01A00703
07-23-2002
Leonard W. Richard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leonard W. Richard v. United States Postal Service
01A00703
July 23, 2002
.
Leonard W. Richard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00703
Agency No. 1B-021-0017-99
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. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether complainant has established by a
preponderance of the evidence that he was discriminated against on the
basis of disability (vascular surgery) when his request/application for
advance sick leave was denied on December 14, 1998.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Laborer/ Custodian at the agency's Processing and
Distribution Center in Boston, Massachusetts. Complainant sought
EEO counseling and subsequently filed a formal complaint on March 8,
1999, as referenced above. 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 respond 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 failed to establish
a prima facie case of disability-based discrimination. The agency
noted that complainant's condition was temporary and, therefore, did
not rise to the level of a disability. Accordingly, the agency found
that complainant was not discriminated against as claimed.
On appeal, complainant contends that the agency improperly denied his
request for advance sick leave. The agency requests that we affirm
its FAD.
ANALYSIS AND FINDINGS
To bring a claim of disability discrimination, complainant must first
establish that he is an individual with a disability within the meaning
of the Rehabilitation Act. An individual with a disability is one who
has, has a record of, or is regarded as having a physical or mental
impairment that substantially limits one or more of his/her major life
activities. 29 C.F.R. 1630.2(g).
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). The term "substantially
limits" means: unable to perform a major life activity that the
average person in the general population can perform; or significantly
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). Factors considered in determining whether an
individual is substantially limited in a major life activity include:
the nature and severity of the impairment; the 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).
In the case at hand, the Commission finds that complainant has failed
to establish that he is an individual with a disability for purposes of
the Rehabilitation Act. The record indicates that complainant requested
advance sick leave when he was to undergo vascular surgery. Upon review,
we find that complainant has not shown that he is substantially limited
in a major life activity as to the condition which necessitated the leave
request. Complainant provided documentation which showed that, because
of the surgery, he was restricted from work starting December 1, 1998,
and was released to work on March 17, 1999. Based upon the record, we
find that complainant's restriction was temporary in nature. Therefore,
we conclude that he failed to show that he is substantially limited in
a major life activity. The Commission also notes that complainant did
not show that he had a record of a disability or was regarded as having
a disability. Accordingly, we find that complainant did not establish
a prima facie case of disability discrimination.
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
July 23, 2002
__________________
Date