0120101414
12-15-2011
Calamity Williams, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Calamity Williams,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120101414
Hearing No. 570-2007-00043X
Agency Nos. 1K-201-0026-06, 1K-201-0046-06
DECISION
On February 24, 2010, Complainant filed an appeal from an EEOC
Administrative Judge’s 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 Commission accepts
the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following
reasons, the Commission AFFIRMS the Agency’s final order which found
that Complainant failed to demonstrate that she was discriminated against
on the basis of her disability as is alleged in her complaint.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected
to discrimination based upon her disability and in reprisal for prior
EEO activity when as a result of being denied a reasonable accommodation
she was issued a Notice of Disability Separation and was denied medical
clearance to return to duty in 2007.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Mail-handler at the Agency’s Washington Processing and Distribution
Center (Brentwood) facility in Washington, D.C. Complainant’s duties
consisted of lifting and unloading sacks weighing up to 70 pounds from
tractor-trailer trucks, sorting letters, parcels and flats and operating a
sack sorter machine by entering or keying information from sacks, boxes,
parcels, large trays and bundles. In 1990, Complainant injured her left
shoulder as a result of her duties. She had surgery for a rotator cuff
tear on her left shoulder and returned to her regular assignment in 1992.
In October 1999, Complainant injured both wrists and her right shoulder
while lifting sacks and keying information. She was diagnosed with
bilateral carpal tunnel syndrome and a de Quatrains’ syndrome of the
thumb, and a right rotator cuff tear. She returned to work in November
1999. In December 1999, the Agency granted Complainant a “limited
duty” assignment sorting letters and repairing damaged mail. The Agency
terminated Complainant’s limited duty assignment in March 2002 and,
due to the Anthrax contamination, the Brentwood mail facility also
closed that year. Complainant did not return to work from 2002 to 2006.
During this time she periodically requested limited duty assignments
that would accommodate her restrictions. Her restrictions included no
repetitive and strenuous use of the hands, no lifting more than 5-pounds,
no over-head reaching and no pushing and pulling heavy objects.
In February 2006, the Agency issued a letter to Complainant which gave
her the option of: (1) requesting a permanent light duty position,
(2) transferring to a different craft, (3) retiring on disability, or
(4) resigning. In March 2006, Complainant’s supervisor issued her
a Notice of Separation – Disability. The Notice was issued based
on Complainant’s inability to meet and perform the requirements of
her position. Despite the Notice, Complainant was not separated from
the Agency. Complainant thereafter, in March 2006, made a written
request for a light duty position to accommodate her medical restrictions.
She made a second request in July 2006. In 2007, the Agency requested
that Complainant get a medical clearance in order to return to work.
A physician found that Complainant was not capable of returning to work.
During this time, the Agency determined that there were no vacant funded
positions available that would accommodate Complainant’s restrictions.
On June 16, 2006, and October 26, 2006, Complainant filed EEO complaints
alleging that the Agency discriminated against her on the bases of
disability (bi-lateral carpal tunnel syndrome, right rotator cuff tear)
when (1) the Agency failed to accommodate her disability and instead
issued her a Notice of Separation - Disability on March 15, 2006; and
(2) because of her disability and/or in reprisal for prior EEO activity
when the Agency denied her a medical clearance in 2007 to return to duty
and denied her a reasonable accommodation.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right
to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing and the AJ held a hearing on
March 26, 27, and 28, 2008, and issued a decision on November 23, 2009.
The AJ found that the Agency did not fail to accommodate Complainant
because her medical documentation showed that she was unable to perform
the essential functions of her position with or without an accommodation.
Further the AJ found that the record showed that from December 1999 to
March 2002, Complainant performed temporary duties repairing torn mail
and sorting letters. After the temporary work expired, the Agency
sought to return Complainant to her regular duties. Complainant
objected to being placed back in her regular position and submitted
medical documentation supporting her inability to perform that job.
Complainant remained in a leave without pay status for several years.
