0120090419
02-26-2009
Catherine R. Mannix, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Catherine R. Mannix,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090419
Hearing No. 530-2007-00129X
Agency No. 4C-250-0058-06
DECISION
Complainant filed an appeal from an agency's final action dated September
29, 2008, finding no discrimination with regard to her complaint. In her
complaint, filed on October 24, 2006, complainant alleged discrimination
based on disability (cervical neck injury) when beginning in July 2006,
her request for reasonable accommodation was denied. The record indicates
that at the conclusion of the investigation, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On September 22, 2008,
the AJ, after a hearing, issued a decision finding no discrimination,
which was implemented by the agency in its final action.
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, � VI.B. (November 9, 1999).
In this case, the AJ determined and we agree that, assuming arguendo
that complainant was a person with a disability, she was not a qualified
individual with a disability. At the relevant time, complainant was
a General Expediter, PS-06, at the agency. The essential functions of
the General Expediter position required lifting more than 15 pounds and
pushing/pulling of more than 100 pounds throughout the course of an 8-hour
shift. These functions included moving APCs (all purpose containers),
which weighed more than 200 pounds empty and lifting sacks and trays
of mail, which weighed in excess of 15 pounds. The pushing/pulling
of containers weighing more than 100 pounds was done "a couple hours
a night" and lifting more than 15 pounds was required 30 to 50 times
during a shift.
The AJ noted that in January, 2005, complainant suffered an off-duty
spinal injury. As a result of the injury she was no longer able to push
or pull more than 100 pounds or lift more than 15 pounds. By letter dated
February 2, 2006, complainant's physician stated that her limitations
were permanent.
The AJ determined and we agree that despite complainant's contentions
that she could have been accommodated by not requiring her to move the
APCs or to perform any function that required lifting over 15 pounds, an
agency is never required to eliminate or reallocate essential functions
as a reasonable accommodation. See, EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act (October 17, 2002). Upon review, we agree with the AJ
that complainant was not a qualified individual with a disability since
she could not perform the essential functions of her position with or
without reasonable accommodation. 29 C.F.R. � 1630.2(m). Furthermore,
complainant failed to show and there is no evidence in the record that
there is a vacant funded position for which complainant was qualified.
There is no indication that complainant was required to work beyond her
medical restrictions.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
AFFIRMED because the AJ's decision is supported by substantial evidence.
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 tends 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
2/26/09
__________________
Date
2
0120090419
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013