01990574
11-09-2000
Wendy Ghannam, Complainant, v. Brian J. Atwood, Administrator, Agency for International Development, Agency.
Wendy Ghannam v. U.S. Agency for International Development
01990574
November 9, 2000
.
Wendy Ghannam,
Complainant,
v.
Brian J. Atwood,
Administrator,
Agency for International Development,
Agency.
Appeal No. 01990574
Agency No. EOP-96-04
Hearing No. 100-97-7514X
DECISION
Complainant timely initiated an appeal from the final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
and 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. In several complaints consolidated by the
agency, complainant alleges she was discriminated against based on race
(Caucasian), sex (female), and disability (carpal tunnel syndrome and
tendinitis), when:
(1) from August 1994 onward, the agency failed to accommodate her
disability;
(2) from June 10, 1995 through November 20, 1995, she was placed on absent
without leave (AWOL) status while unable to work due to her disability;
(3) from June 10, 1995 through August 20, 1995, she was denied worker's
compensation;
(4) she was downgraded and denied a step increase when she returned to
work on November 20, 1995; and
(5) she was denied reasonable accommodation (personal assistance,
assistive technology, and counseling) and training after she returned
to work and she was reassigned.
Complainant further alleges she was retaliated against when:
(6) in February 1996, the agency contacted her health plan provider
and demanded an investigation of her health program, resulting in
discontinuation of coverage for her dependent son; and
(7) her signature on her 1994-95 evaluation was forged during her
medical absence.
For the following reasons, the FAD is AFFIRMED IN PART AND REVERSED IN
PART.
The record reveals that complainant was employed at the agency from 1988
to 1996. From September 1993 until November 1995, she was an Employee
Development Assistant, GS-7 at the agency's Rosslyn, Virginia facility.
Her immediate supervisor (S1) was Chief of the Training Division,
GS-15. In late 1994, complainant provided medical documentation to her
supervisor which indicated that she was developing carpal tunnel syndrome,
and was restricted to one-hour periods of typing, with 45-minutes of
non-typing tasks in between. See Hearing Transcript (HT) at 204, 216.
As part of accommodating complainant, S1 arranged for her to perform
non-typing tasks in the library several hours per week. S1 also advised
complainant that if she enjoyed the library work, the agency might be able
to provide her with training in order to transfer to a library assistant
position. According to S1, the librarian advised her that complainant
did not complete her assigned work, and library interns complained that
complainant spent too much time talking to them, keeping them from their
work. Accordingly, complainant's several-hours-per-week assignment to
the library was discontinued. HT at 211. S1 also assigned complainant
to spend part of her time on a task force designing a new employee
evaluation program, which did not involve typing duties. S1 received
feedback that complainant was not carrying out all assigned tasks, and
that complainant was unhappy with the assignment. Complainant asked for
a role in training secretaries, but did not attend a train-the-trainer
class for which she was registered.
Complainant's medical condition worsened, and she commenced a long-term
absence in June 1995. Although complainant contends she had received
approval for advanced sick leave, the agency denied this and placed her
on AWOL status. By letter dated July 20, 1995, complainant's physician
advised S1 that complainant had been diagnosed with tendinitis,
epicondylitis, and early carpal tunnel syndrome, "is not able to
perform any computer or typewriting activities," and should also avoid
rapid repetitive movements with either hand. The letter further stated
complainant "is not able to carry out her job activities because of severe
pain and paresthesias which she gets with rapid repetitive movements
of typing and working on the computer, and is "unlikely to return to
work in the near future" due to worsening pain despite intense therapy.
The letter concluded that if complainant returned to work performing
"the same type of activities, particularly typing and working on the
computer, she will further worsen her condition."
Following communications between complainant's physician and an OWCP
representative regarding what complainant would require in order
to return to work, it was determined that there were no vacant GS-7
positions to which complainant could be transferred consistent with her
medical restrictions, and therefore on November 8, 1995, complainant
was offered a GS-3 step 10, Information Receptionist position.<2> By
letter dated November 9, 1995, complainant confirmed to S1 that she had
"conditionally accepted" the receptionist position to commence November
20, but that she believed the agency had failed to consider accommodating
her in her prior GS-7 secretarial position and intended to continue to
pursue accommodation in the prior position.
