Nupith C. Adkins, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionAug 3, 2000
01975602 (E.E.O.C. Aug. 3, 2000)

01975602

08-03-2000

Nupith C. Adkins, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Nupith C. Adkins v. Department of the Army

01975602

August 3, 2000

Nupith C. Adkins, )

Complainant, )

) Appeal No. 01975602

v. ) Agency No. BODNFO-96-02G0010

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

_____________________________ )

DECISION

INTRODUCTION

Complainant filed a timely appeal with the Equal Employment Opportunity

Commission (the Commission) from the final agency decision (FAD)

concerning her allegation that the agency discriminated against her on

the basis of her physical disability (lower back injury) in violation

of � 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791

et seq. The appeal is accepted by the Commission in accordance with 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

For the reasons set forth below, we AFFIRM the FAD.<1>

ISSUE PRESENTED

The issue presented herein is whether complainant is an individual with

a disability, pursuant to 29 C.F.R. � 1630.2(g).

BACKGROUND

Complainant filed a formal complaint against the agency in February

1996. According to complainant, the agency failed to provide her with

work assignments that were within her medical restrictions. Following

an investigation, complainant was provided a copy of the investigative

file and was notified of her right to request a hearing before an EEOC

Administrative Judge. Complainant requested a final decision based on

the record. Thereafter, the agency issued a final decision, dated May

27, 1997, which found that she had not been discriminated against. It

is from this decision that complainant now appeals.

The record indicates that complainant, at the time of her complaint, was a

Food Service Worker, NA-05, at Fort Bragg, North Carolina. She worked at

the Main NCO Club. On July 18, 1994, she suffered an on-the-job lower-back

injury that rendered her unable to work. For most of the period from

July 22, 1994 to October 3, 1995, and November 17, 1995 to March 1996,

she was off-work and receiving workers' compensation benefits from the

Office of Workers' Compensation Programs (OWCP). For a period of time,

she was limited to lifting or carrying no more than 15 pounds, which

was then decreased to a limit of 10 pounds. She was also prohibited

from walking or standing for periods over three hours. Between October

1994 and January 1996, complainant was treated by several rehabilitation

clinics, which imposed various restrictions on her duties. Finally, on

January 11, 1996, Doctor Z imposed a permanent 25-pound "work restriction"

on complainant. Although Doctor Z's note is not clear on this point,

complainant and the agency both agree that the restriction applied to

lifting and carrying.

Complainant testified that, prior to her injury, she was assigned

duties such as washing dishes, mopping the floor, and taking out the

trash. She contends that management continued to assign her these types

of duties after she was placed under medical restrictions. According to

complainant, her supervisors would assign her work without asking if she

was physically capable of doing it within her restrictions. Complainant

indicated that, on occasion, management would assign someone to assist

her with tasks, but other times she had to do the work by herself.

She also maintained that when her supervisor was not around, the person

assigned to help her �would [often] not help [her] anymore.� IR page 43.

Although complainant testified that she could not bend over a mop,

had problems lifting, and could not stand for long periods of time,

she maintained that, there were plenty of tasks she could perform, i.e.,

cooking, making sandwiches, and cleaning walls and counters.

A-1, complainant's immediate supervisor since October 1995, testified that

complainant was not assigned work outside of her medical restrictions. She

noted that complainant could sweep floors, dispose of paper trash,

and remove dishes from the dishwasher. She also noted that there were

other Food Service Workers available to assist her. A-1 stated that:

I gave her a chance to help the salad person by placing food dishes on

a wheeled cart and taking it down to the lower dining room. We tried

having her sweep the floors and wiping off the appliances. She could only

sweep the middle of the floor, so someone else would have to go behind

her and sweep under the chairs and tables. Same with wiping appliances,

someone else would have to finish the top and bottom behind her and inside

of the boxes. We tried to have her take dishes off the dishwasher.

She would only take one dish off at a time and someone else would have

to put the dishes away because that would require lifting. [Complainant]

would just place them on a cart. Sometimes during lunch, we would have

her assist the sandwich maker. Sometimes she would have difficulty

under[standing] the orders.<2>

Investigation Report (IR) page 49. A-1 also indicated that �I think

we have tried everything we can do in the kitchen. She starts to work

a little bit and then she says she can't because she says it hurts.

I have never asked her to pick up things that she didn't think she could

pick up.� Id.

A-2 was complainant's supervisor from July 1992 to March 1995. He

testified that he did not consider complainant to be disabled because he

never saw anything indicating that she had a permanent disability.<3>

After complainant's fitness for duty examination, in November 1994,

revealed that she had a lifting restriction, A-2 stated that he

contacted the Civilian Personnel Office (CPO) because he felt that she

could perform few of the duties of the Food Service Worker position and

he had no work for her to do. According to A-2, CPO advised him that

complainant could be placed on sick leave while they attempted to find

her other employment. A-2 stated that the kitchen was a busy area and he

was concerned that complainant might injure herself. Therefore, she was

advised to return only when her doctor released her from restrictions.<4>

Finally, we note A-2's testimony that he already had a short order cook

to perform the duties that complainant maintained she could do.

A-3, the NCO Club Manager, stated that he discussed complainant's

situation with Management Employee Relations in an attempt to keep her

employed. He maintained that she did not have the qualifications or

communication skills for other positions in the Club system. He denied

that management assigned her duties outside of her restrictions.

He stated that, every time complainant returned to duty, efforts were

made to insure that she performed tasks within her limitations.

