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.