Jackie L. Selix, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 16, 2000
01970153 (E.E.O.C. Mar. 16, 2000)

01970153

03-16-2000

Jackie L. Selix, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.


Jackie L. Selix v. United States Postal Service

01970153

March 16, 2000

Jackie L. Selix, )

Complainant, )

)

) Appeal No. 01970153

) Agency No. 4E-800-1376-95

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

_________________________________)

DECISION

The complainant filed an appeal from the final decision of the agency

concerning her complaint of unlawful employment discrimination in

violation of � 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq. The final decision is dated September 13,

1996 and the appeal is postmarked October 1, 1996. The appeal is timely

(see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified as 29 C.F.R. �

1614.402(a)), and is accepted under 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified as 29 C.F.R. � 1614.401(a)).<1>

ISSUE PRESENTED

Whether the complainant was discriminated against on the bases of

disability (thoracic outlet syndrome and tendinitis of the right elbow)

when she was denied reinstatement on June 28, 1995.

BACKGROUND

The complainant filed an EEO complaint which the agency defined as above.

Following an investigation, the complainant requested a hearing, and

subsequently withdrew her request. The agency then issued a final

decision finding no discrimination.

On her own initiative, the complainant was evaluated by Physician 1.

The evaluative report stated that the complainant was diagnosed by

a physician in 1987 with right thoracic outlet syndrome, and with

tendinitis of the right elbow in October 1990. It indicates she had

surgery on the right elbow for her tendinitis in May 1991.

Later in 1991 a Doctor of Osteopathy (D.O.) completed a form indicating

that the complainant reached maximum medical improvement, and was

restricted from lifting more than 10 pounds, engaging in repetition or

overuse with regard to fine manipulation, working above shoulder level,

and performing a large range of physical movements intermittently more

than 4 hours daily. The D.O. then clarified to the agency in writing

and orally that the complainant could sit and walk for 8 hours, and

was restricted to bending, squatting, climbing, kneeling, twisting,

and standing intermittently for four hours.

The complainant, who was a letter carrier with the Colorado Springs Post

Office in Colorado, agreed in June 1992 that she could not case mail or

carry a satchel and was unable to be accommodated within her position.

In August 1992 she was placed in a full-time limited duty modified letter

carrier position within her restrictions.

The complainant resigned from the agency in April 1994. Thereafter,

in March 1995 she applied for the positions of letter carrier and PTR

clerk in Colorado Springs, indicating she was available on June 1, 1995.

The Manager of Customer Service Operations replied to the complainant

in writing in May 1995 that her request for reinstatement was denied

because she could not physically perform the duties of a full-time

letter carrier. The complainant then contacted the manager, stating

she had sent an evaluation from Physician 1.

The examination for the evaluation was conducted on November 23, 1994,

and according to the complainant, lasted approximately 30 minutes.

The evaluation report stated that the complainant was seen for the

possibility of her restrictions being lifted so she could resume as

a letter carrier. The report stated that the complainant had been

actively lifting weights, swimming, bowling and playing softball with

minor discomfort, that she stated the movement of her right arm was

improving with exercise, and felt she could do more lifting and reaching

with her right arm since commencing the exercises. The report indicated

that the complainant was right handed and used her right hand and arm

in the above activities. It indicated there was no difference in the

tingling of her right fourth and fifth digits since 1987. The report

stated that the examination revealed a slight tenderness medial to the

scapula on the right and 10% diminished overhead extension of the right

arm at the shoulder. It concluded that depending on the complainant's

job, she should be able to do most activities with her right arm except

for extreme overhead reaching or lifting.

The complainant averred that after locating the evaluation report,

the manager told her that if she could pass the physical she would be

reinstated as a letter carrier. The agency scheduled the complainant for

a physical examination in June 1995, and she was examined by Physician 2.

Physician 2 completed a form stating that the complainant's medical

history was significant for thoracic outlet syndrome, surgery to the right

elbow, "no lifting above shoulder" ("above shoulder" was striked out)

and a 23% impairment. He indicated that based on a physical examination,

the complainant was limited from lifting above the shoulders, and there

were no significant findings with regard to employment history.

Physician 2 checked a box on the medical assessment form which indicated

that based on all the above, the complainant's risk of incurring a

job-related injury or illness, within the next six months, due to an

existing or past medical conditions was "Moderate Risk/Restriction." The

form indicated this meant the complainant was medically qualified to

perform the essential functions of the position with accommodation.