Complainant returned to work on November 20, 1995. On December 12,
1995, her physician faxed a letter stating that pursuant to a follow-up
examination of complainant on November 29, 1995, he requested that the
agency consider assistive technology which would permit complainant to
resume the duties of her former secretarial position without having to
perform rapid, repetitive hand movements. The agency took no action on
this request. The agency did provide complainant with a headset for
her telephone so that she would not have to use her hands, although
complainant contends that she did not receive the headset until May,
1996, and that it never worked properly. S1 contends she never saw
complainant use the headset. S1 also contends that complainant did not
perform well in the receptionist position, noting that there were numerous
complaints that complainant was discourteous, unhelpful, complained about
the agency, and tried to convert people to her religion. S1 contends that
she counseled complainant about these matters with little improvement.
On September 30, 1996, complainant's receptionist position was subject
to a reduction-in-force, and she was separated from the agency.
Complainant filed a formal EEO complaint with the agency on or about
December 12, 1995, 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 that complainant
failed to establish discrimination on any basis. Specifically,
with respect to complainant's claim that she was denied reasonable
accommodation of her disability, the AJ assumed arguendo that
complainant is an individual with a disability within the meaning of
the Rehabilitation Act, but concluded that she was "not a qualified
individual with a disability with respect to the . . . GS-7 position,"
finding that she could not perform the essential function of typing with
or without accommodation. The AJ did not expressly address whether
or not complainant was nonetheless a "qualified individual with a
disability" because she was qualified for another position to which
she could be reassigned, i.e. the receptionist position to which she
was transferred.
The AJ nonetheless proceeded to analyze whether the agency had provided
complainant with reasonable accommodation, concluding that the agency
had attempted to accommodate complainant but complainant had failed
to cooperate by failing to perform satisfactorily in the library.
The AJ found that the agency's "final accommodation" attempt was to
reassign complainant to the receptionist position. The AJ found that
reassignment to the receptionist position was a reasonable accommodation,
and that there was unrebutted testimony that complainant failed to use the
telephone headset the agency provided to her as part of its accommodation.
The AJ found that by the time complainant's physician suggested in his
December 12, 1995 letter that the agency consider "the possibility of
assistive technology" to permit complainant to resume her secretarial
duties, the agency had no further duty to accommodate complainant because
the reassignment had been a reasonable accommodation and complainant
had failed to cooperate and to perform satisfactorily in the past.
The AJ further stated that "[t]his finding is also based on the fact
that I find the remainder of complainant's allegations wholly without
merit and find that a large part of her testimony was contradicted by
other witnesses and by the evidence of record." The FAD adopted the AJ'
s recommended decision.
On appeal, complainant contends, inter alia, that: (1) the agency
improperly denied her participation in the donated leave program
and interfered with her worker's compensation coverage; (2) she was
denied accommodation because she was never offered assistive technology
for computer work; (3) the library duties she was given or could have
obtained as a library assistant would not have constituted a reasonable
accommodation because she still would have required computer assisted
technology in order to perform certain aspects of the job; (4) any
non-attendance at training sessions was due to conflicting medical
appointments she had; and (5) the telephone headset with which she was
provided did not work. In support of her arguments, complainant has
submitted documentary evidence relating to her worker's compensation
claim, leave issues, prior performance evaluations, voice-activated
computer technology, and other matters.
In response, the agency contends that: (1) complainant's assertions about
agency witness perjury are unsupported by the record, and the AJ correctly
found that complainant herself was not credible; (2) complainant has not
justified the introduction of new evidence on appeal; (3) complainant and
her doctors failed to identify a particular accommodation, except for a
"vague" reference to assistive technology; and (4) the agency was under
no duty to keep complainant in her original GS-7 secretarial position
because she could not perform one of its essential functions, typing,
with or without accommodation.
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).
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. 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 record supports a finding that complainant is an individual with a
disability, because her carpal tunnel syndrome substantially limited her
in the major life activity of performing manual tasks. Specifically,
the physician's letters referenced above establish that complainant was
medically restricted from performing any tasks involving rapid repetitive
movements with either hand, including but not limited to any computer
or typewriting activities.<3> The record also supports a finding that
complainant is a "qualified" individual with a disability. This 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). When an employee
cannot perform the essential functions of her current position because
of a disability, and no accommodation is possible in that position,
reasonable accommodation includes reassignment to another position.
