01971909
07-27-2000
Frank Klimek, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Frank Klimek v. United States Postal Service
01971909
July 27, 2000
Frank Klimek, )
Complainant, )
)
v. ) Appeal No. 01971909
) Agency No. 4-G-770-1182-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from a final agency decision (FAD) concerning his equal
employment opportunity (EEO) complaint, alleging discrimination on the
bases of race (Caucasian), age (51), physical disability (hypertension),
and retaliation (prior EEO complaints), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq;<1>
the Age Discrimination in Employment Act (ADEA), as amended, 29 U.S.C. �
621 et seq.; and Section 501 of the Rehabilitation Act of 1973, as
amended,<2> 29 U.S.C. � 791 et seq. The Commission hereby accepts the
appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405). The issue presented is whether complainant has
proved, by a preponderance of the evidence, that he was discriminated
against on the above-referenced bases when he was denied light-duty work
hours on December 5, 6, 18, 19, 20, and 26, 1995.<3>
During the relevant time, complainant, a Letter Carrier, PS-5, had been
placed in light duty status owing to hypertension and related conditions
which restricted him from operating a motor vehicle and doing outside
work. Accordingly, he had been given light duty work of casing mail
when it was available, but was denied such work on the above dates when
he alleged similarly situated comparative employees not in his protected
groups were given such work.
Feeling that he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed three formal complaints on March
26, 1996. The three complaints were consolidated for processing, and
at the conclusion of the investigation, complainant was notified of his
right to a hearing before an EEOC Administrative Judge or a FAD without
a hearing. After complainant failed to respond, the agency issued its
FAD finding no discrimination.
The agency determined that complainant was unable to establish a prima
facie case of discrimination based on race, age, physical disability,
or reprisal. While the agency found that complainant was able to
establish a prima facie case of sex discrimination, it further found
that management articulated a legitimate, nondiscriminatory reason for
its actions, namely, that the female employee who worked more light duty
hours than complainant on December 5-6, 1995, was the first carrier on
light duty and was therefore given the first chance at light duty work.
On appeal, complainant's representative makes many contentions, chief
among them that the agency made an incomplete investigation, as evidenced
by excluding the dates of December 18-20, and 26, 1995, from consideration
in its FAD, omitting the case numbers of two of the consolidated cases,
and later inking in dates covered on the agency investigative affidavits
as a way to obscure the dates actually covered by the investigation.
In addition, complainant contends that his hypertension was job-related
and therefore he should have been eligible for limited duty, and that
he did request such duty, as evidenced by his request for a CA-1 form.
He further contends that the agency refused to recognize his limited
duty status so that it could exclude from comparison any employees on
limited duty who were given more favorable treatment, that it gave work
to a transitional employee to the detriment of regular carriers despite
such being prohibited by union contract, and that it wrongly found that
he did not have an impairment, i.e., hypertension, which substantially
limited one or more major life activities, e.g., vision, walking, etc.
Finally, complainant requests summary judgment in his favor on the
basis of the agency's failure to conduct a full and complete impartial
investigation in accordance with 64 Fed. Reg. 37,644, 37656 (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.108(b)), or
in the alternative, that the Commission reverse the FAD and remand the
case for a hearing so complainant could bring out facts favorable to him
which were not covered in the investigation. The agency did not reply
to complainant's contentions on appeal.
In applying the analytical framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F. 2d 222
(1st Cir. 1976) (applying the framework to cases of reprisal); Prewitt
v. United States Postal Service, 662 F. 2d 292 (5th Cir. 1981) (applying
the framework to cases of disability discrimination); and Loeb v. Textron,
Inc., 600 F. 2d 1003 (1st Cir. 1973) (applying the framework to cases
of age discrimination), we agree with the agency that complainant
was unable to establish a prima facie case of discrimination based
on race, reprisal, or age, either due to a lack of similarly situated
comparative employees not in complainant's protected groups who were
given more favorable treatment on the dates in question, or in the case
of reprisal, that he was unable to show a causal connection between his
prior EEO activities and his being denied light duty on those same dates.
While we also agree with the agency that complainant established a prima
facie case of discrimination based on sex, we note that complainant was
not able to show that the legitimate, nondiscriminatory reason given by
the agency for the female carrier's working more light duty hours than
complainant on the same days was a pretext for discrimination. Nor has
complainant shown that the agency had more light duty work available
that complied with complainant's restrictions on the dates in question,
other than that given to the female carrier.
In order to claim the protection of the Rehabilitation Act, complainant
must first establish a prima facie case of disparate treatment disability
discrimination by showing that: (1) he is an individual with a disability,
as defined by 29 C.F.R. � 16302(g); (2) he is a qualified individual with
a disability pursuant to 29 C.F.R. �1630.2(m); and (3) he was subjected
to an adverse personnel action under circumstances giving rise to an
inference of disability discrimination.<4> See Prewitt, supra.
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 an impairment, or (3) is regarded as having
such an impairment. 29 C.F.R. � 1630.2(g). 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)(i) and (ii). Major life activities
include such functions as caring for one's self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
`working. EEOC Regulation 29 C.F.R. � 1630.2(i).