Accommodation was defined on the form as job modifications that would

allow the complainant to perform the essential functions of the position

effectively and safely, and the accommodation identified by Physician

2 was not reaching above the shoulders. History of thoracic outlet

syndrome and tendinitis of the right elbow were also listed in the

accommodations box.

By letter dated June 28, 1995, the Acting Supervisor of Customer

Service Support (Supervisor 1) informed the complainant that she was

physically unable to perform the duties of PTF (part-time flexible) city

carrier based on findings that included the inability to reach above

her shoulders, a history of thoracic outlet syndrome, and tendinitis of

the right elbow. The letter stated that to be considered for PTF city

carrier the complainant needed to submit a letter from her personal

physician stating clearly that her physical condition improved so that

she could perform the duties of PTF city carrier.

The complainant appealed the medical disqualification. Supervisor 1

forwarded the appeal with a cover letter in early July 1995 to the agency

District Medical Officer. Supervisor 1 advised in the cover letter that

based on the finding of Physician 2 that the complainant was at moderate

risk for the letter carrier position, he medically disqualified her.

The complainant wrote in her medical appeal that she gave Physician

2 her medical history and saw him for about five minutes. She wrote

the examination consisted of a urine sample, checking her ears, throat,

eyes, heart, and hand strength, and later added in her EEO investigative

affidavit that Physician 2 asked her to stoop and stand. The complainant

wrote in the medical appeal that she told Physician 2 that she could

reach above her shoulder, but he did not ask her to do so or examine

the shoulder. The complainant wrote that since September 1994 she was

strengthening her arm and shoulder with exercise, and her shoulder was

much stronger. She stated that she worked as a letter carrier with

thoracic outlet syndrome since 1987 without problems, but developed

tendinitis due to "phantom casing" which was no longer performed in

the agency. She contended that her surgery on her right elbow in 1991

to remove scar tissue was a complete success. The complainant stated

that her only problem was with extreme overhead reaching or lifting,

which is not required by the job, and she could perform the duties of a

letter carrier. Later in her EEO complaint, the complainant stated that

she told Physician 2 that she could reach over her shoulder but not over

her head, and subsequently wrote in her investigative affidavit that she

told Physician 2 she could reach over her shoulder but not straight above

her head. The complainant stated in her complaint that Physician 2 did

not receive the evaluation report of Physician 1, and when she asked if

he was going to check on it, Physician 2 replied no.

In July 1995, the Medical Officer completed a form similar to that used

by Physician 2 indicating that the complainant had a history of thoracic

outlet syndrome, was limited from working above the shoulder and overhead

work, had no significant employment history, and based on the above,

was at "Moderate Risk/Restriction," citing as the needed accommodation

not working above the shoulder. According to the complainant, she was

not examined by the Medical Officer.

Thereafter, Supervisor 1 wrote a letter to the complainant stating

that the Medical Officer found that she remained at moderate risk,

and accommodations would have to be made to insure that she would not

have to do any work above her shoulders. The letter went on to state

that the agency does not make accommodations for employees found to be

a moderate to high medical risk, and hence, her appeal was denied.<2>

In her complaint, the complainant indicated that she had been given two

start dates over the telephone, only to be turned down by Physician 2 and

the Medical Officer. Previously, the complainant averred that she had

no restrictions relevant to the letter carrier job. She affirmed that

the only thing she would require to perform letter carrier duties was

a platform to raise her higher off the floor, and other letter carriers

in Colorado Springs utilized platforms. She also affirmed that she had

taken a job in a mail room with an insurance company, and was not having

any problems.

Supervisor 1 affirmed that he was responsible for the denial of the

complainant's request for reinstatement. He detailed the limitations

mentioned by the D.O. in 1991, and that the D.O. found the complainant

reached maximum medical improvement. Supervisor 1 affirmed that the

complainant accepted the modified letter carrier limited duty position in

1992 with the understanding that she had a permanent partial disability

and reached maximum medical improvement. Supervisor 1 recited the

findings of Physician 2 that restricted the complainant from lifting

above the shoulders and rating her as a moderate risk, and noted the

Medical Officer confirmed this assessment. Supervisor 1 added that the

complainant did not submit any documentation from the D.O. indicating she

improved. Supervisor 1 also suggested that the findings of Physician 1

were not persuasive in that he simply wrote that the complainant "feels

she is able to do more lifting," and wrote that he felt "she should be

able to do most activities." Supervisor 1 concluded that he denied the

complainant's request for reinstatement based on the recommendations of

the Medical Officer.

