Elora M. Goshe, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Midwest Area), Agency.

Equal Employment Opportunity CommissionOct 26, 2000
01972389 (E.E.O.C. Oct. 26, 2000)

01972389

10-26-2000

Elora M. Goshe, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Midwest Area), Agency.


Elora M. Goshe v. United States Postal Service

01972389

October 26, 2000

.

Elora M. Goshe,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Midwest Area),

Agency.

Appeal No. 01972389

Agency No. 4I-500-1056-94

Hearing No. 260-96-8129X

DECISION

Complainant timely initiated an appeal from the agency's final decision

(�FAD�) finding no discrimination concerning her equal employment

opportunity (EEO) complaint of unlawful employment discrimination in

violation of Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791,

794(c).<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).<2> Complainant

alleges she was discriminated against on the basis of physical disability

(rheumatoid arthritis) when, on June 9, 1994, she was denied employment

as a result of being found medically unsuitable for a Mail Processor

position. For the following reasons, the Commission AFFIRMS the agency's

finding of no discrimination.

Complainant, an applicant for a part-time flexible Mail Processor

position at the agency's Des Moines, Iowa postal facility, filed a

formal EEO complaint on August 31, 1994, alleging that the agency had

discriminated against her as referenced above. Complainant applied

for the Mail Processor position and, after her name was reached on

a hiring worksheet, she was selected and scheduled for a post-offer

physical examination with an agency physician (Dr. 1). The essential

functions of a Mail Processor position, as set forth on the position

description, are to use a variety of automated mail processing equipment,

start and stop the equipment, cull out non-processable items, load mail

on a transport unit, clear jams by hand, and sweep mail from bins, then

rubber band or tie and tray the mail. The attachment to the Certificate

of Medical Examination provided to Dr. 1 listed three (3) functional

requirements of a Mail Processor position: (1) prolonged standing, (2)

use of fingers, and (3) ability for rapid mental and muscular coordination

simultaneously. Following the examination, Dr. 1 completed the requisite

Medical Assessment form and in the Risk Assessment portion of the form,

rated complainant as a �Moderate Risk/Restriction� in that she �would

be medically qualified to perform essential function of the position

only if below noted limitations/restrictions can be accommodated.�

The limitations listed by Dr. were: �No repetitive gripping, grasping,

or data entry. Avoid prolonged standing.�

On June 14, 1994, the agency informed complainant that she had been

found medically unsuitable for a Mail Processor position because

the restrictions listed by Dr. 1 were incompatible with the essential

functions of a Mail Processor and, accordingly, her name had been removed

from the list of active eligibles.

On June 23, 1994, complainant sought reconsideration of this

determination. In her request, complainant included a note from her

personal physician (Dr. K), a Rheumatologist who had treated her since

January 1993. Dr. K stated that complainant has made good progress

in controlling her disease, she was taking a number of medications to

control the inflammation associated with the disease, the only sites

�currently� demonstrating inflammation were the hand region at the 2nd

and 3rd digit level bilaterally, and she has excellent use of her hands

�for daily activities.� Dr. K also stated that he reviewed the three

(3) requirements for the mail processor position and believed that �with

some adjustments in [complainant's] medical management, I think we could

eradicate the inflammatory activity in her hands significantly.�

On August 4, 1994, a second agency physician (Dr. 2) reviewed

Dr. K's report, evaluated complainant, and completed the requisite

Medical Assessment form.<3> Dr. 2 also rated complainant as a

�Moderate Risk/Restriction� and stated that �Additional information

reviewed. [Complainant] voiced painful hands and feet. Would not

rec[ommend] repetitive gripping, grasping. No prolonged stand[ing].

