Jerry Armstrong, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas) Agency.

Equal Employment Opportunity CommissionJan 21, 2000
01976784 (E.E.O.C. Jan. 21, 2000)

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.