03990073
11-09-2000
Elvin H. Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Elvin H. Brown v. United States Postal Service
03990073
11-09-00
.
Elvin H. Brown,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03990073
MSPB No. SF-0752-98-0430-I-1
DECISION
INTRODUCTION
On April 5, 1999, Elvin H. Brown (the petitioner), initiated a petition
to the Equal Employment Opportunity Commission (the Commission)
for review of the final order of the Merit Systems Protection Board
(the MSPB) concerning his allegation of discrimination in violation of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.<1>
The Commission accepts this petition in accordance with the provisions
of the Civil Service Reform Act of 1978, and EEOC Regulations at 29
C.F.R. �1614.302 et seq.
ISSUE PRESENTED
The issue presented herein is whether the MSPB's determination that the
agency did not discriminate against petitioner because of his physical
disabilities, when he was removed from the position of Mail Handler,
effective April 10, 1998, constitutes a correct interpretation of all
applicable laws, rules, regulations, and policy directives, and is
supported by the record as a whole.
BACKGROUND
The record indicates that in 1987, the petitioner, while in the Navy,
was involved in an automobile accident and sustained a fracture to his
left femur. In 1989, the petitioner underwent surgery in order to have
a rod inserted into his femur.<2> According to the examination report,
the petitioner has:
a postoperative left peroneal [nerve] and popliteal [artery] palsy with
a numb, burning sensation on the sole of the left foot, paralysis of
the middle fourth and fifth toes of the left foot with a slight left
foot drop with numbness about the outer left hip, the outer left thigh
and left posterolateral side of the calf.
The examination report indicated that �[n]o further surgery was performed"
and that �[the petitioner] never recovered from the palsy and was left
with residuals." According to the record, the petitioner was discharged
from the Navy with a 20% disability, which was later upgraded to 30%
by the Department of Veterans Affairs (VA).
The petitioner began working for the agency in 1993, as a Mail Handler
in its Sacramento District. According to the record, he maintained
a regular workload from 1993 through 1994, which included standing,
walking, bending, and stooping. He was also required to push, pull,
grasp, and lift objects weighing up to 75 pounds. Due to an injury to
his back, however, the petitioner was placed on light duty in March 1994
and stayed in this status until July 1997.<3>
According to agency policy, employees on light duty were required to
resubmit their requests for light duty, along with updated medical
information, every 30 days. In July 1997, the petitioner provided
updated medical information to management officials that listed permanent
restrictions. According to the medical documentation, petitioner:
can sit up to 8 hours, stand for 4 hours and walk for 4 hours.
Can occasionally bend. Can lift up to 10 [pounds] frequently and 11-24
[pounds] occasionally. No restrictions on reaching above the shoulder
and simple grasping.<4>
Based on his restrictions, the petitioner was presented with new light
duties by management.<5> According to the petitioner, those duties
required, among other things, that he squat, bend, and lift objects
weighing between 25 and 50 pounds. Petitioner stated that he had
unsuccessfully attempted to perform some of these functions in June
1997; therefore, he declined the agency's offer.<6> According to the
petitioner, he was instructed to leave the premises and not to return
until he had a medical statement that substantiated his assertion that
the new duties exceeded his restrictions. The petitioner contacted
the VA's Outpatient Clinic and was subsequently examined by Doctor E.
According to Doctor E, the petitioner, during an 8 hour day, could stand
4 hours, walk 4 hours, occasionally bend, and occasionally lift and carry
no more than 25 pounds. He also indicated, however, that there should
be no squatting, crawling, climbing, and that the petitioner could not
use his left foot for repetitive movements. Doctor E estimated that
the petitioner would be on limited duty permanently.
