Edward J. Mattison, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 17, 2000
01986521 (E.E.O.C. Aug. 17, 2000)

01986521

08-17-2000

Edward J. Mattison, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Edward J. Mattison v. United States Postal Service

01986521

08-17-00

.

Edward J. Mattison,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01986521

Agency No. 1-I-63200197

DECISION

INTRODUCTION

Edward J. Mattison (complainant) timely filed an appeal on August 27,

1998, with the Equal Employment

Opportunity Commission (the Commission) from a final agency decision

(FAD), dated August 4, 1998,

concerning a complaint of unlawful employment discrimination in violation

of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S. C. �

791, et seq.<1> The Commission hereby accepts the

appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

Whether the agency correctly determined that complainant was not

discriminated against on the basis of

his physical disability (photoelectric epilepsy), when on November 13,

1996, he was notified that the strobe lights on the Bulk Mail Container

(BMC) forklifts, at his workplace, would not be replaced with incandescent

bulbs.

BACKGROUND

At the time of the alleged discrimination, complainant was employed by

the agency as a Full-Time Mail

Handler, PS-04. He filed a formal complaint of discrimination on May 14,

1997, alleging discrimination

on the basis of his physical disability (photoelectric epilepsy) when,

on November 13, 1996, he received

verbal notification from AM-1, Acting Manager, Inplant Support, that the

strobe lights on the BMC forklifts would not be replaced with incandescent

bulbs. The agency found that complainant was not discriminated against,

reasoning that complainant was unable to show that the reasons articulated

by the agency for not removing the strobe lights from the forklifts were

"not credible or were a pretext to mask prohibited discrimination." This

appeal followed.

ANALYSIS AND FINDINGS

We note, at the outset, that, in its FAD, the agency analyzed

complainant's case as a disparate treatment case. Complainant's case is

more properly analyzed under a reasonable accommodation analysis because

he asked the agency to remove the strobe lights from the forklifts in

order to accommodate his photoelectric epilepsy.

To establish a prima facie case of disability discrimination under a

failure to accommodate theory, the complainant must demonstrate that:

1) he is an �individual with a disability� as defined in 29

C.F.R. � 1630.2(g);<2> 2) he is a �qualified individual with

a disability� as defined in 29 C.F.R. � 1630.2(m); and (3) he was

denied an accommodation. See Prewitt v. United States Postal Service,

662 F.2d 292 (5th Cir. 1981).

An �individual with a disability� is defined as someone who: (1) has

a physical or mental impairment which substantially limits one or more

of such person's major life activities; (2) has a record of such an

impairment; or (3) is regarded as having such an impairment. 29

C.F.R. � 1630.2(g)(1)-(3). �Major life activities� include functions

such as caring for one's self, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. �

1630.2(i). A �qualified individual with a disability� is defined as

someone �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 such position.� 29 C.F.R. � 1630.2(m).

To establish a prima facie case of disability discrimination under

a failure to accommodate theory, the complainant must demonstrate

that: 1) he is an �individual with a disability� as defined in

29 C.F.R. � 1630.2(g); 2) he is a �qualified individual with

a disability� as defined in 29 C.F.R. � 1630.2(m); and (3) he was

denied an accommodation. See Prewitt v. United States Postal Service,

662 F.2d 292 (5th Cir. 1981).

An agency is required to make reasonable accommodations to the known

physical and mental limitations of qualified individuals with disabilities

unless it can demonstrate that doing so would impose an undue hardship

upon its operations. 29 C.F.R. �1630.9(a). Reasonable accommodation

may include job restructuring, reassignment to a vacant position, or

modified work schedules. 29 C.F.R. �1630.2(o). Factors to consider in

determining whether any of these accommodations would impose an undue

hardship include the size and budget of the program, the type of operation

and the nature and cost of the accommodation. 29 C.F.R. �1630.2(p).

In this case, the Commission finds that the record is not fully developed

on the question of whether the complainant is a �qualified individual with

a disability.� Even assuming that complainant is a qualified individual

with a disability, we find that the record demonstrates that the agency

provided reasonable accommodations for his disability. A review of the

record shows that in order to accommodate the fact that complainant's

doctor said that he could not work around flashing lights, complainant

was assigned to Sack Shake-Out, an area with no flashing lights, and

was prohibited from driving forklifts. Several months later, because

of safety concerns, new strobe lights were installed in Sack Shake-Out.

The agency then reassigned complainant to another building, where strobe

lights were not installed. We find that complainant's request for the

agency to replace the strobe lights with incandescent bulbs would have

created an undue hardship for it because strobe lights were required by

OSHA regulations. If the agency removed strobe lights from the forklifts,

they would have been in violation of these regulations. The agency's

reassignment of complainant to a work area that did not have flashing

lights was an effective accommodation for complainant's condition.

The agency, therefore, did not discriminate against complainant when it

did not remove the strobe lights from its forklifts.

CONCLUSION

Accordingly, the decision of the agency was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

_08-17-00_________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.