03A10065
08-29-2002
Antonio B. Jackson, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Antonio B. Jackson v. United States Postal Service
03A10065
08-29-02
.
Antonio B. Jackson,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A10065
MSPB No. SF-0752-00-0102-I-1
DECISION
INTRODUCTION
On March 23, 2001, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq;<1>
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq; and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The petition is
governed by the provisions of the Civil Service Reform Act of 1978 and
EEOC Regulations, 29 C.F.R. � 1614.303 et seq.
ISSUE PRESENTED
The issue presented herein is whether the Board's determination that
petitioner failed to prove that the agency discriminated against him on
the bases of disability (cervical myelopathy with spastic paraparesis,
secondary to cervical spine trauma), race (African American), color
(black) and age (51) constitutes a correct interpretation of the
applicable laws, rules, regulations, and policy directives, and is
supported by the record as a whole.
BACKGROUND
During the relevant time, petitioner was a Laborer Custodian, Level-3,
at an agency facility in Los Angeles (LA), California. The record
reveals that petitioner had cervical surgery in November 1995, and after
being off from work for two months, he returned to work on light duty.
While on light duty, some of petitioner's duties included dusting
columns, cleaning water fountains, and emptying trash. Six months later,
petitioner returned to his regular duties, including sweeping, dusting,
and emptying trash. Petitioner worked with a janitorial hamper and
supported himself on it without a walker.<2>
The record reflects that petitioner's surgeon noticed that petitioner
was walking stiffly and recommended that he request permanent light
duty. In early 1999, petitioner requested permanent job restrictions.
On February 16, 1999 and March 25, 1999, the agency asked petitioner to
submit medical documentation to support his request, however, petitioner
failed to respond to both requests.<3> On April 26, 1999, the agency
notified petitioner that he had been scheduled for a Fitness for Duty
Examination (FFDE) to determine whether he was capable of performing
the full duties of his assigned position.
On May 7, 1999, the FFDE was conducted by the FFDE physician,
who diagnosed petitioner as having cervical myelopathy with spastic
paraparesis, secondary to cervical spine trauma.<4> The FFDE physician
identified the following restrictions for petitioner: (1) no working
on wet floors; (2) no lifting beyond 10 pounds; (3) no climbing stairs;
(4) no heights; and (5) no operating heavy machinery. Total disability
was not recommended because the FFDE physician was unaware of any safety
concerns. Based on a review of the FFDE physician's report, the Associate
Area Medical Director (MD) determined that petitioner was not fit to
perform the duties of his position. The MD concluded that petitioner
would be an unsafe worker and a risk to himself and possibly others.
On May 28, 1999, the agency notified petitioner of the MD's findings and
instructed him to consult with Labor Relations to discuss his options.
Petitioner was given the following options: (1) resign and withdraw his
retirement funds with no annuity to follow; (2) resign with a deferred
annuity at age 62; (3) apply for disability retirement; or (4) request
a permanent light duty assignment. The agency advised petitioner that
it would �initiate a separation for disability reasons if he failed to
select an option.� The record reveals that, on June 28, 1999, petitioner
requested a permanent light duty assignment. On July 14, 1999, the agency
inquired with three area plant managers whether permanent light duty
vacancies within petitioner's restrictions existed in their facilities.
All three plant managers determined that no available vacancies within
petitioner's restrictions existed.
By letter dated July 29, 1999, the agency notified petitioner that
no permanent light duty assignments were available to accommodate his
restrictions, and that he had three remaining options. By letter dated
September 10, 1999, petitioner's treating physician stated that petitioner
was �able to perform many tasks of his job including cleaning, scrubbing,
dusting, light lifting up to 30 pounds and pushing and pulling.� She
noted that petitioner should avoid prolonged walking, and that �further
activities associated with his job should be avoided.�
On September 14, 1999, petitioner's supervisor issued a Notice of Proposed
Removal on the basis that petitioner was medically unfit to perform the
duties of Laborer Custodian. On September 24, 1999, the Senior Plant
Manager issued a letter removing petitioner from the agency, effective
October 29, 1999.
Petitioner filed a mixed case appeal with the MSPB on November 19, 1999,
alleging that he was discriminated against on the bases of disability,
race, color, age and military service when he was removed from his
position, effective October 29, 1999.<5> On February 17, 2000, that
appeal was dismissed without prejudice, and petitioner refiled an appeal
with the MSPB on March 28, 2000. After a hearing, the Administrative
Judge (AJ) found that petitioner had not been subjected to discrimination
as alleged. Petitioner did not petition the Board for review, therefore,
the AJ's decision became final on February 19, 2001.
