01a12528
03-13-2003
William P. Miles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William P. Miles v. United States Postal Service
01A12528
March 13, 2003
.
William P. Miles,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12528
Agency No. 4C170003499
Hearing No. 170-A0-8409x
DECISION
William P. Miles (complainant) timely initiated an appeal from the
agency's final order concerning his equal employment opportunity (EEO)
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. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 order.
The record reveals that complainant, a Mailhandler at the agency's
Wilkes-Barre, Pennsylvania facility, filed a formal EEO complaint on
June 18, 1999, alleging that the agency had discriminated against him on
the bases of disability (soft tissue damage to back, asthma, arthritis)
and age (41 at the relevant time) when:
(1) he was subjected to intense supervision on a continuing basis;
(2) his bid job was rescinded on February 10, 1999; and
he was denied overtime.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish that he was an
individual with a disability within the meaning of the Rehabilitation Act.
In so finding, the AJ noted that although complainant described a number
of impairments, such as a back injury, asthma, and arthritis in his right
hip, he failed to prove that his impairments substantially limited any of
his major life activities. The AJ concluded that complainant therefore
did not establish a prima facie case of disability-based discrimination.
The AJ further concluded that complainant did not establish a prima
facie case of age discrimination in regard to any of his allegations,
noting that complainant failed to name any significantly younger
similarly situated employees who were treated more favorably than he
in regard to any of the incidents he described. Specifically, the AJ
noted that complainant was assigned to an area in which it was critical
to have coverage in order to ensure that mail processing was not delayed.
She noted that complainant did not name any younger comparators who were
assigned to critical areas but were subjected to less intense supervision
than he. The AJ also noted that although the record suggested that
co-workers who smoked were treated more favorably in terms of break
time than those who did not smoke, there was no evidence that this
more favorable treatment was related to age. Finally, the AJ noted
that complainant testified that his supervisor (S1) subjected him to
similar heightened scrutiny in the years before complainant turned 40
and concluded that S1's behavior was not motivated by complainant's age.
The AJ then found that complainant did not raise an inference of age
discrimination in regard to his remaining claims. In so finding, the
AJ noted that when complainant's bid job was rescinded, it was awarded
to an employee significantly older than complainant. Moreover, the AJ
noted that complainant's duty status report indicated that he could not
work more than 8 hours per day due to his impairments. The AJ found
that complainant failed to name a significantly younger co-worker with
a similar restriction who was granted more overtime than complainant.
The AJ concluded that complainant did not establish by a preponderance
of the evidence that he was discriminated against on the bases of his age
or disability. The agency's final order implemented the AJ's decision.
On appeal, complainant essentially restates arguments previously made
at the hearing, contending that the AJ's decision involved erroneous
findings. In response, the agency restates the position it took in its
FAD, and requests that we affirm its final order.
Pursuant to 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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws.
We note that complainant failed to establish that he is an individual
with a disability within the meaning of the Rehabilitation Act. 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). Other major life activities include lifting,
standing, reaching and sitting. See Appendix to Part 1630 - Interpretive
Guidance on Title I of the Americans with Disabilities Act (Interpretive
Guidance), � 1630.2(i). The positive and negative effects of mitigating
measures used by the individual, such as medication or an assistive
device, must be considered when deciding if he or she has an impairment
that substantially limits a major life activity. Sutton v. United
Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service,
Inc., 527 U.S. 516 (1999).
An individual is substantially limited in a major life activity if he is
unable to perform that activity, or is significantly restricted as to the
condition, manner, or duration under which he can perform that activity
as compared to the average person in the general population. See 29
C.F.R. � 1630.2(j)(1). Here, complainant failed to establish that he was
substantially limited in any major life activity. The medical documents
in the record indicate that complainant's impairments restricted him to
lifting no more than 20 pounds, although the documents also note that
he should only frequently lift/carry objects weighing up to 10 pounds.
Complainant also was limited to standing and walking no more than four
hours per day.
