01993796
07-05-2002
Audrey Wolfe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Audrey Wolfe v. United States Postal Service
01993796
July 5, 2002
.
Audrey Wolfe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01993796
Agency No. 1K-222-0007-97
Hearing No. 100-97-7664X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.;
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges she was
discriminated against on the bases of sex (female), age (D.O.B. 11/16/54)
and disability (broken knee cap) when on October 7, 1996, she was:
(1) denied a light duty assignment due to her use of crutches; and (2)
she was told not to return to work until she was walking on her own.
For the following reasons, the Commission AFFIRMS the agency's FAD.
The record reveals that during the relevant time, complainant was
employed as a Mail Processor at the agency's Dulles, Virginia Processing
and Distribution Center (�facility�), where she performed her duties
on the workroom floor. The record reflects that in October of 1996,
complainant broke her knee cap, which required her to use crutches for
a period of six (6) weeks. On October 7, 1996, complainant requested a
light duty position. Complainant alleges that her supervisor denied her
request. Believing that she was a victim of discrimination, complainant
sought EEO counseling and filed a formal complaint on January 2, 1997.
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 she was an
individual with a disability under the Rehabilitation Act. The AJ found
that complainant's evidence that she fractured her patellae in October
of 1996 and thereafter had posttraumatic chondromalacia patellae was
insufficient to show that she had an impairment which substantially
limited any major life activities.
The AJ further found that complainant failed to establish a prima
facie case of discrimination due to her age and/or sex, as there were
no similarly situated employees not in her protected groups who were
treated differently under similar circumstances. In so finding, the
AJ noted that only one of the comparators cited by complainant worked
for complainant's supervisor (CS), but CS never allowed this employee
to work on the workroom floor with crutches. In addition, the AJ noted
that the agency stated that the reason complainant was not allowed on the
workroom floor with crutches was due to a September 1995 agency policy
statement which banned crutches on the workroom floor. In addition,
the AJ found that it was unlikely that CS (female; D.O.B. 4/12/58)
discriminated against complainant due to her sex and/or age, as CS was
a female about the same age as complainant. As a result, the AJ found
that the agency did not discriminate against complainant. The agency's
FAD implemented the AJ's decision.
On appeal, complainant states that there were numerous comparison
employees who were provided with light duty positions, and that the
agency's policy against the use of crutches on the workroom floor is
illegal under the Rehabilitation Act. In response, the agency restates
the position it took in its FAD, and requests that we affirm its final
decision.
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).
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 evidence that any of the agency's actions were motivated
by discriminatory animus toward complainant's sex, age or disability.
Addressing complainant's allegation of disability discrimination,
the Commission agrees with the AJ's finding that complainant failed to
show that she was an individual with a disability under the terms of
the Rehabilitation Act. In order to prevail in a case of disability
discrimination, complainant must first show that she is a qualified
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 impairment;
or (3) is regarded as having such an impairment. 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. An impairment is substantially limiting when
it prevents an individual from performing a major life activity or when it
significantly restricts the condition, manner or duration under which an
individual can perform a major life activity. 29 C.F.R. 1630.2(j). When
determining whether an individual is substantially limited in a major
life activity, one must consider 1) the nature and severity of the
impairment; 2) the duration or expected duration of the impairment;
and 3) the permanent or long term impact, or the expected permanent or
long term impact of or resulting from the impairment. Id.
While the record establishes that complainant fractured her right
patellae (knee cap), and after that injury healed she had a postraumatic
chondromalacia patallae,<2> complainant has proffered no evidence which
establishes that these injuries substantially limited her in any major
life activities. While the evidence is clear that complainant's patellar
fracture was sufficiently severe that she was required to use crutches
for six (6) weeks, there is an absence of evidence suggesting that
her limitations were significant and long lasting. In so finding, the
Commission notes that complainant's treating physician stated that due to
the fracture of her patella, she should be placed on light duty while she
was on crutches. Investigative Report, at 31. In addition, the record
reflects that complainant was placed on crutches and requested light
duty in early October 1996, and she returned to work in January of 1997.
An impairment is substantially limiting if it lasts for more than several
months and significantly restricts the performance of one of more major
life activities during that time. See Equal Employment Opportunity
Commission Enforcement Guidance on the Americans With Disabilities
Act and Psychiatric Disabilities (Mar. 25, 1997) at question 7.
In addition, some conditions may be long-term, or potentially long-term,
in that their duration is indefinite and unknowable or is expected to
be at least several months. Such conditions, if severe, may constitute
disabilities. Id. After a consideration of complainant's testimony and
the medical evidence of record, the Commission finds that substantial
evidence supports the AJ's determination complainant's impairments did
not substantially limit her in any major life activities, including
walking, for a period of more than several months and she therefore
failed to establish that she is an individual with a disability within
the meaning of the regulations. See 29 C.F.R. App. � 1630.2(j).
In addition, the Commission finds that substantial evidence supports the
AJ's finding that complainant failed to establish a prima facie case of
discrimination based on sex or age. In so finding, we note that there
is no evidence that there were any similarly situated employees not
in complainant's protected groups who were allowed by CS to work with
crutches on the workroom floor. Therefore, after a careful review of
the record, including complainant's contentions on appeal and arguments
and evidence not specifically addressed in this decision, we affirm the
agency's FAD.
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
July 5, 2002
__________________
Date
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.
2 The Commission notes that while complainant's physician found that
the posttraumatic chondromalacia patellae caused a five (5) percent
impairment of her right leg, there is no evidence that this condition
required complainant to utilize crutches or otherwise substantially
limited her ability to walk or engage in any other major life activity.
Investigative Report, at 31.