0120100348
04-18-2012
Rochelle Roberson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Rochelle Roberson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120100348
Hearing No. 550-2007-00358X
Agency No. 1F-942-0007-06
DECISION
On October 27, 2009, Complainant filed an appeal from the Agency's September 24, 2009, final order concerning her equal employment opportunity (EEO) complaint alleging 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 Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
Complainant began working for the Agency in 1983 as a Parcel Post Distribution Clerk. Due to shoulder and back injuries in the 1990s, she accepted a limited duty modified clerk position in 1996.2 This position was essentially a "make work" position where she sorted extremely light mail, tracked packages and answered customer's questions about packages for four hours per day. In November 2004, she stopped working and was receiving compensation from the Office of Workers' Compensation Programs (OWCP). On June 19, 2006, after being absent approximately 19 months, Complainant appeared at work presenting medical documentation from her treating physician that significantly conflicted with medical evaluations recently conducted by the Department of Labor's contract physician. Consequently, Complainant was sent home.
On March 28, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when the Agency did not allow her to return to work.3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over the Complainant's objections, the AJ assigned to the case granted the Agency's December 24, 2007, motion for a decision without a hearing and issued a decision on September 14, 2009.
In her decision, the AJ framed the claim as one of disparate treatment and found that the Agency had articulated a legitimate, non discriminatory reason for sending Complainant home, namely that on June 19, 2006, when she appeared at work after an almost nineteen month absence, she brought with her updated medical restrictions from her own treating physician which were inconsistent with restrictions identified by the Department of Labor's physician who was assigned in the Spring 2006 to evaluate Complainant. The AJ concluded that Complainant presented no evidence that this explanation was a pretext for discrimination. The Agency subsequently issued a final order adopting the AJ's conclusions.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in analyzing the claim under a disparate treatment framework. Instead, according to Complainant, the AJ should have framed the claim as denial of reasonable accommodation. In that vein, Complainant argues that she was a qualified individual with a disability because she had been performing the duties of her modified position since 1998 and that the Agency denied her accommodation when it did not allow her to return to work in June 2006 and continuing.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
In order to establish entitlement to coverage under the Rehabilitation Act, Complainant must prove that she is a qualified individual with a disability. A qualified individual with a disability is an individual with a disability who can perform the essential functions of the position she holds or desires, with or without accommodation. Upon review of the record, we find that the AJ's issuance of a decision without a hearing was appropriate, viewing the claim as both an instance of disparate treatment and a denial of reasonable accommodation because contrary to Complainant's argument on appeal, she failed to prove that she was a qualified individual with a disability within the meaning of the Rehabilitation Act.
For purposes of this decision, we will assume arguendo that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. While Complainant cites to Commission precedent where we have found that individuals working in modified positions can sometimes be qualified individuals with a disabilities for purposes of coverage, we distinguish those cases from the instant situation because Complainant was not in fact working in a modified position when she invoked her rights under the Rehabilitation Act. See Dellenger v. United States Postal Serv., EEOC Appeal No. 07A40040 (Sept. 29, 2005); Iftikar-Khan v. United States Postal Serv., EEOC Appeal No. 07A40137 Dec. 16, 2005). Contrary to her claim that she had been working in a modified position continuously since 1996, she had, in fact, been absent for almost nineteen months, and when she returned, she brought with her a new restriction, limiting herself to only sedentary work. A reasonable fact finder would have to conclude that she was admitting she could no longer perform the duties of the modified position she accepted in 1996. In the limited cases where we have found coverage, the individuals were continuously and successfully performing the duties of their long standing modified positions. Further, we note that Complainant did not identify any vacant funded position for which she was qualified and to which she could have been reassigned.
The Rehabilitation Act does not require the Agency to create a job as a form of reasonable accommodation. Limited duty positions are jobs that the Agency creates consistent with its obligations under the Federal Employees Compensation Act as a means of returning injured employees to work. It is undisputed that Complainant returned to work after an absence of almost nineteen months, with a new restriction of only performing sedentary work. Given the length of time Complainant had been absent from her modified position and the fact that she was presenting a request for exclusive sedentary work, which was not an element of the 1996 modified position, a reasonable fact finder would have to conclude that Complainant was asking the Agency to either further modify a limited duty position or to create a new one. The Rehabilitation Act does not require the Agency to do either of those things.
For the reasons set forth above, we find that no reasonable fact finder could have concluded that Complainant was a qualified individual with a disability within the meaning of the Rehabilitation Act. Thus, the AJ's issuance of a decision without a hearing was appropriate. We discern no basis to disturb it, and we AFFIRM the Agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
April 18, 2012
__________________
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
2 Throughout the record, 1996 and 1998 are used interchangeably with regard to when Complainant accepted this position.
3 Complainant initially included other claims but subsequently withdrew them.
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0120100348
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013