01985727
08-25-2000
Maggie A. McNally, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Maggie A. McNally v. United States Postal Service
01985727
08-25-00
.
Maggie A. McNally,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01985727
Agency No. 4H327104296
DECISION
INTRODUCTION
Maggie A. McNally (complainant) timely initiated an appeal of a final
agency decision (FAD2) concerning her complaint of unlawful employment
discrimination, in violation of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791, et seq.<1> This appeal is accepted in
accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405).
BACKGROUND
The record reveals that, during the relevant time, complainant was
employed by the agency as a Clerk. Complainant filed a formal complaint
on September 25, 1995, alleging discrimination on the bases of physical
disability (tendonitis) and mental disability (depression/anxiety)
when the agency offered her a job on May 12, 1995, that did not meet
her doctor's restrictions. On July 25, 1996, the agency issued a
final agency decision (FAD1) dismissing her complaint for failure
to state a claim. Complainant filed an appeal with the Commission.
The Commission's decision in Maggie A. McNally v. William J. Henderson,
Postmaster General, United States Postal Service, EEOC Appeal No. 01966281
(January 22, 1998) reversed FAD1 and remanded the complaint to the agency
for further processing. On July 16, 1998, the agency issued FAD2 finding
no discrimination. This appeal followed.
ANALYSIS AND FINDINGS
Under the Commission's regulations, an agency is required to make
reasonable accommodation of the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. � 1630.9(a).<2>
To establish a prima facie case of disability discrimination, complainant
must show that: 1) she is an individual with a disability as defined in 29
C.F.R. � 1630.2(g); 2) she is a "qualified" individual with a disability
as defined in 29 C.F.R. � 1630.2(m); and 3) the agency took an adverse
action against her or failed to reasonably accommodate her disability. See
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).
Complainant must also demonstrate a causal relationship between her
disabling condition and the agency's reasons for the adverse action.
The threshold question is whether complainant is an individual with a
disability within the meaning of the regulations. EEOC Regulation 29
C.F.R. � 1630.2(g) defines an individual with a disability as one who:
1) has a physical or mental impairment that substantially limits one
or more of that person's major life activities; 2) has a history of
such impairment; or 3) is regarded as having such an impairment. EEOC
Regulation 29 C.F.R. � 1630.2(i) defines "major life activities" as
including the functions of caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
The Commission finds that complainant's physical impairment of tendonitis
substantially limited her ability to lift, as her doctor stated that
she could not lift more than ten pounds. Complainant's tendonitis also
meant that, according to her physician, she could only stand and bend two
hours per day intermittently, and possibly only work two to four hours
per day. We find, due to her lifting restrictions, that complainant's
tendonitis rose to the level of a disability within the meaning of
the regulations,<3> and that she was, therefore, "an individual with a
disability" under our regulations.
Having found that complainant meets the threshold requirement which would
entitle her to the protections of the Rehabilitation Act, complainant must
also show that she is a "qualified" individual with a disability within
the meaning of 29 C.F.R. � 1630.2(m). That section defines qualified
individual with a disability as meaning, with respect to employment,
a disabled person who, with or without reasonable accommodation,
can perform the essential functions of the position in question. The
term "position in question" is not limited to the position held by the
employee, but also includes positions that the employee could have held
as a result of reassignment.
A review of the record shows that it contains an August 12, 1994 letter
from complainant's doctor stating, �I really do not believe that it
would possible for [complainant] to return to work with even very limited
activities since she is troubled when she increases her activities even
modestly at home and is unable even to write for brief periods of time
without discomfort.� Attached to that letter is a checklist, dated August
12, 1994 and filled out by complainant's doctor, detailing complainant's
limitations. The checklist says that while complainant could never work
an eight hour day, she could possibly work for two to four hours per day.
We have considered both documents, but we find the doctor's detailed
description of complainant's condition more compelling. We conclude,
therefore, that complainant could not be reasonably accommodated such
that she could perform the essential functions of any position available
at the agency. Thus, we conclude that complainant was unable to work,
even part time. We need not address whether the agency's May 12, 1995
job offer to complainant satisfied its duty of reasonable accommodation
because complainant was not a �qualified individual with a disability.�
We, therefore, find no evidence of disability discrimination.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
__08-25-00________________
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 On 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.
2 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. 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.
3 The record does not indicate how complainant's depression/anxiety
substantially limited one or more of her major life activities.