01975406
09-11-2000
Sheila M. Thomas, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Sheila M. Thomas v. United States Postal Service
01975406
September 11, 2000
.
Sheila M. Thomas,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01975406
Agency No. 1-G-756-1070-96
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C.<1> 2000e et seq., and Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq.<2> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405).<3> Complainant alleges that she was discriminated
against on the basis of her race (Black), sex (female), and physical
disability (chronic neck pain) when she was removed rather than provided
light duty. For the following reasons, the agency's decision is AFFIRMED.
BACKGROUND
The record reveals that complainant, a clerk at the agency's Dallas,
Texas Bulk Mail Center, suffered an on-the-job injury in 1988, and
subsequently an off-duty injury. Complainant's claim for worker's
compensation benefits was disallowed by letter from the Department of
Labor dated November 4, 1993. At that time, she was taken off the clock,
and placed on leave without pay (LWOP) status. On November 29, 1993,
and continuing thereafter for a period of years, complainant submitted
requests for light duty, all of which were denied.<4>
Following an absence inquiry dated May 23, 1995, and a pre-disciplinary
hearing held on December 29, 1995, complainant was issued a notice of
removal dated February 5, 1996, effective March 11, 1996. The notice of
removal stated that the reasons for removal were that complainant was
"unavailable to perform the essential duties of [her] assigned position
and failure to provide acceptable documentation for continued absence
resulting in AWOL." Record of Investigation (ROI) at 53.<5> In her
affidavit, the Acting Supervisor responsible for the removal decision
at issue attests that complainant was removed "because of her limitation
on her request for light duty." ROI at 21-22?
Complainant filed a formal EEO complaint with the agency on May 28, 1996,
alleging that the agency had discriminated against her based on race, sex,
and disability by removing her rather than affording her light duty. At
the conclusion of the investigation, complainant was provided a copy
of the investigative report and was advised of her right to request
a hearing before an Equal Employment Opportunity Commission (EEOC)
Administrative Judge (AJ), but did not do so. The agency issued its,
FAD on May 28, 1997, finding complainant had not proven discrimination
on any basis. Specifically, the FAD concluded that complainant failed to
establish a prima facie case of race or sex discrimination because she
failed to identify similarly-situated employees outside her protected
class who were treated more favorably, or to identify other evidence
which would support an inference of discrimination. The FAD further
concluded that complainant failed to establish a prima facie case of
disability discrimination because she was not a "qualified individual with
a disability," inasmuch as management officials attested that complainant
could not be accommodated in light of her severe lifting restriction.
Complainant has submitted no contentions on appeal. The agency stands
on the record and requests that the Commission affirm its FAD.
ANALYSIS AND FINDINGS
Based on a careful review of the record, we find that the record supports
the FAD's conclusion that complainant failed to establish a prima facie
case of race or sex discrimination for the reasons reviewed in the FAD.
With respect to complainant's disability discrimination claim,
complainant must first establish that she is a "qualified individual
with a disability" within the meaning of the Rehabilitation Act. An
individual with a disability 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. Lifting has also been recognized by
this Commission as a major life activity. See, e.g., Haygood v. United
States Postal Service, EEOC Appeal No. 01976371 (April 25, 2000); Selix
v. United States Postal Service, EEOC Appeal No. 01970153 (March 16,
2000). 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.
The ROI contains a series of light duty request forms completed by
complainant's physician between 1993 and 1996, each stating that
she had chronic shoulder spasms or chronic shoulder pain, with
varying medical restrictions. See ROI at Exhibit 3. The last light
duty request submitted before complainant's removal became effective
advised the agency that due to complainant's chronic shoulder pain, she
had the following restrictions, inter alia: no lifting in excess of ten
pounds; no reaching to any height; minimal stooping, bending, pushing,
or pulling; and a maximum schedule of three 8-hour shifts per week. ROI
at 92. The agency has not rebutted this evidence regarding complainant's
limitations. Thus, we conclude that complainant's physical impairment,
at a minimum, substantially limited her ability to lift, and therefore
complainant is an "individual with a disability" under the Rehabilitation
Act. See Haygood v. United States Postal Service, EEOC Appeal No. 01976371
(April 25, 2000).
With respect to whether or not 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). Therefore, "[o]nly after determining that reassignment to a vacant
position was not possible or would result in an undue hardship, would the
Rehabilitation Act permit the agency to conclude that [a complainant]
is not a qualified individual with a disability." Kitaura v. United
States Postal Service, EEOC Petition No. 03980089 (March 11, 1999).
In the instant case, the record reveals that management attempted
to accommodate complainant through reassignment but there were no
vacant positions for which she was qualified given her lo-pound lifting
restriction. See ROI at Exhibit 3. Complainant has submitted no evidence
to dispute this conclusion. Although complainant contends, ROI at 4,
that there were vacant light duty positions which were given to other
employees, the employees who received those positions had different
restrictions. See ROI at 43-46 (employee only restricted from "keying");
ROI at 47-48 (employee had 25-pound lifting restriction). Accordingly,
we find that complainant has not met her burden to establish that she
is a qualified individual with a disability under the Rehabilitation Act.
CONCLUSION
Accordingly, after a careful review of the record, including arguments
and evidence not discussed in this decision, the FAD is AFFIRMED.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 11, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The 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.
2On 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.
3The record contains ten light duty requests pre-dating the effective date
of complainant's removal. See ROI at 72-95 (requests dated November 29,
1993, January 24, 1994, April 26, 1994, August 23, 1994, September 15,
1994, October 3, 1994, October 13, 1995, December 22, 1995, January 25,
1996, and February 22, 1996).
4Complainant's notice of removal further stated that when complainant's
worker's compensation claim was disallowed by letter dated November 4,
1993, she was instructed to apply for re-employment within thirty days,
but she neither returned to duty nor "contact[ed] the Postal Service
until some months later." ROI at 53. This appears contradicted by the
record evidence that on November 29, 1993, complainant submitted a light
duty request with medical documentation signed by her physician, which
the agency denied by letter dated December 7, 1993. ROI at 72-73.
5The record reveals that the notice of removal was subsequently rescinded
pursuant to a pre-arbitration settlement of a grievance, in order to
permit complainant an opportunity to apply for disability retirement or
to appeal the denial of her worker's compensation claim. See ROI at 101.