Alvin N. DeVaughn, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.

Equal Employment Opportunity CommissionMay 18, 2000
01983352 (E.E.O.C. May. 18, 2000)

01983352

05-18-2000

Alvin N. DeVaughn, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.


Alvin N. DeVaughn v. United States Postal Service

01983352

May 18, 2000

Alvin N. DeVaughn, )

Complainant, )

) Appeal No. 01983352

v. ) Agency No. 4D-270-0080-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Allegheny/Mid-Atlantic Region), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination

on the bases of race (Black) and physical disability (hand and finger

swelling), in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq.; and the Rehabilitation Act of

1973,<1> as amended, 29 U.S.C. � 791, et seq.<2> Complainant alleges

he was discriminated against when: (1) on or about January 6, 1997, his

name was removed from all hiring registers; and (2) on or about January

16, 1997, his request for reconsideration for employment was denied.

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405). For the following reasons, the

Commission AFFIRMS the FAD.

The record reveals that during the relevant time, complainant applied for

employment as a part-time flexible letter carrier (LC) at the agency's

District Post Office in Greensboro, North Carolina. Complainant alleged

that although two physicians told him he could perform the LC position,

he was told by the Manager of Human Resources that his inability to stand

for long periods and grasp items due to arthritis rendered him medically

unsuitable for that position. Complainant alleges that although he is

able to work within his medical condition, the agency's perception of

him was that he has a physical disability which disqualifies him from

employment. Believing he was a victim of discrimination, complainant

sought EEO counseling and, subsequently, filed a complaint on September

30, 1997. At the conclusion of the investigation, complainant requested

that the agency issue a FAD.

The FAD found that complainant failed to establish a prima facie case

of race discrimination because he presented no evidence that similarly

situated individuals not in his protected classes were treated differently

under similar circumstances. The FAD further found that complainant

failed to establish a prima facie case of disability discrimination,

as he failed to demonstrate that he is an individual with a disability

as that term is defined in the Rehabilitation Act. The FAD further

found that complainant failed to establish that he has an impairment

which substantially limits one or more of his major life activities,

that he has a record of, or was regarded as having, such an impairment.

In any event, the FAD found that the agency articulated a legitimate,

nondiscriminatory reason for its action, namely, that complainant was not

hired for the LC position as the agency's consulting physicians opined

that he was medically unsuitable. The FAD found that complainant failed

to demonstrate that the agency's articulated reasons were a pretext for

discrimination. On appeal, complainant contends that the agency erred

in finding that he was not discriminated against due to his disability.

The agency requests that we affirm its FAD.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), the Commission agrees with the

FAD's finding that complainant failed to establish a prima facie case

of race discrimination, as he failed to show that any similarly situated

employees not in his protected class were treated differently. We further

agree with the FAD that complainant failed to establish a prima facie case

of disability discrimination, as he failed to demonstrate that he is an

individual with a disability as defined by the Rehabilitation Act. 29

C.F.R. �1630.2(g). The medical evidence of record and complainant's

testimony establishes that neither the pain and swelling in his fingers,

hands and wrists caused by arthritis nor the bilateral pes planus of his

feet constituted an impairment which substantially limited one or more

major life activities. A review of the record shows that the Department of

Veterans Affairs assessed complainant's hand and wrist condition to be

twenty (20) percent disabling,<3> and complainant's examining physicians

opined that his periodic finger swelling would not prevent him from

performing the LC position. We further find that complainant was not

regarded by the agency as being an individual with a disability. In so

finding, we note that upon a review of complainant's medical records, the

agency's consulting physicians found that complainant's hand and foot pain

rendered him medically unsuitable for the LC position. The LC position

requires the ability to stand for periods up to eight (8) hours per day,

grasp items and lifting/carrying of a shoulder bag weighing up to thirty

(30) pounds. We note that the agency found complainant unable to perform

the LC position based on the reports of the consulting physicians, but

later reinstated him for consideration for other agency positions with

less strenuous physical requirements.<4> The Commission has held that

in order to show that an employee was regarded as disabled, evidence

must be presented which shows that the employer perceived him or her as

incapable of performing a class of jobs or a broad range of jobs because

of the impairment. Wood v. United States Postal Service, EEOC Request

No. 05950624 (October 17, 1997); Guillory v. Department of the Navy, EEOC

Appeal No. 01945298 (January 24, 1996). As the agency in the instant case

found that complainant was unable to perform the LC position but that he

was medically suitable for other positions, he has failed to establish

that he was regarded as an individual with a disability. Therefore,

for the reasons stated above, and after a careful review of the record

and arguments and evidence not specifically addressed in this decision,

we affirm the FAD.

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

May 18, 2000

Date Frances M. Hart

Executive Director

Executive Secretariat

1 The 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: www.eeoc.gov.

2 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.

3 We note that although complainant was rated as disabled by the

Department of Veterans Affairs, this determination does not necessarily

indicate that he is disabled within the meaning of the Rehabilitation Act.

4 The record does not indicate whether complainant was ultimately

hired for any of the agency positions which he was considered capable

of performing.