Complainant submitted inadequate medical documentation to support his
claim that his hypertension rose to the level of a "disability" under the
definition.<5> He stated in his affidavit that his hypertension caused
dizziness, headaches, impaired vision, faintness and an accelerated
heart rate. He did not, however, specify the frequency or severity
of any of these symptoms. The only documentation in the record of his
medical condition consists of the forms submitted by complainant which
detail the restrictions that his physician felt he should work under.
Those limitations included an inability to drive a motor vehicle, overtime
work was "not recommended" and it was recommended that he case mail until
further notice. There were no restrictions placed on his ability to
lift, carry, push, pull, stand, walk, stoop, bend or reach over shoulder
height. Additionally, complainant did not present any evidence regarding
the permanency or long term impact of his hypertension. According to
the record, we note that the restrictions were temporary in nature
and therefore not covered under the Rehabilitation Act. See Loniello
v. Department of the Air Force, EEOC Appeal No. 01951539 (Sept. 18, 1996).
In this regard, complainant's medical report states that while complainant
was totally disabled from October 17 to November 17, 1995, and partially
disabled from November 18, 1995 to January 31, 1996, he was released to
resume full duties as a letter carrier on February 1, 1996.
Complainant also contends on appeal that his hypertension was job-related,
and that he therefore should have been granted at least eight hours of
limited duty every day he was disabled. We note, however, that it
is the Office of Workers' Compensation Programs (OWCP) that determines
whether injuries are job-related and not the EEOC. Complainant is
accordingly advised to contact that agency to resolve this question
and whether he then would have been eligible for limited duty during
his period of disability. We further note that individuals are not
necessarily regarded as individuals with disabilities, as defined by
the Rehabilitation Act, even though they may have been provided with
a limited duty assignment because of an on-the-job injury or because
they have received an award from the OWCP. The individual must still
establish that his medical condition meets the regulations set forth
at 29 C.F.R.� 1630.2(g). See Waller v. Department of Defense, EEOC
Request No. 05940919 (April 6, 1995); Bailey v. U.S.Postal Service, EEOC
Appeal No. 01952545 (March 7, 1996). Without substantial limitation
of a major life activity, we find that complainant is not an "individual
with a disability" and therefore agree with the agency that complainant
has failed to establish a prima facie case of disability discrimination.
In reaching the above determination, we have examined complainant's
disability claim in light of the Supreme Court's recent decisions in
Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S.Ct. 2139 (1999);
Murphy v. United Parcel Service, Inc., 527 U.S. 516, 119 S.Ct. 2133
(1999); Albertsons, Inc. v. Kirkingburg, 527 U.S.555, 119 S.Ct. 2162
(1999); Cleveland v. Policy Management Systems Corp., 526 U.S., 119
S.Ct. 1597 (1999); and Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196
(1998).
Complainant further contends that the investigation was incomplete
since the FAD explicitly addressed only the dates of December 5 and 6,
1995, and all the dates accepted for investigation were inked in on the
agency investigative affidavits. We note, however, that such evidence
is not conclusive proof that all the dates were not covered in the
investigation, since all the dates were listed as the subject of both
agency investigative affidavits. While the agency stated that it would
not specifically address dates other than December 5 and 6, 1995, in
its FAD, it did make a general finding of no discrimination based on the
agency investigative affidavits which covered all the dates in question
and gave legitimate, nondiscriminatory reasons for denying complainant
light duty on all those dates. Hence, we determine that the FAD satisfied
the requirements of the EEOC Regulations found in Fed. Reg. 37,644,
37,657 (1999) (to be codified as 29 C.F.R. �1614.110(b)), which provide
that �[t]he final decision shall consist of findings by the agency on the
merits of each issue in the complaint.� Therefore, even though the agency
did not explicitly find that no discrimination occurred on the dates of
December 18, 19, 20, and 26, 1995, we will make this explicit finding now
to complete the decision-making process. Moreover, having determined that
the investigation uncovered all the facts necessary to make a decision,
we thus need not grant complainant's request either for summary judgment
or that we remand the case for a supplemental investigation or hearing.
Accordingly, after a careful review of the entire record, including
arguments and evidence not specifically addressed in this decision,
it is the decision of the EEOC to AFFIRM the agency's final decision in
this matter.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1092)
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:
July 27, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
1On 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.
2The 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.
3In its FAD, the agency listed the dates as December 5 and 6, 1995,
only, inasmuch as complainant, in his investigative affidavit, cited
these dates alone. The agency therefore concluded that complainant was
no longer interested in pursuing the other dates, although they had been
accepted for investigation, and stated it would not specifically address
them in the FAD.
4 The October 1992 amendments to the Rehabilitation Act provide that the
standards used to determine whether Section 501 of the Rehabilitation
Act has been violated in a complaint alleging non-affirmative action
employment discrimination shall be the standards applied under Title
I of the Americans with Disabilities Act (ADA). 29 U.S.C. � 791(g).
The regulations at 29 C.F.R. � 1630 implement the equal employment
provisions of the ADA.
5In an earlier decision involving the same complainant (EEOC Appeal
No. 01973926 (March 16, 2000)), we also made the point that complainant
submitted inadequate medical documentation to support his claim that
his hypertension rose to the level of a disability under 29 C.F.R.�
1630.2(g).