Zula M. Coleman, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid-West Region), Agency.

Equal Employment Opportunity CommissionMar 28, 2000
01975204 (E.E.O.C. Mar. 28, 2000)

01975204

03-28-2000

Zula M. Coleman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid-West Region), Agency.


Zula M. Coleman v. United States Postal Service

01975204

March 28, 2000

Zula M. Coleman, )

Complainant, )

) Appeal No. 01975204

v. ) Agency No. 4-Q-000-1284-92

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Great Lakes/Mid-West Region), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her Equal Employment Opportunity (EEO) complaint of unlawful

employment discrimination in violation of � 501 of the Rehabilitation

Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> Complainant alleges

that she was discriminated against on the basis of physical disability

(carpal tunnel syndrome) when she was denied a reasonable accommodation

and separated from employment effective April 7, 1992. The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at

29 C.F.R. � 1614.405).<2> For the following reasons, we affirm the FAD.

The record reveals that complainant was awarded benefits from the

United States Department of Labor's Office of Workers Compensation

Programs (OWCP) as a result of sustaining bilateral tenosynovitis of

the hands and wrists causally related to her federal employment as a

MPLSM Clerk at the agency's Processing and Distribution facility in

St. Louis, Missouri. On August 2, 1989, OWCP rejected complainant's

claim for further compensation finding that she refused a valid offer

of suitable employment from the agency. Since complainant refused to

return to work, the agency placed her in leave without pay (LWOP) status.

Thirty-two months later, the agency separated her from employment.

Believing she was discriminated against as referenced above, complainant

sought EEO counseling and subsequently filed a complaint on September

13, 1993. At the conclusion of the investigation, complainant initially

requested a hearing before an EEOC Administrative Judge but then

withdrew her request. The agency issued a final decision finding no

discrimination from which complainant now appeals. Complainant reiterates

her contentions on appeal. The agency requests that we affirm its FAD.

In order to establish a prima facie case of disability discrimination in

violation of the Rehabilitation Act, complainant must demonstrate that

she is a qualified individual with a disability as defined in 29 C.F.R. �

1630.2(m) and that the agency took an adverse action against her as a

result of her disability. Prewitt v. United States Postal Service, 662

F.2d 292 (5th Cir. 1981). Under the Commission's regulations, an agency

is required to make reasonable accommodation of 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. � 1630.9(a).

Pursuant to its finding that complainant is a qualified individual with

a disability, the agency offered to reasonably accommodate complainant

by reassigning her to an Express Mail Clerk position.<3> The position

was modified to accommodate her restrictions which included: no lifting

greater than ten (10) pounds; no repetitive grasping, pushing, pulling,

or fine manipulation (including typing); and no climbing of ladders or

poles. The modified position also permitted complainant to use a splint

and pencil to input numbers into the computer system. Furthermore, the

position, which was originally offered as a detail not to exceed ninety

days, was converted into a career position. Both complainant's attending

physician and an impartial medical examiner concurred that complainant

was physically capable of performing the duties of the modified position.

However, complainant claimed that the offer of reassignment did not

accommodate her disability and refused to report for duty.

Assuming that the agency properly determined that complainant was

a qualified individual with a disability within the meaning the

Rehabilitation Act, the Commission finds that the agency engaged in a

flexible and interactive process with complainant, her treating physician,

and an outside vocational consultant in order to effectively accommodate

complainant's restrictions. The Commission further finds that the agency

expeditiously met its obligation to reasonably accommodate complainant

in its offer of reassignment.<4> We note that the Rehabilitation

Act does not authorize an agency to force an individual to accept an

accommodation for a disability - that choice belongs to the individual.

Ramona v. United States Postal Service, EEOC Appeal No. 01943804

(September 18, 1995), request to reconsider denied, EEOC Request

No. 05960052 (April 30, 1998).

Based on the standards set forth in McDonnell Douglas v. Green, 411

U.S. 792 (1973) and Prewitt, supra, we find that complainant also failed

to establish a prima facie case of disability discrimination under a

theory of disparate treatment. In reaching this conclusion, we find that

complainant failed to name any comparative employees without disabilities

who were not removed after an absence of thirty-two or more months or

to proffer any other evidence from which we could infer discrimination.

We further note that complainant failed to rebut the agency's contention

that she was separated as a result of her refusal to return to work,

not as a result of her disability.

Therefore, after a careful review of the record, including complainant's

contentions on appeal and the agency's response, we affirm the FAD.

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

March 28, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

Date

__________________________

Equal Employment Assistant

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 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.

2 The 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. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found at the

Commission's website at www.eeoc.gov.

3 Although complainant can no longer perform the essential functions

of the MPLSM Clerk position, the agency found that complainant was

qualified to perform the essential functions of another clerk position,

with reasonable accommodation.

4 We note that reassignment as a potential form of accommodation

becomes relevant only after a determination has been made that an

individual cannot be accommodated in his current position or that

such accommodation would constitute an undue hardship. See 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). Complainant makes no claim that

she could perform the duties of the MPLSM Clerk position with or without

a reasonable accommodation.