0120062793
10-31-2007
Patrick J. Tullo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patrick J. Tullo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200627931
Agency No. 1C451007305
DECISION
On March 29, 2006, complainant filed an appeal from the agency's March 13,
2006 final decision concerning his equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission affirms the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
in a rehabilitation position as a full-time Sack Sorter Machine Operator
at the agency's Processing and Distribution Center in Cincinnati, Ohio.
Complainant contacted an EEO Counselor and filed a formal EEO complaint
on September 29, 2005, alleging that he was discriminated against on
the basis of his disability (chronic neck and back pain) when on July
11, 2005, management did not provide him the opportunity to act as
supervisor.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision (FAD) pursuant to 29
C.F.R. � 1614.110(b) concluding that complainant failed to prove that
he was subjected to discrimination as alleged. The FAD found that
complainant was not provided the opportunity to supervise because his
medical restrictions prevent him for performing the essential functions of
Supervisor, Distribution Operations. The FAD concluded that complainant
failed to show that the agency subjected him to unlawful disability
discrimination. On appeal, complainant reiterates his contention that
the agency discriminated against him on the basis of his disability and
that he should have been afforded the opportunity to act as supervisor.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
The Rehabilitation Act of 1973 prohibits discrimination against qualified
disabled individuals. See 29 C.F.R. � 1630. In order to establish that
complainant was denied a reasonable accommodation, complainant must show
that: (1) he is an individual with a disability, as defined by 29 C.F.R. �
1630.2(g); (2) he is a qualified individual with a disability pursuant to
29 C.F. R. � 1630.2(m); and (3) the agency failed to provide a reasonable
accommodation. See Enforcement Guidance: Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002
(October 17, 2002) ("Enforcement Guidance").
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, and working. 29
C.F.R. � 1630.2(i).
Here we assume, without finding, that complainant is an individual with
a disability. Next, complainant must show that he is a "qualified"
individual with a disability within the meaning of 29 C.F.R. �
1630.2(m). See Lassiter v. Department of Justice, EEOC Appeal No. 03940052
(July 28, 1994). The term "qualified individual with a disability,"
with respect to employment, is defined as a disabled person who, with or
without a reasonable accommodation, can perform the essential functions
of the position held or desired. 29 C.F.R. �1630.2(m).
In the instant case, we find that complainant has not shown that he
is qualified for the position of Supervisor, Distribution Operations.
The record reflects that complainant's medical documentation indicates
that complainant has permanent restrictions of a combined limit of one
hour of standing/walking per day. (Report of Investigation, Exhibit 2).
The record also shows that the duties and responsibilities of the position
of Supervisor, Distribution Operations include the routine supervision
of employees performing a variety of duties in various locations on the
workroom floor; coordinating mail flow activities, resolving routine
problems, and investigating accidents, which require considerable
mobility.2 (R.O.I., Exhibit 4). Accordingly, we find that complainant's
has not established a prima facie case of disability discrimination
because his restriction of one hour per day of walking/standing prevents
him from performing the essential functions of the position at issue,
and therefore complainant is not a qualified individual with a disability
under the Rehabilitation Act. In so finding, we note that complainant
does not contend that he could perform the essential functions of the
position at issue without a reasonable accommodation, nor does he identify
any possible accommodation that would have allowed him to perform the
essential functions of the Supervisor position. Accordingly, we affirm
the agency's final decision finding 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 31, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Although not explicitly stated, based upon the position description
for the position at issue, and the affidavit testimony of the Manager,
Distribution Operations, we infer that these duties of the Supervisor,
Distribution Operations would require walking to the various duty stations
and complainant does not dispute this inference.
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0120062793
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120062793