03a10025simonton
03-29-2001
Dwight A. Simonton, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, (Midwest Region), Agency.
Dwight A. Simonton v. United States Postal Service
03A10025
March 29, 2001
.
Dwight A. Simonton,
Petitioner,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Midwest Region),
Agency.
Petition No. 03A10025
MSPB No. CH-3443-98-0758-B-1
DECISION
On November 8, 2000, petitioner timely filed a petition with the
Commission for review of the October 5, 2000, Order of the Merit Systems
Protection Board (MSPB), concerning allegations of 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 petition is governed by the provisions of the Civil Service Reform Act
of 1978 and EEOC Regulations, 29 C.F.R. � 1614.303 et seq.<2> Petitioner
alleged that he had been discriminated against on the bases of gender
(sex/male), age, and disability, and that the agency had also retaliated
against him for pursuing his rights. The MSPB found that the United States
Postal Service (hereinafter referred to as the agency) did not engage in
discrimination as alleged by petitioner. For the reasons that follow,
the Commission concurs with the decision of the MSPB.
Petitioner was a Rural Letter Carrier for the agency in Mukwonago, WI.
He was injured at work, falling backwards, striking his head on the door
of a steel case, while sorting mail at his carrier case on September
19, 1992. The Office of Workers Compensation Programs (OWCP) accepted
the incident as a work-related injury to the petitioner's head, hip,
and buttocks.<3> After initially losing 45 days from work as a result
of the injury, petitioner was gradually reintroduced into the work site
in a limited-duty capacity. By mid-1993, petitioner was working full
8-hour days, but remained in the limited-duty assignment. According to
the agency, the limited-duty assignment was not a complete position, but
was comprised of a variety of small tasks normally performed by a clerk,
rather than a rural carrier. The petitioner's duties in his limited-duty
assignment included sorting letters for distribution into post office
boxes, processing return-to-sender mail, crossing off bar codes,
sorting certified receipts, replenishing supplies, and answering the
telephone. The agency further explained that the limited-duty assignment
was created because petitioner had sustained a work-related injury, and
the agency was obligated to pay him even if he did not report for work.
Petitioner continued working in the limited-duty assignment from mid-1993
to September 1997. He last reported for work on September 11, 1997,
completing a full 8-hour tour of duty. He called in sick on September
12, 1997, claiming back pain and weakness in his leg, resulting
from exceeding his medical restrictions at work the previous day.
An agency official called him at home that day and informed him that
his limited-duty assignment was withdrawn, pending his submission of
a functional capacity examination report from his treating physician
and review of the report by the agency's Injury Compensation Office.
His sick leave was depleted on September 13, 1997, and after that date
petitioner depleted his annual leave (three days), through September 16,
1997, and then was placed on LWOP. Petitioner submitted a functional
capacity examination report dated September 17, 1997, which indicated
that he was capable of performing the limited-duty work to which he was
previously assigned. Nevertheless, the functional capacity examination
indicated that petitioner had significant medical restrictions, insofar as
he could not stand for more than two hours at time, and he was restricted
from lifting more than 20 pounds and performing repetitive bending,
twisting, and stooping. It is undisputed that these restrictions prevented
petitioner from performing the duties of his regular position as a rural
letter carrier. Petitioner testified he told the postmaster that he
could perform only the duties covered by his limited-duty assignment.
Petitioner has been in LWOP status continuously since September 17, 1997.
By letter dated September 28, 1997, OWCP (based on the agency's request
for review) notified petitioner that it proposed to terminate his
compensation benefits, because there were no objective findings showing
that he was disabled due to his September 1992 work-related injury.
This proposal was based on medical reports signed by an orthopedic surgeon
and a psychiatrist, both of whom examined petitioner in the summer of
1997. By letter dated January 15, 1998, OWCP notified petitioner his
OWCP benefits would terminate effective February 1, 1998, because he
was no longer disabled due to his September 1992 work-related injury.
OWCP based its decision on the medical reports by the orthopedic
surgeon and psychiatrist. However, the psychiatric diagnosis indicated
that petitioner had chronic low-grade depression and mixed personality
disorder, including passive-aggressive forms of symptomatic exaggeration.
It is also undisputed that notwithstanding petitioner's recovery from
the disability caused by his September 1992 work-related injury, the
petitioner continued to suffer from anxiety disorder as well as back
and hip pain.
