01976784
01-21-2000
Jerry Armstrong, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas) Agency.
Jerry Armstrong v. United States Postal Service
01976784
January 21, 2000
Jerry Armstrong, )
Complainant, )
) Appeal No. 01976784
v. ) Agency No. 4G-756-1047-96
) Hearing No. 310-97-5056X
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Areas) )
Agency. )
______________________________)
DECISION
Complainant filed a timely appeal from the agency's final action
concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the basis of physical disability
(diabetes, lumbar strain), in violation of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791, et seq.<1> Complainant claims he was
discriminated against when: (1) he was placed off the clock on January
16, 1996; and (2) he was denied a permanent light duty position. The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the Commission AFFIRMS the agency's final action.
As background information, the complainant was originally employed
as a mail-handler at the agency's Dallas Bulk Mail Center. He had
been employed by the agency since 1979 but in 1994 he was temporarily
reassigned to the re-wrap section due to his lumbar strain, diabetes
and hemarthrosis of the right knee.<2> In November 1995, over one year
after beginning his temporary light duty assignment, the agency informed
complainant he must apply for permanent light duty or for disability
retirement. Complainant submitted additional medical documentation and
a request for permanent light duty. The agency refused complainant's
application for permanent light duty and placed him "off the clock" on
January 16, 1996. Complainant then applied for and received disability
retirement.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on March 21,
1996. At the conclusion of the investigation, complainant received
a copy of the investigative report and requested a hearing before an
EEOC administrative judge (AJ). Following a hearing, the AJ issued a
decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of
disability discrimination because he established he was substantially
limited in his ability to walk, perform manual tasks and to work.
Further, the AJ found he was a "qualified" individual with a disability
because he could perform the essential functions of his job with the
accommodation of light duty work. The AJ also found that complainant was
not given an accommodation as he had requested and that other employees
performed the same work he had at the time he was put off the clock.
The agency claimed that it could not accommodate complainant with
permanent light duty work because his restrictions had become more severe
and it already had too many employees on light duty.
Finally, the AJ found complainant did not establish that the agency's
articulated reasons were a pretext to mask unlawful discrimination.
The AJ concluded that the agency established undue hardship in refusing
to accommodate complainant with permanent light duty work. In reaching
this conclusion, the AJ found that the agency had no duty to "make work"
in order to accommodate complainant.
Complainant contends on appeal, that his physical condition was not
worse, that the agency's opinion of his medical condition was not based
on medical evidence and that he was still able to perform clerical duties.
The agency did not submit any statements on appeal.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
Based on this standard, the Commission affirms the AJ's finding that
complainant was substantially impaired in his ability to stand, walk,
bend, stoop, lift and to work. 29 C.F.R.� 1630.2 .<3> Although the
complainant was not able to perform the essential functions of his job
as a mail-handler, the agency decided to accommodate complainant by
reassigning him to light duty with the goal of returning him to his
regular duties once his condition improved.
The question before us now, is whether the agency was required to further
accommodate complainant by granting him permanent reassignment in light of
his worsening physical condition. Reassignment is usually a last resort
when an employer considers a reasonable accommodation for a disabled
employee. EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, EEOC No. 915.002,
p. 39 ( March 1, 1999) (EEOC Guidance). Here, the agency granted a
reassignment at the outset when it was clear complainant was not able
to perform the essential functions of his original job.
In addition to the AJ's impairment findings above, the record contained
undisputed evidence that complainant's condition had deteriorated since
his reassignment to light duty. Although complainant's physician had
lowered his restrictions in kneeling, bending pushing and stooping,
complainant was advised in February 1996 to use a cane "at all times" in
order to ease the weight on his knee. Complainant's physician expected
this condition to be permanent. Complainant twice became sick from
the temperature conditions in the re-wrap area and had to seek emergency
medical help in September 1995. His doctor adjusted his restrictions to
include an intolerance to extreme temperatures as would be found in the
re-wrap area. In October 1995, complainant was admitted to the hospital
for a heart condition. These events all occurred after complainant
had been reassigned to accommodate his lumbar strain, hemarthrosis
of the right knee and diabetic condition. Thus, the agency's initial
accommodation of complainant's disabilities also became problematic.
At this point in the analysis, the agency's duty to further accommodate
complainant turns on the question of undue hardship. EEOC Guidance
p. 45. The duty to provide a reasonable accommodation is an ongoing one.
Id. In this regard, it became increasingly clear that complainant was
not able to perform his duties in the Re-wrap area without additional
accommodation, i.e., control of temperature changes, and modified lifting,
bending, stooping ,etc. As to the additional accommodations, the agency
argued that it was an undue hardship to continue to employ complainant in
his light duty position because there was not enough work available which
was within complainant's restrictions. The AJ credited this testimony
and the agency's assertion that it would only be creating work in order
to accommodate complainant's deteriorating condition.
The AJ also credited the agency's testimony that it had considered other
assignments for complainant and had not identified any other work within
complainant's new restrictions. This was not disputed by complainant.
Although he asserts that he was able to do clerical work he did not
identify clerical work which was available to him. Thus, there was
substantial evidence to support the AJ's findings considering the full
administrative record, and therefore, we have no reason to overturn the
AJ's conclusion. Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474 (1951).
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, arguments and evidence not specifically addressed
in this decision, we AFFIRM the administrative judge's findings of fact
and conclusions of law .
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:
1/21/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 Equal Employment Assistant
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.
2Although complainant does not rely on his knee condition as contributing
to his disabilities, his medical records contain restrictions relating
to his knee condition as well.
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.