According to the petitioner, upon submitting the new medical statement to
management officials, he was again offered the same duties that he had
previously declined. The petitioner again declined the duties and was
told to go home again. According to the petitioner, he contacted the MSPB
on August 9, 1997. Upon the recommendation of an MSPB Administrative
Judge (AJ), the petitioner underwent the November 6, 1997 examination
referenced above. The examination report concluded that:
the patient is unable to do the regular work of a Mail Handler. He has a
permanent partial impairment and disability which equates to no squatting,
kneeling, crawling or climbing, no sitting greater than one-half hour
at a time, a total of four hours a day, no standing at one time greater
than one-half hour at a time, a total of four hours a day, no walking
further than one block at a time, no lifting greater than twenty-five
pounds at any one time, occasional bending at the waist. The patient
has a preclusion from using the feet for repetitive foot controls. The
above limitations are permanent, and I doubt that the restrictions will
change in the future, I believe they are stable. In addition, the patient
is in jeopardy of incurring further work injury due to his disability.
In accordance with an agreement with the agency, the petitioner was
placed in an administrative leave status indefinitely and provided an
apportioned amount of back pay. The agency also attempted to locate
duties for petitioner to accomplish as an accommodation. On March
5, 1998, A-1, the Supervisor of Distribution, proposed removing the
petitioner on the grounds that he was unable to perform the duties for
which he was hired. According to A-2, the Manager, Sacramento District,
after reviewing the petitioner's response and the available vacancies,
he determined that removal was the only appropriate action. As previously
noted the petitioner was removed on April 10, 1998.
The MSPB AJ found that the petitioner, due to his medical limitations,
was unable to perform the major functions of his Mail Handler position.
Therefore, she sustained the agency's charge. With regard to the
petitioner's contention that he was discriminated against on the basis
of his disability, the AJ found that although he was a person with a
disability, he was not a qualified person with a disability. According to
the AJ, the petitioner could not perform the essential functions of his
position. The petitioner, because he could perform some of the position's
duties, maintained that the agency could modify the Mail Handler's
position in order to accommodate him. The AJ, however, found that the
duties the petitioner could perform were not the essential functions
of the position. She concluded that requiring the agency to modify
the position in such a manner was not a reasonable accommodation.<7>
Moreover, the AJ noted that an agency is not required to accommodate a
disabled employee by permanently assigning him to light duty tasks when
those tasks do not comprise a complete and separate position. With regard
to the petitioner's contention that the agency should have offered him
retraining or reassignment, the AJ indicated that the Rehabilitation Act
did not require the agency to provide training for or reassignment to a
new position for which the employee was not qualified. Finally, the AJ
noted that both A-1 and A-2 stated that they reviewed vacant positions,
but were unable to find a position that the petitioner was qualified to
perform.
Petitioner filed a Petition for Review (PFR) with the full Board;
however, the PFR was denied on March 5, 1999. This petition followed.
The petitioner argued, in pertinent part, that the AJ erred in finding
that he could not perform the essential functions of the Mail Handler
position. According to the petitioner, the duties he performed for four
(4) years, while on light duty, were the essential functions of the Mail
Handler position. The petitioner also maintained that he was qualified
for positions in the clerk and maintenance crafts.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board,
on the petitioner's allegations of discrimination, constitutes an
incorrect interpretation of any applicable law, rule, regulation or
policy directive, or is not supported by the evidence in the record as
a whole. After a review of the record, the Commission, finding no basis
for reversing the Board's final decision, concurs in the Board's finding
of no discrimination in the removal action at issue herein.
Under the Commission's regulations, an agency is required to make a
reasonable accommodation of 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. See 29 C.F.R. � 1630.2(p).<8>
To establish a prima facie case of disability discrimination, petitioner
must show 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) there is a nexus between
his disability and the agency's adverse employment action. See Prewitt
v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).
The threshold question is whether petitioner is an individual with a
disability within the meaning of the regulations. An individual with
a disability is 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. 29 C.F.R. � 1630.2(g). Major life activities include
the functions of caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 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. 29 C.F.R. � 1630.2(j). The individual's ability
to perform the major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id. Under these standards, the record is clear that the
petitioner's physical impairments, at the very least, substantially
limited his ability to walk. The November 6, 1997 examination
report indicated that his fractured left femur healed in a �malunited
position,�and that he has a permanent partial impairment which, among
other things, prevents him from walking further than one block at a time.