The AJ concluded that Complainant failed to establish by a preponderance
of the evidence that the Agency could have accommodated her disability
through a reassignment. The AJ maintained that there being no evidence
that an accommodation was available, Complainant was unable to establish
that the Agency’s decision to issue her a Notice of Separation was
motivated by discrimination based on her disability. The AJ also found
that Complainant failed to demonstrate that the Agency’s refusal to
provide her with a medical clearance was in retaliation for her prior
EEO activity. When the Agency failed to issue a final order within
forty days of receipt of the AJ’s decision, the AJ’s decision
finding that Complainant failed to prove that the Agency subjected her
to discrimination as alleged became the Agency’s final action pursuant
to 29 C.F.R. § 1614.109(i).
CONTENTIONS ON APPEAL
On appeal, Complainant argues that when the Brentwood facility reopened in
2003, there were vacancies for which she should have been considered. She
maintains that prior to the closing of the Brentwood facility her duties
included repairing torn mail and sorting letters. Upon Brentwood’s
reopening, Complainant argues that the Agency should have engaged in
the interactive process in order to put her back in a position.
STANDARD OF REVIEW
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. An AJ’s credibility determination based on the demeanor of
a witness or on the tone of voice of a witness will be accepted unless
documents or other objective evidence so contradicts the testimony or
the testimony so lacks in credibility that a reasonable fact finder
would not credit it. See EEOC Management Directive 110, Chapter 9,
at § VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
In the instant case, we find that there is substantial evidence in the
record to uphold the AJ’s decision. We agree that Complainant failed to
show that she was discriminated against as is alleged. We note that under
the Commission’s regulations, an Agency is required to make reasonable
accommodation to 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, §§ 630.2(0) and (p).
In order to be entitled to protection from the Rehabilitation Act,
Complainant must make the initial showing that she is a “qualified
individual with a disability.” Assuming arguendo that Complainant is an
individual with a disability within the meaning of the Rehabilitation Act,
we agree with the AJ that Complainant 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).
We find that there is substantial evidence in the record to support the
AJ’s conclusion that Complainant was unable to perform the essential
functions of her mail handler position. As to Complainant’s assertion
that she could have been placed in the position of Time and Attendance
Clerk, this argument fails because the record shows that position had been
abolished in 2005. We also agree with the AJ’s finding that Complainant
failed to identify an actual vacant, funded position that she could have
performed at the relevant time. We note that an employer is not required
to create a job for a disabled employee, nor is it required to transform
its temporary light or limited duty assignments into permanent jobs
to accommodate an employee’s disability. See Mengine v. Runyon. 114
F. 3d 415, 418 (3d Cir. 1997); see also Woodard v. United States Postal
Service. EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement
Guidance: Workers Compensation and the ADA. EEOC Notice No.915.002 at 21
(September 3, 1996). Therefore, we find that the AJ properly found that
Complainant was not denied a reasonable accommodation.
We also agree with the AJ’s decision which found that Complainant failed
to show that she was discriminated against with respect to the denial
of her medical clearance. The record reveals that at the time of the
request, Complainant had been absent from work for three years and had
severe restrictions in the use of her hands and shoulders. Additional
tests from her own physician showed severe lifting restrictions and
restrictions in the use of both of her hands. Regarding Complainant’s
argument that other employees that did not have prior EEO activity were
reassigned to accommodate their medical conditions, the Commission finds
substantial evidence to support the AJ’s finding that Complainant
failed to show that other employees’ restrictions were as severe as
her restrictions. We also agree with the AJ’s finding that Complainant
failed to demonstrate that the Agency’s failure to accommodate her or
grant her medical clearance were in retaliation for engaging in prior
EEO activity. Finally, with respect to Complainant’s contentions on
appeal, we note that the evidence shows there were no light duty positions
that met Complainant’s restrictions. Furthermore, as indicated above,
we find, as the AJ did, that Complainant failed to show that a funded,
vacant position existed which could accommodate her restrictions.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the AJ’s
finding that Complainant failed to show that she was discriminated
against as was alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
____12/15/11______________
Date
2
0120101414
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101414