01976039
01-24-2000
Harvinder Khosa, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Harvinder Khosa v. United States Postal Service
01976039
January 24, 2000
Harvinder Khosa, )
Complainant, )
) Appeal No. 01976039
v. ) Agency No. 4F-950-1050-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Indian), national origin (India), color (Brown), religion
(Sikh), sex (male), reprisal (prior EEO activity), and mental disability
(Post Traumatic Stress Disorder), in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
Complainant alleges he was discriminated against when he was denied
light duty assignments between November 1, 1993, and October 25, 1994.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED as MODIFIED.
The record reveals that during the relevant time, complainant was employed
as a PS-05 Letter Carrier at the agency's Processing and Distribution
Center in Fresno, California. Complainant alleged that he was denied
light duty, as stated above, and submitted medical documentation dated
July 29, 1994, indicating he was diagnosed with Post Traumatic Stress
Disorder, and that he could only perform office duty, with restrictions
in standing, lifting, pushing and sitting. See Investigative File (IF)
at exhibit 2D. Another Physician's note, also dated July 29, 1994,
states that complainant is having problems with his shoulder due to
depression, that he should perform limited duty casing mail, and that
he should take care if operating a postal vehicle as a result of his
prescribed medications. See IF at exhibit 2E. The record also contains
a return-to-work authorization slip dated July 29, 1994, which states
that complainant should perform light duty work casing mail for three
to four hours due to headaches, shoulder problems and depression. See
IF at exhibit 2F. This note also stated that complainant would only be
"disabled" until November 1, 1994.
Subsequently, complainant's physician prepared a report dated October
15, 1994, which stated that complainant was presently taking Prozac
and Desyrel in the evenings to address his depression, and that he had
"residual cervical paraspinal and trapezius muscle myofascial pain," and
"previously diagnosed Post Traumatic Stress Disorder, much improved."
The report also indicated that complainant could return to work in a
light duty capacity for a few weeks, and then resume regular duties as
a mail carrier, including sorting. A second physician's note dated
October 25, 1994, concurred with the report dated October 15, 1994.
Finally, the record contains a "Special Report" from the Office of
Worker's Compensation, dated January 3, 1995, which sets forth the same
diagnosis and prognosis as provided in the report dated October 15, 1994.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on February 1, 1995.
At the conclusion of the investigation, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On March 11, 1997,
the AJ remanded complainant's case to the agency for dismissal pursuant
to 64 Fed. Reg. 37,644, 37, 656 (1999) (to be codified as 29 C.F.R. �
1614.107(a)(1) and 107(a)(7)), noting first that complainant's complaint
stated the same claim as was previously adjudicated in a prior case,
and second, that complainant failed to provide an affidavit to the
investigator. The agency instead issued a FAD addressing the merits of
complainant's complaint. The agency concluded that complainant failed
to establish a prima facie case of discrimination under any of his
alleged bases because he presented no evidence that similarly situated
employees were granted light duty. The FAD then concluded that the
agency articulated legitimate, nondiscriminatory reasons for its actions,
namely, that complainant's restrictions concerning his shoulder prevented
him from performing office work such as casing mail, that there was no
available work within his restrictions, and that such denial of light
duty was not motivated by discriminatory animus. complainant submits
no contentions on appeal, and the agency requests that we affirm its FAD.
After a careful review of the record based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission agrees with the agency that complainant failed to establish
a prima facie case of discrimination under any of complainant's alleged
bases. We agree with the agency's conclusion that complainant failed to
present evidence that similarly situated employees not in his protected
classes were treated more favorably. In reaching this conclusion, we note
that the Commission reached a similar result in Khosa v. United States
Postal Service, EEOC Appeal No. 01961015 (January 14, 1998)(Khosa I).
However, complainant's instant claim is not identical to his prior
complaint because complainant alleged that the denial of light duty
occurred through October 25, 1994, six months beyond the time frame
alleged in Khosa I.
However, the Commission also notes that complainant's allegations
of disability discrimination are more appropriately classified as a
failure to accommodate, and not a disparate treatment allegation.
In this respect, we note that we previously determined in Khosa I
that complainant was not an individual with a disability because
his impairments were not permanent or severe. While complainant has
since submitted additional medical documentation concerning his mental
impairment, Post Traumatic Stress Disorder, we find that complainant's
most recent medical documentation is insufficient to establish that
he was substantially limited in a major life activity, as set forth
in the Commission's Regulations at 29 C.F.R. � 1630.2(i) and (j).<2>
We note that complainant's restrictions were temporary in nature, in
so far as he returned to full duty without restrictions in a relatively
short period of time. See Loniello v. Department of the Air Force, EEOC
Appeal No. 01951539 (September 19, 1996) (temporary conditions do not
constitute disabilities under the Rehabilitation Act). Finally, even
if complainant was considered an individual with a disability, we find
that he failed to establish that he was a qualified individual with a
disability as defined by the Rehabilitation Act, as agency management
officials determined that the restrictions pertaining to his shoulder
precluded him from casing mail in the office, and there was no other
office work available within his restrictions. Therefore, after a careful
review of the record, including arguments and evidence not specifically
addressed in this decision, we AFFIRM, as MODIFIED, the FAD.
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:
January 24, 2000
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
_________________________
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.