01A10824
06-19-2002
Largie L. Hairston, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Largie L. Hairston v. United States Postal Service
01A10824
June 19, 2002
.
Largie L. Hairston,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A10824
Agency No. 4H-320-0077-00
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted for the Commission's de novo review pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's finding of no discrimination.
The record reveals that during the relevant time, complainant was
employed as a City Carrier at the agency's facility in Panama City,
Florida. Complainant sought EEO counseling and subsequently filed a
formal complaint on February 7, 2000, alleging that he was discriminated
against on the bases of race (Black), disability (carpal tunnel syndrome),
and in reprisal for prior EEO activity arising under the above referenced
statutes when on December 20, 1999, after completing the United States
Department of Labor's Office of Workers' Compensation Program's (OWCP)
Form CA-2a, he was instructed not to report to work until his workers'
compensation claim had been approved by OWCP. 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.
Upon review of the record, we find that complainant originally filed for
workers' compensation in January 1998 in connection with his carpal tunnel
syndrome. The claim was accepted by OWCP and complainant had surgery on
his right hand in October 1998 and surgery on his left hand in May 1999.
He returned to work after both surgeries with lifting and repetitive
hand motion restrictions. In December 1999, complainant presented
management with a new OWCP Form CA-17 with the following restrictions:
lifting up to twenty pounds, two hours per day; no pushing, pulling,
simple grasping; two hours per day of fine manipulation, six hours per
day of reaching above the shoulder; four hours per day of driving a
motor vehicle; and repetitive wrist motion limited to ten minutes per
hour, four hours per day. The agency interpreted this as a claim for
recurrence of injury and required complainant to complete Form CA-2a.
Complainant was returned to work in limited duty status in February 2000.
Turning first to complainant's claim of disability discrimination,
in its final decision, the agency found that complainant failed to
establish that he is an "individual with a disability." An individual
with a disability is one who (1) has a physical or mental impairment that
substantially limits one or more major life activities, (2) has a record
of such impairment, or (3) is regarded as having such an impairment.
Major life activities include, but are not limited to, caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. Sitting, standing, lifting, and reaching are also
recognized as major life activities. Interpretive Guidance on Title I of
the Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
The Commission has also identified "[m]ental and emotional processes
such as thinking, concentrating, and interacting with others" as examples
of major life activities. EEOC Compliance Manual, Vol. 2, Section 902,
Definition of the Term "Disability" at 902-15 (March 14, 1995).
Complainant is limited in his ability to lift, push, pull, grasp, drive,
reach above the shoulder, and perform fine manipulation and repetitive
wrist motion. However, the record does not establish that complainant
is substantially limited in the major life activity of performing manual
tasks because he provided no evidence that his manual limitations applied
off, as well as, on the job. We further find that complainant is not
substantially limited in the major life activities of reaching or lifting.
See Boyle v. United States Postal Service, EEOC Appeal No. 01980819
(August 17, 2001) (complainant's overall abilities to lift and to reach
were not substantially limited by a twenty pound, at or above her chest
level, lifting restriction), request to reconsider denied, Request
No. 05A20299 (April 2, 2002). Turning to the major life activity of
working, the Commission also finds that there is no evidence to suggest
that complainant was substantially limited in working in a class of jobs
or a broad range of jobs in various classes. 29 C.F.R. � 1630.2(j)(3)(i).
Finally, we conclude that the record does not support a finding that
complainant had a record of or was regarded as having a substantially
limiting impairment. Thus, the Commission concludes that complainant
failed to establish that he is an individual with a disability within
the meaning of the Rehabilitation Act. As such, his claim of disability
discrimination, under either a disparate treatment or denial of reasonable
accommodation theory, fails.<2>
Turning to complainant's claim of race discrimination which the final
agency decision failed to address, we note that there is no evidence in
the record from which we can draw an inference of race discrimination.
See McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973);
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The agency did
address complainant's claim of reprisal discrimination and incorrectly
stated that in order to establish a prima facie case, complainant had
to show �but for� causation.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in
a reprisal claim, according with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), complainant may establish a prima facie case
of reprisal by showing that: (1) he engaged in a protected activity;
(2) the agency was aware of his protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 26, 2000).
We find that although complainant engaged in prior protected activity
of which the agency was aware, he failed to establish a nexus between
the agency's placing him on leave and the prior protected activity.
The nexus may be shown by evidence that the adverse treatment followed
the protected activity within such a period of time and in such a manner
that a reprisal motive is inferred. See Devereux v. United States Postal
Service, EEOC Request No. 05960869 (April 24, 1997). We find that the
management official who placed complainant on leave had not been named
as a responsible management official in complainant's prior complaints
and was following instructions from the agency's injury compensation
office. Moreover, the record suggests that it was management's policy
to place an employee who had filed a Form CA-2a on leave (annual, sick,
or leave without pay) until OWCP made a determination, as evidenced by
the fact that other employees were required to take leave under similar
circumstances. Although complainant had filed a series of formal EEO
complaints in the months preceding the adverse treatment at issue, we find
that the specific circumstances surrounding placing complainant in leave
status are insufficient to support an inference of a reprisal motive.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, 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
June 19, 2002
__________________
Date
1 The 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 Notwithstanding this result, the Commission notes that a worker's
compensation determination, though potentially relevant evidence, is never
dispositive regarding an individual's rights or the agency's obligations
under the Rehabilitation Act. See EEOC Enforcement Guidance: Workers'
Compensation and the Americans With Disabilities Act (September 3, 1996)
at question 15.