her new facility
until April 1995. Upon reporting, however, she did not work from April
1995 to April 1996. The agency proposed her removal in April 1995,
but the removal was rescinded pursuant to a settlement agreement.
In April 1996, complainant returned to work at her new facility.
For a two week period, she was temporarily assigned a delivery route
that included a high-rise building. This route was subsequently put
up for bid, pursuant to the CBA. Although she placed a bid on the
route, a carrier with greater seniority was awarded the assignment.
Complainant believed that the route was consistent with her medical
restrictions. In May 1996, A-1, the Postmaster of the new facility,
informed complainant that she would have to provide adequate medical
documentation to support her previous absence, i.e., from February
1995 until April 1996. A-1 noted the agency's requirement that all
absences in excess of 21 days required a release by the Medical Unit
upon the employees' return to work. A-1 noted that he could not waive
this requirement.
Complainant's doctor wrote a letter, dated May 29, 1996, that stated
that complainant had been under his care and that he recommended that
she continue to work indoors. Complainant was informed that the May
29 note was insufficient. In June 1996, she left work complaining
that she was being asked to work outside of her restrictions. She was
then placed in a non-pay status. Later in the month of June 1996,
she was sent a three-day absence notice. For absences of three or
more days, the agency requires supporting medical documentation in
order to substantiate the absence. Complainant was told that removal
was an option if she failed to comply. In a letter dated June 5 1996,
complainant's doctor stated that, for medical reasons, she should work
indoors, but could deliver mail to buildings where there was a door man.
Complainant was sent another three-day letter in or about August 1996.
After receiving a request for EEO counseling from complainant's
attorney, an agency official wrote the attorney and indicated that (1)
her doctor's statements failed to meet the criteria outlined in the
CBA; (2) management could not guarantee complainant exclusive work in a
building with a doorman; and that (3) complainant left the station on her
own accord, refusing to work, because she was allegedly asked to work
outside of her restrictions. Complainant was sent another three-day
letter in January 1997. On February 12, 1997, the agency initiated a
proposal to remove her for failing to maintain regular attendance and
for being absent from her job since June 1996. A removal notice was
issued on March 11, 1997.
Following an investigation, complainant requested an administrative
hearing before an EEOC Administrative Judge (AJ). The AJ, after a
hearing, issued a decision finding no discrimination. The agency issued
a final action that adopted 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).
Notwithstanding the specific allegations delineated above, the real
matter at issue is whether the agency failed to provide complainant with
a reasonable accommodation which then led to her removal. Under the
Commission's regulations, an agency is required to make reasonable
accommodation to the known physical and mental limitations of an otherwise
qualified individual with a disability unless the agency can show that
the accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
The Commission also notes that 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).
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that
she is an "individual with a disability." In the present case, we shall
assume, arguendo, that complainant established that she was an individual
with a disability covered by the Rehabilitation Act.
Complainant must, however, 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 person who, with or
without a reasonable accommodation, can perform the essential functions
of the position held or desired. For the reasons that follow, we find
that complainant has not established that she was a qualified individual
with a disability. Complainant maintained that, as an accommodation,
the agency should have (1) assigned her to a carrier position that was
exclusively in-doors as of February 1995; and (2) that the agency should
have offered her a mail delivery route, which consisted exclusively of
delivery to buildings with a doorman as of June 1996.
Because this case arose prior to June 20, 2002, the Commission will apply
29 C.F.R. � 1614.203(g), its prior regulation regarding reassignments.<1>
The complainant has an evidentiary burden in such reassignment cases to
establish that it is more likely than not (preponderance of the evidence)
that there were vacancies during the relevant time period into which
she could have been reassigned. Clearly, complainant can establish
this by producing evidence of particular vacancies. However, this is
not the only way of meeting the evidentiary burden. In the alternative,
complainant need only show that: (1) she 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.
We find that complainant failed to establish that there were any vacant
carrier or other positions outside of the Carrier craft which met her
restrictions or for which she was qualified. Moreover, she failed
to provide any other evidence to support an assertion that, had the
agency searched outside the Carrier craft at the relevant time, it would
have found a vacant position to which she could have been reassigned.
Based upon our review, we conclude that complainant was not a qualified
individual with a disability. Accordingly, the Commission finds that
complainant failed to establish her claim that the agency failed to
provide her with a reasonable accommodation.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.<2>
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
___03-05-03_______________
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. 67 Fed. Reg. 35732 (5/21/02), to be
codified as 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 (March 1, 1999, as revised,
October 17, 2002) at Questions 25-31. These documents are available on
the EEOC's website at www.eeoc.gov.
2We note that, at various times, the agency requested certain medical
information from complainant. Because complainant has not alleged that
the agency's requests were unlawful, nor has she maintained that she was
removed because she failed to provide said information, we do not find
it necessary to address this matter above.