Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

Jun 21, 2013

0120121644 (E.E.O.C. Jun. 21, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.

Appeal No. 0120121644

Hearing No. 410-2010-00357X

Agency No. 1H-302-0010-10

DECISION

On March 5, 2012, Complainant filed an appeal from the Agency’s February 17, 2012, final
order concerning his 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. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at
the Agency’s North Metro facility in Atlanta, Georgia. On February 24, 2010, Complainant
filed an EEO complaint alleging that the Agency discriminated against him on the basis of
disability (post-traumatic degenerative disease, left ankle) when on October 23, 2009, the
Agency denied his request for light duty and reasonable accommodation.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing
on March 5, 2011. Following the hearing, the AJ issued a decision, dated February 8, 2012,
finding no discrimination. The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected him to discrimination as
alleged. On appeal, Complainant contends that the AJ erred in finding no discrimination.
Further, Complainant reiterates his contention that there was work available commensurate
with his medical restrictions and that the Agency violated the Rehabilitation Act when it failed
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to provide him with light duty or a reasonable accommodation. Complainant also argues that
the testimony of the Agency’s witness was not worthy of belief.

ANALYSIS AND FINDINGS

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).

Under the Commission’s regulations, an agency is required to make reasonable
accommodations for 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). To establish a case of discrimination based on a failure to
accommodate a disability, the complainant must show: (1) that he is an “individual with a
disability” as defined in 29 C.F.R. § 1630.2(g); and (2) that he is a “qualified person with a
disability,” in that he is qualified for and can perform the essential elements of the position at
issue with or without reasonable accommodation, as specified in 29 C.F.R. § 1630.2(m).
Cansino v. Dep't of the Army, EEOC Request No. 05960674 (Aug. 27, 1998) (citing Prewitt
v. U.S. Postal Serv., 662 F.2d 292 (5th Cir. 1981)). In addition, the complainant must make at
least a facial showing that his disability can be accommodated. Bradley v. U.S. Postal Serv.,
EEOC Appeal No. 01962747 (Oct. 22, 1998) (citing Treadwell v. Alexander, 707 F.2d 453,
477-78(11th Cir. 1983)).

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, with or without reasonable accommodation, can
perform the essential functions of such position. 29 C.F.R. § 1630.2(m). The term “position”
is not limited to the position held by the employee, but also includes positions that the
employee could have held as a result of reassignment. EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act
No. 915.002 at Question 24 (rev. Oct. 17, 2002).

The record shows that Complainant was hired into the position of Mail Handler in June 2007,
and that the essential functions of that position include loading and unloading of bulk mail
requiring “arduous exertion” with prolonged standing and heavy lifting. The record further
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shows that the duties of this position caused Complainant’s ankle condition to worsen and, as a
result, he requested light duty in September 2008. Specifically, Complainant provided medical
documentation to management requesting that he be allowed to sit down for one hour after
every two hours of standing. In response to this request, management informed Complainant,
that his request for light duty was denied as there was no work available commensurate with
his medical restrictions, but that he could request a reasonable accommodation through the
Agency’s District Reasonable Accommodation Committee (DRAC). Complainant submitted a
request for reasonable accommodation at that time, but following this request, Complainant
underwent surgery and was unable to return to work. By letter, dated July 15, 2009, the
Agency requested updated medical documentation to support his continued absence, which
Complainant provided on August 25, 2009. This documentation stated that Complainant could
not walk or stand for more than four hours per day, with three instance of heavy lifting and
five instance of moderate lifting per day. In response, the DRAC denied Complainant’s request
for a reasonable accommodation, finding that there was no accommodation available which
would allow him to perform the essential functions of his mail handler position.

Here, we find that the AJ’s decision is supported by substantial evidence. Namely, we concur
with the AJ’s finding that assuming, without deciding, that Complainant is an individual with a
disability, he was not entitled to a reasonable accommodation because he was no longer
qualified in that he could not perform the essential functions of his position. We note that in his
hearing testimony, Complainant acknowledges that his position required him to stand for five
and a half hours of a six-hour shift. Complainant further acknowledges that his medical
restrictions prevented him from continuing to perform duties which would require him to stand
for nearly the entire length of his shift. We find that Complainant has not shown that there was
any accommodation which would have allowed him to perform those same duties from a seated
position. Additionally, the record shows that there were no other vacant, funded positions,
commensurate with his medical restrictions, which Complainant could have been reassigned.
As such, we find that Complainant was not a qualified individual with a disability and,
therefore, the Agency did not violate the Rehabilitation Act when it denied his request for light
duty and did not provide him with a reasonable accommodation.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, we
AFFIRM the Agency’s final order implementing the AJ’s finding of no discrimination.

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:

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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
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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

June 21, 2013
Date