Alex Rubio, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionMar 27, 2003
01A00554 (E.E.O.C. Mar. 27, 2003)

01A00554

03-27-2003

Alex Rubio, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.


Alex Rubio v. United States Postal Service

01A00554

March 27, 2003

.

Alex Rubio,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 01A00554

Agency No. 4H-330-0332-97

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his 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. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated

against on the basis of disability (chronic fatigue syndrome, acute

esophagitis, acute gastritis) when on February 18, 1997, his hours of

work were reduced because no light duty was available.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Letter Carrier at the agency's Allapattah Station, Miami, Florida,

facility. Believing he was a victim of discrimination, complainant sought

EEO counseling and subsequently filed a formal complaint on October 17,

1997. At the conclusion of the investigation, complainant was informed

of his right to request a hearing before an EEOC Administrative Judge

or alternatively, to receive a final decision by the agency. Complainant

requested that the agency issue a final decision.

Complainant indicated that upon arrival at the Allapattah Station,

he informed management of his limitations, medical conditions, and

doctors' recommendations. His supervisor advised him that there was

no light-duty work. As a result, complainant worked five hours daily

from February 18, 1997, through July 31, 1997, doing unspecified duties.

However, complainant alleged that there was one individual without any

disability who was working light duty. Prior to working at the Allapattah

Station, complainant worked at the Snapper Creek Station, Miami, where

he was provided eight hours per day of light duty for approximately

eight months. Complainant indicated that he was forced to bid to the

Allapattah Station. It appears that complainant was given his requested

light duty assignment at the Allapattah Station beginning August 1, 1997.

In its FAD, the agency concluded that complainant did not prove a

discriminatory motive in its action. The FAD found that complainant

failed to offer any evidence, which would demonstrate that its action was

a pretext for intentional discrimination. Thus, the agency concluded that

complainant failed to satisfy the burden of proving by a preponderance

of the evidence that he was the victim of intentional discrimination

and therefore found no discrimination.

In the FAD, the agency further found that no light duty was available,

and that complainant was limited in the number of hours he worked for his

own safety.<1> In any event, the agency acknowledged that complainant had

a full medical restriction on walking and partial medical restrictions

on lifting, pulling, pushing, carrying, and reaching above his shoulder,

and that complainant was unable to work in the heat. In view of these

restrictions, especially the inability to work in the heat, the agency

found that it was virtually impossible for complainant to perform the

delivery duties of his carrier position. The agency further indicated

that while complainant testified that he could have worked in the office,

complainant's supervisor testified that they were not in a high volume

area and did not have the luxury of a mail room.

On appeal, complainant reiterates that he was diagnosed with chronic

fatigue syndrome in September of 1996 as well as other medical problems,

including a hiatal hernia, acute gastritis, acute esophagitis, and

Epstein-Barr virus. Complainant reiterates that he was denied light-duty

work at the Allapattah Station, whereas when he assigned at the Snapper

Creek Station, he was provided with eight hours per day of light duty.

According to complainant, his impairments were directly related to

pressure exerted by agency management and working conditions, including

working in a flood zone, subjecting him to hours of walking with blistered

feet in ankle high water, in addition to mosquitoes, while assigned at

the Snapper Creek Station. According to complainant, while he was at

the Snapper Creek Station, he was advised to apply for light duty by

his doctors, and the agency put complainant on light duty.<2>

ANALYSIS AND FINDINGS

One bringing a claim of disability discrimination must first establish

that s/he is a member of the class of persons protected by the

Rehabilitation Act, i.e., an individual with a disability. An �individual

with a disability� is defined as someone who: (1) has a physical or

mental impairment which substantially limits one or more of such person's

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)(1)-(3).

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)(1)(i) and (ii). �Major life

activities� include functions such as caring for one's self, performing

manual tasks, walking, seeing, hearing, speaking, breathing, learning,

and working. 29 C.F.R. � 1630.2(i). Examples of other major life

activities include, but are not limited to, sitting, standing, lifting,

and reaching. 29 C.F.R. Part 1630 Appendix � 1630.2(i). They also

include thinking, concentrating, interacting with others, and sleeping.

