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).