01a42330
02-25-2005
Earl M. George, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Earl M. George v. United States Postal Service
01A42330
February 25, 2005
.
Earl M. George,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A42330
Agency No. 1C-442-0015-03
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. For the following reasons, the
Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a City Carrier at the agency's Napoleon, Ohio facility. Complainant
sought EEO counseling and subsequently filed a formal complaint on
December 3, 2002, alleging that he was discriminated against on the
basis of disability (heel spurs) when management failed to provide him
with a reasonable accommodation which he requested on September 3, 2002.
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.
In its FAD, the agency concluded that complainant failed to establish a
prima facie of disability discrimination, as he failed to show that he is
a qualified individual with a disability under the Rehabilitation Act.
The FAD further found that the agency also articulated legitimate,
nondiscriminatory reasons for its actions, which complainant failed to
show were pretext for unlawful disability discrimination.
On appeal, complainant reiterates his contention that the affidavit
testimony of the Postmaster of complainant's facility is unworthy of
belief, and that the agency failed to take any action to reasonably
accommodate him after his September 3, 2002, request. The agency requests
that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD issued
without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's
decision is subject to de novo review by the Commission. 29 C.F.R. �
1614.405(a). Under the Commission's regulations, an agency is required to
make reasonable accommodation of the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o)
and (p). With respect to (3), in order to determine whether complainant
is entitled to a reasonable accommodation, we must first analyze whether
complainant is a �qualified 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. Major life activities
include, but are not limited to, caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working. Sitting, standing, lifting, and reaching are also recognized as
major life activities. Interpretive Guidance on Title I of the Americans
With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i); see also Haygood
v. United States Postal Service, EEOC Appeal No. 01976371 (April 25,
2000); Selix v. United States Postal Service, EEOC Appeal No. 01970153
(March 16, 2000). A �qualified� individual with a disability is one
who satisfies the requirements for the employment position he holds or
desires and can perform the essential functions of that position with
or without reasonable accommodation.
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). The individual's ability
to perform the major life activity must be restricted as compared to
the ability of the average person in the general population. Id.
In the instant case, we find insufficient evidence in the record to
support a finding that complainant is disabled under the Rehabilitation
Act. Specifically, complainant has not shown that he has an impairment
which substantially limits a major life activity. The record evidence
shows that complainant's physician diagnosed him as having heel spur
syndrome. (Report of Investigation, Exhibit 2, 23). The record also
shows that complainant's physician recommended that complainant be
assigned to a position that would require �only minimal standing/walking
per day,� as this �would lessen the strain on [complainant's] feet
each day and allow the conservative forms of therapy to be better
effective.� Id. Complainant's physician also indicated that the
condition could be corrected through surgical intervention, which
complainant then pursued a few months later. The record is devoid of
any more specific medical information as to complainant's limitations,
and does not contain any evidence, medical or otherwise, to show that
complainant's heel spur syndrome substantially limited any of his major
life activities. Accordingly, complainant has not shown that he is
an individual with a disability under the Rehabilitation Act, and his
claim that the agency violated the Act when it denied him a reasonable
accommodation fails.
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 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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
February 25, 2005
__________________
Date