Jeremy C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Mar 19, 2019

0120170712 (E.E.O.C. Mar. 19, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jeremy C.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 0120170712

Hearing No. 470-2015-00091X

Agency No. 4C-450-0069-14

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 26, 2016, final
order concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final order.

ISSUE PRESENTED

The issue presented is whether substantial evidence supports the EEOC Administrative Judge’s
(AJ) finding that Complainant was not regarded as an individual with a disability, and therefore,
not entitled to coverage under the Rehabilitation Act.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant
at the Agency’s Norwood Branch in Cincinnati, Ohio. Complainant was hired by the Agency on

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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December 14, 2013 as a temporary employee whose appointment would not exceed 360 days. On
January 27, 2014, while working on his route, Complainant slipped on ice, but did not fall.
Complainant suffered a sprained knee because of the incident. Complainant returned to the
Agency facility and filed a report that indicated he had been injured. Also on January 27, 2014, a
medical professional reported that Complainant had right knee sprain/strain and was restricted to
a “mostly sit-down job” until he had a follow-up examination a week later.

However, on January 28, 2014, Complainant filed a report about the incident on a workers’
compensation form and was treated by medical professionals. In a letter dated January 30, 2014,
the Agency notified Complainant of the termination of his employment. The letter stated that
Complainant was terminated for unsatisfactory performance and for failure to follow Agency rules
and regulations.

On May 27, 2014, Complainant filed an EEO complaint in which he alleged that the Agency
discriminated against him on the basis of disability when on January 30, 2014, the Agency issued
him a Notice of Termination.

After the investigation of the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing on January 7 and
8, 2016.

At the hearing, Complainant testified that after he slipped on ice and filed a report, a supervisor at
St. Bernard Post Office took a picture of his shoes. Complainant further testified that the
supervisor asked him if he wanted to go a doctor, but Complainant told him that he wanted to wait
a day to see if his knee got better. Complainant stated that on the morning of January 28, 2014, he
informed his supervisor (S1) about the incident, and S1 told him to come into the office.
Complainant stated that once he came into work, he was directed to the Medical Center, where he
filled out proper certificates and workers’ compensation paperwork. Complainant also stated that
S1 went to the scene of the incident with him.

Complainant further testified that on January 30, 2014, he was surprised to receive a letter of
termination in the mail. Complainant stated that after his termination, he was restricted on
February 4, 2014 to lifting no more 20 pounds for two hours per day, sitting for eight hours per
day, standing for one hour per day, and pulling/walking for one hour per day.2 He stated that he
was cleared for duty by the fourteenth day after the incident, although he had been terminated.

2 We note that the Office of Workers’ Compensation Programs (OWCP) CA-17 form dated
February 4, 2014 indicates that Complainant was restricted to lifting more than 20 pounds for four
hours per day; sitting up to seven hours per day; reaching above his shoulder for up two hours per
day; standing/walking/twisting for up to one hour per day; and pulling/pushing for up to one half
hour per day. These restrictions were lifted February 11, 2014.
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“At the time, the post office did not know the severity of my injury because they fired me two days
after my initial [injury], so they would not have known, had any idea what the severity of my injury
was on the followup on the the 4th,” Complainant testified. Hearing Transcript, p. 21. Complainant
further testified that S1 could not have known how bad his injury was until after he was terminated
because the extent of his injury was not revealed until February 4, 2014.

S1 testified that Complainant was terminated mostly because of his poor performance in delivering
mail on time, but also because he had an accident within his first 90 days of employment. S1
testified that if carriers have accidents during probation or do not have perfect attendance, they
normally do not pass 30, 60, and 90-day probationary review. S1 further testified that at or about
the time of Complainant’s termination, he did not notice that Complainant had been injured, and
he seemed to be walking fine.

AJ’s Decision

After Complainant and S1 testified, the Agency motioned for a “directed verdict” in its favor. In
a decision dated August 26, 2016, the AJ granted the Agency’s motion for a decision in its favor.
The AJ first determined that Complainant did not have a disability or a record of having a
disability. The AJ further determined that Complainant received his termination notice on January
30, 2014 but did not learn he had a knee sprain until February 4, 2014. Additionally, the AJ noted
that Complainant testified that management was not aware of the nature and severity of his injury
before he was terminated. The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the AJ found S1’s testimony was credible, yet S1 provided
the reasons for his termination. The Agency requests that we affirm its final order.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held.
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ANALYSIS AND FINDINGS

Regarded as an Individual with a Disability

The AJ determined that Complainant did not prove that he was regarded as an individual with a
disability, and therefore, was not entitled to protection under the Rehabilitation Act. The
Commission’s regulations implementing the ADA Amendments Act of 2008 (ADAAA), 42
U.S.C. § 12101, et seq., which amended Title I of the Americans with Disabilities Act (ADA), and
as a result, the Rehabilitation Act, state:

The primary purpose of the ADAAA is to make it easier for people with disabilities
to obtain protection under the ADA. Consistent with the Amendments Act’s
purpose of reinstating a broad scope of protection under the ADA, the definition of
“disability” in this part shall be construed broadly in favor of expansive coverage
to the maximum extent permitted by the terms of the ADA. The primary object of
attention in cases brought under the ADA should be whether covered entities have
complied with their obligations and whether discrimination has occurred, not
whether the individual meets the definition of disability. The question of whether
an individual meets the definition of disability under this part should not demand
extensive analysis. 29 C.F.R. § 1630.1(c)(4).