The AJ found that the agency had shown by a preponderance of the evidence
that petitioner is medically unfit to perform the duties of his position.
With respect to petitioner's claim of disability discrimination, the
AJ found that petitioner is disabled. However, the AJ determined that
petitioner is not a qualified individual with a disability, because he
failed to show that there was a reasonable accommodation that would allow
him to perform the essential functions of Laborer Custodian. The AJ also
found that a Memorandum of Understanding (MOU), effective September 24,
1996, provided for a 3% minimum of the total complement at each facility
of the LA Cluster to be light duty assignments reserved for Maintenance
personnel. As such, the AJ concluded that, although petitioner requested
a district-wide search for a permanent light duty position, the agency's
inquiry to three area plant managers regarding availability of permanent
light duty vacancies within petitioner's limitations was sufficient to
meet its obligation under the MOU and Rehabilitation Act.
With respect to petitioner's claim of discrimination on the bases of race,
color, and age, the AJ determined that petitioner failed to establish a
prima facie case. Assuming arguendo, that he had established a prima
facie case, the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for its action. The AJ concluded that
petitioner failed to show that the agency's reasons were pretextual.
On appeal, petitioner contends, among other things, that: (1) the
agency never asserted that it was a financial hardship to continue
accommodating the petitioner in the temporary light duty position he
held; (2) the agency failed to conduct an �individualized assessment� of
petitioner's ability to perform the duties of his position; (3) petitioner
could have been placed in another unit where employees are seated
and rewrap damaged letters and small parcels and other �nixie� work;
(4) the FFDE physician did not evaluate petitioner's ability to do the
Laborer Custodian position with a light duty or limited duty assignment;
(5) the agency should have searched for a position in other districts
or other �performance clusters;� and (6) when a conflict exists between
a collective bargaining agreement (CBA), MOU or other management-labor
agreement and a federal statute, the statute takes precedence.
The agency argues that it was unnecessary for the agency to demonstrate
an undue hardship because petitioner could not perform the essential
functions of his position. In addition, petitioner could not be
reassigned because the agency could not find a vacant, funded position
within petitioner's medical restrictions.
ANALYSIS AND FINDINGS
The Commission must determine whether the Board's decision with respect
to petitioner's allegations of discrimination constitutes a correct
interpretation of the applicable laws, rules, regulations and policy
directives, and is supported by the evidence in the record as a whole.
See 29 C.F.R. � 1614.305(c). After considering petitioner's contentions
and thoroughly reviewing the record, the Commission finds that the AJ's
decision is supported by the evidence in the record as a whole.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
The Commission also notes that an employee must show a nexus between
the disabling condition and the requested accommodation. See Wiggins
v. United States Postal Service, EEOC Appeal No. 01953715 (April 22,1997).
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the petitioner must demonstrate that he
is an "individual with a disability." We shall assume
arguendo that petitioner established that he is an individual with a
disability covered by the Rehabilitation Act.
The next question presented is whether petitioner is a "qualified"
individual with a disability as defined in 29 C.F.R. � 1630.2(m).
This section defines qualified individual with a disability as, with
respect to employment, a disabled person who, with or without reasonable
accommodation, can perform the essential functions of the position
in question.
The agency contends that petitioner was not a qualified individual with
a disability because he could not perform the essential functions of
his Laborer Custodian position, and no reasonable accommodation existed
within the Laborer Custodian position that would enable him to do the job.
The record reflects that the duties of a Laborer Custodian include:
making or assisting with minor maintenance to buildings and equipment;
operating power driven equipment, e.g., floor scrubbers, sanders,
waxers and wall washers; washing walls and ceilings from scaffolding;
performing general laboring duties such as uncrating and assembling
furniture and fixtures; loading and unloading supplies and equipment;
cleaning, scrubbing and waxing floors; dusting furniture and fixtures;
cleaning hardware and toilet fixtures; washing windows; caring for
lawn and shrubs; cleaning sidewalks and driveways; stacking supplies;
and moving furniture and equipment.
Petitioner argues that the agency failed to conduct an �individualized
assessment� of his ability to perform the duties of his position. We
note, however, that petitioner admitted during the hearing that he could
not operate power driven equipment, climb scaffolding, or move furniture.
He further testified that, with his restrictions, he could only perform
light filing, answer telephones, shelve stock, prepare work orders,
and dust machines. Additionally, the record reflects that restructuring
petitioner's job to accommodate his limitations would require removing
nearly all of the essential duties of the Laborer Custodian position.
Based upon the duties of the Laborer Custodian position, petitioner's
medical restrictions, and the duties petitioner identified that he could
and could not perform, we find that petitioner could not perform the
essential functions of the Laborer Custodian position, with or without
a reasonable accommodation.
