01A13291
10-11-2002
Kim Saner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Kim Saner v. United States Postal Service
01A13291
October 11, 2002
.
Kim Saner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A13291
Agency No. 4C-442-0016-00
Hearing No. 220-AO-5211X
DECISION
Complainant timely initiated an appeal from the agency's final
action concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission AFFIRMS the agency's final
action.
The record reveals that complainant, a Modified General Clerk (MGC)
at the agency's Post Office in Akron, Ohio (�Akron facility�), filed
a formal EEO complaint on December 13, 1999, alleging that the agency
had discriminated against him on the basis of disability (left arm
impairment) when in September 1999 he was informed that he would no
longer be permitted to commute to work on the clock, and thus he was
denied a reasonable accommodation of his disability.
The record reveals that complainant sustained an on-the-job injury
to his left arm in 1994, and he stated that he could not grasp the
steering wheel of a motor vehicle with both hands. Complainant stated
that in February 1998, he accepted a MGC position, which consisted
of assisting the facility's EAP Coordinator with administrative tasks.
Due to complainant's concerns about his ability to drive to the facility,
it was agreed that he would be permitted to perform his job at the Newton
Falls, Ohio postal facility (�Newton Falls facility�) near his home.
However, complainant stated that on occasion, his duties required him
to travel to the Akron facility. Complainant stated that in July 1998,
the EAP Coordinator informed complainant that he would be reporting to
the Akron facility on a daily basis and would no longer be permitted
to work at the Newton Falls facility due to space constraints and due
to complaints about the presence of complainant's family at the facility
during work hours. Complainant stated that the agency's manager of injury
compensation (MIC) told him to manage his driving time when commuting to
allow for breaks and that he could drive to work on the clock. However,
complainant stated that in September 1999, he was informed by the
MIC that he would no longer be paid for the time he spent driving to
the Akron facility. In September 1999, complainant submitted medical
documentation indicating that he had a permanent restriction on driving
more than thirty minutes at a time.
Believing he was the victim of discrimination, complainant filed a
formal complaint. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a decision finding no discrimination.
The AJ noted that complainant presented testimony and evidence of an
impairment to his left arm that restricts his ability to lift, grasp,
reach above shoulder level and drive continuously for more than thirty
minutes using his left arm. As such, the AJ found that she would
assume that complainant is a qualified individual with a disability
under the Rehabilitation Act. Further, the AJ noted that complainant's
impairment has been accommodated by the agency through the provision
of the MGC position, and complainant's duties did not require driving
a motor vehicle.
The AJ found that while complainant asserted that the agency's duty to
reasonably accommodate him extends to his transportation to and from
the work site and to compensation for the commute,
this assertion is not supported by case precedent. As a result, the AJ
found that complainant was not discriminated against based on disability.
The agency's final action implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final order.
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.
After a careful review of the record, the Commission finds that
complainant failed to establish that he is an individual with a disability
under the Rehabilitation Act. We note that complainant testified at
the hearing that he had a repetitive motion injury to his left arm,
which required two surgeries. Hearing Transcript, at 26-27. Following
his surgeries, complainant was placed in a limited duty capacity and
ultimately received the permanent rehabilitation position as a MGC at
the Newton Falls facility. Due to the injury to complainant's left
arm, he testified that he cannot drive more than 30 minutes, as he
cannot grab the steering wheel with two hands and has continuous pain.
Hearing Transcript, at 31. He also stated that due to his taking pain
medication, there were times when he could not walk very well
and could not stand. Id. The record
also contained the statement of complainant's doctor who supported
the fact that because of complainant's condition, he should not drive
continuously for more than 30 minutes for a period of six (6) months.
Investigative Report, at Exhibit 3. Complainant testified that his
physician stated that the thirty minute driving restriction was permanent
as of September 1999. Hearing Transcript, at 40. A Duty Status Report
prepared by complainant's physician for the Department of Labor in
September 1999 stated that complainant was able to lift 40 pounds for
two (2) hours per day, could perform simple grasping for one (1) to
(2) hours per day, was able to push and pull 40 pounds one (1) to two
(2) hours per day, was able to reach above his shoulder four (4) hours
per day and could not drive continuously for more than thirty minutes.
Investigative Report, at Exhibit 4, page 39. As stated by the AJ,
complainant did not present evidence as to the impact of his left arm
impairment on his daily life activities.
In order to prevail in a case of disability discrimination, complainant
must first show that he is a qualified individual with a disability. 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 impairment; or (3) is regarded as having such an
impairment. Major life activities include, but are not limited to, caring
for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. � 1630.2. An impairment is
substantially limiting when it prevents an individual from performing a
major life activity or when it significantly restricts the condition,
manner or duration under which an individual can perform a major life
activity. 29 C.F.R. 1630.2(j). When determining whether an individual
is substantially limited in a major life activity, one must consider 1)
the nature and severity of the impairment; 2) the duration or expected
duration of the impairment; and 3) the permanent or long term impact,
or the expected permanent or long term impact of or resulting from
the impairment. Id.
After consideration of complainant's testimony and the medical evidence of
record, the Commission finds that complainant has failed to establish that
the impairment to his left arm substantially limited him in performing
any major life activities. In so finding, we note that complainant
has not stated that the injury to his left arm substantially limited
him in performing any activity other than driving. In addition,
while the medical report completed by complainant's physician placed
restrictions on several work activities due to his arm injury, none of
the restrictions appear to substantially limit complainant in performing
any major life activities, such as lifting, manual tasks or working.
Complainant stated that due to his use of pain medication, "[n]ot only
can't I drive, there are times when I can't walk very well and stand
much, I have to sit down until I get my thoughts all back together."
Hearing Transcript, at page 31. While the side effects of medication for
an impairment may cause substantial limitations in performing a major life
activity, rendering someone an individual with a disability, in this case,
complainant's own characterization of these limitations suggest that they
occur only infrequently and therefore do not substantially limit him in
walking or standing. As a result, the Commission finds that complainant
has failed to establish that he is an individual with a disability within
the meaning of the regulations. See 29 C.F.R. � 1620.2(j).<1>
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 final action's finding
that discrimination did not occur.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
October 11, 2002
__________________
Date
1 The Commission notes that the AJ found that complainant's assertion
that the agency's duty to reasonably accommodate him extended to
his transportation to and from the work site was not supported by
case precedent. However, the Commission has recognized that agencies
may be responsible for accommodating employees with disabilities with
respect to their daily commute to work such as by modifying a work
schedule, applying a work-at-home policy where it would be an effective
accommodation and would not be an undue hardship, or reassignment to a
facility closer to the employee's home. EEOC's Enforcement Guidance
on Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act at p. 46. (March 1, 1999); see also Mitchell
v. United States Postal Service, EEOC No. 01A03170 (August 27, 2001),
Hupka v. Department of Defense, EEOC No. 02960003 (August 13, 1997);
Kubik v. Department of Transportation, EEOC No. 01973801 (July 11, 2001).
Furthermore, our regulations cite to the need to modify or adjust the
manner or circumstance under which a position is held and is performed
which we view as encompassing the agency's responsibility to consider
work-at-home and flexiplace arrangements. 29 C.F.R. � 1630.2(o)(1)(ii),
2(ii).