01A00554
03-27-2003
Alex Rubio, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Alex Rubio v. United States Postal Service
01A00554
March 27, 2003
.
Alex Rubio,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01A00554
Agency No. 4H-330-0332-97
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the basis of disability (chronic fatigue syndrome, acute
esophagitis, acute gastritis) when on February 18, 1997, his hours of
work were reduced because no light duty was available.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier at the agency's Allapattah Station, Miami, Florida,
facility. Believing he was a victim of discrimination, complainant sought
EEO counseling and subsequently filed a formal complaint on October 17,
1997. At the conclusion of the investigation, complainant was informed
of his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
Complainant indicated that upon arrival at the Allapattah Station,
he informed management of his limitations, medical conditions, and
doctors' recommendations. His supervisor advised him that there was
no light-duty work. As a result, complainant worked five hours daily
from February 18, 1997, through July 31, 1997, doing unspecified duties.
However, complainant alleged that there was one individual without any
disability who was working light duty. Prior to working at the Allapattah
Station, complainant worked at the Snapper Creek Station, Miami, where
he was provided eight hours per day of light duty for approximately
eight months. Complainant indicated that he was forced to bid to the
Allapattah Station. It appears that complainant was given his requested
light duty assignment at the Allapattah Station beginning August 1, 1997.
In its FAD, the agency concluded that complainant did not prove a
discriminatory motive in its action. The FAD found that complainant
failed to offer any evidence, which would demonstrate that its action was
a pretext for intentional discrimination. Thus, the agency concluded that
complainant failed to satisfy the burden of proving by a preponderance
of the evidence that he was the victim of intentional discrimination
and therefore found no discrimination.
In the FAD, the agency further found that no light duty was available,
and that complainant was limited in the number of hours he worked for his
own safety.<1> In any event, the agency acknowledged that complainant had
a full medical restriction on walking and partial medical restrictions
on lifting, pulling, pushing, carrying, and reaching above his shoulder,
and that complainant was unable to work in the heat. In view of these
restrictions, especially the inability to work in the heat, the agency
found that it was virtually impossible for complainant to perform the
delivery duties of his carrier position. The agency further indicated
that while complainant testified that he could have worked in the office,
complainant's supervisor testified that they were not in a high volume
area and did not have the luxury of a mail room.
On appeal, complainant reiterates that he was diagnosed with chronic
fatigue syndrome in September of 1996 as well as other medical problems,
including a hiatal hernia, acute gastritis, acute esophagitis, and
Epstein-Barr virus. Complainant reiterates that he was denied light-duty
work at the Allapattah Station, whereas when he assigned at the Snapper
Creek Station, he was provided with eight hours per day of light duty.
According to complainant, his impairments were directly related to
pressure exerted by agency management and working conditions, including
working in a flood zone, subjecting him to hours of walking with blistered
feet in ankle high water, in addition to mosquitoes, while assigned at
the Snapper Creek Station. According to complainant, while he was at
the Snapper Creek Station, he was advised to apply for light duty by
his doctors, and the agency put complainant on light duty.<2>
ANALYSIS AND FINDINGS
One bringing a claim of disability discrimination must first establish
that s/he is a member of the class of persons protected by the
Rehabilitation Act, i.e., an individual with a disability. An �individual
with a disability� is defined as someone who: (1) has a physical or
mental impairment which substantially limits one or more of such person's
major life activities; (2) has a record of such an impairment; or (3)
is regarded as having such an impairment. 29 C.F.R. � 1630.2(g)(1)-(3).
The Commission has defined �substantially limits� as �[u]nable to perform
a major life activity that the average person in the general population
can perform� or �[s]ignificantly restricted as to the condition, manner
or duration under which an individual can perform a particular major
life activity as compared to the condition, manner, or duration under
which the average person in the general population can perform that same
major life activity.� 29 C.F.R. � 1630.2(j)(1)(i) and (ii). �Major life
activities� include functions such as caring for one's self, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. 29 C.F.R. � 1630.2(i). Examples of other major life
activities include, but are not limited to, sitting, standing, lifting,
and reaching. 29 C.F.R. Part 1630 Appendix � 1630.2(i). They also
include thinking, concentrating, interacting with others, and sleeping.