After the agency withdrew petitioner's limited-duty assignment, the
duties he performed were assumed by three female clerks, one of whom
was hired shortly before his limited-duty position was withdrawn, and
two of whom were hired thereafter.
On July 24, 1998, petitioner filed an appeal to the MSPB, asserting that
he had been constructively suspended since September 12, 1997, and that he
had been discriminated against on the bases of gender (sex/male), age,
and disability, and that the agency had also retaliated against him for
pursuing his rights. After holding a hearing, the MSPB administrative
judge (AJ) dismissed the appeal for lack of jurisdiction, finding
that the petitioner's absence after September 12 did not constitute
a constructive suspension because the agency was not obligated to
provide limited duty or light duty after September 12. Based on this
jurisdictional determination, the AJ found that he was without authority
to consider the petitioner's claims of discrimination based on sex, age,
and disability, or to consider his claims of retaliation for pursuing
his equal employment opportunity (EEO) and workers' compensation rights.
On petition for review to the full MSPB, petitioner disputed the AJ's
jurisdictional dismissal of his appeal and also raised arguments regarding
his discrimination claims. On February 23, 2000, the MSPB issued an
Opinion and Order finding that the agency had constructively suspended
him for a 3�-month period, i.e., from September 13, 1997 (the day after
his sick leave was depleted), through January 31, 1998 (the day before
his OWCP benefits were terminated). The MSPB also remanded the appeal
to an MSPB AJ to adjudicate petitioner's claims of discrimination based
on gender and disability as well as his claim of retaliation for engaging
in EEO activity.
On June 23, 2000, the AJ issued his decision, sustaining the agency's
action and finding that the agency did not discriminate against
petitioner. With respect to the issue of disability discrimination,
the AJ found that petitioner failed to establish a prima facie case,
emphasizing that petitioner was not a �qualified individual� with
a disability. The AJ relied on petitioner's admission at the hearing
that he was medically unable to return to duty in his assigned craft
as a rural letter carrier and could perform only the duties covered by
his limited-duty assignment. The AJ also noted that the limited-duty
position was not a full-time position, but rather a �make work� position
created because the agency was obligated to compensate petitioner even if
he stayed home on account of his work-related disability. The AJ further
noted that the agency indicated there were no vacancies in the office and
the office had no full-time positions for which petitioner was qualified.
Finally, the AJ indicated that the agency had a non-discriminatory reason
for withdrawing the limited-duty assignment, since it had received medical
reports stating that petitioner had no current residual disability caused
by his work-related injury, and that agency employees are entitled to
limited-duty assignments only if their disability is the result of a
work-related injury.
With respect to the issue of sex discrimination, the AJ found that the
duties assumed by the three female clerks after petitioner's limited-duty
assignment was withdrawn, were �clerk� duties and, therefore, would
naturally be assumed by clerks once the limited-duty assignment came
to an end. The AJ further reiterated that the agency withdrew the
limited-duty assignment based on the medical reports stating that
petitioner had no current residual disability caused by his work-related
injury, and that there was no evidence indicating that gender played
any role in the submission or consideration of the medical reports.
With respect to the issue of retaliation, the AJ found that petitioner
had filed two informal EEO complaints. The first complaint (under
Title VII), filed March 1997, alleged harassment by a female employee
and involved what petitioner perceived to be a death threat. The AJ
found that petitioner failed to show a nexus between the complaint and
the agency's decision to withdraw his limited-duty assignment, one and
one-half years after petitioner filed the EEO complaint. The AJ again
reiterated that the agency withdrew the limited-duty assignment based
on the medical reports stating that petitioner had no current residual
disability caused by his work-related injury. The second EEO complaint
(Rehabilitation Act), filed by petitioner, was based on the agency's
decision to withdraw his limited-duty assignment. In the AJ's view,
because the petitioner filed this complaint after the agency withdrew
the limited-duty assignment, the withdrawal of the assignment could not
constitute retaliation for filing the EEO complaint.
Petitioner's request for review by the full Board was denied. Petitioner
then filed his petition with the Commission.<4> The agency did not file
a reply.