Rec[ommend] accommodation of 15 min[ute] break every hour, 8 hr/day,

5 days/week.�

On August 9, 1994, the agency's Manager of Human Resources notified

complainant that she had been found medically unable to perform a Mail

Processor position. The letter noted that an agency physician had

reviewed the medical information submitted by Dr. K, but found that

complainant required accommodations which were �not compatible� with

the �strenuous activities required for this [Mail Processor] position,

which includes prolonged standing, use of fingers and availability

for hours in excess of 8 hours per day and 5 days per week with two

15 minutes breaks per 8 hour shift.� The letter noted that because

complainant had a service-connected disability of at least 30% (related

to her arthritis), the Office of Personnel Management (OPM) would review

the agency's decision. On October 7, 1994, OPM sustained the agency's

decision, finding that complainant's limitations �are not compatible

with position [requiring] prolonged standing, use of fingers...�

Thereafter, on December 10, 1994, complainant was selected for hire as a

PS-05 Distribution Clerk - Letter Sorting Machine Operator (LSM Operator).

Complainant again was scheduled for a post-offer physical examination

with an agency physician (Dr. 3), who examined her on December 13, 1994.

The attachment to the Certificate of Medical Examination provided to Dr. 3

listed five (5) functional requirements of the LSM Operator position:

(1) heavy lifting, up to 70 pounds, (2) heavy carrying, 45 pounds and

over, (3) reaching above shoulder, (4) use of fingers, and (5) both hands

required or compensated by use of acceptable prostheses. Dr. 3 completed

the requisite Medical Assessment form, and in the Risk Assessment portion

of the form, rated complainant as a �Low Risk/Restriction.� Dr. 3 stated

that �[complainant] probably should have limited (0-33%) repetitive

activity and limited standing.� Complainant was hired for the LSM

Operator position; in the Report of Investigation, the EEO Investigator

notes that LSM Operators �sit keying zip codes for 30 minutes followed

by standing for 15 minutes grasping and traying bundles of mail.�

At the conclusion of the investigation, complainant requested a hearing

before an EEOC Administrative Judge (AJ). After reviewing the record,

the AJ stated that this case was suitable for resolution without a

hearing. Neither party objected, and both parties submitted arguments

to the AJ for her consideration. The AJ then issued her findings of

fact and conclusions of law, finding no discrimination. In reaching

this conclusion, the AJ concluded that complainant failed to establish

a prima facie case of disparate treatment based on disability, noting

that she offered no evidence that her rheumatoid arthritis substantially

limited a major life activity. The AJ then concluded that even if a

prima facie case was established, the agency articulated legitimate,

nondiscriminatory reasons for not hiring complainant, namely, that she

was rated a moderate risk restriction for the Mail Processor position

and her suggested accommodations were incompatible with the essential

functions of a Mail Processor position. The AJ concluded by noting there

was no evidence of pretext. In its FAD, the agency concurred with the

AJ's finding of no discrimination. On appeal, complainant submits the

same argument she had provided the AJ. The agency requests that we

affirm its FAD.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 29

C.F.R. � 1614.405(a)), an AJ's decision on summary judgment will be

subject to de novo review by the Commission. See also Equal Employment

Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),

9-16 (November 9, 1999). The Commission notes that complainant's instant

complaint can be construed not only as alleging disparate treatment based

on disability but also as alleging the denial of reasonable accommodation.

Nonetheless, for the reasons set forth below, the Commission affirms

the AJ's ultimate finding of no discrimination.

The Commission first notes that in order to establish a prima facie case

of disability discrimination, complainant must demonstrate that: (1) she

is an individual with a disability as defined in 29 C.F.R. � 1630.2(g);

(2) she is a "qualified" individual with a disability as defined

in 29 C.F.R. � 1630.2(m); and (3) the agency took an adverse action

against her or otherwise failed to provide a reasonable accommodation.

Moore v. Department of the Army, EEOC Request No. 05960093 (October

16, 1998); Prewitt v. United States Postal Service, 662 F.2d 292 (5th

Cir. 1981). EEOC Regulation 29 C.F.R. � 1630.2(g) defines an individual

with a disability as one who: (1) has a physical or mental impairment that

substantially limits one or more of that person's major life activities;

(2) has a record of such impairment; or (3) is regarded as having such

an impairment.

