01990280
08-21-2002
Brenda Marshall, Shirley Harding, Patricia Baker, Complainants, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Brenda Marshall, Shirley Harding, Patricia Baker v. United States
Postal Service
01990280
August 21, 2002
.
Brenda Marshall,
Shirley Harding,
Patricia Baker,
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01990280
Agency Nos. 1F-906-0006-97; 1F-906-1046-96; 1F-906-0012-97
Hearing Nos. 340-97-3696x; 340-97-3315x; 340-98-3134x
DECISION
Brenda Marshall (complainant 1), Shirley Harding (complainant 2),
and Patricia Baker (complainant 3) timely initiated appeals from the
agency's final decision concerning their equal employment opportunity
(EEO) complaints of unlawful 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. Complainants allege that they were discriminated against on
the basis of disability (elbow/shoulder/back/ neck; left leg injury;
cervical strain/bursitis/bone spurs/shoulder strain/nerve damage) when
the agency would not allow them to use their seniority to obtain more
favorable rest days and preferential assignments.<2>
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainants 1, 2 and 3, Distribution Clerks at
the agency's Worldway Airmail Center in Los Angeles, California, filed
formal EEO complaints with the agency on November 14, 1996, August 26,
1996, and January 23, 1997, respectively, alleging that the agency had
discriminated against them as referenced above.
At the conclusion of the investigation, complainants were provided copies
of the investigative reports and each requested a hearing before an EEOC
Administrative Judge (AJ). The AJ consolidated the three cases and,
following a hearing, issued a decision finding discrimination.
The AJ found that each complainant is a qualified individual with a
disability within the meaning of the law and that each was hired as a
Distribution Clerk but, due to medical restrictions, became unable to
perform the full duties of that position. The AJ noted that each was
offered and accepted a �rehabilitation position� which fully accommodated
those medical restrictions. A rehabilitation position is one that is
offered to employees who, because of on-the-job injuries or illness are
permanently unable to perform the full duties of a regular position.
The rehabilitation position is tailored to the medical restrictions of
the employee to whom it is offered. Each position has established rest
days as part of the job description. Agency policy prohibits any change
in rest days. Employees in these positions are called rehabilitation
employees.
The AJ then noted that persons with disabilities, including
rehabilitation employees, can bid on any position within their limitations
and have one year within which to qualify for the position. The AJ
further found, however, that a rehabilitation employee cannot use
her seniority to bid to a different position with more desirable rest
days unless she gives up the protection of the rehabilitation position.
The AJ found that if the employee is then unable to perform the duties of
the position she bid on, due to a disability, the position can be taken
from her. The AJ noted that persons who do not hold rehabilitation
positions may use their seniority to obtain bids with favorable rest
days and/or preferred assignments. The AJ also noted that rehabilitation
positions are covered by the collective bargaining agreement.
After making these findings, the AJ concluded that complainants
established prima facie cases of disability discrimination, noting that
they are each qualified individuals with a disability within the meaning
of the law. The AJ held that the practice of the agency disallowing
rehabilitation employees from using their seniority to bid on more
favorable rest days or preferred assignments has a disparate impact on
individuals with disabilities. The AJ then found, however, that the
agency made a reasonable attempt to accommodate the complainants and
therefore concluded that compensatory damages were not appropriate.
The agency's final decision rejected the AJ's decision. The agency
acknowledged that the complainants were qualified individuals with
disabilities and argued that they were being properly accommodated.
The agency stated that rehabilitation positions are tailored to the
medical restrictions of each complainant and that the rest days are
established as part of the job description. The agency acknowledged that
rehabilitation employees cannot bid on different positions with more
desirable rest days and/or preferred assignments and noted that rest days
are assigned to rehabilitation employees based on the needs of the agency.
Finally, the agency argued that it was unable to provide the remedy the
AJ ordered, which included negotiating with the local union to alter the
provisions of the Collective Bargaining Agreement (CBA), because the CBA
did not allow local union and local management to alter its provisions.
The agency concluded that it is not obligated to provide any reasonable
accommodation that violates the CBA.
On appeal, complainants contend that the AJ's decision was proper and
should be upheld. In response, the agency asks that its FAD be affirmed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). Legal determinations will be reviewed de novo.
29 C.F.R. � 1614.405(a); see also Equal Employment Opportunity Management
Directive for 29 Part 1614 (EEO-MD-110), as revised, November 9, 1999,
at 9-16.
After a careful review of the record, the Commission finds that the
AJ's decision is erroneous as a matter of law. The record indicates
that most jobs at the agency are competitive bid positions (assigned
by seniority).<3> There are also, as the AJ found, rehabilitation
positions, which are positions outside the competitive bidding process,
given to employees who, because of on-the-job injuries or illnesses,
are permanently unable to perform the full duties of a regular position.
