01972844
01-21-2000
Comador Springs, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (N.E./N.Y. Metro), Agency.
Comador Springs, Jr. v. United States Postal Service
01972844
January 21, 2000
Comador Springs, Jr., )
Complainant, )
) Appeal No. 01972844
v. ) Agency No. 1A073100194
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(N.E./N.Y. Metro), )
Agency. )
)
DECISION
Comador Springs, Jr. (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the basis of physical disability (lumbar strain of
the back), in violation of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq.<1> The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
ISSUE PRESENTED
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 was not hired to the
position of Laborer Custodian on September 20, 1993.
BACKGROUND
Believing he was a victim of discrimination, complainant sought EEO
counseling on September 20, 1993, and, subsequently, filed a complaint
on May 13, 1994. Therein, he alleged discrimination on the basis of
disability and retaliation when he was not hired for a restricted
custodial position. During the investigation of his complaint,
complainant withdrew his allegation of retaliation. The agency issued
a FAD on February 14, 1995, dismissing complainant's complaint on
the ground that it failed to state a claim under EEOC regulations.
The agency concluded that complainant's complaint was based on his
entitlement to employment preference as a veteran with a 10 point civil
service preference, and not on a disability under the Rehabilitation Act.
On February 26, 1996, this Commission reversed the agency's dismissal,
finding that complainant clearly stated his belief that he was
discriminated against on the basis of his disability (lumber strain of the
back), and that he therefore stated a claim under the Rehabilitation Act.
See Springs v. United States Postal Service, EEOC Appeal No. 01953512
(February 26, 1996).
The agency conducted a supplemental investigation and, on January 22,
1997, issued a new FAD. Therein, the agency found that complainant
did not establish a prima facie case of disability discrimination
because he did not establish that he was "disabled" or "qualified,"
as defined by the Rehabilitation Act. The agency went on to conclude
that management had articulated a legitimate non-discriminatory reason
for failing to hire complainant. Specifically, the agency referred to
its policy prohibiting the rehiring of employees previously removed for
cause and noted that complainant was removed for cause in 1988. Finally,
the agency concluded that complainant had not established that this
reason was pretextual. It is this decision that complainant now appeals.
CONTENTIONS ON APPEAL
Complainant raises two main contentions on appeal. First, he contends
that the agency's decision amounts to a breach of a settlement agreement
in that the agency is barred from relying on his prior postal employment
in making decisions. Complainant argues that the dismissal with prejudice
of Civil Action No. 91-3417 by the United States District Court of New
Jersey, prevents both him and the agency from using certain arguments.
The agency, complainant contends, is not allowed to use his prior
employment records in denying him a job.
Second, complainant reiterates his contention that he is disabled and
qualified for the position and argues that the agency must agree, having
called him in for employment on three different occasions. He also argues
that he was found to be disabled in a Social Security Administration
disability decision, due to various impairments, including Lumbar Strain.
In response to these contentions, the agency notes that complainant's
submission does not include a sworn statement or affirmation and, as such,
should be stricken. The agency asks that the FAD be affirmed.
ANALYSIS AND FINDINGS
As an initial matter, we note that complainant's reference to a dismissal
with prejudice of a civil action between himself and the agency is
irrelevant. Complainant has provided no information regarding the details
of this civil action and no coherent argument about why its dismissal
with prejudice means that the agency cannot rely on complainant's prior
employment record in refusing to hire him. Complainant characterizes the
agency's behavior as a breach of a settlement agreement. Although we
are unable to determine on what basis complainant makes this argument,
we advise him to refer to EEOC Regulation 64 Fed. Reg. 37,644, 37,660 (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.504), which
details the process for alleging noncompliance with an EEO settlement
agreement, if he believes a settlement agreement has been breached.
Turning now to the issues addressed in the FAD, in the absence of direct
evidence of discrimination, the allocation of burdens and the order
of presentation of proof in a disparate treatment case is a three-step
process. Complainant has the initial burden of establishing a prima facie
case of discrimination. If complainant meets this burden, the burden
shifts to the agency to articulate some legitimate, non-discriminatory
reason for its challenged action. Complainant must then prove, by a
preponderance of the evidence, that the legitimate reason articulated by
the agency was not its true reason, but was a pretext for discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
A prima facie case of discrimination based on disability is established
where complainant has produced sufficient evidence to show that (1)
he is a "person with a disability" for purposes of the Rehabilitation
Act, as defined in 29 C.F.R. � 1630.2(g); (2) he is a "qualified person
with a disability," in that he is qualified for, and can perform, the
essential functions of the position he holds or desires with or without
reasonable accommodation, as specified in 29 C.F.R. � 1630.2(m); and (3)
that he was treated differently or less favorably than an individual
not in his protected group. Prewitt v. United States Postal Service,
662 F.2d 292 (5th Cir. 1981).<2>
A person with a disability is defined as one who has, has a record of
having, or is regarded as having, an impairment that substantially
limits one or more major life activities. 29 C.F.R. � 1630.2(g).