EEOC Enforcement Guidance on The Americans with Disabilities Act and
Psychiatric Disabilities at 5 (March 25, 1997).
In determining whether an individual is substantially limited in a
major life activity one must consider �[t]he nature and severity of the
impairment�, �[t]he duration or expected duration of the impairment�, and
�the permanent or long term impact, or the expected permanent or long term
impact of or resulting from the impairment.� 29 C.F.R. � 1630.2(j)(2)(i),
(ii), and (iii). Although short-term, temporary restrictions generally
are not substantially limiting, an impairment does not necessarily have
to be permanent to rise to the level of a disability. Some conditions
may be long-term, or potentially long-term, in that their duration is
indefinite and unknowable or are expected to be at least several months.
Such conditions, if severe, may constitute disabilities. EEOC Compliance
Manual, Volume 2, EEOC Order No. 915.002, Definition of the Term
�Disability�, at 902-30 (March 14, 1995).
The agency did not address the threshold question whether complainant
was an individual with a disability. Accordingly, the Commission will
address that question in this decision. The Commission finds that since
complainant was not an individual with a disability, his discrimination
claim must fail.<3> Our analysis follows.
On review of the record, complainant, while showing considerable evidence
of his impairments, has not presented sufficient evidence to establish
that he was nevertheless substantially limited in a major life activity.
Complainant's evidence, in terms of being substantially limited in a major
life activity, primarily focuses on the major life activity of walking.
Although there are some references to the major life activities of
lifting, reaching, and working, they are only cursory, and insufficient
evidence was presented to show a substantial limitation in any of those
major life activities.<4>
Complainant argues that due to management's failure to accommodate
him with light duty, he was forced to come to work only five hours
per day, and thus his wages were reduced. Complainant argues that
his impairments medically restricted him from working more than
4� hours in the field. The record shows that a January 9, 1996,
Medical Clearance for complainant to return to duty indicates a two
hour walking limitation (Partial Restriction). A September 4, 1996,
Medical Clearance for complainant to return to duty indicates that
complainant was fully restricted from walking with a limitation of one
hour and partially restricted from heavy-lifting 35 pounds and over,
pulling/pushing, carrying, and reaching or working above the shoulder.
It also indicates he was unable to work in the heat. A Department of
Labor OWCP Status Report, concerning a November 25, 1996, examination,
indicates a 2� hour per day walking limitation, but no other limitations.
A March 13, 1997, Medical Clearance to return to duty indicates a three
hour walking limitation (Full Restriction), but no other limitations.
Complainant failed to establish that he was significantly restricted
with respect to the permanence or long term impact, involving his
walking limitations. We recognize that in complainant's September 4,
1996, Medical Clearance, he was limited to one hour of walking per day.
However, complainant's November 25, 1996, OWCP Status Report limited
complainant to 2� hours of walking per day. The only prior limitation
on complainant's walking was the January 1996 Medical Clearance with
a two hour walking limitation. Complainant has not sufficiently shown
the permanence or long term impact of the one hour limitation for the
purpose of proving a substantial limitation in the major life activity
of walking.<5> The limitation was temporary, and there was insufficient
evidence in the record, concerning its duration. It is speculative how
long the one hour limitation restricted complainant. The same concerns
apply to complainant's two
hour, 2� hour, and 3 hour walking limitations.<6> Even in conjunction
with the one hour restriction, it is speculative how long the limitations
restricted complainant. While complainant's limitations may always
have been between one and 3 hours during the applicable times, this
is speculation. Complainant has only established that during the time
period in question his walking limitations varied significantly, but
we have no evidence of the duration of the restrictions, except to the
extent a subsequent report superseded an earlier report.