The ADAAA altered the interpretation and application of the critical statutory term “individual
with a disability” in fundamental ways. Pursuant to the EEOC regulations implementing the
ADAAA, an individual with a disability is one who: (i) has a physical or mental impairment that
substantially limits one or more of the major life activities of such individual; (ii) has a record of
such an impairment; or (iii) is regarded as having such an impairment as described in paragraph
(1) of this section. This means that the individual has been subjected to an action prohibited by the
ADA, as amended, because of an actual or perceived impairment that is not both “transitory and
minor.” 29 C.F.R. § 1630.2(g).

Furthermore, the regulations explain that the following principles also apply under the “regarded
as” prong of the definition of disability above:

(1) Except as provided in § 1630.15(f), an individual is “regarded as having
such an impairment” if the individual is subjected to a prohibited action
because of an actual or perceived physical or mental impairment, whether
or not that impairment substantially limits, or is perceived to substantially
limit, a major life activity. Prohibited actions include but are not limited to
refusal to hire, demotion, placement on involuntary leave, termination,
exclusion for failure to meet a qualification standard, harassment, or denial
of any other term, condition, or privilege of employment

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(2) Except as provided in § 1630.15(f), an individual is “regarded as having
such an impairment” any time a covered entity takes a prohibited action
against the individual because of an actual or perceived impairment, even if
the entity asserts, or may or does ultimately establish, a defense to such
action.

(3) Establishing that an individual is “regarded as having such an impairment”
does not, by itself, establish liability. Liability is established under title I of
the ADA only when an individual proves that a covered entity discriminated
on the basis of disability within the meaning of section 102 of the ADA, 42
U.S.C. § 12112. 29 C.F.R. § 1630.2(1).

Coverage under the “regarded as” prong of the definition of disability should not be difficult to
establish. See 2008 House Judiciary Committee Report at 17 (explaining that Congress never
expected or intended it would be a difficult standard to meet). Under the third prong of the
definition of disability, an individual is “regarded as having such an impairment” if the individual
is subjected to an action prohibited by the ADA because of an actual or perceived impairment that
is not “transitory and minor.” Appendix to Part 1630 - Interpretive Guidance on Title I of the
Americans With Disabilities Act (Interpretive Guidance) at Section 1630.2(1). The ADA does not
define “minor,” but transitory is defined as an impairment with an actual or expected duration of
6 months or less. 42 U.S.C. § 12102(3)(B).

In this case, we note that an impairment does not have to last for more than six months to be
substantially limiting under the first or second prong of the definition of disability. See Dania S.
v. Social Security Administration, EEOC Appeal No. 0120142114 (Sept. 15, 2016) (The six-month
“transitory” part of the “transitory and minor” exception to “regarded as” coverage does not apply
to an actual disability or “record of” disability). However, impairments that last only for a short
period of time are typically not covered, although they may be covered if sufficiently severe.
Appendix to Part 1630, at § 1630.2(j)(1)(ix). Here, Complainant’s impairment did not last more
than 15 days, and Complainant’s knee sprain was not a severe impairment. Therefore, we find
that the AJ properly found that Complainant is not an individual with a disability, nor did he have
a record of being such. See Martinez v. N. Y. State Div. of Human Rights, 2015 WL 437399, at
8 (S.D.N.Y. Feb. 2, 2015) (temporary injuries from a slip-and-fall did not result in disability under
the ADA); Shaughnessy v. Xerox Corp., No. 12–CV–6158, 2015 WL 1431687, at 4 (W.D.N.Y.
Mar. 27, 2015) (finding that plaintiff’s sprained ankle does not constitute a disability where “there
is no evidence suggesting that the injury was, or was ever thought to be, a long-term condition”).

With respect to whether Complainant was regarded as an individual with a disability, the record
establishes that Complainant suffered a knee sprain that resulted in restrictions from January 27,
2014 until February 11, 2014. The Agency became aware that Complainant suffered some type
of injury that impacted his knee and/or walking on or about January 27, 2014. However, at most,
Complainant’s knee sprain impacted him for 15 days, which reflected its transitory nature.
Additionally, we find that Complainant’s relatively minor temporary restrictions reflect that his
knee sprain was a minor impairment. Therefore, we do not find that Complainant was regarded as
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an individual with a disability. See Bush v. Donahoe, 964 F.Supp.2d 401, 421 (W.D. Pa. 2013)
(employee with ankle/foot sprain not regarded as disabled under the ADA); see also Lewis v.
Florida Default Law Group, 2011 WL 4527456, at 6-7 (M.D.Fla. Sept. 16, 2011) (“ordinary flu”
is not “regarded as” a disability because it is transitory and minor). Consequently, we find that the
AJ properly found that Complainant did not prove that the Agency violated the Rehabilitation Act.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final order because substantial
evidence supports the AJ’s decision finding that Complainant was not discriminated against as
alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.
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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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 19, 2019
Date