01980061
06-19-2001
Karen L. Brooks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Karen L. Brooks v. United States Postal Service
01980061
June 19, 2001
.
Karen L. Brooks,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01980061
Agency No. 4-J-606-1210-95
Hearing No. 210-97-6137X
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges she was discriminated against on the basis of
disability (depression) when she failed a qualification program and
when the agency failed to accommodate her disability. For the following
reasons, the Commission affirms the agency's final decision.
The record reveals that complainant was working as a Distribution Clerk
at the agency's post office in North Chicago, Illinois. Complainant
was absent from work for medical reasons related to depression from
April 1994 through August 1994. While on leave, she was contacted
about a Window Clerk position opening at the Great Lakes Branch.
Complainant successfully bid on the Window Clerk position and was
sent to participate in a qualification program which consisted of ten
days of classroom preparation and five days of on the job training.
Although complainant's performance was rated satisfactory on almost
all of the training activities, her "close out" performance was deemed
unsatisfactory due to both timeliness and accuracy. As a result, she
failed to meet the minimum requirements of the qualification program.
In order to help complainant improve her "close out" skills, the agency
twice offered complainant an extra three days of training. Complainant
refused both offers. Accordingly, complainant was notified that she
was being reverted back to her prior bid position at the North Chicago
post office.
Complainant filed a formal EEO complaint with the agency on April 18,
1995, alleging that the agency had discriminated against her as referenced
above. At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge. Following a hearing, the Administrative Judge
issued a decision finding no discrimination which the agency adopted in
its final decision. On appeal, complainant contends that: (1) the agency
should have merged her removal complaint with the complaint at issue;
(2) the managers and supervisors at the North Chicago facility were
aware of complainant's impairment; (3) her failure to meet the minimum
requirements was inconsistent with her satisfactory performance; and
(4) rather than returning complainant to her bid position, the agency
should have offered an accommodation for her disability.
Pursuant to 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
regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An Administrative Judge's conclusions of law are subject to a de novo
review whether or not a hearing was held.
Assuming arguendo that complainant is a qualified individual with a
disability, the Commission finds that the agency stated a legitimate,
non-discriminatory reason for concluding that complainant did not meet
the minimum requirements for the job, namely that when it came to "closing
out," complainant's performance was unsatisfactory. Specifically, on
four out of five nights, complainant counted her money extremely slowly
and submitted the incorrect amount of money, each time with an error of
at least $20.00. The Commission finds that the Administrative Judge's
conclusion that the evaluating official was not aware of complainant's
disability at the time of the evaluation is supported by substantial
evidence in the record. Accordingly, we find that complainant has not
established by a preponderance of the evidence that her inability to
count efficiently and accurately was not the real reason she did not
pass the training program.
Complainant also argues that the agency should have offered her a
reasonable accommodation, in the form of re-training, that would have
enabled her to pass the qualification program. Initially, we note
that the record does not support a finding that complainant requested
a reasonable accommodation. In order to determine the appropriate
reasonable accommodation, the employer may need to "initiate an informal,
interactive process with the qualified individual with a disability
in need of the accommodation." 29 C.F.R. � 1630.2(o)(3). "While the
individual with a disability does not have to be able to specify the
precise accommodation, she does need to describe the problems posed by
the workplace barrier. Additionally, suggestions from the individual
with a disability may assist the employer in determining the type
of reasonable accommodation to provide." EEOC Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans With
Disabilities Act (March 1, 1999). The employer must be given the
opportunity to accommodate. Beck v. Univ. of Wisconsin Bd.. of Regents,
75 F.3d 1130 (7th Cir. 1996). There is nothing in the record to indicate
that the agency knew complainant needed an accommodation in order to be
successful on the qualification program.<2>
Finally, the Commission notes that complainant requested that the
Administrative Judge amend the complaint at issue to include a removal
action which occurred in November 1995. The Administrative Judge denied
both complainant's motion and complainant's request for reconsideration
of that motion after determining that the issues were not like or
related and after concluding that there was no evidence to support
complainant's contention that the EEO Counselor assured complainant that
the instant complaint would be amended. We discern no basis to disturb
the Administrative Judge's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal and arguments
and evidence not specifically addressed in this decision, we affirm the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 19, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The 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.
2 Moreover, after she failed to meet the minimum standards, the agency
twice offered complainant three additional days of training in an effort
to help her pass the qualification program. The Administrative Judge
noted that complainant rejected the agency's offer on both occasions,
contending that the offer would have required her to work twice as fast
as her trainer. The Administrative Judge found no evidence to support
that contention.