Petitioner challenges the AJ's findings of no discrimination and
retaliation. Petitioner emphasizes that the agency wrongly denied him
accommodation of his disabilities based on his physical and mental
impairments, and also discriminated against him in constructively
suspending him from his limited duty position. Petitioner reiterates his
sex discrimination claim, that there was a female rural letter carrier,
who was working as a modified clerk (same as petitioner) who had the same
supervisor, at the same work site, who he learned had been reassigned and
trained for a permanent position in accordance with her limitations.<5>
Petitioner further argues that the agency retaliated against him for
his prior EEO activity and because he requested accommodation of his
disabilities.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board with
respect to the allegations of discrimination based on disability, sex,
and retaliation constitutes a correct interpretation of applicable law,
rule, regulation or policy directive and is supported by evidence in
the record as a whole. 29 C.F.R. � 1614.305(c).
Disability Discrimination
The Rehabilitation Act prohibits discrimination against qualified
disabled individuals. See 29 C.F.R. � 1630. One bringing a claim of
disability discrimination must first establish that he is a member of the
class of persons protected by the Rehabilitation Act, i.e., a qualified
individual with a disability. An �individual with a disability� is
defined as someone who: (1) has a physical or mental impairment which
substantially limits one or more of such person's major life activities;
(2) has a record of such an impairment; or (3) is regarded as having
such an impairment. 29 C.F.R. � 1630.2(g)(1)-(3). The Commission
has defined �substantially limits� as �[u]nable to perform a major
life activity that the average person in the general population can
perform� or �[s]ignificantly restricted as to the condition, manner or
duration under which an individual can perform a particular major life
activity as compared to the condition, manner, or duration under which
the average person in the general population can perform that same major
life activity.� 29 C.F.R. � 1630.2(j)(1)(i) and (ii). In determining
whether an individual is substantially limited in a major life activity
one must consider �[t]he nature and severity of the impairment�, �[t]he
duration or expected duration of the impairment�, and �the permanent
or long term impact, or the expected permanent or long term impact of
or resulting from the impairment.� 29 C.F.R. � 1630.2(j)(2)(i), (ii),
and (iii). �Major life activities� include functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. � 1630.2(i). They also
include thinking, concentrating, interacting with others, and sleeping.
EEOC Enforcement Guidance on The Americans with Disabilities Act and
Psychiatric Disabilities at 5 (March 25, 1997). Pursuant to 29 C.F.R. �
1630.9(a), an agency is required to make reasonable accommodations for
the known physical or mental limitations of an
otherwise qualified applicant or employee with a disability, unless
the agency can demonstrate that the accommodation would impose an undue
hardship.
We first address whether petitioner was a person with a disability.
Petitioner has pointed to physical impairments, including chronic low
back pain from the hematoma of the left occipital, which have affected
his hip, back, and leg, causing back pain, and weakness in the leg.
Petitioner also has pointed to mental impairments, including mild amnesia,
post concussion syndrome, and depression. However, whether petitioner
has impairments and whether those impairments affect and substantially
limit a major life activity present separate questions. He did not
sufficiently specify the frequency or severity of these symptoms.
Additionally, petitioner did not present sufficient evidence regarding
the permanency or long term impact of the impairments. Although the
functional capacity examination indicated that petitioner could not stand
for more than two hours at a time, and he was restricted from lifting more
than 20 pounds and performing repetitive bending, twisting, and stooping,
these do not establish a substantial limitation of a major life activity.
The petition notes that petitioner testified that some of the major life
functions affected by the mental impairment are the ability to think
and concentrate. The fact that some of his major life activities have
been affected by his impairments is not sufficient to justify a finding
that petitioner is a person with a disability. Petitioner must show a
substantial limitation of a major life activity. No such justification
has been proffered in the petition or in the record. Based upon the
record, the Commission finds that petitioner has not met his burden of
persuasion to justify a finding that his impairments have risen to a
level of a disability that substantially limits a major life activity.
Further, there is no persuasive evidence that petitioner was regarded
by management officials as having, or that petitioner had a record of,
a substantially limiting condition.
Additionally, even if an employee with an occupational injury has a
�disability� as defined by a workers' compensation statute, s/he does
not necessarily have a �disability� for ADA purposes. EEOC Enforcement
Guidance on Workers' Compensation and the ADA at 2 (September 3, 1996).
