Mikle W. Williams, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionFeb 2, 2000
01976737 (E.E.O.C. Feb. 2, 2000)

01976737

02-02-2000

Mikle W. Williams, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.


Mikle W. Williams v. United States Postal Service

01976737

February 2, 2000

Mikle W. Williams, )

Complainant, )

)

v. ) Appeal No. 01976737

)

William J. Henderson, ) Agency No. 4-G-752-1277-96

Postmaster General, )

United States Postal Service, )

(S.E./S.W. Region), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

basis of physical disability (right heel spur and plantar fascitis)

in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �

791, et seq.<1> Complainant claims he was discriminated against when on

May 13, 1996, he was required to work outside the physical limitations

imposed by his physician. This appeal is accepted in accordance with

EEOC Order No. 960.001. For the following reasons, the agency's decision

is AFFIRMED.

The record reveals that complainant, a Modified Letter Clerk at the

agency's University Station in Dallas, Texas ("facility"), filed a formal

EEO complaint with the agency on August 1, 1996, alleging discrimination

as referenced above. The agency accepted the complaint for processing,

and at the conclusion of the investigation, complainant was granted

thirty days to request a hearing before an EEOC Administrative Judge or

an immediate FAD from the agency. After complainant requested a final

decision, the agency issued a FAD finding no discrimination.

The FAD found that other than his allegations presented in his complaint,

complainant failed to present evidence to substantiate his claim that he

was required to work outside his physical limitations. The FAD pointed

to the testimony of the facility's Manager, who stated that complainant

was never required to exceed his medical restrictions. As a result,

the FAD concluded that complainant failed to establish that he was a

victim of disability discrimination. On appeal, complainant makes no

new contentions and the agency requests that we affirm the FAD.

After a careful review of the record, based on McDonnell Douglas v. Green,

411 U.S. 792 (1973) and Prewitt v. United States Postal Service, 662

F.2d 292 (5th Cir. 1981), the Commission finds that complainant failed

to present credible evidence demonstrating that he was discriminated

against based on his disability or that he was required to work outside

of his medical restrictions.<2> The evidence established that as a

result of his medical restrictions, the agency provided complainant a

modified limited duty position accommodating his physical limitations.

Other than his bare assertions that he was required to stand or walk for

time periods beyond his medical restrictions, complainant provides no

evidence substantiating his claim. The agency submitted affidavits from

three facility managers stating that they never required complainant to

perform duties outside of his medical restrictions and that they had no

knowledge of any instances where complainant exceeded his restrictions.

As a result, we find that the agency accommodated complainant's physical

disability and that complainant has failed to demonstrate that the agency

required him to perform duties outside his restrictions.

Analyzing the case under the disparate treatment theory, we find that

complainant has failed to establish a prima facie case of discrimination

because he failed to demonstrate that the agency took adverse action

against him, in that the evidence does not indicate that he was required

to perform duties outside his medical restrictions. See Hemsley v

Department of Commerce, EEOC Appeal No. 01943469 (March 14, 1996).

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM 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:

February 2, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant

1 On 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.

2 We note that pursuant to the Rehabilitation Act Amendments of 1992,

the Americans with Disabilities Act's employment standards apply to

all non-affirmative action employment discrimination claims filed by

federal applicants or employees with disabilities under Section 501 of

the Rehabilitation Act. Pub. L. No. 102-569 � 503(b), 106 Stat. 4344

(1992)(codified as amended at 29 U.S.C. � 791(g)(1994)).