0120070261
03-12-2009
Henry Houston, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Henry Houston, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070261
Hearing No. 570-2006-00309X
Agency No. 1K-221-0004-06
DECISION
On October 16, 2006, complainant filed an appeal from the agency's
September 16, 2006 final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a mail processing clerk at the agency's Northern Virginia Processing
and Distribution Center in Merrifield, Virginia.
Complainant filed an EEO complaint dated January 17, 2006, alleging
that he was discriminated against on the basis of disability (diabetes)
when:
1. On October 8, 2005, and continuing complainant was not allowed to
use a wheelchair at work;
2. On October 8, 2005, and October 21, 2005, complainant was denied
reasonable accommodation and sent home; and
3. On October 17, 2005, complainant was denied a light duty assignment.
Complainant first requested a light duty assignment in March 2005,
after suffering from back spasms. The agency granted this request and
complainant worked in manual letters while resting on a restbar and hand
sorted mail into openings in the case in front of him. Thereafter in
July 2005, complainant submitted a new request for light duty asking to
work in the 044 manual distribution area or an office area. Complainant
submitted medical documentation in July 2005, which did not specify the
use of a wheelchair.
Complainant's job title changed from flat sorting machine operator to
mail processing clerk effective August 26, 2005, when the flat sorting
machine operator position was abolished. Complainant did not start
working immediately in the newly titled position since he was taken off
work from August 27, 2005, through October 5, 2005, as a result of surgery
to treat a diabetic ulcer on his foot. Thereafter, complainant's doctor
released complainant to return to work noting complainant's recovery
could take up to one year. According to a Medical Clearance form signed
by complainant's doctor, during the year of recovery, complainant was
cleared to lift up to 20 pounds intermittently 4 hours per day, sit
intermittently 8 hours per day, stand intermittently 1 hour per day,
walk intermittently 1 hour per day, and grasp and/or reach above the
shoulder intermittently 8 hours per day. The doctor also stated that
"employee's work activities to be assisted with wheelchair."
Complainant reported to work late in the evening on October 5, 2005 (his
tour stared at 11:00 p.m.), and worked 8 hours that day. During his shift
he submitted the Medical Clearance form and a handwritten note requesting
his assignment be modified to permit the use of a wheelchair.
On October 7, 2005, the Operation Support Specialist contacted management
to convene an interactive meeting to discuss complainant's light duty
request and his medical documentation. Specifically, the agency sought
to discuss whether complainant could work productively in a wheelchair
and whether he could safely travel in a wheelchair on the workroom floor.
Complainant's request was forwarded to the agency's District Reasonable
Accommodation Committee (DRAC) and on October 11, 2005, a DRAC interactive
meeting occurred. Thereafter, on October 17, 2005, the agency denied
complainant's request for light duty based on complainant's assertion
that he did not need a wheelchair to do his work but only to travel
throughout the building. With regard to complainant's request for use of
a wheelchair to travel from the work entrance to his work area, from his
work area to the cafeteria and restroom, the agency stated that based
upon the documentation provided, complainant could walk the distances
at issue without violating his medical restrictions.
Thereafter, complainant submitted new medical documentation dated October
25, 2005, which contained the same restrictions on lifting, standing,
and walking. However, the documentation stated that "patient needs
wheelchair to assist in his mobility while at work to and from work area,
intermittent standing [and] walking is for occasional movement while at
work, i.e., restroom, water[fountain], health unit, etc., needs chair
with back in work area."
On October 27, 2005, the agency approved complainant's request and
assigned him to work in the manual operation casing letter mail by
zip code. The agency also advised complainant of the routes he should
use while operating his wheelchair in the plant.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew his request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that he was
subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Upon review, we find complainant failed to show that he was subjected to
discrimination based on his alleged disability.1 The record reveals that
the agency properly commenced the interactive process with complainant
once it received his October 5, 2005 request to use a wheelchair
to assist his work activities. We note the agency initially denied
complainant's request for a light duty assignment on October 17, 2005,
based upon complainant's assertion that he did not need a wheelchair to
perform his work duties and based on the medical documentation on file at
the time which stated complainant could stand and walk (intermittently)
up to 1 hour per day and could therefore travel the distances in question
without violating his restrictions. Thereafter, when complainant provided
subsequent medical documentation dated October 25, 2005, clarifying
his need for the wheelchair, we note the agency promptly granted his
request on October 27, 2005. We note complainant does not claim that
he was forced to work beyond his medical restrictions. We find that
complainant has not shown that he was improperly denied any accommodation
given the medical information provided to the agency by complainant.
Accordingly, the agency's final decision finding no discrimination is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 12, 2009
__________________
Date
1 We do not address in this decision whether complainant is a qualified
individual with a disability.
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0120070261
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120070261