01995037
06-05-2002
Gregory B. Lewis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area) Agency.
Gregory B. Lewis v. United States Postal Service
01995037
June 5, 2002
.
Gregory B. Lewis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area)
Agency.
Appeal No. 01995037
Agency Nos. 4-G-770-0210-98; 4-G-770-0251-98
Hearing Nos. 330-98-8240X; 330-98-8177X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
discrimination in violation of the Rehabilitation Act of 1973, 29
U.S.C. �791, as amended. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges he was discriminated against on the basis
of his disabilities (ankle, shoulder and lungs) when:
(1) he was required to carry more than eight hours of mail for delivery
within eight hours;
(2) he was refused a reasonable accommodation for his disability.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a letter carrier at the agency's
Tomball, Texas facility, filed a formal EEO complaint with the agency
on December 15, 1997, alleging that the agency had discriminated against
him as referenced above.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding discrimination. The AJ concluded that the complainant
established a prima facie case of disability discrimination because
the medical conditions he had, when considered together, substantially
limited his ability to walk and work with his hands. She further found
that despite the agency's contention to the contrary, the complainant
requested a reasonable accommodation in December 1997 as indicated by
a date stamped form. She found that the agency provided assistance
to the complainant for casing mail above shoulder level on a temporary
basis at the time he requested his shelves to be lowered, but that the
agency failed to engage in the interactive process to determine exactly
the most effective accommodation.
Based on these factors, the AJ found that the agency discriminated against
the complainant by failing to accommodate the complainant's disability.
The agency's final decision rejected the AJ's recommended finding of
discrimination. In its decision, the agency concluded that the record
contained no evidence that the complainant had a substantial limitation
of a major life activity. It claimed that the AJ relied only on the
uncorroborated testimony of the complainant in deciding that he had a
legal disability. The agency also stated that the AJ should not have
credited the complainant's testimony that he requested a reasonable
accommodation but rather that S1 was more credible in denying he had
notice of the complainant's request. Finally, the agency claimed that
even assuming S1 had notice of the complainant's request for reasonable
accommodation, it acted on his request by not requiring him to work
overtime, by giving him assistance in casing mail on the top shelf and
by making extra mats and a shorter stool available to him.
Neither the complainant nor the agency submitted additional comments
on appeal.
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). In this case, the complainant must establish
that he is a �qualified individual with a disability� within the meaning
of the Rehabilitation Act. An �individual with disability� is a person
who has, has a record of, or is regarded as having a physical or mental
impairment which substantially limits one or more of that person's major
life activities, i.e., caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
See 29 C.F.R. � 1630.2(j).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner, or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability
to perform a major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id.
After a careful review of the record, the Commission concludes that
the AJ's decision finding that complainant submitted sufficient
documentation to prove he was an individual with a disability was not
supported by substantial evidence in the record. Specifically, the
complainant testified that he had a military service injury to his ankle
and that he had difficulty walking, but there was no supporting medical
documentation to establish the nature and extent of the condition from a
medical perspective. Moreover, the record contained insufficient evidence
to support the AJ's finding that the complainant was substantially limited
in his ability to walk. Complainant testified that he wore an ankle brace
to support a weak ankle on a daily basis but there was little evidence to
show that the manner or duration of his walking was substantially limited.
The record also contained little evidence to support the AJ's
determination that complainant was substantially limited in his ability
to work with his hands. Complainant testified that he was unable to
reach due to a shoulder injury but the evidence did not demonstrate
a connection between his shoulder condition and an inability to work
with his hands. The evidence established that complainant was diagnosed
with an impingement syndrome to his left shoulder. The limited medical
documentation in the record indicated complainant was restricted in
lifting for a period of time after his initial injury and then for a time
after he had surgery but, on the whole, there was insufficient evidence
to demonstrate that he was substantially limited in a major life activity.
Complainant claimed that he had an impairment to his lungs also related
to his service in the military, but there was no evidence to support that
he was substantially limited in a major life activity with respect to
the condition of his lungs. Complainant contended that he had difficulty
breathing and that when combined with his other medical conditions he was
unable to work overtime or additional hours past his regular tour of duty.
The record did not sufficiently establish, however, the extent to which
complainant's lung condition substantially limited his ability to breathe
or that he was substantially limited in some other major life activity.
We conclude that the record did not support the AJ's conclusion that
complainant was substantially limited in the major life activities
of walking and working with his hands nor is there any other evidence
in the record which would support a finding that he was substantially
limited in any other major life activity. Therefore, complainant is
not an individual with a disability who is entitled to a reasonable
accommodation. Consequently, we need not reach the issue of whether
the agency provided complainant a reasonable accommodation.
Complainant claimed that he was subjected to disparate treatment when he
was required to deliver more than the normal volume of mail within his
regular eight hour shift. The AJ concluded that there was no evidence
to show complainant was treated differently based on his disabilities in
terms of the amount of mail he was required to deliver. She based her
finding on the fact that the evidence demonstrated the supervisor in
question treated complainant in the same manner as other employees when
it came to the volume of work he required. We see no reason to disturb
the AJ's findings in this regard as there is substantial evidence to
support her conclusion.
CONCLUSION
Based on a careful review of the record, and arguments and evidence
not specifically discussed in this decision, the Commission AFFIRMS 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
June 5, 2002
Date