01994472
09-13-2002
Tony Coleman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Tony Coleman v. United States Postal Service
01994472
September 13, 2002
.
Tony Coleman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 01994472
Agency No. 1-G-771-0065-97
DECISION
INTRODUCTION
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.<1> The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. Complainant alleged that he was
discriminated against on the basis of disability (back and left shoulder)
when 1) he was denied a limited-duty position and required to perform
duties outside his medical limitations which resulted in him injuring
himself and 2) he was assigned to duties on plugger belts and flat
cancelers which placed him at risk of additional injury.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a mailhandler at the General Post Office in Houston, Texas.
In 1981, complainant injured his back in a job-related accident.
After the accident, complainant was granted a limited-duty assignment
to accommodate the injuries he incurred. However, in 1989 complainant
was informed by the Department of Labor, Office of Workers' Compensation
Programs as follows:
Information in this office indicates that your present physical condition
is no longer accepted as related to an injury sustained in the performance
of duty. Therefore, your present duty status has been changed from
limited duty (job-related) to light duty (personal).
Effective close of business December 1, 1989, your limited duty assignment
in the unit where you are currently working is terminated. You should
contact your regular work unit concerning the availability of a light
duty assignment within your work restrictions.
Limited duty assignments are mandatory due to the liability involved
with an injury sustained in the course of employment. Light duty
assignments are requested and medically documented by you, the employee,
and are granted based on work availability. Attached you will find a
�medical report� form for your convenience in providing the requested
documentation. Further consideration to [sic] a continued light duty
assignment is contingent upon its return.
Report of Investigation at 20.
Despite OWCP's decision, complainant continued in his limited duty
position until 1997 when the agency, in the course of conducting a
routine review of employee records, determined that complainant had not
submitted the necessary medical documentation to support a limited or
light duty assignment. Complainant was directed to submit �updated�
medical documentation or to return to his regular bid position.
In response, complainant submitted to the agency a copy of a letter from
his physician, dated July 26, 1989, stating that
. . . [Complainant] injured his back at work on the 29th of March, 1981.
He has continued to have difficulty with his back and with his left
arm. He has been off work from time to time with this. He is taking
medications, but he still has difficulties with continued pain.
He has been given 65% final disability rating.
Report of Investigation at 17.
The agency determined that this letter, which was at the time nearly 8
years old, was inadequate to justify complainant's continued limited duty
status and ordered him to return to his bid job duties. Complainant
complied but on his first day back in his bid job he injured himself
again.
These injuries were examined by the physician who had written the
July 26, 1989 letter. In a letter dated March 5, 1997 submitted by
complainant to the agency, the physician diagnosed complainant as having
�lumbrosacral strain� and �stain left shoulder.� He recommended the
following restrictions on the work complainant performed:
No lifting of 10 lbs or more. No stooping or climbing. He is to work 5
days a week, 8 hours a day. Monday thru [sic] Friday. . . . No lifting
above head.
Report of Investigation at 21.
It appears, although the record is not clear on this point, that after
this diagnosis was made, for a time the agency permitted complainant
to work within these restrictions. However in May 1997 and again in
September 1997, complainant was examined by physicians chosen by the
agency. Both of them concluded that complainant had fully recovered from
his injury and could work without restriction. After those diagnoses
were made the agency stopped accommodating the restrictions recommended
by complainant's physician.
Believing himself to be a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on April 28, 1997.
The agency accepted the complaint for investigation and 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. When complainant failed to request a
hearing within the time period specified in 29 C.F.R. � 1614.108(f),
the agency issued a final decision.
In its FAD, the agency concluded that complainant had failed to
prove himself to be an individual with a disability as defined by the
Rehabilitation Act. In addition, the agency concluded that it had
articulated a legitimate, nondiscriminatory reason for its actions,
i.e. that complainant had failed to provide medical documentation of
his disability. From the FAD, complainant brings the instant appeal.
On appeal, complainant contends that in concluding that complainant was
not an individual with a disability, the agency improperly disregarded the
treating physician's determination that complainant was �65% disabled.�
Complainant also includes with his appeal statement copies of reports
of medical examinations conducted of him in 1998 and 1999 but raises no
argument based on the information contained in the reports.
ANALYSIS AND FINDINGS
As a threshold matter, complainant must establish that he is an "
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. 1630.20(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. 1630.20). 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.
In the present case, complainant alleges, in essence, that the agency
failed to accommodate his disability when it denied him the opportunity
to continue serving as a limited-duty employee. But before any duty
to reasonably accommodate will be imposed on the agency, complainant
must prove that, at the time the accommodation was denied, he was an
individual with a disability. He has not done so.
While complainant did suffer injuries in a work-related accident,
the evidentiary record is devoid of information explaining how or
to what extent his injuries adversely affected any of his major life
activities. The 1989 physician's letter asserts that complainant had
been given a �65% final disability rating� but provides no information
from which we can deduce which major life activities were affected
by his condition. The letter states generally that complainant had
�difficulty� with his back and arm and �difficulties with continued
pain.� However, without some quantification of these difficulties,
we cannot conclude that they were substantial enough to significantly
limit any major life activity.
Complainant's physician's March 5, 1997 letter sets forth restrictions,
e.g., a prohibition against lifting 10 pounds or more, which might
indicate that complainant was substantially limited in a major life
activity. See Saul v. United States Postal Service, EEOC Request
No. 05950006 (May 2, 1996).(person with a lifting limitation of 10 pounds
is substantially limited in the major life activity of lifting). However,
complainant's physician's diagnosis was disputed by the two independent
physicians who examined complainant at the agency's request. In our view,
the latter's medical opinions, which are supported by detailed reports,
are more persuasive than that of complainant's physician. Therefore,
we find that by May 1997, complainant had completely recovered from the
injuries he had suffered in March 1997. Accordingly, we conclude that
whatever limitations those injuries imposed on any of complainant's
major life activities were, at worst, short-term and therefore not
substantial. See Loniello v. Department of the Air Force, EEOC Appeal
No. 01951539 (September 19, 1996); Marshall v. Department of the Navy,
EEOC Request No. 05950004 (June 2, 1995)(temporary conditions do not
constitute disabilities under the Rehabilitation Act).
For the foregoing reasons, we find insufficient evidence from which to
conclude that complainant's injuries substantially limited one or more
of his major life activities so as to render him an "individual with
a disability" within the meaning of the Rehabilitation Act. Moreover,
there is no evidence indicating that agency officials regarded him as
disabled, nor does he have a record of a disability. Consequently, we
find that the protections accorded by the Rehabilitation Act are not
applicable in this case.
CONCLUSION
Therefore, 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 affirm the FAD.
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
September 13, 2002
__________________
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 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.