01A13922
03-20-2003
David Wingfield, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David Wingfield v. United States Postal Service
01A13922
03-20-03
.
David Wingfield,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13922
Agency No. 4D-200-1246-95
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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 during the relevant time, complainant was employed
as a Part-time Flexible (PTF) Distribution Clerk at the agency's
Anacostia Station Washington, D.C. facility. Complainant sought EEO
counseling and subsequently filed a formal complaint on September
22, 1995, alleging that he was discriminated against on the basis of
disability (bilateral carpal tunnel syndrome) when on October 29, 1994,
he was changed from a carrier to a PTF Distribution Clerk/modified,
causing him to lose benefits.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. When complainant
failed to respond within the time period specified in 29 C.F.R. �
1614.108(f), the agency issued a final decision. The record shows that
on May 3, 1996, the agency issued a final agency decision finding no
discrimination. Complainant appealed the decision to the Commission.
On December 18, 1998, the Commission's decision, Wingfield v. United
States Postal Service, EEOC Appeal No. 01964594, reversed the agency's
finding of no discrimination and remanded the case back to the agency to
conduct a supplemental investigation, and to issue a new decision based on
the supplemental record. The agency issued a final decision on June 24,
1999, finding no discrimination but failed to serve a copy of the decision
on complainant. Complainant was subsequently served a copy of the final
decision on May 16, 2001. Complainant now appeals that decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of disability discrimination. The FAD found that
complainant failed to provide medical documentation that he had an
impairment. The FAD indicated that complainant also did not show that
he was substantially limited in one or more major life activities and
there was no evidence that complainant was regarded as having a physical
impairment which substantially limited one or more of his major life
activities.<1> The FAD found that complainant also failed to establish
that other employees were treated more favorably than he was. Further,
the FAD maintained that the record was devoid of any evidence that agency
officials regarded or treated complainant as having an impairment which
substantially limited a major life activity.
Moreover, the FAD found that complainant was unable to perform the
essential functions of the letter carrier position with or without
an accommodation because complainant was unable to case mail, perform
repetitive motion, or do heavy lifting. The agency contended that casing
mail was an essential function of a letter carrier position and maintained
that complainant by his own admission stated that he could not work the
assignment because of his hand restrictions. The FAD explained that
the only employees offered modified letter carrier positions were those
employees who could perform the essential functions of the position. The
FAD indicated that no employee that could not case mail was offered a
modified letter carrier position.
The FAD explained that individuals who had reached maximum recovery
but could no longer perform full duties of a carrier were taken out of
their jobs and offered positions that met their restrictions. The FAD
maintained that complainant was offered a distribution clerk position
because with specific modifications, he had been and was able to perform
clerk assignments based on his restrictions. The FAD indicated that to
be consistent with the �Snow Award�<2>, complainant was offered a PTF
position because there were PTF employees already working in the clerk
craft at that time, and for this reason, those changing crafts had to
be placed into PTF positions.
The FAD concluded that complainant had not met the burden of establishing
that the agency's articulated reasons were not credible or were a pretext
to mask prohibited discrimination.
On appeal, complainant contends that the agency erred when it found
that he was not a qualified individual with a disability. Complainant
also contends that the agency could have continued to accommodate him
within the carrier craft and that his conversion to the clerk craft was
discriminatory because it caused him to lose seniority and benefits. The
agency requests that we affirm its FAD.
As a threshold matter, complainant must demonstrate that he is an
�individual with a disability,� which under the Rehabilitation Act,
is defined as one who: (1) has a physical or mental impairment that
substantially limits one or more of the major life activities of such
individual; (2) has a record of such impairment; or (3) is regarded as
having such an impairment. EEOC Regulation 29 C.F.R. � 1630.2(g). Major
life activities include, but are not limited to, �functions such as caring
for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.� EEOC Regulation 29 C.F.R. � 1630.2(i).