Major life activities include such things as caring for one's self,
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, with or without
reasonable accommodation, can perform the essential functions of the
position he holds or desires. 29 C.F.R. � 1630.2(m).
In the case at hand, complainant has provided little evidence that
he meets the Rehabilitation Act's definition of disabled. The record
contains a July 6, 1994 letter from the Department of Veterans Affairs
indicating that complainant has a service connected disability in the
form of a 40% Back Strain. On appeal, he has provided a partially legible
1991 decision by the Social Security Administration, which seems to find
him disabled under the Social Security Act.<3>
Commission precedent holds that merely because an individual has a service
related disability does not automatically mean that the individual is
disabled for purposes of the Rehabilitation Act. See Bailey v. United
States Postal Service, EEOC Appeal No. 01952545 (March 7, 1996); see also
EEO Compliance Manual Section 902, Definition of the Term "Disability,"
No. 915.002 (March 14, 1995). Therefore, complainant cannot establish he
is disabled for purposes of the Rehabilitation Act by simply referring to
his service related disability. Rather, complainant must demonstrate that
his impairment substantially limits one of his major life activities.
The only evidence offered by complainant to establish that he is
substantially limited is a 1991 decision from the Social Security
Administration, which notes some of the difficulties and limitations
complainant's impairments were causing him in 1991. This document is
barely legible. Moreover, it describes complainant as having a number of
impairments which caused him difficulty, mentioning Lumbar Strain, the
alleged disability in the present case, as only one. More importantly,
even assuming that complainant was found to be disabled for the purposes
of the Social Security Act (SSA) in 1991, that finding is not enough,
standing alone, to establish that he is disabled for purposes of the
Rehabilitation Act.
The Commission has determined that the definitions of "disability"
and "qualified individual with a disability" under the Americans with
Disabilities Act are tailored to the "broad remedial purposes of the Act"
and, therefore, differ from definitions used for other laws or benefit
programs. See EEOC Enforcement Guidance on the Effect of Representations
Made in Applications for Benefits on the Determination of Whether a Person
is a "Qualified Individual with a Disability" Under the Americans with
Disabilities Act of 1990, No. 915.002 (February 12, 1997). This fact
usually works to the advantage of an complainant attempting to receive
protection under the Rehabilitation Act while receiving benefits under
the SSA, because it means that a finding that an individual is unable to
work and therefore entitled to SSA benefits, does not necessary prevent
that individual from being "qualified" under the Rehabilitation Act.
In the case at hand, however, the inherent differences between the SSA
and the Rehabilitation Act mean that complainant cannot simply rely
on his 1991 status as disabled under the SSA to establish that he is
disabled under the Rehabilitation Act. See Id.; see also EEO Update,
EEO Vol.5, No. 9 (September 1, 1997).
Complainant has provided no other evidence, either medical or testimonial,
as to how his impairment substantially limits him in a major life
activity. Therefore, complainant has not established that he has an
impairment which substantially limits a major life activity.
As noted above, however, complainant may prove he is disabled within
the meaning of the Rehabilitation Act, not only by establishing that
he has an 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. The agency did not address
whether complainant established that he is disabled under one of these
definitions. 29 C.F.R. � 1630.2(g)(2) and (3).
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 the
letter from the Department of Veterans Affairs reveals that complainant
was classified as having a 40% service connected disability in 1994, 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 Bailey, EEOC Appeal
No. 01952545; see also, Interpretive Guidance on Title I of the Americans
with Disabilities Act, 29 C.F.R. � 1630.2(k).
Furthermore, the 1991 SSA decision submitted by complainant on appeal,
also does not satisfy the requirements of the "record of" prong of the
Rehabilitation Act. This part of the definition is only satisfied if a
record relied on by the agency in taking the adverse action indicates
that complainant has or has had a substantially limiting impairment.
See Interpretive Guidance on Title I of the Americans with Disabilities
Act, 29 C.F.R. � 1630.2(k). Even assuming that the SSA decision indicates
complainant was substantially limited, complainant provided no evidence
that the agency relied on the 1991 SSA decision in failing to hire him
in 1993.
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.
Because complainant has not provided evidence to establish that he
is disabled under any prong of the Rehabilitation Act's definition of
"disability", he has failed to establish a prima facie case of disability
discrimination.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
submission on appeal, it is the decision of the Equal Employment
Opportunity Commission to affirm the agency's finding of no discrimination
on the basis of disability.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
1/21/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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
________________________
Equal Employment Assistant
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 Rehabilitation Act was amended in 1992 to apply the standards of
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.
3 Because the decision is only partially legible, it is impossible to
make a definite determination of its contents.