01992920
01-24-2002
William J. Tyrrell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
William J. Tyrrell v. United States Postal Service
01992920
January 24, 2002
.
William J. Tyrrell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01992920
Agency No. 4F-956-1016-95
Hearing No. 370-97-X2024
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning his equal employment opportunity (EEO) complaint
of unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act)<1>, as amended,
29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges he was discriminated against on the basis
of disability (cervical spondylosis) when he was not allowed to work eight
hours a day between the dates of September 29, 1994 and November 30, 1994.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that during the relevant time, complainant was employed
as a PS-05 Letter Carrier, at the agency's Merced Post Office facility in
California. On or about June 16, 1994, while working as a letter carrier,
complainant injured his neck and shoulder. As a result of his injury,
complainant was unable to work until approximately October 7, 1994.
Upon returning to work, complainant's physician indicated that he could
resume working eight hours a day as long as he did not lift more than ten
pounds or drive. On October 25, 1994, complainant's physician increased
his lifting limitation to twenty pounds but stated that complainant was
restricted from carrying his mailbag. Finally, on November 21, 1994,
complainant's physician released him to full-time work with intermittent
lifting of up to thirty pounds.
Although he requested eight hours a day, the record establishes that from
October 7, 1994 to November 29, 1994, complainant worked approximately
four hours a day. On February 2, 1995, the Office of Worker's
Compensation (OWCP) accepted this injury for compensation purposes as
an aggravation of cervical spondylosis. According to OWCP, the medical
documentation in complainant's file indicated that he had �a condition of
recurrent cervical radiculopathy, which was aggravated by carrying [his]
mailbag on [his] right shoulder, and worsening since 1988.� The record
further establishes that complainant received worker's compensation
for this period up to October 30, 1994. The OWCP did not compensate
complainant for the period beginning October 31, 1994 through November
29, 1994, for reasons which were unclear to the agency. At the time of
the hearing, the agency's Injury Compensation Specialist had initiated
correspondence with the OWCP concerning payment to complainant.
Complainant filed a formal EEO complaint with the agency on December
28, 1994, alleging that the agency had discriminated against him by
not providing him with eight hours of work a day. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge
(AJ). On May 21, 1996, the AJ remanded the case to the agency for
a supplemental investigation. The agency conducted the supplemental
investigation in August 1996, and the case was returned for hearing on
or about October 16, 1996. Following a hearing, the AJ issued a decision
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability discrimination. Specifically, the AJ found that complainant
failed to demonstrate that his cervical spondylosis substantially
limited a major life activity. The AJ also concluded that temporary,
non-chronic impairments of short duration, with little or no long term
or permanent impact, are usually not disabilities.
Assuming arguendo that complainant was an individual with a disability,
the AJ further concluded that complainant did not show that the agency
failed to reasonably accommodate him. The AJ noted that complainant did
not claim that, during the applicable period, he could perform the duties
of his position even with reasonable accommodation; further, complainant
did express a desire to be permanently reassigned to another position
nor was there any showing that there were any funded vacant positions
to which he could have been assigned. While noting that complainant's
desire to work a full eight hour day was �commendable,� the AJ noted that
the agency had provided complainant with four hour of work and found that
the agency had no obligation to combine different duties around the office
to create a position which would provide complainant with eight hours of
work a day during the six weeks between October 7 and November 29, 1994.
The agency's final decision implemented the AJ's decision. Complainant
makes no new contentions on appeal, and the agency requests that we
affirm its final decision.
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).
Here, even assuming, arguendo, that complainant is a qualified individual
with a disability, the Commission finds that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
toward complainant's disability or that he was treated less favorably
than similarly situated persons without a disability. We discern no
basis to disturb the AJ's decision that complainant was not denied
a reasonable accommodation. Therefore, after a careful review of the
record, including complainant's contentions, the agency's response,
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 24, 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.