The Interpretive Guidance to the regulations further notes that �other
major life activities include, but are not limited to, sitting, standing,
lifting, [and] reaching.� 29 C.F.R. Part 1630 Appendix � 1630.2(i).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner or duration under which an individual can perform
a major life activity, compared to the average person in the general
population. 29 C.F.R. � 1630.2(i). �An impairment is substantially
limiting if it lasts for more than several months and significantly
restricts the performance of one or more major life activities during
that time...In addition, some conditions may be long term, or potentially
long term, in that their duration is indefinite and unknowable or is
expected to be at least several months. Such conditions, if severe, may
constitute disabilities.� EEOC Enforcement Guidance on the Americans
With Disabilities Act and Psychiatric Disabilities (March 25, 1997)
at question 7.
For the purpose of this decision, we assume without finding that
complainant is an individual with a disability. We next determine
whether complainant has met his burden of proof to establish that he is
a �qualified individual� with a disability within the meaning of the
Rehabilitation Act. An individual with a disability is �qualified�
if he 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 an accommodation, can perform the
essential functions of such position. 29 C.F.R. � 1630.2(m); see also
29 C.F.R. � 1630.3 (exceptions to definition). Therefore in order to
determine whether complainant is �qualified�, the fact finder must assess
whether, with or without an accommodation, complainant could perform
the essential functions of any position which he could have held as
a result of job restructuring or reassignment. See Hawkins v. United
States Postal Service, EEOC Petition No. 03990006 (February 11, 1999);
Van Horn v. United States Postal Service, EEOC Appeal No. 01960159
(October 23, 1998).
The agency asserted that it provided complainant with reasonable
accommodation when it reassigned him to a part-time flexible Clerk
position. The Commission notes that reassignment is the reasonable
accommodation of last resort and is required only after it has been
determined that: (1) there are no effective accommodations that will
enable the employee to perform the essential functions of his/her
current position, or (2) all other reasonable accommodations would
impose an undue hardship. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, No. 915.002 at p. 24 (rev. Oct. 17, 2002) (Guidance). Further,
an employer must reassign an individual to a vacant position equivalent
in terms of pay, status, and other related factors, including benefits,
if the employee is qualified therefor. Guidance at 35. If there are
no vacant equivalent positions, then an employer must reassign the
individual to a vacant lower level position. Id.
We find that complainant has failed to establish that he could perform the
essential functions of the carrier position he originally held with or
without a reasonable accommodation. Complainant himself indicated that
he could not perform the essential functions of the carrier position,
with or without an accommodation. He maintained that he could not
perform repetitive motions, grasping, heavy lifting or working with
temperature fluctuations. Complainant did not respond to the agency's
assertion that one of the essential functions of the carrier position
was casing mail, a task that complainant could not perform. The record
also reveals that other than the PTF distribution clerk position, there
were no full-time vacant positions in the carrier craft or clerk craft
for which complainant was qualified based on his medical restrictions.
The record indicates that complainant was assigned to the clerk craft
because with specific modifications, complainant was able to perform clerk
assignments based on his restrictions. Accordingly, we find the agency
reasonable accommodated complainant by reassigning him to the clerk craft.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
___03-20-03_______________
Date
1 The record reveals that due to an on the job injury, complainant
sustained bilateral carpal tunnel syndrome. The record indicates that
his impairment caused him to experience severe pain when grasping,
prevented him from lifting heavy objects and prevented him from working
in cold temperatures or when there were fluctuations in temperature. The
record indicates that complainant's restrictions were sitting, standing,
bending, kneeling and twisting (8 hours) / continuous walking (2 hours);
intermittent walking (6 hours) / continuous lifting 10-20 pounds (1 hour);
intermittent climbing (6 hours) / and no exposure to extreme cold.
2 In a 1994 national arbitration decision, Professor Carlton Snow ruled
on a grievance brought by the American Postal Workers Union with regard
to carriers placed in the clerk craft due to medical restrictions.