On appeal, the complainant argues that she was treated differently from

Comparison 1, an applicant for employment. She also argues that she was

never offered a reasonable accommodation. The complainant states that

when she was notified that she was turned down for employment, she asked

Supervisor 1 if she could apply for janitorial, clerk, and mailhandler

"PTR" lists, and Supervisor 1 indicated that the medical examination

disqualified her for a job in any craft.

In response to the complainant's appeal, the agency states that the

complainant is not similarly situated to Comparison 1. It notes

that different managerial officials were involved in each instance.

The record also reflects that after Comparison 1 was denied employment for

medical unsuitability, he filed an EEO complaint. According to the EEO

investigator's typewritten report, the complaint was settled in August

1987, and Comparison 1 was hired in September 1987. The complainant

affirmed Comparison 1 won his EEO case.

ANALYSIS AND FINDINGS

As a threshold matter, one bringing a claim of discrimination on the

basis of disability must show that she is a qualified individual with a

disability within the meaning of the Rehabilitation Act. An individual

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

substantially limits one or more major life activities, (2) has a record

of such an impairment or (3) is regarded as having such an impairment. 29

C.F.R. � 1630.2(g). Major life activities include caring for one's self,

performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. 29 C.F.R. � 1630.2(i).<3>

The complainant has a record of an impairment which substantially limits

a major life activity. Specifically, she has been diagnosed with the

impairments of thoracic outlet syndrome and tendinitis of the right

elbow, and in late 1991, with subsequent clarifications, was found

by her D.O. to be permanently restricted from lifting over 10 pounds,

reaching or working above the shoulder, engaging in repetitious fine

manipulation, and bending, squatting, climbing, kneeling, twisting,

and standing intermittently for more than four hours.<4> The lifting

restriction alone constituted a record of a disability.

Having found that the complainant is an individual with a disability

within the regulatory definition, we next consider whether she is a

qualified individual with a disability. A qualified individual with a

disability is one who has the skill, experience, education and other

job-related requirements of the position in question, and who, with or

without reasonable accommodation, can perform the essential functions

of that position. 29 C.F.R. � 1630.2(m). In determining whether an

individual is qualified, an agency may require as a qualification standard

that an individual not pose a direct threat to the health and safety of

herself or others. Interpretive Guidance on Title I of the Americans

with Disabilities Act, Appendix to 29 C.F.R. Part 1630, � 1630.2(r).

To prevent easy circumvention of the Rehabilitation Act, disqualification

based on risk of future harm is subjected to close scrutiny. Bentivegna

v. U.S. Department of Labor, 694 F.2d 619, 622 (9th Cir. 1982). In order

to exclude an individual on the basis of possible future injury, the

agency must show there is a significant risk, i.e., high probability

of substantial harm; a speculative or remote risk is insufficient.

It must show more than that an individual with a disability seeking

employment stands some slightly increased risk of harm. Appendix to

29 C.F.R. Part 1630, � 1630.2(r). The burden of showing a significant

risk is on the agency. Haug v. United States Postal Service, EEOC Appeal

No. 01951337 (January 9, 1998).

Moreover, such a finding must be based on an individualized assessment

of the individual that takes into account: (1) the duration of the risk,

(2) the nature and severity of the potential harm, (3) the likelihood that

the potential harm will occur, and (4) the imminence of the potential

harm. Appendix to 29 C.F.R. Part 1630, �1630.2(r). A determination

of significant risk cannot be based merely on an employer's subjective

evaluation, or, except in cases of a most apparent nature, merely on

medical reports. Rather, this requires that the employer gather and base

its decision on substantial information regarding the individual's work

and medical histories. Mantolete v. Bolger, 767 F.2d 1416, 1422-1423

(9th Cir. 1985).

The Commission's Regulations require agencies to make reasonable

accommodation to the known physical and mental limitations of qualified

applicants or employees with disabilities unless the agency can

demonstrate that the accommodation would impose an undue hardship on

the operations of its program. 29 C.F.R. � 1630.9(a) & (b).

