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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0120090982
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090982