Alina McClary, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionJun 9, 2010
0120090982 (E.E.O.C. Jun. 9, 2010)

0120090982

06-09-2010

Alina McClary, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.


Alina McClary,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific Area),

Agency.

Appeal No. 0120090982

Agency No. 1F927004308

DECISION

On December 1, 2008, complainant filed an appeal from the agency's

November 6, 2008 final decision concerning her equal employment

opportunity (EEO) complaint alleging 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 deemed timely

and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following

reasons, the Commission AFFIRMS the agency's final decision (FAD).

ISSUE PRESENTED

Whether the FAD was correct to find that complainant was not subjected

to unlawful discrimination based on her disability.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Mail Handler at the agency's Anaheim Distribution and Processing

Facility in Anaheim, California. Complainant suffered a permanent shoulder

injury resulting from an on-the-job incident. As a result, complainant had

surgery to repair a rotator cup tear and can only lift her arm to shoulder

height. Subsequently, complaint accepted a March 17, 2008 modified limited

duty assignment offer from the agency. This limited-duty assignment,

among other things, indicated that complainant would not lift more than

5 pounds daily in her current position as a Mail Handler. On March 25,

2008, complainant provided two medical forms to the agency from her

doctor. The first form stated that compliant had a lifting restriction

of no more than 5 pounds. The second form stated that complainant had

a lifting medical restriction of no more than 20 pounds. In March and

April 2008, complainant applied for two Sales Service Associate Window

Clerk positions. These positions required the selected candidate to

consistently lift packages between 20 and 70 pounds. By letters dated

March 28 and April 23, 2008, the agency notified complainant that she was

not selected for the two positions. The agency stated that complainant

was not selected because of her lifting restrictions.

On June 25, 2008, complainant filed an EEO complaint alleging that she

was discriminated against on the basis of disability (shoulder) when on

March and April 2008, she was not awarded bid jobs 95042293 and 95029951

due to her lifting restrictions.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). In accordance with

complainant's request, the agency issued a final decision pursuant to

29 C.F.R. � 1614.110(b). The decision concluded that complainant failed

to prove that she was subjected to discrimination as alleged.

In its FAD, the agency determined that complainant was not an individual

with a disability because she failed to establish that her condition

substantially limited her in a major life activity. The FAD also found

that complainant failed to establish that she was a "qualified" individual

with a disability because she could not perform the essential functions

of the Sales Service Associate Window Clerk positions. The FAD found

that these positions would have required complainant to consistently

lift packages between 20 and 70 pounds, and her medical restrictions

indicated that she could not lift more than 20 pounds.

The FAD also found that it articulated legitimate nondiscriminatory

reasons for its actions. In this regard, agency policy stated that

light-duty employees could not be accepted for positions that were more

physically demanding than an employee's current light-duty assignment.1

As such, the FAD found that since complainant's current light-duty

assignment limited her to no lifting of more than 5 pounds, it followed

policy by denying her bid jobs 95042293 and 95029951 requiring her to

lift in excess of 20 pounds.

CONTENTIONS ON APPEAL

On appeal, complainant contends that her condition is life altering

and it substantially limits her daily life. Complainant also contends

that the June 18, 1996 Memorandum of Understanding regarding bidding

rights of employees establishing policy on light-duty does not apply to

her. Complainant contends that this memorandum only applies to temporarily

injured employees, and she is permanently injured. Complainant further

contends that she would be able to perform 99 percent of jobs 95042293

and 95029951.

ANALYSIS AND FINDINGS

As this is an appeal from a decision 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). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

Reasonable Accommodation

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. �� 1630.2(o)

and (p).

In order to be entitled to protection under the Rehabilitation Act,

complainant must make the initial showing that he was a "qualified

individual with a disability." Assuming arguendo that complainant is an

individual with a disability within the meaning of the Rehabilitation Act,

we conclude that she has not proven, by a preponderance of the evidence,

that she was a qualified individual with a disability. 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). In this

regard, we note that complainant can not perform the essential functions

of the positions for which she has applied. The positions complainant

applied for would have required her to consistently lift packages between

20 and 70 pounds, and her medical restrictions state that she can not

lift more than 20 pounds. As complainant has not established that she

was a "qualified individual with a disability" at the relevant time,

we decline to find that the agency's actions violated her rights under

the Rehabilitation Act.

Disparate Treatment

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must

generally establish a prima facie case by demonstrating that she was

subjected to an adverse employment action under circumstances that would

support an inference of discrimination. Furnco Construction Co. v. Waters,

438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with

in this case, however, since the agency has articulated legitimate and

nondiscriminatory reasons for its conduct. See United States Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);

Holley v. Department of Veterans Affairs, EEOC Request No. 05950842

(November 13, 1997). To ultimately prevail, complainant must prove,

by a preponderance of the evidence, that the agency's explanation is

a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509

U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of

the Navy, EEOC Request No. 05950351 (December 14, 1995).

Assuming agruendo that complainant has established a prima facie case

based on her disability, we find that the agency has articulated

legitimate nondiscriminatory reasons for its actions. Namely, that

complainant's medical documentation stated that she could not lift more

than 20 pounds, and bid jobs 95042293 and 95029951 would have required

her to lift packages between 20 and 70 pounds on a regular basis. We

find no evidence of pretext in the record. Furthermore, we find that

the record is devoid of any evidence that the agency's actions were

motivated by discriminatory animus towards complainant's disability.

Complainant's Contentions on Appeal

Additionally, we find that complainant's statement on appeal fails to

address the dispositive issues herein since we have assumed for the

purposes of this decision that she is an individual with a disability

within the meaning of the Rehabilitation Act. Also, on appeal complainant

claims she could perform 99 percent of jobs 95042293 and 95029951

without help; however, her medical restrictions indicated that she

could not lift more than 20 pounds, which was a requirement for these

positions. Regarding the Memorandum of Understanding, even assuming that

this memorandum only applied to temporary injured employees, complainant

still could not perform the essential functions of the positions.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the FAD

finding that complainant was not subjected to unlawful discrimination

as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

____06/09/10______________

Date

1 The FAD referred to policy of a Memorandum of Understanding regarding

bidding rights of employees on light or limited duty dated September 1,

1987.

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2

0120090982

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120090982