B-1, a Personnel Assistant, acknowledged that efforts were made to secure

other positions in the Club system for complainant. She stated that:

[w]e always try to find light duty for the employee. We tried in

[complainant's] case. Management at the NCO Club would be in a better

position to tell you what light duty they assigned her. I spoke with the

Staffing Specialist on more than one occasion, gave her [complainant's]

file, and asked her to look at our system for a position where

[complainant] could be placed with her restrictions and qualifications.

Because she had no typing or computer skills, was restricted in what

duties she could perform, and had problems with her communication skills,

the Staffing Specialist found no position in which [complainant] could

be placed.

IR page 65-66. She also indicated that:

I recall speaking with [A-2] on at least one occasion. He said that

he was having a real problem in trying to accommodate [complainant]

with light duty. He said that she was unable to lift hardly anything.

He tried to give her something to do verbally, e.g., give the cook

food orders, but her communication skills prevented her from getting

the orders right. He also said that she was creating a morale problem

because she was standing around doing nothing. He was also concerned

that she not reinjure herself or make her condition any worse. He asked

if there was any other position where [complainant] could be placed.

At that point, I went to the Staffing Specialist for a job search.

Id. B-1 maintained that complainant's position could not be restructured

to meet her medical restrictions because of the bending, stooping,

and lifting that was required. The record also indicates that she

was considered for a position as a �BINGO Caller,� but she could not

communicate well enough to call out the numbers.

IR page 43. The Food Service Worker position description indicates that

the major duties of the position are cleaning general kitchen equipment,

stacking items to dry, washing floors, walls, storage rooms, work areas

using a step ladder, and placing items in storage areas. The position

required frequent lifting of objects between 30 and 50 pounds and constant

standing and walking in areas where there was a danger of slippage.

ANALYSIS AND FINDINGS

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)<5>; 2) she is a "qualified" individual with

a disability as defined in 29 C.F.R. � 1630.2(m)<6>; and (3) there

is a nexus between her disability and the agency's adverse employment

action. See Prewitt v. United States Postal Service, 662 F.2d 292

(5th Cir. 1981).<7> The threshold question is whether complainant is

an individual with a disability within the meaning of the regulations.

An individual with a disability is 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 record of such impairment; or 3) is regarded as

having such an impairment. 29 C.F.R. � 1630.2(g). Major life activities

include the functions of caring for one's self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working. 29

C.F.R. � 1630.2(i).

An impairment is substantially limiting when it prevents an individual

from performing a major life activity or when it significantly restricts

the condition, manner or duration under which an individual can perform

a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability

to perform the major life activity must be restricted as compared to

the ability of the average person in the general population to perform

the activity. Id. At the outset, we note that the record contains

numerous notes from various doctors setting forth complainant's work

restrictions. The record, however, does not contain medical information

regarding the exact nature and severity of complainant's back injury.

We find, however, that the complainant has a record of an impairment

which substantially limits a major life activity. Specifically, she

has an impairment that, in the past, has restricted her from, among

other things, lifting anything over 10 pounds. The lifting restriction

alone constitutes a record of a disability. Selix v. USPS, EEOC Appeal

No. 01970153 (March 16, 2000).

Having found that the complainant is an individual with a disability

within the regulatory definition, we must 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).

We find that the complainant is not a qualified individual with a

disability. Due to complainant's physical impairment, she is unable

to lift or carry objects that weigh more than twenty-five pounds.

This restriction prevented complainant from performing the essential

functions of the Food Service Worker position.<8> 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. We note that, after it was determined that complainant's

position could not be restructured to meet her needs, the agency tried to

find another position for her. This effort proved unsuccessful because

of her lack of qualifications and due to �communication� problems.

Based upon the record before us, we conclude that the agency did not

discriminate against complainant.

CONCLUSION

Accordingly, it is the decision of the Commission to AFFIRM the agency's

final decision in this matter.

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:

__08-03-00_______ __________________________________

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 claimant, claimant's representative

(if applicable), and the agency on:

_________________________

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.

2Complainant testified that she did not have any communication problems

when the waitress gave her the customer's order verbally. She could,

however, not understand the orders when they were written. According

to complainant, the waitress normally wrote down the order and gave the

ticket to the person making the sandwich. Complainant, we note, did not

allege that her claim of discrimination was based on the �communication

problems� that she had with the waitress. We also note that there is

no evidence that these �communication problems� were attributed to a

speech impediment or an accent.

3A-2, we note, described himself as being disabled.

4Although we find A-2's comments to be troubling, we find no persuasive

evidence that they were accompanied by any concrete action. There is

no evidence that complainant was not allowed to return to work, in

the kitchen, after the comments were made. We note in this regard

that the agency, in its FAD, indicated that "the record is silent as

to what transpired after CPO's efforts proved unsuccessful and what

occurred subsequent to management learning of the permanent restriction

of lifting."

5See also Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S.Ct. 2139

(1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516, 119

S.Ct. 2133 (1999); Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 119

S.Ct. 2162 (1999); and Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196

(1998).

6See also Cleveland v. Policy Management Systems Corp., 526 U.S. 795,

119 S.Ct 1597 (1999).

7The 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.

8Contrary to complainant's contention, the agency was under no obligation

to allow her to permanently perform certain nonessential duties of

her position, i.e., cooking, making sandwiches, and cleaning walls and

counters. See Spry v. USPS, EEOC Petition No. 03980078 (December 11,

1998).