01984295
02-26-2002
Shelly Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Shelly Johnson v. U.S. Postal Service
01984295
02-26-02
.
Shelly Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984295
Agency No. 1G708206293
Hearing No. 270-95-9127X
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination on
the basis of disability (degenerative joint disease in right knee) in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.<1> For the reasons stated
herein, the agency's FAD is affirmed.
According to the record, complainant was employed as a Flat Sorter
Machine Operator, PS-6 at a Louisiana facility of the agency. In May
1992, complainant suffered a work-related injury, which required her to
take a leave of absence from May 1992 through July 1992. During that
time, complainant's personal physician diagnosed her with arthritis
in her right knee and recommended that she avoid repetitive stooping,
squatting, and climbing. Complainant filed a claim for benefits with
the Office of Workers' Compensation which was denied in August 1992.
Complainant was then considered a �light duty <2>� employee and she
worked light duty from September 1992 through April 1993 under the
medical restrictions of no climbing and only intermittent lifting,
carrying, standing, walking, kneeling, bending, stooping, or twisting.
We specifically note that complainant was limited to standing for only
one hour, intermittently, each day. In May 1993, complainant, based
on a medical certificate issued by her physician, asked to continue
on light duty as well as to use a lumbar back support chair.<3> Both
requests were denied so complainant was unable to work. Believing she
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint alleging that the agency discriminated
against her when she was not allowed to work.
The agency stated that complainant was not allowed to work because the
agency provided her with light duty for approximately eight months and
it does not have permanent light duty status, a lumbar back support
chair was not appropriate for her position, and there were no positions
available which would allow for complainant's restrictions.
An investigation was conducted and complainant was informed of her right
to choose either a hearing before an EEOC administrative judge (AJ)
or an immediate FAD. Complainant chose the former. After a hearing,
the AJ issued a decision finding no discrimination. Specifically,
the AJ found that complainant failed to show that she was an individual
with a disability because she did not show that she was substantially
limited in a major life activity<4>. In addition, the AJ found that
assuming complainant was an individual with a disability, she failed to
show that the reasonable accommodation she requested was related to her
claimed disability. The agency issued a FAD concurring with the AJ's
finding of no discrimination.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).
A finding that discriminatory intent did not exist is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
The Commission has reviewed the full administrative record and we find
that the AJ's factual findings support her ultimate factual conclusion
of no discrimination based on disability. The Rehabilitation Act of
1973 prohibits discrimination against qualified disabled individuals.
In order to establish disability discrimination, complainant must show
that: (1) she is an individual with a disability, as defined by 29
C.F.R. � 1630.2(g); (2) she 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. Enforcement Guidance: Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act (1999).
Initially, we must reach a determination as to whether complainant falls
within the protection of the Rehabilitation Act of 1973. One bringing
a claim of disability discrimination must first establish that she is a
member of the class of persons protected by the Rehabilitation Act, i.e.,
a 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 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).
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)(i) and (ii).
Major life activities include such functions as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. EEOC Regulation 29 C.F.R. � 1630.2(i).
Complainant has arthritis in her right knee, which, during the period
in question, restricted her to lifting or carrying no more than 25
pounds, no climbing, and only intermittent standing, walking, kneeling,
bending, stooping or twisting.<5> Specifically, complainant stated
that her arthritis has substantially limited her walking, running and
working because she has excruciating pain and swelling in her right
knee when she works. She indicated that her knee problem inevitably
leads to pain in her back from limping to relieve the pain in her knee.
Complainant further stated that she has problems with her back when she
does repetitive or heavy lifting and that her knee causes her to walk
slower than normal.
Viewing the evidence of record in total, the Commission finds that the
credibility of some of the evidence regarding complainant's impairment
is questionable. For approximately ten months, complainant submitted
medically-certified Temporary Light Duty Requests (TLD Request)
indicating the restrictions previously mentioned. The last TLD
Request was submitted in August 1993. The following month, however,
in September 1993, complainant submitted a Return to Work Certification
releasing her to full duty without restrictions. Complainant did return
to work and it appears she did so without incident. Complainant failed
to provide a persuasive reason regarding how she was able to return to
full duty from the aforementioned restrictions in such a short period
of time. In her affidavit, complainant stated that she had financial
difficulties so, in September 1993, she consulted with a new doctor
who was unfamiliar with her job requirements and who released her to
full duty after an examination. Complainant speculated that the new
doctor would have imposed the same restrictions as her previous doctors
if he was aware of her job requirements. Further, there is additional
medical evidence that also places the condition, manner and duration of
complainant's impairment in question. We note in this regard that at
the EEO hearing, complainant presented a medical report dated January
30, 1996 indicating that complainant suffered with pain in both knees,
which began from a November 1994 car accident. Said medical report gave
an assessment of �Patellofemoral arthritis� but stated that �[x]-rays
of both knees obtained do not show much in the way of arthritis but
there is joint line narrowing between the patella and trochlea.� It
stated further that �both knees have full range of motion with normal
stability. . . . No swelling, warmth, redness, or effusion.�
For the same reasons, we further find that complainant failed to
establish that she has a record of an impairment which substantially
limits her in a major life activity. Finally, we find no credible
evidence that the agency regarded her as having such an impairment. Thus,
complainant failed to establish that she falls within the protection of
the Rehabilitation Act. Based on the foregoing, we affirm the agency's
decision.
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
__02-26-02________________
Date
1Complainant withdrew the bases of race (African-American) and age
(over 40 years of age) during the hearing stage of the complaint.
2At the Postal Service, �light duty� is the duty provided to an employee
who has physical limitations, identified by a qualified physician,
resulting from an off-the-job injury/illness. It differs from �limited
duty,� which is duty provided to an employee who has physical limitations,
identified by a qualified physician, resulting from an on-the-job
injury/illness.
3The agency scheduled complainant for a Fitness for Duty Examination
(FFDE) in June 1993 and the FFDE physician agreed with the May 1993
recommendations of complainant's physician.
4The AJ's decision erred in not recognizing �standing� as a major life
activity. See Franklin v. U.S. Postal Service, EEOC Appeal No. 07A00025
(January 10, 2001)(citing Henry v. U.S. Postal Service, EEOC Appeal
No. 01965235 (May 13, 1999)).
5The Commission notes that, in September 1993, complainant was released
to return to duty without restriction.