01991164
08-26-2002
Ronald D. Lawlor v. United States Postal Service, 01991164 08-26-02 .Ronald D. Lawlor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald D. Lawlor v. United States Postal Service,
01991164
08-26-02
.Ronald D. Lawlor,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991164
Agency No. 4-H-335-1049-95
DECISION
On November 25, 1998, Ronald D. Lawlor (hereinafter referred to as
complainant) initiated a timely appeal to the Equal Employment Opportunity
Commission (Commission) with regard to his complaint of discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq; and � 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq. The appeal is accepted by
this Commission in accordance with 29 C.F.R. � 1614.405. Based upon
a review of the record, and for the reasons stated herein, it is the
decision of the Commission to AFFIRM the final agency action.
The issue on appeal is whether complainant proved, by a preponderance
of the evidence, that he was discriminated against on the bases of
his age (58), and disability (knee injury and hearing loss) when he
was reassigned from full time regular status to a part time flexible
assignment in another craft.
Complainant filed a formal EEO complaint in January 1995, raising the
issue of discrimination referenced above. The agency accepted the
complaint, and conducted an investigation with regard to the matter
at issue. At the conclusion of the investigation, the agency provided
complainant with a copy of the investigative report and complainant
requested a hearing before an EEOC Administrative Judge (AJ). Prior to
a hearing being held, complainant withdrew his request. Subsequently,
the agency issued a final decision finding that complainant had not been
subjected to discrimination as alleged. Specifically, the agency found
that complainant failed to establish a prima facie case. The agency
further stated that complainant failed to show that the stated reason for
its action was a pretext for discrimination. It is from this decision
that complainant now appeals.
According to the record, complainant, a City Letter Carrier, sustained
a job related knee injury in 1993. By letter dated July 7, 1994, the
agency notified complainant that it had developed a limited duty position
for him. Specifically, complainant was offered a Modified Distribution
Clerk, part time flexible, position with a guarantee of 40 hours of
work per week. The duties of the position included emptying mail from
stackers onto trays, performing nixie work, answering the telephone,
boxing mail, and making lobby sweeps. Complainant would be required to
lift no more than 10 pounds, perform intermittent sitting, walking, and
standing for 4 hours, and intermittent lifting, bending, and twisting
for 2 hours. The offer was signed by complainant's physician (Dr. M)
on June 30, 1994. Subsequently, in October 1994, the Human Resource
Specialist notified complainant that a new salary rate would be used to
compensate him for the loss of holiday pay. In addition, complainant
was offered a second Modified Distribution Clerk, part time flexible,
position in November 1994. This position was located at another facility.
The Postmaster advised complainant that the initial offer was made prior
to the loss of certain functions, and that there was no longer sufficient
work available at the initial facility. The duties of the new position
included boxing mail, making lobby sweeps, answering the telephone,
and working as a nixie clerk. In addition, complainant was to receive
training on the agency's computer system. The physical requirements of
the position were the same as for the original job offer.
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).
For purposes of this decision, the Commission will assume that complainant
is a qualified individual with a disability. The dispositive issue
in this case is whether the agency met its responsibility to provide
complainant with reasonable accommodation. While the Rehabilitation
Act does not require an employer to create a light duty position as an
accommodation, it does require an employer, absent undue hardship, to
accommodate a qualified individual with a disability by restructuring a
position through redistribution of marginal functions which he cannot
perform because of disability, or by reassigning him to an equivalent
existing vacancy for which he is qualified. Flowers v. United States
Postal Service, EEOC Appeal No. 01984878 (September 9, 1999); Lowery
v. United States Postal Service, EEOC Appeal No. 01961852 (October 31,
1997); 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).
In this case, the Commission finds that the agency provided complainant
with reasonable accommodation when it offered him a Modified
Distribution Clerk position. As stated, Dr. M concurred with the
original assignment, and the subsequent offer was for a position with
substantially similar duties. Further, complainant did not contend
that the Modified Distribution Clerk duties are beyond his limitations.
While complainant challenged the agency's offer of a position at another
facility, the Postmaster stated that the agency made the offer only after
certain functions were no longer being performed at the original facility.
Moreover, complainant has failed to show that he could have been
reassigned to a vacant full-time position for which he was qualified.
In a reassignment case, a complainant has an evidentiary burden to
establish that it is more likely than not (preponderance of the evidence)
that there were vacancies during the relevant time period into which
she could have been reassigned. Yvonne Hampton v. United States Postal
Service, EEOC Appeal No. 01986308 (August 1, 2002). Complainant can
establish this by producing evidence of particular vacancies. Id.
In the alternative, complainant 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. Complainant has
failed to produce any evidence sufficient to meet his burden.
The Commission also finds the record insufficient to support a finding of
disparate treatment with regard to the assignment of duties. As stated,
the agency offered complainant an assignment at another facility only
after certain functions were removed from his original duty station.
Further, the offer guaranteed complainant 40 hours of work each week,
and provided an adjusted salary rate to compensate him for loss of
holiday pay. Accordingly, we find that complainant has not shown that
he was subjected to discrimination.
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:
__________________________________
Carlton M. Hadden, Director
Office of Federal Operations
_______08-26-02___________________________
Date