01A24767
09-04-2003
Shelia A. Polk, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Shelia A. Polk v. United States Postal Service
01A24767
September 4, 2003
.
Shelia A. Polk,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A24767
Agency No. 4C-440-0006-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 decision.
The record reveals that complainant was employed by the agency as a
Part-Time Flexible, Letter Carrier, PS-06, at the Post Office located in
Painesville, Ohio. For personal reasons complainant requested, and was
granted, a hardship transfer to the Beachwood Station in or about March
2000. In or about August 2000, complainant suffered medical problems,
and was temporarily out of work. When she returned to work on September
5, 2000, complainant was on a ten-pound weight-lifting restriction,
and therefore, she requested light duty. Complainant was given work
for several days. From approximately September 15 to September 30,
2000, however, management told complainant that there was no work for
her at Beachwood because of her medical restrictions. Believing that
she was the victim of discrimination, complainant sought EEO counseling
and subsequently filed a formal complaint on December 21, 2000, alleging
that she was discriminated against on the basis of disability when from
September 15, 2000 and ongoing, management failed to accommodate her
disability and denied her work hours.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
The FAD concluded that complainant failed to establish a prima facie case
of discrimination because she could not show that she is an individual
with a disability under the Rehabilitation Act. The FAD additionally
noted that the manager (M1) stated that complainant could not perform
many of her duties as a Letter Carrier and that there was not eight
(8) hours of light duty work available at Beachwood. M1 additionally
asserted that complainant was ultimately returned to her original work
station in Painesville, Ohio, because there was more work available
within her restrictions. The FAD concluded that complainant failed to
establish that management subjected her to discrimination on the basis
of her disability.
On appeal, complainant contends that she has a permanent impairment
(pulmonary emboli), and that contrary to M1's assertion, there was work
that she could perform at Beachwood. The agency requests that we affirm
its FAD. As an initial matter we note that, as this is an appeal from
a FAD issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b),
the agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a).
When alleging denial of reasonable accommodation, complainant must
establish that she was a �qualified individual with a disability� in order
to be entitled to coverage under the Rehabilitation Act. Assuming, for
the sake of argument, that complainant is an individual with a disability
within the meaning of the Rehabilitation Act, we conclude that complainant
failed to prove, by a preponderance of the evidence, that she was a
qualified individual with a disability during the relevant time period.
A "qualified individual with a disability" is an individual with a
disability who satisfies the requisite skill, experience, education and
other job related requirements of the employment position such individual
holds or desires, and who, with or without reasonable accommodation, can
perform the essential functions of the position. 29 C.F.R. � 1630.2(m).
With respect to whether complainant is a qualified individual with a
disability, the inquiry is not limited to the position actually held
by the employee, but also includes positions that the employee could
have held as a result of job restructuring or reassignment. See Van
Horn v. United States Postal Service, EEOC Appeal No. 01960159 (October
23, 1998).
In the instant case, M1 stated that due to her medical restrictions,
complainant could not perform the essential duties of her Letter
Carrier position. Specifically, complainant could not lift mail buckets
to perform collections nor could she carry a mail bag. See Report
of Investigation (ROI), Affidavit B. M1 stated that they tried to
accommodate complainant by providing office work for her, but there was
not enough work to provide her with an eight hour day of sit-down work.
Id. M1 also stated that complainant was asked several times about her
duties as a carrier, and complainant stated that she was still unable
to perform them. Id. M1 conceded that two other Light Duty employees
at Beachwood were given work but that this was because their medical
conditions were less severe, and they were still able to perform their
total job responsibilities. Id.
The record indicates that complainant also requested to switch to a
different craft, such as the clerk craft. ROI, at Ex. 21. The agency
denied complainant's request on the basis that there was no permanent
light duty available. Id., at 23. Complainant has an evidentiary burden
to establish that it is more likely than not that there were vacancies
during the relevant time period to which she could have been reassigned.
See Barnard v. United States Postal Service, EEOC Appeal No. 07A10002
(August 2, 2002); see also Hampton v. United States Postal Service, EEOC
Appeal No. 01986308 (August 1, 2002), request to reconsider denied, EEOC
Request No. 05A21135 (August 28, 2003). Here, we find that complainant
has not met her burden.
Accordingly, as complainant failed to establish that she could perform the
essential functions of the position she held or desired with or without an
accommodation, she failed to establish that she is a qualified individual
with a disability entitled to the protection of the Rehabilitation Act.
See Bielfelt v. United States Postal Service, EEOC No. Appeal 01A10475
(June 19, 2002). Accordingly, we AFFIRM the agency's finding of no
discrimination.
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
September 4, 2003
__________________
Date