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.