Stacey A. Radcliffe-Brown, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid West Areas), Agency.

Equal Employment Opportunity CommissionJan 19, 2001
01a00728 (E.E.O.C. Jan. 19, 2001)

01a00728

01-19-2001

Stacey A. Radcliffe-Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid West Areas), Agency.


Stacey A. Radcliffe-Brown v. United States Postal Service

01A00728

1/19/01

.

Stacey A. Radcliffe-Brown,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(Great Lakes/Mid West Areas),

Agency.

Appeal No. 01A00728

Agency No. 4J-606-0004-98

Hearing No. 210-99-6281X

DECISION

Complainant timely initiated an appeal from the agency's final

decision concerning her equal employment opportunity (EEO) 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.<1> The appeal is accepted pursuant to 29

C.F.R. � 1614.405. Complainant alleges she was discriminated against

on the basis of disability (back pain) when: (1) on September 12, 1997,

she was sent home from work; and (2) by letter dated October 10, 1997,

she was issued a Letter of Decision - Separation/Disability. For the

following reasons, the Commission AFFIRMS the agency's final decision.

The record reveals that complainant, then a City Carrier at the agency's

Englewood Station, Chicago, Illinois facility, filed a formal EEO

complaint with the agency on December 5, 1997, alleging that the agency

had discriminated against her as referenced above. At the conclusion

of the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

Following a hearing, the AJ issued a decision finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of disability discrimination because she failed to show that she is an

individual with a disability. At the time in question, complainant

was restricted to a sitting job with an armchair and back support.

Her physician restricted her to lifting no more than five pounds, and

instructed her to avoid bending and stooping. Although complainant

contended that her impairment substantially limited the major life

activities of walking and standing, the AJ found complainant failed

to specifically identify how she was limited when she performed these

activities. Further, the AJ found the agency did not regard complainant

as disabled because it did not view complainant as �unable to work in any

capacity.� RD at 2. Finally, the AJ found no evidence that complainant

has a record of a disability.

Assuming complainant was a qualified individual with a disability,

the AJ found she failed to prove that she was sent home from work,

removed, and denied a reasonable accommodation because of her disability.

Since her injury in 1994, complainant had been provided clerical work that

was within her medical restrictions. The Manager of Customer Services

testified that the reason she sent complainant home on the day in

question was because there was no available work within complainant's

medical restrictions since the facility was at a full complement.

Although complainant argued that this was a pretext for discrimination

because the Manager permitted another light duty employee to stay and

work, the AJ found the two individuals were not similarly situated.

The Manager of Customer Services also testified that she issued

complainant's Notice of Removal because there was no available work

within complainant's work restrictions. Before doing so, however, on

June 6, 1997, the agency mailed complainant a notice that presented her

with several options regarding her employment with the agency. One of

these options included reassignment to one of three positions that were

in compliance with complainant's medical restrictions.<2>

In sum, the AJ found that complainant had been provided a reasonable

accommodation when the agency assigned her light or limited duty work

since her injury. When there was no more available clerical work for

complainant to do, the agency provided her with an opportunity for

reassignment as a reasonable accommodation before it issued the Notice

of Removal. The evidence did not establish, however, that complainant

responded to the agency's offer of reassignment. Thus, the AJ found

that the agency did not discriminate against complainant on the basis

of disability.

On September 23, 1999, the agency issued a final decision adopting the

AJ's recommended decision. Complainant makes no new contentions on

appeal, and the agency requests that we affirm the FAD.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings

by an Administrative Judge will be upheld if supported by substantial

evidence in the record. Substantial evidence is defined as �such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.� Universal Camera Corp. v. National

Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).

A finding that discriminatory intent did not exist is a factual finding.

See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).

As an initial matter, we note our disagreement with the AJ's finding that

complainant is not an individual with a disability. The record reveals

that complainant's medical restrictions at the pertinent time limited

her to lifting, pulling or pushing no more than five pounds, and also

required her to avoid repeated bending or stooping. Therefore, we find

that complainant is substantially limited in the major life activities

of performing manual tasks and lifting. In light of our finding that

complainant is substantially limited in a major life activity, we need

not examine whether the agency regarded her as disabled.

We agree with the AJ's recommended finding of no discrimination.

The record reveals the agency satisfied its obligation to provide

complainant with a reasonable accommodation of her disability when

it offered her the opportunity for reassignment. However, the AJ

found no persuasive evidence establishing that complainant responded

to the reassignment opportunity, as complainant was required to do.

Nonetheless, we agree with the AJ's finding that the agency provided

complainant with an opportunity for reassignment to another position

when it ran out of available clerical work for her to do, and thus,

satisfied its obligation to provide a reasonable accommodation.

Accordingly, after a careful review of the record, the Commission

finds that the AJ's decision properly summarized the relevant facts

and referenced the appropriate regulations, policies, and laws, with

the exceptions noted above. We discern no basis to disturb the AJ's

decision. Therefore, after a careful review of the record, including

arguments and evidence not specifically addressed in this decision,

we AFFIRM the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

1/19/01

Date

1 On 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. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.

2The agency offered complainant reassignment to the following positions:

Flat Sorter Machine Operator, Part Time Regular Mail Processor, or PTFS

Distribution Clerk.