Mary C. Kalbfell v. U.S. Postal Service 01A03475 02-26-02 .Mary C. Kalbfell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01A03475 Agency No. 1C151010298 Hearing No. 170-99-8159X DECISION Complainant timely initiated an appeal of a final agency decision (FAD) concerning her complaint of unlawful employment discrimination on the basis of disability (Cervical Strain Syndrome, Synovitis and Post-Traumatic Fibromyalgia) in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. For the reasons stated herein, the agency's FAD is reversed and remanded. ISSUE PRESENTED The issue on appeal is whether complainant has established that the agency discriminated against her on the above-referenced basis when it terminated her employment with the agency. BACKGROUND Complainant was employed as a Mail-handler, PS-4, at a Pennsylvania facility of the agency. In March 1988, while pushing a nutting truck<1> weighing approximately 800 pounds including mail stacked on it, complainant suffered a sharp pain in her chest, a rapid heart beat, and tightness in her neck.<2> As a result of complainant's on-the-job injury, she received partial disability benefits from the Office of Workers' Compensation (OWCP) and was placed on limited duty<3> at work. In January 1996, OWCP terminated complainant's disability benefits, after approximately seven years, because it determined that complainant no longer experienced the residual effects of a work-related injury. Complainant then was placed on light duty pending the result of her appeal to OWCP, which was denied in January 1997. In March 1998, the agency notified complainant of her removal from the agency, effective April 17, 1998, stating that she was physically unable to perform the duties of her position. A medical report indicated that complainant was limited to four hours duty per day, no lifting over five pounds, no repetitive arm motion, pushing, pulling, or carrying. Complainant, believing she was a victim of discrimination, sought EEO counseling and, subsequently, filed a complaint alleging that the agency discriminated against her based on disability (Cervical Strain Syndrome, Synovitis and Post-Traumatic Fibromyalgia) when it terminated her employment because of her medical restrictions. The agency stated that complainant's employment was terminated because her impairment was permanent instead of temporary, the latter of which light duty is designated for. It further stated that complainant was unable to perform the essential functions of her position and that no position was available which could accommodate her medical restrictions. At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing, finding no discrimination under a disparate treatment analysis. The AJ concluded that complainant failed to establish a prima facie case of discrimination because she failed to show that her impairment was permanent and that those similarly situated to her were treated more favorably. The agency issued a FAD concurring with the AJ's finding of no unlawful employment discrimination based on disability. This appeal followed. ANALYSIS AND FINDINGS The Commission finds that the merits of this case are better determined under a reasonable accommodation analysis rather than a disparate treatment one. Reasonable accommodation describes modifications to the manner under which a position held is customarily performed that enable a qualified individual with a disability to perform the essential functions of his/her position. Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (1999) (Enforcement Guidance).<4> The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1614.203. In order to establish disability discrimination, complainant must first show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F. R. § 1630.2(m); and (3) the agency failed to provide a reasonable accommodation although to do so would not pose an undue hardship on its operations. Enforcement Guidance. Although there is considerable medical evidence that complainant's limitations are long term, the AJ found that complainant's impairments were not permanent. The next issue is whether complainant was a qualified individual with a disability, i.e., was she able to perform the essential functions of the position at issue herein. 29 C.F.R. § 1630.2(m). The agency stated that complainant could not perform the essential functions of her position but complainant stated otherwise and it appears that the agency was able to accommodate her for several years. The record is not fully developed on this issue. The record is also not fully developed on the agency's efforts to reassign complainant to a vacant position. Accordingly, we find that summary judgment should not have been granted in this matter because genuine issues of material fact exists. See Kenney v. Department of the Army, EEOC Request No. 01994419 (July 7, 2000)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-9 (1986). CONCLUSION After a careful review of the record, including complainant's contentions on appeal, the agency's response, and arguments and evidence not specifically addressed in this decision, we VACATE the agency's finding of no discrimination based on disability. As such, this case is REMANDED to the agency for processing in accordance with this decision and the order below. ORDER The agency shall request the Hearings Unit of the appropriate EEOC field office to schedule a hearing. The agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with the regulation set forth at 29 C.F.R. 1614.109 and the agency shall issue a final action in accordance with the regulation set forth at 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) 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) (1994 & Supp. IV 1999). 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 (R0900) This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 _____02-26-02_____________ 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 ______________________________ Equal Opportunity Assistant 1A “nutting truck” is a wheeled container consisting of a platform and two slatted ends to restrain loads, used to move or store small quantities of mail within a postal facility. The container may be moved by hand or by tractor. 2The record revealed that the March 1988 incident may have resulted from the aggravation of two injuries complainant suffered in 1986 while unloading mail trucks and dispatching bulk mail containers, hampers, and nutting trucks. The record further revealed that, in November 1988, complainant experienced a reoccurrence of her March 1988 injury. 3“Limited duty” is the duty provided to an employee who has physical limitations, identified by a qualified physician, resulting from an on-the-job injury/illness. It differs from “light duty,” which is duty provided to an employee who has physical limitations, identified by a qualified physician, resulting from an off-the-job injury/illness. 4The 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.