Although lifting, standing and walking are major life activities,
complainant failed to establish that he is unable to perform these
activities or is significantly restricted in his ability to perform them.
The record establishes that complainant can lift 20 pounds and can
frequently lift and carry objects weighing up to 10 pounds. During his
hearing testimony, complainant provided additional information as to how
his ability to lift was limited. He noted that he could not �work out�
or perform heavy lifting, due to back pain, but also testified that when
he experienced back pain he could often remedy it by sitting down for a
10 minutes, laying down and �snapping his back in place,� stretching,
or using a heating pad. At worst, complainant is unable to lift more
than 20 pounds and frequently lift/ carry more than 10, and his own
testimony reveals that with the use of mitigating measures such as
sitting, stretching and applying heat, complainant can minimize back
pain caused by the lifting. In these circumstances, we cannot find that
complainant's ability to lift is substantially limited. See e.g.,
Simonton v. United States Postal Service, EEOC Petition No. 03A10025
(March 29, 2001) (complainant did not present sufficient evidence to
establish that his inability to lift more than twenty pounds substantially
limits his ability to lift). Complainant provided no evidence relating
to his standing or walking limitations, beyond a doctor's indication that
he could do so between 1 and 4 hours per workday. This limitation does
not render complainant substantially limited in standing or walking.
See Thompson v. United States Postal Service, EEOC Appeal No. 01971189
(August 31, 2000) (complainant not substantially limited in standing
or walking where restricted to standing or walking 3-4 hours maximum
per day).
Nor did complainant provide any evidence to suggest that he was regarded
as having an impairment that substantially limited in a major life
activity or having a record of such an impairment. Accordingly, the
AJ's determination that complainant failed to establish that he is an
individual with a disability within the meaning of the Act was proper.
Turning to complainant's claim of age discrimination, we again discern no
reason to disturb the AJ's finding of no discrimination. Complainant
failed to present sufficient evidence to establish that any of the
agency's actions were motivated by a discriminatory animus towards
his age. For example, although complainant attributed S1's intense
supervision to complainant's age, he testified that S1 subjected him
to the same type of heightened supervision before and after he turned
40. Moreover, complainant did not establish that similarly situated
significantly younger co-workers were subjected to less supervision
than he or provide any other evidence to suggest that S1's actions were
motivated by a discriminatory animus. Nor did complainant presented
any competent evidence to suggest that the bid recession or the amount
of overtime he received were motivated by his age.
Finally, we note that both the AJ and the agency failed to address an
issue that was previously remanded by this Commission for consolidation
with Issues 1-3 above. The record establishes that complainant's
complaint included an allegation that the intense supervision he was
subjected to began in April 1996 and continued through March 1999.
In a September 2, 1999 FAD, the agency dismissed that portion of the
allegation which involved events occurring prior to February 9, 1999.
Complainant appealed this dismissal and, on January 28, 2000, this
Commission remanded the issue for consolidation with those claims that
were accepted. Accordingly, both the AJ and the agency should have
addressed complainant's claim that he was discriminated against on the
bases of age and disability when he was subjected to intense supervision
between April 1996 and February 1999. Rather than doing so, the AJ used
this claim as background information and noted that it was not the subject
of the hearing. The agency implemented the AJ's decision without comment.
We find, however, that in the case at hand this error has no bearing
on the ultimate finding of no discrimination. As discussed above,
complainant failed to establish he is an individual with a disability
and therefore cannot establish that he was subjected to disability-based
discrimination in regard to the events which allegedly occurred between
April 1996 and February 1999. Furthermore, as the AJ noted in her
decision, complainant testified that the intense supervision to which he
was subjected began before he turned 40 years old, and therefore prior to
the time in which he was protected from age discrimination by the ADEA,
and continued in the same manner after he turned 40. As complainant
himself testified that he was subjected to the same treatment both prior
to and after his 40th birthday, he cannot establish that the treatment
was motivated by his membership in a protected group.
Therefore, 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 affirm the agency's
final order.
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
March 13, 2003
Date