EEOC Enforcement Guidance on The Americans with Disabilities Act and

Psychiatric Disabilities at 5 (March 25, 1997).

In determining whether an individual is substantially limited in a

major life activity one must consider �[t]he nature and severity of the

impairment�, �[t]he duration or expected 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.� 29 C.F.R. � 1630.2(j)(2)(i),

(ii), and (iii). Although short-term, temporary restrictions generally

are not substantially limiting, an impairment does not necessarily have

to be permanent to rise to the level of a disability. Some conditions

may be long-term, or potentially long-term, in that their duration is

indefinite and unknowable or are expected to be at least several months.

Such conditions, if severe, may constitute disabilities. EEOC Compliance

Manual, Volume 2, EEOC Order No. 915.002, Definition of the Term

�Disability�, at 902-30 (March 14, 1995).

The agency did not address the threshold question whether complainant

was an individual with a disability. Accordingly, the Commission will

address that question in this decision. The Commission finds that since

complainant was not an individual with a disability, his discrimination

claim must fail.<3> Our analysis follows.

On review of the record, complainant, while showing considerable evidence

of his impairments, has not presented sufficient evidence to establish

that he was nevertheless substantially limited in a major life activity.

Complainant's evidence, in terms of being substantially limited in a major

life activity, primarily focuses on the major life activity of walking.

Although there are some references to the major life activities of

lifting, reaching, and working, they are only cursory, and insufficient

evidence was presented to show a substantial limitation in any of those

major life activities.<4>

Complainant argues that due to management's failure to accommodate

him with light duty, he was forced to come to work only five hours

per day, and thus his wages were reduced. Complainant argues that

his impairments medically restricted him from working more than

4� hours in the field. The record shows that a January 9, 1996,

Medical Clearance for complainant to return to duty indicates a two

hour walking limitation (Partial Restriction). A September 4, 1996,

Medical Clearance for complainant to return to duty indicates that

complainant was fully restricted from walking with a limitation of one

hour and partially restricted from heavy-lifting 35 pounds and over,

pulling/pushing, carrying, and reaching or working above the shoulder.

It also indicates he was unable to work in the heat. A Department of

Labor OWCP Status Report, concerning a November 25, 1996, examination,

indicates a 2� hour per day walking limitation, but no other limitations.

A March 13, 1997, Medical Clearance to return to duty indicates a three

hour walking limitation (Full Restriction), but no other limitations.

Complainant failed to establish that he was significantly restricted

with respect to the permanence or long term impact, involving his

walking limitations. We recognize that in complainant's September 4,

1996, Medical Clearance, he was limited to one hour of walking per day.

However, complainant's November 25, 1996, OWCP Status Report limited

complainant to 2� hours of walking per day. The only prior limitation

on complainant's walking was the January 1996 Medical Clearance with

a two hour walking limitation. Complainant has not sufficiently shown

the permanence or long term impact of the one hour limitation for the

purpose of proving a substantial limitation in the major life activity

of walking.<5> The limitation was temporary, and there was insufficient

evidence in the record, concerning its duration. It is speculative how

long the one hour limitation restricted complainant. The same concerns

apply to complainant's two

hour, 2� hour, and 3 hour walking limitations.<6> Even in conjunction

with the one hour restriction, it is speculative how long the limitations

restricted complainant. While complainant's limitations may always

have been between one and 3 hours during the applicable times, this

is speculation. Complainant has only established that during the time

period in question his walking limitations varied significantly, but

we have no evidence of the duration of the restrictions, except to the

extent a subsequent report superseded an earlier report.

