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.