Ignacio v. United States Postal Service, EEOC Petition No. 03840005
(September 4, 1984), aff'd, 30 M.S.P.R. 471 (Spec. Pan. February 7,
1986). While the agency is not obligated to create a new position for
complainant, it must make a good faith effort to locate a vacant, funded
position for which complainant was qualified. 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, complainant was
clearly a "qualified" individual with a disability because, at a minimum,
it is undisputed that she could perform the essential functions of the
receptionist position to which she was reassigned.<4>
We therefore turn to the issue of whether the agency fulfilled its
obligation to provide complainant with reasonable accommodation. On the
facts of this particular case, the agency acted legitimately in attempting
reassignment based on complainant's physician's initial letters which
advised that she could perform no computer work, and did not specify
the accommodation of assistive technology. However, we find that the
agency did not satisfy its duty to provide reasonable accommodation when
it declined even to consider her physician's December, 1995 proposed
accommodation of providing complainant with assistive technology,
e.g. voice activated computer software, to permit her to perform the
duties of her GS-7 secretarial position. It is undisputed that prior
to commencing the GS-3 receptionist position to which she had been
reassigned, complainant advised S1that she accepted the reassignment
"conditionally" in light of the agency's failure to accommodate her
in her prior position, and that she still sought such accommodation.
Within approximately three weeks of complainant commencing work in the
receptionist position, her physician specifically proposed that the agency
consider assistive technology. S1 testified that no action was taken on
this letter because the agency believed it was too late for complainant to
request accommodation where she had already "accepted" the reassignment.
Reassignment is the accommodation of "last resort," and is to be
considered only after a determination has been made that an individual
cannot be accommodated in his current position or that such accommodation
would impose an undue hardship on the agency. EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans With
Disabilities Act (March 1, 1999); Essenfeld v. National Security Agency,
EEOC Appeal No. 01961377 (December 12, 1997); Interpretive Guidance
on Title I of the Americans With Disabilities Act, Appendix. to 29
C.F.R. Part 1630.2(o). "Reassignment may be considered if there are
circumstances under which both the employer and the employee voluntarily
agree that it is preferable to accommodation in the present position."
EEOC Enforcement Guidance on the Americans With Disabilities Act and
Psychiatric Disabilities (March 25, 1997) at question 29 (emphasis
in original).
In the instant case, complainant "conditionally accepted" the offered
reassignment, advising S1 that she still sought accommodation in her
original position, and within weeks her physician proposed that the
agency consider whether assistive technology could be used to permit
complainant to resume her original duties. In these circumstances, we do
not find that the interactive process, or the agency's ongoing duty to
accommodate a qualified individual with a disability, was terminated by
virtue of complainant's reassignment to a receptionist position. We find
that the agency was required to consider the request for accommodation in
complainant's original secretarial position, and absent undue hardship,
to provide such accommodation in lieu of reassignment to a receptionist
position. Compare Villanova v. Social Security Administration, EEOC
Request No. 05940528 (September 27, 1995) (complainant was not entitled
to voice-activated computer software as accommodation for carpal tunnel
syndrome where agency offered equally effective accommodation within
her current position by assigning her non-typing duties).
In reaching this conclusion, we do not disturb the AJ's findings that
the remainder of complainant's claims are without merit, and further that
much of complainant's testimony was discredited by the evidence of record.
Similarly, we do not disturb the AJ's factual findings that complainant
failed to perform her library duties in a satisfactory manner. However,
as a legal matter, we find that complainant's deficient job performance,
on which the AJ relies, did not terminate the agency's ongoing obligation
to provide reasonable accommodation. Poor job performance by an employee
is distinct from an employee's failure to cooperate in the interactive
process. Generally, if a qualified individual with a disability performs
poorly or engages in misconduct, the employer may have grounds for
disciplinary action, a poor appraisal, or other appropriate personnel
action, not termination of reasonable accommodation efforts.<5> While
a qualified individual with a disability remains an employee, he or she
is entitled to reasonable accommodation absent undue hardship or direct
threat.
