01a02374
12-04-2002
Gwendolyn Merriweather, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gwendolyn Merriweather v. United States Postal Service
01A02374
12-04-02
.
Gwendolyn Merriweather,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02374
Agency No. 4C-190-0197-97
Hearing No. 170-98-8407X
DECISION
INTRODUCTION
Gwendolyn Merriweather (hereinafter referred to as complainant) filed
an appeal from the final decision of the United States Postal Service
(hereinafter referred to as the agency) accepting the decision of the
Administrative Judge finding no discrimination. The complaint claimed
a violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��
791, 794(c).<1> The appeal is timely filed (see 29 C.F.R. � 1614.402(a))
and is accepted in accordance with 29 C.F.R. � 1614.405.<2>
ISSUE PRESENTED
The issue presented in this appeal is whether complainant has proven, by
a preponderance of the evidence, that the agency discriminated against
her based on disability (knee injury) and in reprisal when her request
for light duty was denied in May 1997.
BACKGROUND
Complainant was injured at work in August 1991, and, following surgery
and recuperation, in September 1994, she accepted work as a mailhandler
in a modified job. In April 1997, the agency informed her that, since her
benefits from the Office of Workers' Compensation Programs, Department of
Labor (OWCP), had ceased, she would no longer be assigned to a limited
duty position. She applied for a light duty assignment, which was
subsequently denied on May 17, 1997. Thereafter, she was assessed as a
"high risk" to perform the duties of a mailhandler. In May 1999, she was
returned to a limited duty position when her OWCP benefits were restored.
After stating the law, the AJ found that complainant did not establish
a prima facie case of discrimination based on disability. The AJ found
that complainant's impairment, degenerative arthritis affecting her knees,
affected her musculoskeletal body system and limited her in the major
life activities of walking and standing, bending, kneeling, and working
and that she was a person with a disability. Next, the AJ concluded
that complainant was not a qualified person with a disability, since her
medical restrictions did not allow her to perform the regular duties
of the mailhandler position with or without reasonable accommodation.
She further held that the agency "made every effort to find light
duty work for Complainant," which complainant did not refute, and that
she was not treated in a disparate manner because of her disability.
(AJ's Decision, p. 140). With regard to the claim based on reprisal,
the AJ found that complainant failed to establish a prima facie case,
since she did not show that she engaged in prior EEO activity. The agency
accepted the AJ's decision.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). In this matter, complainant claims that the
agency failed to afford her a reasonable accommodation in the form of
a light duty position, that it treated her differently than similarly
situated employees, and that it acted in reprisal.
Accommodation Claim
Under the Commission's regulations, an agency is required to make
reasonable accommodation to 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. 29 C.F.R. � 1630.9.
As a threshold matter, therefore, one claiming protection under the
Rehabilitation Act must show that s/he is a person with a disability
as defined therein. A person with a disability is one who has, has a
record of, or is regarded as having a physical or mental impairment that
substantially limits one or more major life activities. 29 C.F.R. �
1614.203(a)(1). Major life activities include caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1614.203(a)(3). In seeking an
accommodation, an employee must show a nexus between the disabling
condition and the requested accommodation. See Wiggins v. United States
Postal Service, EEOC Appeal No. 01953715 (April 22, 1997).
The AJ found that complainant is an individual with a disability.
For purposes of further analysis, we assume, arguendo, and without
finding, that complainant established that she is an individual with
a disability and is entitled to coverage under the Rehabilitation Act.
Complainant must also show, however, that she is a �qualified individual
with a disability,� within the meaning of 29 C.F.R. � 1630.2(m).
This is defined as a disabled person who, with or without reasonable
accommodation, can perform the essential functions of the position held
or desired.
We agree with the AJ that complaint could not, either with or
without reasonable accommodation, perform the essential functions of
her Mailhandler position. Nevertheless, the discussion of �qualified
individual with a disability� does not end at this point. In determining
whether an employee is "qualified," an agency must look beyond the
position to which the employee is assigned and whose essential functions
can no longer be performed and consider reassignment.<3>
Upon review of the record, we find that the agency met its obligation to
consider reassignment but found no vacant position for which complainant
was qualified. Further, we note that complainant failed to satisfy her
burden to establish that it is more likely than not (preponderance of
the evidence) that there were vacancies during the relevant time period
into which complainant could have been reassigned. Hampton v. USPS, EEOC
Appeal No. 01986308 (July 31, 2002). A complainant can establish this
by producing evidence of particular vacancies, or, in the alternative,
complainant can show that (1) s/he was qualified to perform a job or
jobs which existed at the agency, and (2) there were trends or patterns
of turnover in the relevant jobs so as to make a vacancy likely during
the time period. Id. Complainant did not provide evidence to support
an assertion that, had the agency searched further at the relevant
time, it would have found a vacant position to which she could have
been reassigned. Accordingly, the Commission finds that complainant
failed to establish her claim that the agency failed to provide her a
reasonable accommodation.
Reprisal Claim
Complainant also alleged that she was subjected to discrimination
based on reprisal; however, she did not show that she engaged in prior
protected activity and, thus, fails to establish a prima facie case of
reprisal discrimination.
For all of the above reasons, and, after a review of the record, we
discern no basis to disturb the AJ's finding of no discrimination.
The AJ's findings of fact are supported by substantial evidence, and
the AJ correctly applied the appropriate regulations, policies, and laws.
CONCLUSION
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
AFFIRMS the agency's final order accepting the AJ's determination of
no discrimination. Accordingly, the agency's decision was proper and
is AFFIRMED.
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
_____12-04-02_____________
Date
1The 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.
2Complainant's appeal was filed a few days prior to the agency's issuance
of its Notice of Final Action. The Commission exercises its discretion
and, although filed prematurely, accepts the appeal as timely.
3The agency is advised that 29 C.F.R. � 1614.203(g), which governed and
limited the obligation of reassignment in the Federal sector, has been
superseded and no longer applies. 29 C.F.R. � 1614.203(b). The ADA
standards apply to all conduct on or after June 20, 2002, and emphasize,
among other things, a broader search for a vacancy. The ADA regulations
regarding reassignment can be found at 29 C.F.R. �� 1630.2(o) and 1630.9.
Additional information can be found in the Appendix to the ADA regulations
and in the EEOC's Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act (October 17,
2002) at Questions 25-31. These documents are available on the EEOC's
website at www.eeoc.gov.