Assessing whether an individual with a disability can perform a position

with reasonable accommodation (and without posing a direct threat to

health and safety) is a key part of an agency's obligations under the

Rehabilitation Act. This obligation is best met through a flexible,

interactive process that involves both the agency and the individual

with the disability. Haug, supra. Further, "[t]he assessment that there

exists a high probability of substantial harm to the individual ... must

be based on valid medical analyses and/or on other objective evidence,"

with "relevant evidence [including] input from the individual ... the

experience of the individual ... in previous similar positions, and

opinions of medical doctors ... who have ... direct knowledge of the

individual." Appendix to 29 C.F.R. Part 1630, � 1630.2(r).

The complainant stated that commencing in September 1994, she embarked on

a successful exercise program to strengthen her right shoulder and arm.

She contended that while she could not reach over her head or straight

over it, she could reach above her shoulder. Physician 1, who noted

a history of right thoracic outlet syndrome and tendinitis of the right

elbow, opined that the complainant could do most activities with her right

arm except extreme overhead reaching or lifting. The complainant averred

that she had no other limitations relevant to the letter carrier position.

The subsequent findings of Physician 2 and the Medical Officer, to

some extent, confirm this. The only restriction listed by Physician

2 was lifting above the shoulders, and the only restriction listed by

the Medical Officer was working above the shoulder and head. They both

indicated that the complainant's risk of incurring a job-related injury

or illness, within the next six months, due to an existing or past

medical conditions was "Moderate Risk/Restriction," meaning she was

medically qualified to perform the essential functions of the position

if she was accommodated. While Physician 2 identified the complainant's

history of thoracic outlet syndrome and tendinitis of the right elbow

as needing accommodation, the only accommodation he identified was not

reaching above the shoulders, and the only accommodation the Medical

Officer identified was not working above the shoulder.

Supervisor 1 represented that since the Medical Officer found the

complainant to be at moderate medical risk and requiring the accommodation

of not working above the shoulders, and it was agency policy not to make

accommodations for individuals found to be a moderate to high medical

risk, he found the complainant medically disqualified.

We find that the agency violated the Rehabilitation Act. As an initial

matter, in finding the complainant to be at moderate risk, the record does

not show that Physician 2 and the Medical Officer made a sufficiently

individualized assessment. For example, they did not identify the

nature and potential severity of the harm. Further, it is not clear that

"moderate" risk, as meant by Physician 2 and the Medical Officer, rose

to the level of high probability of substantial harm (direct threat), as

required when using the possibility of future injury as a qualification

standard to exclude an individual with a disability from employment.

Further, the preponderance of the evidence demonstrates that Physician 2,

the Medical Officer, and the agency relied on the complainant's past

record of a disability in finding her to be at moderate risk, rather

than making an individualized assessment of her current condition.

The complainant's description of Physician 2's examination as perfunctory

and his refusal to consider the evaluation of Physician 1 is uncontested,

and it is uncontested that the Medical Officer did not examine the

complainant. While Supervisor 1 noted that the complainant's D.O. did not

provide any additional information, the burden is on the agency to gather

sufficient evidence to establish direct threat. Accordingly, we find that

the agency failed to establish that the complainant presented a direct

threat of future injury to herself if she worked above her shoulders.

The complainant conceded that she is restricted from lifting her arm

straight above her head.

Moreover, Physician 2 and the Medical Officer found that the complainant

could perform the essential functions of the position effectively

and safely if the job was modified to allow her not to reach above the

shoulder or shoulders. The complainant described her restriction as not

reaching above her head or straight above her head. She affirmed that

the only thing she needed to perform the duties of a letter carrier was

a platform to raise her higher off the floor, which were used by several

other letter carriers. The agency did not contest this. As the agency

has not shown that the complainant would present a direct threat if she

performed the duties of letter carrier, it violated the Rehabilitation

Act when it refused to reinstate her on medical grounds.

Accordingly, the agency shall offer to reinstate the complainant to

the position of PTF city carrier with back pay and other benefits.<5>

The complainant did not request compensatory damages.

CONCLUSION

Based upon a review of the record, and the foregoing reasons, it is

the decision of this Commission that the agency discriminated against

complainant on the basis of disability when it did not offer her the

position of PTF city carrier.