Even if we assumed that complainant had a permanent or long term two hour

restriction it would not necessarily be sufficient for purposes of proving

a substantial limitation in the major life activity of walking. See Burch

v. United States Postal Service, EEOC Appeal No. 01933521 (April 28,

1994)(complainant terminated because he could not perform the duties of

Carrier position due to restriction on walking�limitation on complainant's

walking did not rise to level of impairment that substantially limited

his activity). In Burch, the Postmaster stated that complainant (Burch)

was terminated, because he could not perform the duties of the Carrier

position due to the restriction that the complainant was not to walk

more than two hours a day.<7> Indeed, complainant, in the present case

before the Commission, was performing as a Letter Carrier. With respect

to complainant's three hour restriction, 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 three to four hours maximum per day).

In the Burch decision, the Commission also looked at the effect of the

complainant's (Burch) limitations, concerning walking, on other life

activities. Complainant, in the present case before the Commission,

failed to present evidence concerning how the walking limitation

substantially affected his every day activities in terms of the average

individual. In addition, while complainant acknowledged in his appeal

that his normal position as a Letter Carrier required a great deal of

walking, the inability to satisfy the walking requirements of the Letter

Carrier position does not render him substantially limited in the major

life activity of walking.

The ability to work is substantially limited if the complainant is

�significantly restricted in the ability to perform either a class of

jobs or a broad range of jobs in various classes as compared to the

average person having comparable training, skills and abilities.� 29

C.F.R. � 1630.2(j)(3)(i). The regulations also make clear that �[t]he

inability to perform a single, particular job does not constitute a

substantial limitation in the major life activity of working.� Id.

Complainant does not provide sufficient evidence of record with regard to

his limitations on walking to support a finding that he was substantially

limited in the major life activity of working.

Complainant does not argue that the agency regarded him as an individual

with a disability or that he was an individual with a record of a

disability.

Since complainant has not shown that he is an individual with a

disability, complainant's claim must fail. Only individuals with

disabilities, as defined by 29 C.F.R. � 1630.2(g)(1)-(3), are protected

or entitled to accommodation under the Rehabilitation Act.

CONCLUSION

Therefore, after a careful review of the record, we affirm the agency's

final 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

March 27, 2003

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1 Complainant does not dispute the findings that there was no light duty

available, and that he was limited in the number of hours he worked for

his own safety.

2 Complainant also alleges that he was subject to a number of observations

by management, and that this was harassment. This allegation was only

brought to the Commission's attention on appeal and was not raised in

the complaint. Accordingly, it will not be addressed in this decision.

3 However, we note that the agency erred in treating this case only as a

disparate treatment case. Complainant was also essentially requesting

reasonable accommodation for his disability, i.e., to be assigned

light duty or to another position where he could work 8 hours daily.

Accordingly, had complainant established that he is an individual with a

disability, the agency would have been required to apply a reasonable

accommodation analysis to this case, in addition to the disparate

treatment analysis.

4 Complainant also submitted, as a supplement to his brief on appeal,

a letter from one of his doctors, indicating that complainant had been

having severe difficulty in sleeping, and that his emotional deterioration

had been markedly affecting his ability to work and interact with his

family. However, the statement contained no details with respect to

complainant's limitations. Thus, for example, there is no indication

how long complainant had been having difficulty sleeping and how much

sleep he was getting on a daily basis.

5 The September 4, 1996, report indicated that the time when complainant

could return to full duty with no restriction could not be determined.

6 The January 9, 1996, report did not indicate the time when complainant

could return to full duty with no restriction. The November 25,

1996, report indicated that complainant was able to perform regular

work full-time with light duty. The March 13, 1997, report indicated

complainant's possible anticipated recovery date as �undetermined.�

7 However, complainant's physician stated that complainant would be able

to perform duties not requiring more than two hours of continuous walking.

In addition, the agency ordered a fitness-for-duty examination, which

determined that complainant should be limited to two hours of walking

with at least an hour break. Nevertheless, the Postmaster acknowledged

that complainant was terminated because he was restricted from walking

more than two hours per day.