Accordingly, we REVERSE the FAD with respect to complainant's claim
that she was denied reasonable accommodation when the agency failed to
consider her physician's December, 1995 request for assistive technology
which would permit her to resume her GS-7 secretarial position, and find
that by failing to consider this request for accommodation, the agency
violated the Rehabilitation Act. We AFFIRM the FAD with respect to the
remainder of complainant's claims.
Inasmuch as the record is insufficient to determine whether or not
complainant could have performed the essential functions of her GS-7
secretarial position with the accommodation of assistive technology,
e.g. voice-activated computer software, absent undue hardship to the
agency, we direct that the agency offer complainant reinstatement
to her GS-7 secretarial position, and if she accepts, engage in the
interactive process to determine whether she can be provided with
reasonable accommodation within that position absent undue hardship,
as provided below. Since the evidence is also insufficient to determine
whether complainant would have been subject to a reduction-in-force in
September, 1996, had she not been reassigned from her GS-7 secretarial
position to her GS-3 receptionist position, the agency shall make
this determination as part of its back pay calculation. Finally, the
Commission notes that as reviewed above, the agency made a "good faith
effort" to reasonably accommodate complainant over an extended period of
time preceding its failure to act on her physician's request for assistive
technology. Therefore, notwithstanding the instant finding of disability
discrimination, complainant is not entitled to compensatory damages.
See Teshima v. United States Postal Service, EEOC Appeal No. 01961997
(May 5, 1998).
The agency is directed to provide relief in accordance with the following
ORDER.
ORDER (D0900)
The agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall retroactively reinstate complainant to her former
GS-7 Employee Development Assistant position at the agency's Rosslyn,
Virginia facility. Complainant shall be given a minimum of fifteen days
from receipt of the offer of placement within which to accept or decline
the offer. Failure to accept the offer within the time period set by the
agency will be considered a rejection of the offer, unless complainant
can show that circumstances beyond her control prevented a response
within the time limit. Prior to reporting for duty, complainant shall
provide the agency with a current assessment of her medical condition
and any current medical restrictions. Upon receipt of this information,
if it indicates that complainant cannot perform the essential functions
of her position with or without accommodation, the agency shall assign
complainant to a vacant position, the essential functions of which she
can perform with or without accommodation. The agency shall take all
steps necessary to ensure that, once complainant returns to work, she
is provided with reasonable accommodation of her disability.
2. Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to award complainant back pay, with
interest, for all wages and benefits, if any, lost between the date
she was denied reasonable accommodation (December 12, 1995), and
the date she returns to duty, declines the offer of reinstatement,
was otherwise unable to return to duty, or would have been subject to
separation as part of a reduction-in-force. The agency shall determine
the appropriate amount of back pay, interest, and other benefits due
complainant, pursuant to 29 C.F.R. � 1614.501(c). The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. The agency shall provide training to all the management officials
responsible for this matter in their duties and obligations under the
Rehabilitation Act, consistent with this decision.
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Rosslyn, Virginia facility copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
November 9, 2000
__________________
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. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Through worker's compensation, complainant received 75% of the salary
differential between her GS-7 and GS-3 positions. HT at 269.
3The record also reveals that complainant was substantially limited in
the major life activity of lifting. Among other medical restrictions,
complainant was not permitted to lift more than "five to ten pounds."
Record of Investigation (ROI), Exhibit 5-4 at 3 (physician's letter dated
November 9, 1995). Accordingly, complainant is an individual with a
disability under the Rehabilitation Act. See Tran v. United States Postal
Service, EEOC Appeal No. 01971505 (May 18, 2000) (complainant with severe
lifting restriction due to carpal tunnel syndrome deemed an individual
with a disability); see also 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).
4 As noted below, the record is insufficient to determine whether or
not complainant could have performed the essential functions of her GS-7
secretarial position with the accommodation of assistive technology,
e.g. voice-activated computer software.
5One exception to this rule is that probationary employees are not
entitled to reassignment as a reasonable accommodation unless, with
or without accommodation, they have already adequately performed the
essential functions of their position before the need for reassignment
arose. See EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans With Disabilities Act (March 1, 1999)
at question 25.