01973926
03-16-2000
Frank M. Klimek v. United States Postal Service
01973926
March 16, 2000
Frank M. Klimek, )
Complainant, )
) Appeal No. 01973926
) Agency No. 4G-770-1186-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
On March 10, 1997, Frank M. Klimek (the complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated February 6, 1997, concerning his
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq., the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq. and � 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq.<1> The Commission hereby accepts
the appeal in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against
him based on race, sex, age, physical disability and reprisal.
BACKGROUND
Complainant was employed by the agency as a Letter Carrier at the
Houston, Texas Post Office, and was restricted to light duty at the
time in question. Complainant filed a formal complaint on March 26,
1996, alleging discrimination on the bases of race (white), sex (male),
age (51), physical disability (hypertension) and reprisal (prior EEO
activity). Complainant alleged he was discriminated against when he
was denied light duty on December 21, 1995. The agency accepted the
complaint for investigation and processing. At the conclusion of the
investigation, the agency issued a copy of its investigative report and
notified complainant of his right to request an administrative hearing.
After complainant failed to request a hearing, the agency issued its
FAD on February 6, 1997.
In its FAD, the agency found that the complainant had failed
to substantiate his claim that he had been discriminated against
on the bases of his race, sex or age. It also found that he had
not established a prima facie case of disability discrimination
because he was unable to demonstrate that he was an "individual with a
disability" as defined by the Rehabilitation Act. The FAD also stated
that complainant had not shown a prima facie case of reprisal because
he had not shown a causal connection between his participation in a
protected activity and the alleged adverse action. The FAD further
stated that complainant had failed to establish that the legitimate,
nondiscriminatory reason articulated by the agency for its decision was
a pretext for discrimination. This appeal followed.
ANALYSIS AND FINDINGS
In order to claim the protections 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. � 1630.2(g);<2> (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. See Prewitt v. United
States Postal Service, 662 F.2d 292 (5th Cir. 1981).
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. 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. Complainant also did not specify whether he
was taking any medication at the time which would control his symptoms,
and if he was on medication for his hypertension, he did not specify if
it brought his condition under control or if it adversely affected him.
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 were
that he was not allowed 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.
Complainant also stated in his affidavit that he had submitted medical
documentation when he "provided various OWCP [Office of Workers'
Compensation Programs] forms." Individuals are not necessarily regarded
as individuals with disabilities, as defined by the Rehabilitation Act,
merely because they have been provided with a limited duty assignment
because of an on-the-job injury or because they have received an award
from OWCP. The individual must still establish that their 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 medical documentation of a substantial limitation of a
major life activity, we find that complainant is not an "individual with
a disability" and therefore 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. 795, 119 S.Ct. 1597 (1999); and Bragdon v. Abbott, 524 U.S. 624,
118 S.Ct. 2196 (1998).
We now turn to an examination of whether complainant was a victim of
discrimination based on his race, sex, age or reprisal. A claim of
disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In response to complainant's claims of discrimination, the agency claimed
that it had no more work available on the date alleged in complainant's
complaint that complied with complainant's light duty restrictions.
It stated that, under the collective bargaining agreement (CBA) with the
union, it was obligated to provide light duty assignments to the employee
who was first in time to request it. Complainant was not the first
person, therefore, another employee received the light duty assignment
that was available and the agency was not obligated to "create work" for
complainant when available tasks were exhausted. We find, therefore,
that the agency has articulated a legitimate, nondiscriminatory reason
for its action.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason was a pretext for discrimination.
We find that complainant has failed to do so. Complainant presented no
argument or documentation to show that the employee who received light
duty work on the date in question had not requested it before him, or
that the management officials had misinterpreted the requirements of
the CBA regarding light duty assignments. He argued that the agency
regarded him as disabled, but his argument rested on the fact that the
agency had supplied him with forms for OWCP. As we have stated above, a
determination by OWCP that a person is "disabled" is not the equivalent of
qualifying as an "individual with a disability" under the Rehabilitation
Act. Therefore, the agency's determination that complainant failed to
establish that he was discriminated against was correct.
Accordingly, the decision of the agency was proper and is AFFIRMED.
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:
March 16, 2000
______________ __________________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
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 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.