01A00889_r
07-18-2002
Vicki R. Henke, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Vicki R. Henke v. United States Postal Service
01A00889
July 18, 2002
.
Vicki R. Henke,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00889
Agency No. 4-J-604-0194-98
Hearing No. 210-99-6218X
DECISION
Complainant timely appealed from the agency's final order concerning
her employment discrimination complaint. In its final order, the
agency adopted the decision of an EEOC Administrative Judge (AJ)
finding no violations of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> The AJ,
who reached his decision after a hearing, addressed whether complainant
was subjected to discrimination on the basis of disability when she was
found medically unsuitable and denied employment as a Distribution Clerk
at the agency's Gardner, Illinois Post Office. For the following reasons,
the Commission affirms the agency's final order.
Complainant was selected to interview for the Distribution Clerk position
in February 1998. The interviewer told complainant she �would be
accepted� and sent her for a medical evaluation. Hearing Trans. at 18.
Upon learning of complainant's back surgeries, the examining physician
required complainant to undergo a battery of tests, and placed her
evaluation �on hold� pending further review. A reviewing physician
at the agency's medical unit requested that complainant's personal
physician provide more detailed information concerning the condition
of complainant's back. After obtaining this information, the reviewing
physician found that complainant was limited in her ability to perform
heavy lifting, repeated bending, pulling, pushing, or prolonged standing.
A Human Resources official compared the physician's findings to the
requirements of the job, and found complainant medically unqualified to
perform the essential functions of a Distribution Clerk at the Gardner,
Illinois Post Office because complainant represented too great a �medical
risk.� When complainant requested reconsideration of its decision,
the agency responded that medical records show that complainant was not
medically qualified to perform the essential functions of the Distribution
Clerk position.
In concluding that complainant failed to establish a prima facie case
of disability discrimination, the AJ found that complainant was not an
�individual with a disability� within the meaning of the Rehabilitation
Act, because she was not regarded as substantially limited in a major
life activity. Even assuming that complainant was an �individual with
a disability,� the AJ determined that complainant was not a �qualified�
individual with a disability because she was unable to perform the
essential functions of the position.
According to the AJ, heavy lifting of up to seventy (70) pounds was an
essential function of the position. The AJ noted that the Gardner Post
Office was a very small facility, with only three Distribution clerks
performing all of the tasks required to prepare the mail for delivery by
Mail Carriers. He found that complainant's physician believed complainant
should not attempt to perform any job requiring her to lift more than
twenty-five pounds, although the doctor provided a letter stating that
complainant could work �without restrictions.�
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
In claims of disability discrimination, complainant first must show that
she is a �qualified individual with a disability� entitled to protection
under the Rehabilitation Act. See Murphy v. United Parcel Service, Inc.,
527 U.S. 516 (1999). An individual with a disability is �qualified�
if she satisfies the requisite skill, experience, education, and other
job-related requirements of the position, and can perform the essential
functions of the position with or without reasonable accommodation.
29 C.F.R. � 1630.2(m). The �essential functions,� or fundamental
job duties, may be determined by whether, inter alia, the position
exists to perform the function, or a limited number of employees are
available to perform the job function. See 29 C.F.R. � 1630.2(n)(2).
Relevant evidence includes, but is not limited to, the employer's judgment
of which functions are essential, the amount of time spent on the job
function, and the consequences of not requiring the employee to perform
the function. See 29 C.F.R. � 1630.2(n)(3).
In the present appeal, the Commission assumes, without deciding, that
complainant is an �individual with a disability� under applicable
regulations. However, the Commission concurs with the AJ in finding
that complainant is not qualified to perform the essential functions
of the position. The record indicates that Distribution Clerks at the
Gardner, Illinois Post Office must perform heavy lifting that includes
unloading trucks of parcels weighing up to 70 pounds, pushing containers
weighing 209 pounds when empty, and carrying tubs weighing thirty to
thirty-five pounds. See Hearing Trans. at 70-77. These tasks must
be performed daily to ensure mail delivery, and cannot be performed by
other employees due to limited staffing. Further, as outlined by the AJ,
complainant is unable to perform those functions due to her limitations.
After a careful review of the record, including arguments and evidence
not specifically addressed in this decision, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the record.
Therefore, we affirm the agency's final order finding 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
July 18, 2002
__________________
Date
1The 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.