01976612
09-10-1999
Allen Conrad, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Allen Conrad, )
Appellant, )
) Appeal No. 01976612
v. ) Agency No. 4F940104196
) Hearing No. 370972207X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the basis of physical disability (lumbar back strain
and bilateral plantar fasciitis), alleging that the agency failed
to accommodate his disabilities, in violation of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791, et seq. Appellant alleges
that he was discriminated against when: (1) the agency's October 1995
limited duty job offer required the performance of duties not within
his medical restrictions and changed his tour of duty and days off; and
(2) he was not provided with a ergonomic rest bar stool to use in his
limited duty position. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
ISSUES PRESENTED
The issue on appeal is whether the agency failed to provide appellant
with reasonable accommodations for his back and feet disabilities.
BACKGROUND
Appellant was originally employed as a City Letter Carrier at the
agency's Sunnyvale, California postal facility. He filed a formal EEO
complaint with the agency on May 10, 1996, alleging that the agency had
discriminated against him, as referenced above. At the conclusion of
the investigation, appellant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a Recommended Decision (RD) finding no discrimination.
The record reveals that appellant first requested an accommodation
for his disabilities in April 1994, asking for an adjustable stool.
He used the stool until June 1994, when he was required to return it,
receiving no replacement. By September 1994, appellant indicated that his
disabilities had become worse, filing a workers' compensation claim with
the Office of Workers' Compensation Programs (OWCP). He was provided
with a �carrier stool� and worked a four hour per day schedule until
February 1995, when he was medically approved for a eight hour per day
schedule. Appellant provided an up-dated medical opinion recommending
several workplace restrictions, and the need to use an adjustable
rest bar stool. Appellant was assigned work at a desk using a chair.
By May 1995, appellant notified the agency that he was unable to work,
and he was out on leave until November 1995.
In August 1995, the OWCP notified the agency that appellant's back
disorder had resolved. Pursuant to OWCP regulations, and based on the
recommendations of his treating physician (podiatrist), appellant was
offered a limited duty job corresponding to the physical limitations in
the physician's statement, including the use of a chair. The offer also
included a modification in appellant's work schedule<1>. The limited
duty job offer was approved by appellant's physician, but appellant
accepted the offer �under protest� because of the change in his work
schedule and the provision of a chair instead of an ergonomic stool.
Appellant's physician notified the agency that he only approved the
job offer because he thought appellant had already agreed to it,
requesting that the agency produce a job offer agreeable to appellant
in all respects. The agency declined, but telephonically conferred
with the physician to insure that appellant's assigned duties within
the limited duty assignment were within his physical restrictions.
Appellant returned to work in November 1995, but informed the agency
that he could only work for four hours per day. On Sundays he was able
to borrow the rest bar stool of a disabled co-worker, but it was not
otherwise available. Appellant provided a physician opinion recommending
the four hour per day schedule, as well as the recommendation for an
ergonomic �chair.� The agency provided appellant with an ergonomic
chair, but appellant continued to request an ergonomic stool. By May
1996, appellant was working a 6 hour per day schedule, as recommended
in another medical opinion, but he resigned his position, indicating
that he could not perform the duties because of the agency's failure
to accommodate him as requested. However, appellant accepted an offer
of another position at the agency's San Francisco facility so that the
resignation was not effective.
The AJ concluded that appellant failed to demonstrate that he was a
qualified person with a disability because the evidence showed that he
could not perform the essential functions of his City Letter Carrier
position even with accommodations. See 29 C.F.R. �1614.203 (a)(1)
et. seq<2>. The AJ further held that under the Rehabilitation Act, the
agency has a duty to offer reassignment to another suitable position as an
accommodation, but only if another position was vacant and funded, noting
that there was no obligation to create a new position for appellant.
Manago v. Department of the Interior, EEOC Petition No. 03940067 (May
26, 1994). In this case, we find that the creation of a new specially
designed position is essentially what appellant was seeking from the
agency, and he resigned when the agency's attempts fell short of his
expectations. His request for an �accommodation� was for an assignment
consisting of an accumulation of duties which were agreeable to him,
that conformed to his ever changing physicians' recommendations, with
a schedule which was agreeable to him, and included the provision of
a particular type of stool. Even with the agency's repeated attempts
to accommodate him with a modification in duties in his limited duty
assignment each time he presented an up-dated medical recommendation,
appellant was dissatisfied because he did not like any of the schedules
that accompanied these modified duties, and he complained that the
agency provided him with an ergonomic chair, and not an ergonomic stool.
We note that several of the physician's recommendations designated a
chair, and not a stool, for appellant's lower back disorder.
As to appellant's dissatisfaction regarding his tour of duty and days
off, the AJ found that this was not evidence of the agency's failure
to accommodate appellant. We note that the record shows that these
schedules were established so that appellant could perform the duties at
those times that they were needed by the agency, and there is no evidence
to suggest that any of the schedule changes were burdensome to appellant
or otherwise designed to defeat an accommodation to appellant.
The AJ held that the agency went beyond its statutory obligations in
trying to accommodate appellant's disability and that no discrimination
occurred in this matter.
The agency's FAD adopted the findings of the AJ. On appeal, appellant
raises issues concerning his current job assignment, which are not
properly before the Commission at this time. The agency stands on the
record and requests that the Commission affirm its FAD.
ANALYSIS AND FINDINGS
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD sets forth the relevant facts and properly
analyzes the appropriate regulations, policies and laws. We find
that the AJ gave full and thoughtful consideration to the arguments
present at the hearing and rendered the correct decision in this case.
Therefore, we discern no basis upon which to overturn the AJ's finding
of no discrimination. In this regard, the AJ made specific credibility
findings which are entitled to deference due to the AJ's first-hand
knowledge, through personal observation, of the demeanor and conduct
of the witnesses. See Esquer v. United States v. U.S. Postal Service,
EEOC Request No. 05960096 (September 6, 1996); Willis v. Department of
the Treasury, EEOC Request No. 05900589 (July 26, 1990).
CONCLUSION
Therefore, after a careful review of the record, including arguments and
evidence not discussed in this decision, the Commission AFFIRMS the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
September 10, 1999
_______________ ___________________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant's work schedule had been Monday through Friday, 7:00 a.m. to
3:30 p.m., with Saturday and Sunday off. The limited duty schedule was
Monday, Tuesday, Friday, and Saturday, from 10:00 a.m. to 6:30 p.m.,
and on Sunday, from 7:00 a.m. to 3:30 p.m..
2The Rehabilitation Act of 1973 was amended by Congress in October 1992
to provide that the standards used to determine whether nonaffirmative
action employment discrimination has occurred shall be the standards
applied under Title I of the Americans With Disabilities Act. See s503(b)
of the Rehabilitation Act Amendments of 1992, P.L. 102-569, 106 Stat 4344
(October 29, 1992); 29 U.S.C. s791(g).