01A00254
09-23-2002
Sharon R. O'Brien, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sharon R. O'Brien v. United States Postal Service
01A00254
09-23-02
.
Sharon R. O'Brien,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00254
Agency No. 4G-780-0162-98
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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., and Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e-16. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final decision.
ISSUE
Whether the agency discriminated against complainant because of her sex
(female) and disability (carpal tunnel syndrome) when from December 8,
1997 to January 15, 1998, complainant was denied a light duty assignment.
BACKGROUND
Complainant worked with the agency as a city carrier, and was assigned
to the Highland Hills station, working in a �limited duty� status.
On October 10, 1997, complainant's doctor asserted that complainant was
restricted from lifting or carrying 15-20 pounds intermittently for up to
six hours/day, and from performing simple grasping and fine manipulation
for �right now.� Despite these restrictions, complainant continued to
case her mail. On December 2, 1997, complainant was awarded a bid as
a temporarily disabled employee<1> for a position as a city carrier
at the Cresthaven station, effective December 6, 1997. Complainant
asserted that, when she reported for her new position at the Cresthaven
station, she was placed in a leave without pay status because the agency
asserted it had no �light duty� work available for complainant within
her restrictions. The agency's supervisor (Supervisor A) at Cresthaven
attested that the only light duty work it had available was casing mail
in the mornings, which Supervisor A asserted complainant could not
perform because of her physical restrictions. Supervisor A attested
that three limited duty employees (all male) performed other duties
such as answering the telephone, cutting and doing mark-ups, and that
complainant was denied work casing mail because there was a possibility
of aggravating her existing medical condition. Supervisor A's attestation
was corroborated by the Manager of Customer Service Operations, who stated
that complainant's restrictions precluded her from casing mail and that
the agency had no positions available for complainant to perform within
her restrictions. For these reasons, complainant was placed on annual
leave or leave without pay from December 8, 1997 - January 15, 1998.
Complainant sought EEO counseling and subsequently filed a formal
complaint on July 26, 1998, alleging that she was discriminated against as
set out above. At the conclusion of the investigation, complainant was
informed of her right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to show by a
preponderance of the evidence that she was the victim of intentional
discrimination.
On appeal, complainant contended that the agency failed to reasonably
accommodate her disability; the agency did not submit an appeal statement.
ANALYSIS
Under the Commission's regulations, an agency is required to make
reasonable accommodations for 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. Part 1630;
Sigwalt v. Broadcasting Board of Governors, EEOC Petition No. 03A10022
(Aug. 17, 2001). An "individual with a disability" is defined under
the Commission's regulations as one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such an impairment; or (3) is regarded as having
such an impairment. 29 C.F.R. � 1630.2(g); Sigwalt, supra. Major life
activities include, but are not limited to, caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
lifting and working. 29 C.F.R. � 1630.2(i); 29 C.F.R. Part 1630 App.
A "qualified" individual with a disability is one who satisfies the
requirements for the employment position he holds or desires and
can perform the essential functions of that position with or without
reasonable accommodation. 29 C.F.R. 1630.2(m); Sigwalt, supra.
Assuming complainant is a qualified individual with a disability, she
failed to show that she asked for a reasonable accommodation which the
agency denied. Complainant's desired accommodation, to be able to case
mail, was outside of her doctor's restrictions, and Supervisor A had no
obligation to allow complainant to work outside of her restrictions.
The agency granted complainant a reasonable accommodation by granting
her leave (paid and unpaid) until it had available a position she
could perform within her restrictions. Leave is a form of reasonable
accommodation, and this was an effective accommodation. Equal Employment
Opportunity Commission Enforcement Guidance: Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, at questions 9,
43 (Mar. 1, 1999) (the employer may choose among reasonable accommodations
as long as the chosen accommodation is effective). Complainant failed
to show how her carrier position could be restructured, nor did she
identify a job to which she could be reassigned. The manager of customer
services stated that the agency had no positions available for complainant
to perform within her restrictions; complainant adduced no evidence
otherwise. Absent such evidence, complainant cannot prevail. Hampton
v. United States Postal Service, EEOC Appeal No. 01986308 (Jul. 31, 2002)
(complainant has evidentiary burden to show that more likely than not,
vacancies existed to which complainant could have been reassigned).
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Swanks v. WMATA, 179 F.3d 929, 933-34
(D.C. Cir. 1999), we further find that, presuming complainant was a
qualified individual with a disability and that she showed prima facie
cases of disability and sex discrimination, she failed to show that the
agency's articulation (no jobs existed which complainant could perform
within her restrictions) was a pretext for discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we affirm the FAD.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____09-23-02______________
Date
1 As a limited duty employee (injured on the job) who won a bid for a
position, complainant was required to certify that within six months of
winning the bid, she could perform the essential duties of the position.