01a32425
09-23-2004
Linda Revetta, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda Revetta v. United States Postal Service
01A32425
September 23, 2004
.
Linda Revetta,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32425
Agency No. 4I-570-0021-01
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
concerning her 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. For the following reasons, the
Commission affirms the agency's final decision.
ISSUE PRESENTED
The issue presented herein is whether complainant has proven by
preponderant evidence that the agency discriminated against her on the
basis of disability (acute reactionary syndrome) when she was denied a
reasonable accommodation.
BACKGROUND
The record reveals that complainant sought EEO counseling and subsequently
filed a formal complaint on April 3, 2002, in which she alleged what has
been identified as the issue presented. The complaint was accepted for
investigation, and at the conclusion thereof, complainant was informed
of her 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 on the matter.
In its decision, the agency concluded that complainant had not been
discriminated against as alleged. Specifically, the agency concluded
that complainant was not an individual with a disability entitled
to coverage under the Rehabilitation Act. Complainant appealed.
On appeal, complainant argues that the agency failed to conduct an
adequate investigation.
ANALYSIS AND FINDINGS
Disability Discrimination
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. �1630.9.
The Commission also notes that an employee must show a nexus between
the disabling condition and the requested accommodation. See Wiggins
v. United States Postal Service, EEOC Appeal No. 01953715 (April 22,1997).
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that
s/he is an "individual with a disability." EEOC Regulation 29 C.F.R. �
1630.2(g) defines an individual with a disability as one who: 1) has a
physical or mental impairment that substantially limits one or more of
that person's major life activities, 2) has a record of such impairment,
or 3) is regarded as having such an impairment. EEOC Regulation 29
C.F.R. � 1630.2(h)(2)(i) defines "major life activities" as including
the functions of caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working.
Although this is an illustrative, not exhaustive, list, there is no
evidence in the record that complainant was substantially limited in
a major life activity due to a physical or mental impairment. Of the
medical documents in the record, only two of them implicates some problems
with complainant's ability to perform a major life activity. The first,
dated December 23, 2001, states that complainant had �problems sleeping
and trouble concentrating.� But that document does not state to what
degree complainant's sleeping problems and concentration troubles
affected her, therefore we have no way of determining whether she
was substantially limited in those regards. The second document,
dated November 10, 2001, which implicates a major life activity states
complainant could not lift greater than fifteen pounds for a period of
four weeks. While a long term lifting restriction of fifteen pounds
does render a person substantially limited in the major life activity
of lifting,<1> a four-week restriction from such activity does not.<2>
Moreover, complainant has not presented evidence that she had a history of
or was regarded by the agency as having such an impairment. We therefore
find that complainant has failed to make a successful disability claim.
Insufficient Investigation
As noted previously, complainant argues that the agency conducted an
insufficient investigation by not considering some of the claims raised in
her complaint. Specifically, complainant argues that the agency failed to
investigate her claims of reprisal and hostile work environment based upon
sex and disability. She also argues that the agency failed to investigate
her claim of unlawful disclosure of her medical information, a violation
of the Rehabilitation Act. Upon accepting complainant's formal complaint
of discrimination for investigation, the agency made clear to complainant
what the scope of the investigation would be, namely, whether complainant
was discriminated against on the basis of disability when she was denied a
reasonable accommodation, the issue raised before the EEO counselor and in
the formal complaint. Additionally, complainant was given seven days to
inform the agency whether she agreed with the description of her claim as
defined in the acceptance letter. She never did. The agency proceeded
with the investigation, which was completed on November 15, 2002.
It was not until November 26, 2002, that the agency was put on notice
by complainant there were other incidents of alleged discrimination she
wanted to raise.<3> At that late date, complainant should have sought
EEO counseling and, if appropriate, filed a new complaint in order to
get these newly raised issues addressed. See 29 C.F.R. � 1614.106(d)
(stating that a complainant may amend a complaint at any stage prior to
the conclusion of an investigation to include issues that are like or
related to those raised in the complaint) (emphasis added). Based on the
foregoing, it is the ruling of this Commission the agency's investigation
was conducted in accordance with EEOC regulations and guidelines.
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response thereto, and arguments and evidence not
specifically addressed in this decision, we affirm the agency's finding
of no discrimination.
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
September 23, 2004
__________________
Date
1See Haygood v. United States Postal Service, EEOC Appeal No. 01976371
(April 25, 2000) (finding complainant substantially limited in the major
life activity of lifting where complainant had been restricted for many
years from lifting more than fifteen pounds.)
2See Jones v. United States Postal Service, EEOC Appeal No. 01983491
(April 13, 2000) (finding complainant not substantially limited in
the major life activity of working during a six-week recovery period
because the restriction from working was of insufficient duration to
render complainant substantially limited).
3The letter to the investigator protesting the scope of the investigation
was dated November 26, 2001. Other information in the file, however,
leads the Commission to presume the letter should have been dated November
26, 2002.