William J. Tyrrell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionJan 24, 2002
01992920 (E.E.O.C. Jan. 24, 2002)

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.