03A20060
09-13-2002
Charles M. Adams, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles M. Adams v. United States Postal Service
03A20060
September 13, 2002
.
Charles M. Adams,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A20060
MSPB No. CH00752-00-0736-I-1
DECISION
On April 16, 2002, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Petitioner, a Mailhandler at the agency's Louisville, Kentucky facility,
alleged that he was discriminated against on the basis of disability
(back condition) when, on July 8, 2000, he was terminated from his
position instead of being reassigned to a different position as a
reasonable accommodation.
On August 8, 2000, petitioner filed a mixed case appeal with the MSPB.
After a hearing, the Administrative Judge found that the agency's decision
to remove petitioner was proper.<1> The Board denied petitioner's
petition for review.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
ANALYSIS AND FINDINGS
In order to be entitled to coverage under the Rehabilitation Act,
petitioner must establish that he is an �individual with a disability�
within the meaning of the Act.<2> 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. 29 C.F.R. � 1630.2(g).
Major life activities include, but are not limited to, caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, standing, lifting, reaching and working. 29 C.F.R. � 1630.2(i);
see also Appendix to Part 1630 - Interpretive Guidance on Title I of
the Americans with Disabilities Act (Interpretive Guidance), � 1630.2(i).
In the case at hand, petitioner failed to establish that he has an
impairment that substantially limits one or more major life activities.
In order for an impairment to substantially limit a major life activity,
the impairment must render the individual unable to perform the major
life activity or significantly restricted as to the condition, manner
or duration under which he or she can perform that activity as compared
to the average person in the general population. See 1630.2(j)(1).
Here, petitioner was terminated on July 8, 2000. At that time, the
record establishes that his back impairment limited his ability to lift
and bend. Specifically, petitioner's doctor indicated that petitioner
should limit his lifting as follows: 50 pounds on an occasional basis,
25 pounds on a frequent basis, and 10-20 pounds on a constant basis.
Petitioner's doctor also indicated that petitioner should avoid repetitive
bending and lifting of more than fifty pounds.<3> While lifting is a
major life activity, petitioner's ability to lift up to 50 pounds on an
occasional basis, along with his ability to lift 10-20 pounds constantly
and 25 pounds frequently, does not render him substantially limited in
his ability to lift. Compare Ward v. United States Postal Service, EEO
appeal No. 01985961 (March 6, 2000) (petitioner not substantially limited
in lifting where restricted from lifting more than 50 pounds twice a day)
with Selix v. United States Postal Service, EEOC Appeal No. 01970153
(March 16, 2000) (petitioner substantially limiting in lifting where
permanently restricted from lifting more than 10 pounds). Furthermore,
there is no evidence that petitioner's impairment substantially limited
any other major life activity at the time of his termination.
Although we find that there is insufficient evidence to establish that
petitioner was substantially limited in a major life activity at the time
of his termination, there is evidence which suggests that he had a record
of an impairment that substantially limits the major life activity of
standing. Specifically, the record indicates that between October 1998
and August 1999, petitioner was only able to stand for 20-30 minutes
per day, a significant restriction when compared to the average person
in the general population. Compare Russell v. United States Postal
Service, EEOC Appeal No. 01981160 (April 3, 2001) (petitioner initially
prohibited from standing at all for one month, then was permitted to stand
intermittently up to 30 minutes per day, with reassessment to occur in
another month; accommodation dispute arose during second month of ongoing
restriction; petitioner found to be substantially limited in standing)
with Thompson v. United States Postal Service, EEOC Appeal No. 01971189
(August 31, 2000) (petitioner not substantially limited in standing or
walking where restricted to standing and walking 3 to 4 hours maximum
per day). This restriction was lifted at some point between August 1999
and December 1999, rendering petitioner, at the time of his termination,
limited only in his ability to lift more than 50 pounds, as discussed
above, and to engage in repetitive bending.
Similarly, there is some evidence to suggest that the agency regarded
petitioner as substantially limited in the major life activity of standing
when it decided that petitioner should be terminated. In so finding,
we note that certain management officials erroneously believed that
the restrictions placed on petitioner in October 1998, which included
the 20-30 minute standing limitation, remained in place at the time of
his termination.
Assuming, then, that petitioner has a record of a substantially limiting
impairment and was regarded as having such an impairment by the agency,
we nonetheless find that he failed to establish that the agency violated
the Rehabilitation Act when it terminated him. Petitioner's claim is
that he was discriminated against when, instead of being reassigned to a
vacant, funded position as a reasonable accommodation, he was terminated
for being medically unfit. Commission precedent holds, however,
that an individual who does not actually have a substantially limiting
impairment, is not entitled to a reasonable accommodation. See Howard
v. Department of the Air Force, EEOC Appeal No. 01931905 (May 12, 1994)
(finding that a petitioner who is regarded as substantially limited in a
major life activity, rather than actually substantially limited, is not
entitled to a reasonable accommodation); Schultz v. United States Postal
Service, EEOC Appeal No. 05950724 (September 26, 1996) (finding that
even assuming the agency regarded petitioner as substantially limited
in a major life activity, petitioner was not entitled to a reasonable
accommodation where he was not actually substantially limited).
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's determination that petitioner was not subjected to disability-based
discrimination when he was terminated constitutes a correct interpretation
of the laws, rules, regulations, and policies governing this matter and
is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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
1 The AJ also dismissed petitioner's claim
that he was placed in enforced leave status from October 26, 1998 until
his removal, noting that such an allegation was not within the MSPB's
jurisdiction. Petitioner does not raise this issue in his petition and
it will therefore not be addressed.
2The 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.
3 These were the recommendations of petitioner's primary physician as of
February 9, 2000. During this same period, similar lifting restrictions
were recommended by other physicians, but none were more restrictive
than these.