In addition, the Collective Bargaining Agreement (CBA) refers to �light
duty assignments,� which appears to be the term for duties which
are performed by injured or ill employees, who are not necessarily
permanently unable to perform the full duties of a regular position and
were not necessarily injured at work. The CBA notes that these light
duty assignments are not part of the competitive bidding system.
The AJ determined that the agency's practice of refusing to allow
rehabilitation employees such as complainants to bid on positions without
�giving up the protection of their rehabilitation positions� violated
the Rehabilitation Act. While the AJ's choice of language is somewhat
imprecise, a review of complainants' claims and the record as a whole
indicates that complainants' contention is that they were not allowed to
use their seniority to bid on positions with better days off and/or more
favorable assignments which were held by other light duty employees with
less seniority. Complainants contended in their affidavits that other
similarly situated light duty employees were given or permitted to keep
positions with favorable rest days and favorable assignments, despite
the fact that these other light duty employees had less seniority than
complainants did, and that this treatment was discriminatory. The AJ's
factual finding that the agency's policy did in fact prevent complainants
from bidding on positions with more favorable rest days and/or preferable
assignments without giving up their rehabilitation positions is supported
by substantial evidence. Documentary and testimonial evidence establishes
that rehabilitation employees, such as complainants, were not permitted
to bid on any light duty assignment, including rehabilitation positions,
but instead, could only bid on those positions opened to all employees
for bidding.
Despite the AJ's legal determination to the contrary, however, the
agency's practice of refusing to allow rehabilitation employees to bid
on light duty assignments does not violate the Rehabilitation Act.
We note, first, that there is no evidence that complainants were
subjected to disparate treatment when this policy was applied to them,
as the record establishes that the agency disallowed all employees from
bidding on light duty assignments. The CBA placed these assignments
outside the normal bidding process. Accordingly, complainants were
treated the same as all of their co-workers when they were not allowed
to use their seniority to obtain the rest days and assignments that
junior employees on light duty held, i.e., no employee, regardless of
seniority or status as an individual with a disability, was permitted
to bid on a light duty assignment.
Nor did complainants establish that they were denied a reasonable
accommodation when this policy was applied to them. Complainants did
not argue, nor does the record establish, that the policy at issue
failed to provide reasonable accommodations for qualified individuals
with disabilities who successfully bid on a position open for bidding,
but needed a reasonable accommodation in order to perform the duties
of that position. Indeed, the AJ found that all employees, including
rehabilitation employees, are permitted to bid on any position within
their limitations and that finding is supported by substantial evidence,
as noted above.<4>
Furthermore, the AJ's legal determination that the policy had a disparate
impact on qualified individuals with disabilities is without support.
Under the Rehabilitation Act, a qualification standard, test, or other
selection criteria that screens out or tends to screen out an individual
with a disability or a class of individuals with disabilities, on the
basis of a disability, is unlawful, unless it is shown to be job-related
and consistent with business necessity. See 29 C.F.R. � 1630.10. The
purpose of this provision is to ensure that individuals with disabilities
are not excluded from job opportunities unless they are actually unable
to do the job. See Appendix to Part 1630 - Interpretive Guidance on
Title I of the Americans with Disabilities Act, 1630.10. Here, the AJ
determined that all employees, including complainants, were permitted
to bid on any position within their limitations open for bidding.
This finding is supported by substantial evidence, as documentary and
testimonial evidence establishes that all employees were permitted to
bid on jobs within the bidding process, but none were permitted to bid
on light duty assignments. Accordingly, the policy in question does not
exclude individuals with disabilities from job opportunities. It simply
provides that no employee, whether or not an individual with a disability,
may bid on a light duty assignment and that every employee may bid on
any other position and have a year to qualify for that position.
Accordingly, after a careful review of the record, including complainant's
arguments on appeal, and arguments and evidence not specifically discussed
in this decision, we find that complainant's failed to establish that
they were subjected to disability-based discrimination and hereby AFFIRM
the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
August 21, 2002
Date
1The 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 Complainants' formal complaints refer to other additional bases
and issues. It is clear from the transcript of the hearing, the
Administrative Judge's recommended decision, the FAD and complainants'
appeal statement, however, that the above-referenced claim became the
sole claim at some point during the process.
3 Although the record does not include a discussion of such positions, we
assume that there are also positions filled competitively based on merit.
4Although a policy which prevents a qualified individual with a
disability from successfully bidding on a position because she is
unable to perform the essential functions of the position without a
reasonable accommodation, would, absent a showing of undue hardship,
be discriminatory, the record does not establish that such a policy
existed in the case at hand.