01975204
03-28-2000
Zula M. Coleman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid-West Region), Agency.
Zula M. Coleman v. United States Postal Service
01975204
March 28, 2000
Zula M. Coleman, )
Complainant, )
) Appeal No. 01975204
v. ) Agency No. 4-Q-000-1284-92
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid-West Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of � 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> Complainant alleges
that she was discriminated against on the basis of physical disability
(carpal tunnel syndrome) when she was denied a reasonable accommodation
and separated from employment effective April 7, 1992. The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405).<2> For the following reasons, we affirm the FAD.
The record reveals that complainant was awarded benefits from the
United States Department of Labor's Office of Workers Compensation
Programs (OWCP) as a result of sustaining bilateral tenosynovitis of
the hands and wrists causally related to her federal employment as a
MPLSM Clerk at the agency's Processing and Distribution facility in
St. Louis, Missouri. On August 2, 1989, OWCP rejected complainant's
claim for further compensation finding that she refused a valid offer
of suitable employment from the agency. Since complainant refused to
return to work, the agency placed her in leave without pay (LWOP) status.
Thirty-two months later, the agency separated her from employment.
Believing she was discriminated against as referenced above, complainant
sought EEO counseling and subsequently filed a complaint on September
13, 1993. At the conclusion of the investigation, complainant initially
requested a hearing before an EEOC Administrative Judge but then
withdrew her request. The agency issued a final decision finding no
discrimination from which complainant now appeals. Complainant reiterates
her contentions on appeal. The agency requests that we affirm its FAD.
In order to establish a prima facie case of disability discrimination in
violation of the Rehabilitation Act, complainant must demonstrate that
she is a qualified individual with a disability as defined in 29 C.F.R. �
1630.2(m) and that the agency took an adverse action against her as a
result of her disability. Prewitt v. United States Postal Service, 662
F.2d 292 (5th Cir. 1981). Under the Commission's regulations, an agency
is required to make reasonable accommodation of 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(a).
Pursuant to its finding that complainant is a qualified individual with
a disability, the agency offered to reasonably accommodate complainant
by reassigning her to an Express Mail Clerk position.<3> The position
was modified to accommodate her restrictions which included: no lifting
greater than ten (10) pounds; no repetitive grasping, pushing, pulling,
or fine manipulation (including typing); and no climbing of ladders or
poles. The modified position also permitted complainant to use a splint
and pencil to input numbers into the computer system. Furthermore, the
position, which was originally offered as a detail not to exceed ninety
days, was converted into a career position. Both complainant's attending
physician and an impartial medical examiner concurred that complainant
was physically capable of performing the duties of the modified position.
However, complainant claimed that the offer of reassignment did not
accommodate her disability and refused to report for duty.
Assuming that the agency properly determined that complainant was
a qualified individual with a disability within the meaning the
Rehabilitation Act, the Commission finds that the agency engaged in a
flexible and interactive process with complainant, her treating physician,
and an outside vocational consultant in order to effectively accommodate
complainant's restrictions. The Commission further finds that the agency
expeditiously met its obligation to reasonably accommodate complainant
in its offer of reassignment.<4> We note that the Rehabilitation
Act does not authorize an agency to force an individual to accept an
accommodation for a disability - that choice belongs to the individual.
Ramona v. United States Postal Service, EEOC Appeal No. 01943804
(September 18, 1995), request to reconsider denied, EEOC Request
No. 05960052 (April 30, 1998).
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Prewitt, supra, we find that complainant also failed
to establish a prima facie case of disability discrimination under a
theory of disparate treatment. In reaching this conclusion, we find that
complainant failed to name any comparative employees without disabilities
who were not removed after an absence of thirty-two or more months or
to proffer any other evidence from which we could infer discrimination.
We further note that complainant failed to rebut the agency's contention
that she was separated as a result of her refusal to return to work,
not as a result of her disability.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and the agency's response, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 28, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
__________________________
Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found at the
Commission's website at www.eeoc.gov.
3 Although complainant can no longer perform the essential functions
of the MPLSM Clerk position, the agency found that complainant was
qualified to perform the essential functions of another clerk position,
with reasonable accommodation.
4 We note that reassignment as a potential form of accommodation
becomes relevant only after a determination has been made that an
individual cannot be accommodated in his current position or that
such accommodation would constitute an undue hardship. See Essenfeld
v. National Security Agency, EEOC Appeal No. 01961377 (December 12, 1997);
Interpretive Guidance on Title I of the Americans With Disabilities Act,
Appendix to 29 C.F.R. Part 1630.2(o). Complainant makes no claim that
she could perform the duties of the MPLSM Clerk position with or without
a reasonable accommodation.