While neither complainant nor her physician believed that complainant's

physical impairment substantially limited a major life activity,

the Commission notes that it could be argued that the agency regarded

complainant as being substantially limited in the major life activity of

performing manual tasks inasmuch as it concluded she could not engage in

prolonged or repetitive gripping and grasping; alternatively, it could be

argued that the inability to engage in prolonged or repetitive gripping

and grasping or to use one's fingers to perform tasks such as data

entry substantially limits an individual's ability to work in a large

class of jobs. In either instance, complainant would fall within

the protection of the Rehabilitation Act. See 29 C.F.R. �

1630.2(g)(3), Alvarez v. United States Postal Service, EEOC Request

No. 05960477 (May 14, 1999), Sutton v. United Airlines, 527 U.S. 471

(1999).

Once complainant has established this threshold issue, she must next

prove that she is a "qualified" individual with a disability. 29

C.F.R. � 1630.2(m). A qualified individual with a disability is one

"...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." Id. Here, the agency

considered complainant to possess the requisite skill, experience and

education required for a Mail Processor, as she was offered the position

and needed only to pass the preemployment physical examination. While two

agency physicians subsequently determined that complainant's rheumatoid

arthritis rendered her unable to perform the essential functions of a

Mail Processor position, complainant points to the opinion of Dr. K,

a Rheumatologist who had treated her for approximately 18 months and

argues that his opinion should be given greater weight in light of

his speciality and familiarity with her condition. Nonetheless, it is

significant that Dr. K did not state that complainant could in fact engage

in prolonged standing or prolonged and repetitive use of her fingers for

gripping or grasping. Rather, he merely stated that he believed that

�with some adjustments in [complainant's] medical management, I think we

could eradicate the inflammatory activity in her hands significantly.�

Particularly in light of the opinions of two physicians more familiar

with the requirements of a Mail Processor position, the Commission is not

persuaded that this statement is sufficient to establish that complainant

was able to perform the essential functions of a Mail Processor position

with or without reasonable accommodation.

Assuming that the agency could reasonably accommodate complainant's

limitations on prolonged standing by allowing her to take a 15 minute

break each hour (rather than twice in eight hours), the record adequately

establishes that the essential functions performed by Mail Processors

required prolonged and repetitive gripping and grasping. The two agency

physicians determined that complainant could not perform tasks requiring

prolonged and repetitive gripping or grasping and, as noted above, Dr. K

did not specifically state that she could do so. In this regard, the

Commission notes that the agency subsequently hired complainant as an LSM

Operator, which in pertinent part requires only that an incumbent either

have the use of fingers and both hands or compensate for the lack of one

or both hands by use of a prostheses. While the essential functions of

an LSM Operator also include gripping, grasping and the use of fingers,

LSM Operators �sit keying zip codes for 30 minutes followed by standing

for 15 minutes grasping and traying bundles of mail.� Thus, the LSM

Operator position does not require grasping or gripping for more than 15

minutes at a time. Like both Dr. 1 and Dr. 2, Dr. 3 also recommended that

complainant have limited repetitive grasping and standing, limitations

which the agency found compatible with the essential functions of an

LSM Operator position.

Accordingly, the Commission finds that complainant failed to establish

that she was a qualified individual with a disability with respect to

the Mail Processor position at issue and, therefore, cannot establish a

prima facie case of disability discrimination. Therefore, after a careful

review of the record, including complainant's arguments on appeal, the

agency's response, and arguments and evidence not specifically discussed

in this decision, the Commission AFFIRMS the FAD.

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

October 26, 2000

Date

Date

1 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.

2 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: www.eeoc.gov.

3The record is unclear whether Dr. 2 examined, or simply conversed with,

complainant.