01976169
07-10-2000
Thomas McGrady, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.
Thomas McGrady v. United States Postal Service
01976169
July 10, 2000
Thomas McGrady, )
Complainant, )
) Appeal No. 01976169
v. ) Agency No. 1C-443-1039-96
) Hearing No. 220-97-5043X
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic), )
Agency. )
)
DECISION
Thomas McGrady (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the basis of physical disability (left knee injury),
in violation of � 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> The appeal is accepted in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE
The issue on appeal is whether complainant has proven, by a preponderance
of the evidence, that he was subjected to unlawful employment
discrimination on the above-cited basis when he received an agency letter
on April 24, 1996, advising him that an administrative error, relative to
his veteran's preference, may have been made at the time of his initial
appointment to a career position. This letter caused complainant to
believe that the error led to the agency's failure to offer him other
Postal positions and to his not being hired in a fair and timely manner.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Clerk, PS-05, at the agency's Toledo, Ohio facility.
Believing he was the victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on May 21, 1996.
The agency accepted complainant's complaint, conducted an investigation
and provided complainant with a copy of the investigative report.
Thereafter, all administrative procedures were met for a hearing before an
EEOC administrative judge (AJ). A hearing was held, and the AJ issued
a recommended bench decision on May 8, 1997, finding no discrimination.
The agency subsequently adopted the AJ's decision in a FAD dated July 11,
1997.
In her recommended decision, the AJ found that complainant's complaint
constituted a claim of disparate treatment discrimination. As such,
the AJ concluded that complainant failed to establish a prima facie
case of discrimination on the basis of his physical disability because
he failed to submit evidence of a physical impairment which rose to the
level of a physical disability as provided by the Rehabilitation Act
and the Commission's regulations.
In support of her finding, the AJ noted that complainant received a 10%
disability rating in November 1981 from the Veterans Administration
(VA). This rating was discontinued in 1982 when the VA determined that
his disability was less than 10% disabling.<2> Additionally, the AJ
noted that complainant testified that his disability has not affected
him in performing the duties of his postal job. Based on the evidence
of record, the AJ concluded that the evidence presented by complainant
and included in the record failed to demonstrate that complainant's
knee condition substantially limited one or more major life activities.
More specifically, considering factors such as �the nature and severity
of the impairment, the 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,� the AJ concluded that the evidence
did not show that complainant is unable to perform, or is significantly
limited in the ability to perform, a major life activity in comparison
to the average person in the general population.
Based on her finding that complainant failed to prove that he was disabled
within the meaning of the Rehabilitation Act, the AJ concluded that
complainant was not discriminated against on the basis of a disability.
CONTENTIONS ON APPEAL
On appeal, complainant contends that because he received a veteran's
preference from the agency when he was hired, he was perceived as
being disabled. He also reiterates arguments made during his hearing.
Specifically, complainant notes that he has difficulties in running,
walking and standing for prolonged periods. Complainant argues that
his testimony concerning these difficulties was undisputed and therefore
conclusive. Complainant argues that he is entitled to the protections of
the Rehabilitation Act because he has an impairment which substantially
limits a major life activity and because he was perceived as having such
an impairment by the agency.
The agency offers no contentions in response to complainant's appeal.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405(a)), all post-hearing factual findings by an AJ 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 regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
As a threshold matter, complainant must establish that he is a
�qualified individual with disability� within the meaning of the
Rehabilitation Act.<3> 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). A "qualified"
individual with a disability is one who satisfies the requirements for
the employment position he holds or desires and can perform the essential
functions of that position with or without reasonable accommodation.
29 C.F.R. � 1630.2(m).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We note that
complainant failed to present sufficient evidence to establish that he
is a disabled individual within the meaning of the Rehabilitation Act.
Although complainant relies on the fact that he has a veteran's disability
status, this does not necessarily establish that he is disabled under the
Rehabilitation Act. Wood v. United States Postal Service, EEOC Request
No. 05950624 (October 17, 1997). The only other evidence offered by
complainant to establish that he is substantially limited in a major
life activity was his own testimony regarding his physical limitations.
Complainant testified that as a consequence of a left knee injury, he is
not able to do a lot of running, walking, prolonged standing, jogging,
or jumping. This limited testimony, unsupported by medical records or
doctors' statements, is insufficient to establish that complainant's knee
injury substantially limited a major life activity. We therefore agree
with the AJ that complainant has not established that he is substantially
limited in a major life activity.
However, as noted above, complainant may prove he is disabled within the
meaning of the Rehabilitation Act, not only by establishing that he has
a physical impairment which substantially limits a major life activity,
but also by proving that he either has a record of such an impairment,
or is regarded as having such an impairment. Neither the AJ nor the
agency addressed whether complainant established that he is disabled
under one of these definitions.
After a careful review of the entire record, we find that complainant
failed to establish that he is disabled under either the �regarded as�
or the �record of� prong of the Rehabilitation Act.
An individual is disabled due to a record of an impairment that
substantially limits a major life activity if he has a history of a
substantially limiting impairment or has been misclassified as having a
substantially limiting impairment. 29 C.F.R. � 1630.2(k). While letters
in the record reveal that at one point complainant was classified as
being 10% disabled by the VA, this does not prove he has a record of a
substantially limiting impairment. As noted above, it is well-settled
that having a service-related disability does not automatically mean
that the individual is disabled for purposes of the Rehabilitation Act.
The impairment indicated in the record must be a substantially limiting
one. See Wood, supra; see also, Interpretive Guidance on Title I of
the Americans with Disabilities Act. Complainant has offered no other
evidence to establish that he has such a record.
An individual is regarded as having a substantially limiting impairment
if: (1) he has an impairment which is not substantially limiting but is
treated by the agency as if it is substantially limiting; (2) he has a
substantially limiting impairment only as a result of the attitudes of
others toward his impairment; or (3) has no impairment but is treated by
the agency as if he has a substantially limiting impairment. 29 C.F.R. �
1630.2(l). Complainant has offered no evidence that the agency regarded
him as having a substantially limiting impairment.
CONCLUSION
Accordingly, 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 discern no basis to
disturb the AJ's decision and therefore AFFIRM the agency's final
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 10, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the present
appeal. The regulations, as amended, may also be found at the Commission's
website at www.eeoc.gov.
2 The record indicates that this discontinuation occurred in 1983,
rather than 1982.
3The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website at www.eeoc.gov.