The discussion of �qualified,� however, does not end at petitioner's
Laborer Custodian position. The agency has an affirmative obligation
to consider whether petitioner could be accommodated by reassignment.
Therefore, in determining whether an employee is "qualified," an agency
must look beyond the position which the employee presently encumbers.
Accordingly, the agency was required to consider reassignment in this
case. We note that because this case arose prior to June 20, 2002,
the Commission will apply 29 C.F.R. � 1614.203(g), its prior regulation
regarding reassignment.<6>
The record reflects that, by letter dated July 14, 1999, the Manager of
Maintenance (Manager) inquired with three Maintenance Department plant
managers in the LA Cluster as to whether permanent light duty vacancies
existed within the petitioner's restrictions. All three plant managers
responded to the inquiry and stated that available vacancies did not
exist within the petitioner's restrictions. The Manager testified at the
hearing that the MOU's 3% set aside requirement for light duty positions
had been met and exceeded with 3.4% of the positions being light duty.
He further testified that he did not look for a position beyond the LA
Cluster because that would have been in violation of the MOU. The record
indicates that the agency informed petitioner that there were no vacant
positions to accommodate his physical restrictions. The Commission finds
that the record clearly supports the Manager's testimonies that there
were no vacant positions to accommodate petitioner physical restrictions
within the 3% set aside in the LA Cluster.<7>
Petitioner has an evidentiary burden in such reassignment cases to
establish that it is more likely than not (preponderance of the evidence)
that there were vacancies during the relevant time period into which
petitioner could have been reassigned. Yvonne Hampton v. United States
Postal Service, EEOC Appeal No. 01986308 (August 1, 2002). Petitioner
can establish this by producing evidence of particular vacancies. Id.
However, this is not the only way of meeting petitioner's evidentiary
burden. In the alternative, petitioner need only show that: (1) he or
she was qualified to perform a job or jobs which existed at the agency,
and (2) that there were trends or patterns of turnover in the relevant
jobs so as to make a vacancy likely during the time period. Id.
Upon review of the record, we find that petitioner failed to satisfy his
burden. Petitioner has testified that he had worked for the agency for
seven (7) years and held the positions of casual laborer, mailhandler,
clerk, and transitional mail processor, and could have been placed in
the unit where employees do �nixie� work. However, petitioner has not
presented evidence from which we are able to conclude that this or any
other work consistent with his qualifications was more likely than not
available within the commuting area at the time he requested reasonable
accommodation. Accordingly, the Commission finds that petitioner did
not establish his claim that the agency failed to provide him with a
reasonable accommodation.
Remaining Claims of Discrimination
Complainant also alleged that he was subjected to disparate treatment on
the bases of race, color, and age. After a careful review of the record,
we discern no basis to disturb the AJ's finding of no discrimination
as to these remaining issues. The AJ's decision correctly interprets
the applicable laws, rules, regulations and policy directives, and is
supported by the evidence in the record as a whole.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the Board's finding
of no discrimination.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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
___08-29-02______________
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
______________________________
1 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.
2 The record indicates that petitioner used a walker when he was not
working at the facility.
3 According to petitioner, he submitted medical documentation to the
nurses in the medical unit shortly after he requested permanent job
restrictions.
4�Cervical� refers to the neck, and �myelopathy� refers to any disease
affecting the spinal cord. �Spastic paraparesis� is characterized by
progressive weakness of the legs and lower body.
5 We note that, during the MSPB hearing, petitioner raised the additional
basis of military service under the Uniformed Services Employment and
Reemployment Rights Act of 1994, 38 U.S.C. � 4311 et seq. The Commission
does not have jurisdiction over this portion of petitioner's appeal,
therefore, this basis will not be addressed herein.
6 The agency is advised that 29 C.F.R. � 1614.203(g), which governed
and limited the obligation of reassignment in the Federal sector, has
been superseded and no longer applies. 67 Fed. Reg. 35732 (5/21/02), to
be codified as 29 C.F.R. � 1614.203(b). The ADA standards apply to all
conduct on or after June 20, 2002, and emphasize, among other things, a
broader search for a vacancy. The ADA regulations regarding reassignment
can be found at 29 C.F.R. �� 1630.2(o) and 1630.9. Additional information
can be found in the Appendix to the ADA regulations and in the EEOC's
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act (March 1, 1999) at Questions 25-30.
These documents are available on the EEOC's website at www.eeoc.gov.
7 The record indicates that, pursuant to the MOU, the agency created light
duty positions and had exceeded the 3% set aside at the relevant time.