01A22156
03-13-2003
David A. Lynam, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
David A. Lynam v. United States Postal Service
01A22156
March 13, 2003
.
David A. Lynam,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A22156
Agency No. 1-C-171-0023-00
Hearing No. 170-A1-8314X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his complaint of unlawful 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 accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that complainant began his employment with the
agency in 1983 as a Flat Sorting Machine Operator, PS-5, at the agency's
Processing and Distribution Center, located in Harrisburg, Pennsylvania.
Believing that he was the victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on July 21, 2000,
alleging that he was discriminated against on the basis of disability
(depression and osteoarthritis) when:
(1) from June 20 through June 28, 2000, management failed to provide
reasonable accommodations for his disability by refusing to let him
work in the letter case;
on August 15, 2000, management sent him home without pay and denied
him a reasonable accommodation for his disability; and
on August 23, 2000, management escorted him out of the building with
instructions to stay away from the building.<1>
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision after a hearing,
finding no discrimination.
The AJ initially found that complainant has a disability pursuant to
the Rehabilitation Act, in that he has a permanent, physical impairment
which substantially limits a number of his major life activities. The AJ
then concluded as to issue (1), that complainant could not show that the
agency failed to reasonably accommodate his disability from June 20,
2000, to June 28, 2000, and therefore, he could not establish a prima
facie case of disability discrimination as to this issue. As to issue
(2), the AJ found that complainant failed to establish a prima facie
case of disability discrimination, in that he did not show that the
agency failed to provide a reasonable accommodation. Specifically,
complainant failed to show how the assignment to the Outgoing section
was inconsistent with his identified limitations.
As to issue (3), the AJ found that complainant failed to establish
a prima facie case of discrimination. The AJ nevertheless assumed,
arguendo, that complainant established a prima facie of discrimination,
and found that the agency articulated a legitimate, nondiscriminatory
reason for its action; namely, complainant was in the building outside
of his tour duty hours, and disobeyed an order to leave the building. The
AJ found that complainant failed to show that the reason was pretextual.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the Manager, Distribution Operations
(M1), was not credible in that he made several contradictory statements.
Complainant also challenges several of the AJ's 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).
Reasonable Accommodation
We begin by addressing issue (1). 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. �� 1630.2(o) and (p). As a threshold matter,
complainant must establish that he is an "individual with a disability."
An individual with a disability is one who (1) has a physical or mental
impairment that substantially limits one or more major life activities,
(2) has a record of such impairment, or (3) is regarded as having such
an impairment. Major life activities include, but are not limited to,
caring for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. Sitting, standing, lifting,
and reaching are also recognized as major life activities. Interpretive
Guidance on Title I of the Americans With Disabilities Act, Appendix to
29 C.F.R. � 1630.2(i).
Assuming, arguendo, that complainant was an individual with a disability
within the meaning of the Rehabilitation Act, we conclude that complainant
failed to prove, by a preponderance of the evidence, that he 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). With respect to
whether complainant is a qualified individual with a disability, the
inquiry is not limited to the position actually held by the employee,
but also includes positions that the employee could have held as a result
of job restructuring or reassignment.<2> See Van Horn v. United States
Postal Service, EEOC Appeal No. 01960159 (October 23, 1998).
Complainant neither (a) demonstrated that he was a qualified individual
with a disability who could perform the essential functions of his
position at the Flat Sorting Machine, with or without reasonable
accommodation; nor (b) identified a vacant, funded position, for which he
was qualified and to which he could have been reassigned. Absent evidence
of a particular vacant funded position, evidence that a vacant funded
position existed may be inferred based on documentary or testimonial
evidence regarding, inter alia: (1) complainant's qualifications; (2)
the size of the agency's workforce; and (3) indicia of postings and/or
selections during the pertinent time period within classes of jobs for
which complainant would have been qualified. Complainant did not show
that there was a vacant, funded position available in the letter case.
Additionally, the record before us does not establish that, from June
20 to June 28, 2000, more likely than not, there was any other vacant
funded position, for which he was qualified and to which he could have
been reassigned. We therefore conclude that complainant failed to carry
his burden of proof to establish, by a preponderance of the evidence,
that he was a qualified individual with a disability within the meaning of
the Rehabilitation Act, between June 20 and June 28, 2000. See Bielfelt
v. United States Postal Service, EEOC No. Appeal 01A10475 (June 19, 2002).
We now turn our attention to issue (2). We are not persuaded that
complainant was denied a reasonable accommodation on August 15, 2000.
We concur with the AJ's finding that complainant failed to show that the
assignment to the Outgoing section was inconsistent with his identified
restrictions. We note additionally that complainant's assignment to the
Outgoing section was on Tour Three, and complainant had arrived at work
at approximately 7:00 am on the day in question, in time for Tour Two,
and therefore, he was sent home without pay.
Disparate Treatment
Issue (3) is properly analyzed as a claim of disparate
treatment. Assuming, arguendo, that complainant established a prima
facie case of disability discrimination, the agency has articulated a
legitimate, nondiscriminatory reason for its action; namely, complainant
was escorted out of the building because his presence off-tour was
interfering with operations. Complainant has failed to establish,
by a preponderance of the evidence, that this reason is pretextual.
After a careful review of the record, the Commission finds that nothing
raised on appeal has caused us to question the AJ's conclusions, which
are supported by substantial evidence. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal and the agency's response,
we affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 13, 2003
__________________
Date
1 Issues (2) and (3) were amended by the agency on September 28, 2000
at the request of complainant, by letter dated September 19, 2000.
2 The agency is advised that 29 C.F.R. � 1614.203(g), which governed
and limited the obligation of reassignment in the federal sector, has
been superseded and no longer applies. 67 Fed. Reg. 35732 (5/21/02), to
be codified as 29 C.F.R. � 1614.203(b). The ADA standards apply to all
conduct on or after June 20, 2002, and emphasize, among other things, a
broader search for a vacancy. The ADA regulations regarding reassignment
can be found at 29 C.F.R. �� 1630.2(o) and 1630.9. Additional information
can be found in the Appendix to the ADA regulations and in the EEOC's
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act (rev. October 17, 2002) at
Questions 25-31. These documents are available on the EEOC's website
at www.eeoc.gov. We note that because this case arose prior to June 20,
2002, 29 C.F.R. � 1614.203(g), the Commission's prior regulation regarding
reassignment, applies.