Even if we assumed that complainant had a permanent or long term two hour
restriction it would not necessarily be sufficient for purposes of proving
a substantial limitation in the major life activity of walking. See Burch
v. United States Postal Service, EEOC Appeal No. 01933521 (April 28,
1994)(complainant terminated because he could not perform the duties of
Carrier position due to restriction on walking�limitation on complainant's
walking did not rise to level of impairment that substantially limited
his activity). In Burch, the Postmaster stated that complainant (Burch)
was terminated, because he could not perform the duties of the Carrier
position due to the restriction that the complainant was not to walk
more than two hours a day.<7> Indeed, complainant, in the present case
before the Commission, was performing as a Letter Carrier. With respect
to complainant's three hour restriction, see Thompson v. United States
Postal Service, EEOC Appeal No. 01971189 (August 31, 2000)(complainant
not substantially limited in standing or walking where restricted to
standing or walking three to four hours maximum per day).
In the Burch decision, the Commission also looked at the effect of the
complainant's (Burch) limitations, concerning walking, on other life
activities. Complainant, in the present case before the Commission,
failed to present evidence concerning how the walking limitation
substantially affected his every day activities in terms of the average
individual. In addition, while complainant acknowledged in his appeal
that his normal position as a Letter Carrier required a great deal of
walking, the inability to satisfy the walking requirements of the Letter
Carrier position does not render him substantially limited in the major
life activity of walking.
The ability to work is substantially limited if the complainant is
�significantly restricted in the ability to perform either a class of
jobs or a broad range of jobs in various classes as compared to the
average person having comparable training, skills and abilities.� 29
C.F.R. � 1630.2(j)(3)(i). The regulations also make clear that �[t]he
inability to perform a single, particular job does not constitute a
substantial limitation in the major life activity of working.� Id.
Complainant does not provide sufficient evidence of record with regard to
his limitations on walking to support a finding that he was substantially
limited in the major life activity of working.
Complainant does not argue that the agency regarded him as an individual
with a disability or that he was an individual with a record of a
disability.
Since complainant has not shown that he is an individual with a
disability, complainant's claim must fail. Only individuals with
disabilities, as defined by 29 C.F.R. � 1630.2(g)(1)-(3), are protected
or entitled to accommodation under the Rehabilitation Act.
CONCLUSION
Therefore, after a careful review of the record, we affirm the agency's
final decision.
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
March 27, 2003
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 Complainant does not dispute the findings that there was no light duty
available, and that he was limited in the number of hours he worked for
his own safety.
2 Complainant also alleges that he was subject to a number of observations
by management, and that this was harassment. This allegation was only
brought to the Commission's attention on appeal and was not raised in
the complaint. Accordingly, it will not be addressed in this decision.
3 However, we note that the agency erred in treating this case only as a
disparate treatment case. Complainant was also essentially requesting
reasonable accommodation for his disability, i.e., to be assigned
light duty or to another position where he could work 8 hours daily.
Accordingly, had complainant established that he is an individual with a
disability, the agency would have been required to apply a reasonable
accommodation analysis to this case, in addition to the disparate
treatment analysis.
4 Complainant also submitted, as a supplement to his brief on appeal,
a letter from one of his doctors, indicating that complainant had been
having severe difficulty in sleeping, and that his emotional deterioration
had been markedly affecting his ability to work and interact with his
family. However, the statement contained no details with respect to
complainant's limitations. Thus, for example, there is no indication
how long complainant had been having difficulty sleeping and how much
sleep he was getting on a daily basis.
5 The September 4, 1996, report indicated that the time when complainant
could return to full duty with no restriction could not be determined.
6 The January 9, 1996, report did not indicate the time when complainant
could return to full duty with no restriction. The November 25,
1996, report indicated that complainant was able to perform regular
work full-time with light duty. The March 13, 1997, report indicated
complainant's possible anticipated recovery date as �undetermined.�
7 However, complainant's physician stated that complainant would be able
to perform duties not requiring more than two hours of continuous walking.
In addition, the agency ordered a fitness-for-duty examination, which
determined that complainant should be limited to two hours of walking
with at least an hour break. Nevertheless, the Postmaster acknowledged
that complainant was terminated because he was restricted from walking
more than two hours per day.