01A15015
03-04-2003
Roger E. Surprenant, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Roger E. Surprenant v. United States Postal Service
01A15015
March 4, 2003
.
Roger E. Surprenant,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 01A15015
Agency No. 4B-028-0122-00
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his 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. The appeal is accepted for the
Commission's de novo review pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was a letter
carrier who held a bid position as a parcel post driver at an agency
facility in Fall River, Massachusetts. Complainant's shift started at
10:00 a.m. and concluded at 6:30 p.m. Complainant was diagnosed with
post traumatic stress disorder, and in March 1999, the United States
Department of Veterans Affairs increased his disability rating from 50%
to 70% and recommended that he join a support group. Complainant joined
a support group for Vietnam Veterans that met on Thursdays. At the time,
complainant's supervisor permitted him to change his starting time to 8:00
a.m. so that complainant would not have to use leave in order to attend
meetings of the support group. In December 1999, the plant manager
took over the floor operations and decided not to permit complainant
to change his starting time but permitted complainant to use leave,
including annual leave, sick leave, FMLA leave, or leave without pay,
in order to attend the support group.
Complainant sought EEO counseling and subsequently filed a formal
complaint on October 26, 2000, alleging that he was denied reasonable
accommodation when he was denied permission to change his schedule
to attend the support group. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. Complainant requested that the agency issue a final decision.
In its final decision, the agency found that, assuming it had an
obligation to accommodate complainant, it had done so by regularly
permitting him to take leave in order to attend meetings of the support
group. On appeal, complainant contends that he was an individual with
a disability and that it would not have been a hardship for the agency
to permit him to modify his schedule, as evidenced by the fact that for
a week in the summer of 2001, the parcel post drivers reported to work
earlier than their scheduled 10:00 a.m. start time.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to 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. �� 1630.2(o) and
(p). The agency may choose among reasonable accommodations as long as the
chosen accommodation is effective. An �effective� accommodation either
removes a workplace barrier, thereby providing an individual with an equal
opportunity to apply for a position, to perform the essential functions
of a position, or to gain equal access to a benefit or privilege of
employment. See EEOC's Enforcement Guidance on Reasonable Accommodation
and Undue Hardship (revised October 17, 2002) at question 9. If more
than one accommodation is effective, �the preference of the individual
with a disability should be given primary consideration. However,
the employer providing the accommodation has the ultimate discretion to
choose between effective accommodations.� Interpretive Guidance on Title
I of the Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.9.
Assuming arguendo that complainant was a qualified individual with a
disability<1> and that accommodating him so that he could attend meetings
of the support group would have enabled him
to gain equal access to a benefit or privilege of employment, we find
that the agency provided complainant with annual leave, sick leave,
FMLA leave, and leave without pay to attend the support group meetings
and that by doing so, the agency fulfilled its obligation under the
Rehabilitation Act to provide reasonable accommodation. We do note
that the postmaster also offered to make complainant an �unassigned
regular� letter carrier, with a starting time that would have enabled
him to attend his support group, but complainant refused the offer.
While it is clear that complainant did not receive the accommodation of
his choice, it is ultimately within the agency's discretion to choose
between effective accommodations. See Polen v. Department of Defense,
EEOC Appeal No. 01970984 (January 16, 2001). Accordingly, we conclude
that the agency did not deny complainant reasonable accommodation,
and the agency is not liable for a violation of the Rehabilitation Act.
We note that complainant attested to great difficulty in requesting
reasonable accommodation and learning about the status of his request.
The Commission has issued Policy Guidance on Executive Order 13164:
Establishing Procedures to Facilitate the Provision of Reasonable
Accommodation (October 20, 2000), and we direct the agency's attention
to it. Finally, we note that nothing prohibits an agency from
providing accommodations beyond those required by the Rehabilitation Act.
See Interpretive Guidance on Title I of the Americans With Disabilities
Act, Appendix to 29 C.F.R. � 1630.2(o).
For the reasons set forth above, the Commission affirms the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
March 4, 2003
Date
1 We note that although complainant may be
considered a disabled veteran, this is not the same as being considered
an individual with a disability under the Rehabilitation Act. See Muse
v. Department of Justice, EEOC Appeal No. 01983649 (March 9, 2000).
An individual with a disability within the meaning of the Rehabilitation
Act is one who (1) has a physical or mental impairment that substantially
limits one or more major life activities, (2) has a record of such
impairment, or (3) is regarded as having such an impairment. Major life
activities include, but are not limited to, caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. Sitting, standing, lifting, and reaching are also recognized
as major life activities. See Interpretive Guidance on Title I of the
Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
A "qualified individual with a disability" is an individual with a
disability who satisfies the requisite skill, experience, education and
other job related requirements of the employment position such individual
holds or desires, and who, with or without reasonable accommodation, can
perform the essential functions of the position. 29 C.F.R. � 1630.2(m).
With respect to whether complainant is a qualified individual with a
disability, the inquiry is not limited to the position actually held
by the employee, but also includes positions that the employee could
have held as a result of job restructuring or reassignment. See Van
Horn v. United States Postal Service, EEOC Appeal No. 01960159 (October
23, 1998).