0120042065
08-07-2008
Roy D. Spencer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Roy D. Spencer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200420651
Agency No. 4E800047403
DECISION
On February 4, 2004, complainant filed an appeal from the agency's
February 2, 2004 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. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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.
BACKGROUND
On March 27, 2003, complainant contacted an EEO Counselor and filed a
formal EEO complaint on June 10, 2003, alleging that he was discriminated
against on the bases of disability (perceived back problem) and age
(D.O.B. 12/18/54) when he was notified that he is medically unsuitable
for the position of City Carrier at the Colorado Springs post office.
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 pursuant to 29 C.F.R. �
1614.110(b) concluding that complainant failed to prove that he was
subjected to discrimination as alleged.
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
Complainant, a former agency employee, applied for a position as a city
carrier. As a prerequisite to employment, complainant was required to
undergo a medical assessment, which consisted of a review of complainant's
medical records by an agency physician. After that review, the agency
characterized complainant as "Moderate Risk/Restriction" and concluded
that complainant "would be medically qualified to perform the functions
of the position only if limitations/restrictions noted below can be
accommodated." The work restrictions noted were as follows:
May occasionally lift and carry up to 50 pounds. May rarely lift from
below knee level. May bend and stoop and twist occasionally. May lift not
more than 20 pounds from below knee level. Allow to alternate sitting,
standing and walking every 45 minutes.
Complainant disputed the agency's medical assessment and submitted
additional medical information in an effort to demonstrate that
he could perform the duties of a city carrier without difficulty.
This documentation included a letter from a nurse practitioner who was
then treating complainant for medical conditions including diabetes and
hypertension. The letter stated ". . . I do not believe [complainant's]
medical conditions should interfere with his abilities to perform the
essential functions of the position he is seeking."
On the basis of this supplemental information, the agency's physician
made a revision in the work restrictions as follows:
No handling (lifting or carrying) over 50 pounds.
May handle up to 50 pounds occasionally.
May handle up to 30 pounds frequently.
May bend, stoop and twist occasionally.
May lift not more than 30 pounds from below knee level.
On the basis of these revised work restrictions the agency determined
that complainant was "medically unsuitable for the position of City
Carrier at the Colorado Springs, Colorado Post Office." The agency
explained that complainant's inability to bend, stoop and twist freely
makes him unable to perform the essential functions of the position:
. . . a carrier must be able to, while casing, bend stoop and twist 1-2
hours per day. A carrier must be able to, while delivering the mail,
bend stoop and twist 3-4 hours per day. This is a total of six hours
a day that a carrier must be able to bend, stoop and twist.
In light of this finding, the agency declined to offer complainant the
city carrier position. After this determination was made, complainant
submitted additional medical information from a physician stating as
follows:
I have reviewed the job analysis and essential functions for the
U.S. Postal Service and I feel that the patient is capable of performing
all of the functions of this job. His previous restrictions of no lifting
over 50 pounds and only on an occasional basis, no more than 30 pound on
a frequent basis, only occasional stooping and twisting and no lifting
more than 30 pounds from below knee level, I do not feel are necessary
at this point.
Despite this information, the agency declined to reconsider its refusal
to hire complainant for the city carrier position.
Rehabilitation Act Claim
In order to be entitled to the protections of the Rehabilitation
Act, complainant must show initially that he is an individual with
a disability. An individual with a disability is 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. 29 C.F.R. �
1630.2(g). Major life activities include the function of caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. � 1630.2(i). An impairment
is substantially limiting when it prevents an individual from performing
a major life activity that the average person in the general population
can perform or when it significantly restricts the condition, manner or
duration under which an individual can perform a 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).
Complainant does not contend that he has an impairment that limits a
major life activity or that he has a record of such impairment. He may
satisfy the "regarded as" prong of the definition of an individual with
a disability. The Interpretive Guidance on title I of the Americans
with Disabilities Act, Appendix to 29 C.F.R. �. 1630.2(l) explains the
application of the "regarded as" provision of the Rehabilitation Act:
There are three different ways in which an individual may satisfy the
definition of "being regarded as having a disability":
(1) The individual may have an impairment which is not substantially
limiting but is perceived by the employer or other covered entity as
constituting a substantially limiting impairment;
(2) The individual may have an impairment which is only substantially
limiting because of the attitudes of others toward the impairment; or
(3) The individual may have no impairment at all but is regarded by
the employer or other covered entity as having a substantially limiting
impairment.
Because complainant does not claim to have an impairment, only the third
part could be applicable to him. Our regulations explain further that:
An individual satisfies the third part of the "regarded as" definition
of "disability" if the employer or other covered entity erroneously
believes the individual has a substantially limiting impairment that
the individual actually does not have.
Complainant contends that the agency believes him to be substantially
limited in the major life activity of working. To prevail on such
a claim, a complainant must show that he or she is perceived to be
"precluded from more than one type of job or a particular job of
choice." Rodriguez v. Conagra Grocery Products Co., 436 F.3d 468, 475-6
(5th Cir. 2006). An agency regards an individual as substantially
limited in the major life activity of working "if it thinks the
individual has an impairment that significantly restricts him or her
from currently performing a class of jobs or a broad range of jobs
in various classes." See Gaynor v. United States Postal Service, EEOC
Appeal No. 01A33909 (June 1, 2006); 29 C.F.R. � 1630.2(j)(3). Thus in
order to prove his case, complainant must adduce evidence concerning the
kinds of jobs other than city letter carrier, that the agency "thinks"
he is incapable of performing. He has failed to do so.
The only evidence in the record concerning the perceptions of agency
employees about complainant's ability to perform other jobs is a
statement attributed to an agency manager who urged complainant to
apply for a position in the clerk craft, a position for which he would
be "better suited." Apparently, the clerk position did not have the
same "bend stoop and twist" requirements as the city carrier position.
This statement undercuts complainant's case because it tends to show
that the agency regarded complainant as able to perform other jobs. See,
e.g. Mason v. United Air Lines, Inc. 274 F.3d 314, 317 (5th Cir. 2001)
(Evidence that employer encouraged plaintiff "to apply for alternative
positions" created issue of fact regarding employer's perceptions of
substantial limitation in plaintiff's ability to work.)
It is complainant's burden to show that the agency regarded him as
substantially limited in his ability to work. Because of the total
absence of evidence tending to show that the agency perceived complainant
to be unable to perform other jobs complainant has not borne that burden.
For that reason we conclude that complainant is not an individual with a
disability and is not entitled to the protections of the Rehabilitation
Act
Age Discrimination in Employment Act Claim
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct, i.e.,
complainant's medical restrictions prevented him from performing the
essential duties of the position he sought.. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Complainant has adduced no evidence that the agency denied him the
position he sought for any reason other than the reason it articulated.
For this reason, he has not borne the burden of proof imposed by McDonnell
Douglas and has failed to prove his claim under the ADEA.
CONCLUSION
For the foregoing reasons, the agency final decision is AFFIRMED.
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 tends 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
Executive Officer
Executive Secretariat
August 7, 2008
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above-referenced appeal number
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2
01A42065
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
7
0120042065