ORDER

(1) The agency is ordered to offer the complainant the position of PTF

city carrier at its Colorado Springs, Colorado Post Office retroactive to

June 28, 1995, within 60 calendar days after it receives this decision.

It shall be offered at the pay level the complainant would have received

had she not been medically disqualified, with increases as noted in

paragraph (2) below.

(2) The agency is ordered to issue a check to complainant for the

appropriate amount of back pay and interest on back pay, and provide

appropriate within-grade increases, seniority and other benefits, less

appropriate mitigation, under pertinent Office of Personnel Management

Regulations, and 29 C.F.R. �1614.501, no later than 120 calendar days

of the agency's receipt of this decision.<6> The complainant is ORDERED

to cooperate in the agency's efforts to compute the amount of back pay,

interest, and benefits due, and to provide all necessary information

the agency requests to help it comply. If the complainant declines

to accept the offered position, back pay liability shall be up to the

effective start date the complainant is offered.

(3) If there is a dispute about the amount of back pay, interest due,

and/or other benefits, the agency is ORDERED to issue a check to the

complainant for the undisputed amount within 120 calendar days of the

agency's receipt of this decision. The complainant may petition for

enforcement or clarification of the amount in dispute. The petition for

clarification or enforcement must be filed with the Compliance Officer,

at the address referenced in the paragraph entitled "Implementation of

the Commission's Decision."

(4) If the complainant was represented by counsel, she must submit,

through counsel, a request for attorney's fees and costs in accordance

with the Attorney's Fees paragraph set forth below. No later than 90

days after the agency's receipt of the attorney's fees statement and

supporting affidavit, the agency shall issue a final agency decision

addressing the issues of attorney's fees and costs. The agency must

submit a copy of the final decision to the Compliance Officer at the

address set forth below.

The agency is further directed to submit a report of compliance, as

provided in the paragraph entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due the complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Colorado Springs Post Office in

Colorado copies of the attached notice. Copies of the notice, after

being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to

an award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. �1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. �1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. �1614.503(a). The complainant also has

the right to file a civil action to enforce compliance with the

Commission's order prior to or following an administrative petition

for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),

and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the

right to file a civil action on the underlying complaint in accordance

with the paragraph below entitled "Right to File A Civil Action."

29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or

a civil action on the underlying complaint is subject to the deadline

stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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

March 16, 2000

_________ _________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

______________ _________________________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated ________________ which found

that a violation of �501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. �791 et seq. has occurred at this facility.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect

to hiring, firing, promotion, compensation, or other terms, conditions or

privileges of employment. The Colorado Springs Post Office in Colorado

reaffirms its commitment to comply with these statutory provisions.

The Colorado Springs Post Office supports and will comply with such

Federal law and will not take action against individuals because they

have exercised their rights under law. The EEOC found that an individual

was discriminated against in violation of the Rehabilitation Act when the

individual was denied a reinstatement to the Colorado Springs Post Office.

The Colorado Springs Post Office is remedying the employee affected by the

Commission's finding. The ordered remedies include offering the employee

reinstatement to the Colorado Springs Post Office. The Colorado Springs

Post Office will ensure that officials responsible for personnel decisions

and terms and conditions of employment will abide by the requirements

of all Federal equal employment opportunity laws.

The Colorado Springs Post Office will not in any manner restrain,

interfere, coerce, or retaliate against any individual who exercises his

or her right to oppose practices made unlawful by, or who participates

in proceedings pursuant to, Federal equal employment opportunity law.

_______________________________

Date Posted: ____________________

Posting Expires: ________________

29 C.F.R. Part 1614

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 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 at www.eeoc.gov.

2The letter was inadvertently dated June 28, 1995.

3The 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.

4The only impairments identified in the record are the ones above.

Thoracic outlet syndrome and "surgery right elbow" (a reference to

tendinitis) were the only impairments identified by Physician 2 as

constituting significant medical history pertinent to the physical.

While this indicates these impairments were the source of the

complainant's limitations, the record does not reflect the percentage

that each contributed thereto. The record medical information from the

D.O. did not discuss impairments.

5Supervisor 1's letter to the complainant of June 28, 1995 indicates

that this was the position the complainant was denied as a result of

the medical disqualification.

6The position shall be offered at the level it would have been offered

had the complainant not been medically disqualified.