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.