Therefore, we find that he is an individual with a disability.
The petitioner must also show that he is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). These sections
define the term qualified individual with a disability as meaning,
with respect to employment, a disabled person who, with or without a
reasonable accommodation, can perform the essential functions of the
position in question.
As previously noted, the AJ and the agency both concluded that the
petitioner was not a qualified individual with a disability because:
(1) he could not perform the essential functions of the Mail Handler
position; and (2) there were no vacant positions for which he was
qualified. The record establishes that the petitioner can not perform
the essential functions of the Mail Handler position. The petitioner was
only able to perform certain nonessential duties that were listed on the
position description. We also note that although the petitioner argued
that he could have continued performing the tasks that he had performed
for four (4) years, the agency was under no obligation to allow him
to permanently perform these nonessential duties. See Spry v. USPS,
EEOC Petition No. 03980078 (December 11, 1998).
If an employee cannot perform the essential functions of his current
position because of a disability, and no accommodation is possible in
that position, the agency has an obligation to consider whether the
employee could have been accommodated by reassignment. We, like the AJ,
find that management officials made an effort to identify appropriate
vacancies in order to reassign petitioner, but that no such vacancies
existed for which complainant was qualified and for which he could perform
the essential functions. Consequently, we find that the agency did not
discriminate against petitioner because of his disability.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing
reasons, it is the decision of the Commission to CONCUR with the final
decision of the Board finding no discrimination.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of 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.
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
__11-09-00________________
Date
1On 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 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may also be found at the Commission's
website at www.eeoc.gov.
2According to a November 6, 1997 fitness-for-duty examination (examination
report) administered to petitioner, his fractured left femur healed in a
"malunited position."
3The petitioner's light duty assignments were mostly conducted while
sitting. There was no lifting involved. His duties were largely in the
area of "damage mail work" and re-facing mail. According to the record,
an employee "faces mail" when he ensures that envelopes are properly
aligned when they go through a cancellation machine.
4The record also contains a May 20, 1997 request for light duty that
lists petitioner's restrictions, at that time, as �lifting up to 25, no
pushing/pulling, limited squatting & climbing, standing & bending up to
4 hrs.� Based on his restrictions, petitioner's specified duties were to:
(1) finalize empty equipment at the dock; (2) time and date mail at doors
when asked to do so; (3) work at the sleever strapper when asked to do
so; (4) perform other duties as assigned within his restrictions; (5)
work at 010 when asked to do so; and (6) report to the Dock Supervisor.
5Petitioner was told to report to management officials who would tell
him exactly what he would do each day. The duties specified, however,
were casing at the manual units, refacing, finalizing equipment, working
at the sleever strapper, canceling SPRS, tagging mail coming in after CET.
Additionally, petitioner was informed that when he was not needed, because
of volume, the supervisor could make a determination to send him home.
6Notwithstanding petitioner's assertions, we note that, on its face,
there is no evidence that he was asked to perform duties that exceeded
his restrictions.
7A-2, in his declaration, stated that the duties of a Mail Handler
were listed on the position description in order of importance.
The petitioner, based on his limitations, was unable to perform duties
(1), unloading mail from trucks, or (3), handling and sacking empty
equipment. With respect to duty (2), the petitioner could only perform
one aspect of the responsibilities listed, i.e. "facing letter mail."
According to A-2, this duty, only occurred on one of the three available
shifts and took approximately 2-3 hours. The petitioner also maintained
that he could perform most of the duties listed under duty (4), which
involved canceling mail. A-2, however, stated that this duty only took
2-3 hours to perform each day, and that the petitioner was limited with
respect to the amount of time he could stand.
8The 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. 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.