John R. Muskopf, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 25, 2000
01975667 (E.E.O.C. Feb. 25, 2000)

01975667

02-25-2000

John R. Muskopf, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


John R. Muskopf, )

Complainant, )

) Appeal No. 01975667

v. ) Agency No. 1-I-631-1035-94

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

)

DECISION

Complainant timely filed an appeal with the Commission from a final

decision of the agency concerning his complaint of unlawful employment

discrimination in violation of Section 501 of the Rehabilitation Act

of 1973, 29 U.S.C. � 791.<1> The appeal is accepted in accordance with

EEOC Order No. 960, as amended.

The issue that this case presents is whether the agency discriminated

against complainant on the basis of physical disability (5% impairment -

upper right extremity) by terminating him during his probationary period,

effective October 7, 1993. Complainant was hired as a probationary mail

handler on July 10, 1993. On October 6, 1993, he received a letter,

signed by his supervisor, which stated that he would be terminated during

probation, effective October 7th, for an unsatisfactory service record.

Investigative Report (IR) 43.

The threshold issue is whether complainant's condition constitutes a

disability within the meaning of the Rehabilitation Act. In his appeal

brief, complainant maintains that he is an individual with a disability.

He states that he has an eight-percent permanent partial disability

related to his right shoulder, and argues that such a disability

unquestionably limits him in his efforts to perform major life activities.

Appeal Brief, pp. 4-5. Complainant sustained an on-the-job injury to

his right shoulder in December 1989, while working for another agency.

His condition deteriorated to the point where he was awarded compensation

from the Department of Labor's Office of Workers Compensation Programs

(OWCP). An award-of-compensation notice from the OWCP dated March

23, 1993, indicates that complainant had a �five-percent impairment

of the right upper extremity.� IR 31. Complainant appears to be

arguing that this is sufficient to establish that he has a disability

within the meaning of the Rehabilitation Act. The Commission has

stated, however, that, with respect to disability ratings from the

Department of Veterans Affairs (VA), such ratings do not necessarily

indicate that an individual is disabled under the Rehabilitation Act.

Wood v. United States Postal Service, EEOC Request No. 05950624 (October

17, 1997) and Miller v. United States Postal Service, EEOC Request

No. 05940121 (September 9, 1994)(Forty-percent disability rating from

VA not sufficient, by itself, to establish disability). In this case,

it was OWCP rather than the VA who assessed complainant's impairment.

While OWCP's evaluation may provide some evidence of disability, it does

not constitute proof of disability under the Rehabilitation Act, just

as a VA rating, without more, does not constitute proof of disability.

We will now address that issue.

To prevail on his claim of disability discrimination, complainant must

first establish that he has, has a record of, or is regarded as having a

physical or mental impairment that substantially limits one or more of

his major life activities. 29 C.F.R. �1630.2(g); Sutton v. United Air

Lines, Inc., 119 S.Ct. 2139, 2141-42 (1999) (A disability exists only

where an impairment substantially limits a major life activity. . . .);

Cook v. United States Postal Service, EEOC Request No. 05960015 (June

21, 1996) (To merit the protection of the Rehabilitation Act, it is not

enough to have a particular medical condition that carries the potential

for substantial limitations; it is necessary to actually have, have a

record of, or be regarded as having, an impairment causing substantial

limitations to one or more major life activities).<2>

The term �substantially limits� means: unable to perform a major

life activity that the average person in the general population can

perform; or significantly 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)(1). Major life activities

include functions such as caring for one's self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working.

29 C.F.R. � 1630.2(i). Factors to be considered in determining whether

an individual is substantially impaired in a major life activity include:

the nature and severity of the impairment;

the duration or expected duration of the impairment; and

the permanent or long-term impact, or the expected permanent or long-term

impact of or resulting from the impairment.

29 C.F.R. � 1630.2(j)(2).

With respect to the major life activity of working, the term

�substantially limits� means significantly restricted in the ability

to perform either a class of jobs or a broad range of jobs in various

classes as compared to the average person having comparable training,

skills, and abilities. 29 C.F.R. � 1630.2(j)(3)(i). The inability

to perform a single, particular job does not constitute a substantial

limitation in the major life activity of working. Id.

A physician's report on complainant, entitled, �Disability Evaluation,�

and dated November 10, 1992, indicates that complainant sustained

an injury to his right shoulder on December 18, 1989. By January

1991, he began to experience pain consistently in his right shoulder,

particularly when playing tennis and racquetball. He had arthroscopic

surgery on his right shoulder in December 1991. By January 1992,

complainant had regained almost the full range of motion in his right

shoulder. In May 1992, complainant reported stiffness in the shoulder,

as well as some pain on the extremes of motion, but did report that the

pain was getting better. Although he was taking medication to ease the

pain, he denied that he experienced any weakness or numbness in his

right arm. In November 1992, he was working part-time as a physical

fitness instructor. The report further indicated that, in accordance

with the American Medical Association's Guide to the Evaluation of

Permanent Impairment, complainant had a five-percent impairment of

the right upper extremity. IR 21-26. The physician made a similar

assessment earlier, in a letter to OWCP dated July 9, 1992. IR 27-30.

A letter from complainant's physician dated September 23, 1993, indicated

his range of motion and strength did not appear to have changed since

May 1992. IR 20.

Applying the regulatory factors set forth above we find, initially, that

complainant's condition appears to be permanent, but not that severe.

The record shows that the range of motion in his right shoulder was

slightly limited. In sum, the preponderant evidence indicates that

complainant does not have an impairment that substantially limits him

in a major life activity.

We next look at whether complainant had a record of having such an

impairment. One has a record of a substantially-limiting impairment if

he has a history of, or is misclassified as having such an impairment.

29 C.F.R. � 1630.2(k). Neither the medical reports issued in July and

November 1992 nor the follow-up letter issued in September 1993 indicate

that complainant was substantially limited in any major life activity.

The November 1992 report indicated that complainant was able to work as

a fitness instructor. Consequently, we find that complainant did not

have a record of having an impairment that substantially limited him in

a major life activity.

Finally, we address whether complainant was regarded as having an

impairment. One is regarded as having an impairment if: he has an

impairment that does not substantially limit his major life activities,

but is treated as though it does; if he has an impairment that limits

his major life activities only as a result of others' attitudes toward

his impairment; or he has no substantially limiting impairment at all,

but is treated as if he has. 29 C.F.R. � 1630.2(1). The supervisor

who signed the termination notice did not consider complainant disabled.

The supervisor stated that complainant told her that he had sustained an

injury on a previous job, but specifically said that she, �did not know

that [complainant] had a handicap.� IR 48. On a medical examination and

assessment form for postal employment, however, which complainant filled

out and signed on June 29, 1993, the examining physician entered the

disability code �05,� which denotes �no disability.� IR 39. Complainant

indicated on the form that he did not have a physical condition that could

affect his ability to repeatedly lift 70 pounds. IR 37. We conclude,

on the basis of the record before us, that complainant was not regarded

as having an impairment that substantially limited his major life

activities.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final decision

because the preponderance of the evidence of record does not establish

that complainant had a disability within the meaning of the Rehabilitation

Act.

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:

Feb. 25, 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:

_________________________

__________________________

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.