The ADA definition of �disability� controls the ADA and is separate
and distinct from the definition of disability under the workers'
compensation statute. Furthermore, just because a person has filed a
workers' compensation claim does not mean that person has a disability
under the �record of� portion of the ADA definition. A person has a
disability under the �record of� portion of the ADA definition only if
s/he has a history of, or has been misclassified as having, a mental
or physical impairment that substantially limits one or more major
life activities. Id. at 2-3. Finally, we note that individuals are
not necessarily regarded as individuals with disabilities, as defined
by the Rehabilitation Act, even though they may have been provided with
a limited duty assignment because of an on-the-job injury or because
they have received an award from the OWCP. The individual must still
establish that his impairment meets the regulations set forth at 29
C.F.R. � 1630.2(g). See Wailer v. Department of Defense, EEOC Request
No. 05940919 (April 6, 1995); Bailey v. U.S. Postal Service, EEOC Appeal
No. 01952545 (March 7, 1996).
In sum, the Rehabilitation Act does not require an employer to provide
reasonable accommodation for an employee who does not have a disability
as defined by the statute. Petitioner has failed to meet his burden of
persuasion that he is or was a person with a disability as defined by the
Rehabilitation Act. Accordingly, his claim of disability discrimination
must fail.
Sex Discrimination
Petitioner argues that there was a female rural letter carrier, who
was working as a modified clerk (same as petitioner), who had the same
supervisor, at the same work site, and who he learned had been reassigned
and trained for a permanent position in accordance with her limitations.
This claim was raised in another complaint. The Commission has previously
upheld the procedural dismissal of this claim in Simonton v. USPS, EEOC
Appeal No. 01995205 (May 3, 2000) request for reconsideration denied in
Simonton v. USPS, EEOC Request No. 05A00785 (November 30, 2000)(untimely
EEO counselor contact). Accordingly, it would be inappropriate for the
Commission to further address this matter.<6>
Retaliation
As discussed above, in general, claims alleging disparate treatment under
Title VII are examined under the tripartite analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F.Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to reprisal cases).
To establish a prima facie case of reprisal discrimination, petitioner
must show that (1) she engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) she was
subsequently disadvantaged by an adverse action; and, (4) there is a
causal link. The causal connection may be shown by evidence that the
adverse action followed the protected activity within such a period of
time and in such a manner that a reprisal motive is inferred. Simens
v. Department of Justice, EEOC Request No. 05950113 (March 28, 1996)
(citations omitted). "Generally, the Commission has held that nexus may
be established if events occurred within one year of each other." Patton
v. Department of the Navy, EEOC Request No. 05950124 (June 27, 1996).
Assuming arguendo that petitioner has set forth a prima facie case, the
agency has articulated a legitimate, nondiscriminatory reason for the
action at issue, i.e., that it was withdrawing him from the limited-duty
assignment, since he had no current residual disability caused by
his work-related injury. As the AJ pointed out, because petitioner's
entitlement to a limited-duty assignment ended upon his recovery from his
work-related injury, the timing of the agency's decision to withdraw his
limited-duty assignment does not support an inference of a retaliatory
motive.
Finally, it is petitioner's burden to establish by a preponderance of
the evidence (more likely than not) that the agency's articulated
nondiscriminatory explanation for its action was a pretext for
discrimination. In the Commission's view, petitioner has failed to meet
his burden to show
that the agency's articulated nondiscriminatory explanation was a
pretext.
CONCLUSION
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
Board's decision 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.
STATEMENT OF PETITIONER'S RIGHTS
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
March 29, 2001
Date
1The 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 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3 Petitioner suffered from a hematoma (a circumscribed extravascular
collection of blood, usually clotted, which forms a mass) of the left
occipital (back part of the head), hip, and buttock, as well as a
concussion with mild amnesia, post-concussion syndrome, and depression.
4 The petitioner's age claim has not been addressed on the merits
by the MSPB. Petitioner does not request review of his age claim.
Accordingly, the Commission will not address the age claim.
5 It is unclear why the AJ did not address this issue. However, this
issue was raised at the hearing before the AJ. See MSPB AJ Tr. 130-31.
6 The petitioner does not appear to take issue with the AJ's analysis
and conclusions concerning the assumption of his duties by three female
clerks. Nevertheless, we concur with the AJ's disposition, including
his reasoning, of no disparate treatment discrimination.