01992280
04-11-2002
Musheerah Ali, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Musheerah Ali v. United States Postal Service
01992280
April 11, 2002
.
Musheerah Ali,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01992280
Agency No. 1C-443-0006-98
Hearing No. 220-98-5262X
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning her 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.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, we affirm the agency's final decision.
Complainant worked at an agency facility in Akron, Ohio as a casual
employee performing mail handler and clerk duties for many years.
She took the agency's hiring examination on two occasions but did
not pass. She filed a formal EEO complaint on December 8, 1997,
alleging that the agency had discriminated against her on the basis of
her learning disability when she was not hired by the agency in July 1997
and in October 1997 she was informed that her learning disability did not
qualify her for a career appointment under the agency's non-competitive
hiring process. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing before
an EEOC Administrative Judge. Following a hearing, the Administrative
Judge issued a decision finding no discrimination. The agency concurred
with the Administrative Judge that the evidence of record did not support
complainant's claim and issued a final decision finding no discrimination.
The Administrative Judge found that complainant was a qualified individual
with a disability because she was substantially limited in the major
life activity of learning and because she could adequately perform
the essential functions of a mail handler position as evidenced by
her successful work as a casual mail handler. Treating the case as
a claim of disparate treatment, the Administrative Judge found that
the agency articulated legitimate, nondiscriminatory reasons for
not hiring complainant, namely that mail processing positions were
not authorized for non-competitive hire and even if they had been
so authorized, complainant's learning disability did not qualify her
for the non-competitive hiring program. The Administrative Judge then
concluded that complainant failed to prove that the agency's explanation
was a pretext for discrimination.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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 Administrative Judge's conclusions of law are subject
to a de novo standard of review, whether or not a hearing was held.
Notwithstanding that the Administrative Judge erroneously concluded
that complainant was qualified individual with a disability, for the
following reasons, we agree with the conclusion that the agency did not
violate the Rehabilitation Act.
Complainant must establish that she is an "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. Sitting, standing, lifting,
and reaching are also recognized as major life activities. Interpretive
Guidance on Title I of the Americans With Disabilities Act, Appendix to 29
C.F.R. � 1630.2(i). Upon review, we find that the record does not support
the Administrative Judge's summary legal conclusion that complainant
had an impairment which substantially limited her ability to learn.
After performing a series of diagnostic procedures, a psychologist
diagnosed complainant with AXIS 1 adjustment disorder with depressed mood
and learning disorder not otherwise specified and offered the following
summary and conclusions after examining her:
General level of intelligence is below average and psychoeducational
skills appear borderline at best near the 5th to 6th grade level.
Neuropsychological test results suggest no consistent evidence of
cerebral dysfunction that suggest focal or diffuse signs of brain damage.
Cognitively this patient is grossly intact without any significant
functional defects. She is experiencing some concentration and memory
problems apparently due to life stress. This patient's ability to
maintain appropriate attention is fair. Concentration and divided
concentration is below average and she has problems retaining complex
verbal material. General memory functions appeared to be good for visual
memory and her ability to learn simple visually presented tasks is at
least fair.
Assuming without determining whether complainant has a mental impairment
within the meaning of the Rehabilitation Act, the Commission concludes
that the record does not support a finding that her impairment
substantially limits any of her major life activities. In reaching
this conclusion, we note that the diagnostic procedures revealed the
following limitations: an inability to �pass tests� requiring at least
average to above average academic skills; impaired planning and problem
solving skills on complex tasks that require foresight and higher order
reasoning; weakness in auditory memory, implicating complex language
learning; and impaired ability to integrate and follow verbal directions.
The psychologist found that the results of general intelligence testing
were consistent with complainant's education and that she had a FSIQ
of 84. He described her intelligence as �below average� and found her
ability on a demanding, problem solving test requiring mental flexibility,
alternative thinking, judgment and insight, and the ability to consider
alternative solutions to be �very poor.� The psychologist opined that
complainant's weak functional memory would be likely to cause her to
have mild to moderate difficulty with normal and routine tasks of daily
living and that her inability to integrate information constructively
would make it likely for complainant to have problems working and
thinking independently.
Upon review of complainant's testimony, we find no evidence that she
actually experienced any difficulty with the normal and routine tasks of
daily living or that she had difficulty working or thinking independently.
The only work related difficulty complainant testified to was passing the
postal exam. In fact, her work performance over the years was considered
both successful and commendable. Complainant testified that she had
graduated from high school with no evidence that her ability to do so
was adversely impacted by a learning disorder or that her ability to
learn was substantially limited as compared to the condition, manner, or
duration under which the average person in the general population learns.
Accordingly, we decline to find that complainant was substantially
limited in any major life activity. Moreover, we find no evidence in the
record to support a finding that complainant either had a record of or
was regarded by the agency as having an impairment which substantially
limited a major life activity. Therefore, we find that complainant did
not establish that she was an individual with a disability within the
meaning of the Rehabilitation Act.<2> For the reasons set forth above,
we affirm the agency's decision finding no discrimination.
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
April 11, 2002
__________________
Date
1 The 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.
2 Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o)
and (p). Had we determined that complainant was a qualified individual
with a disability, the Commission would address whether: (1) the agency
denied complainant reasonable accommodation by refusing to allow her
to participate in a noncompetitive hiring program or by refusing to
waive the postal exam at issue; and (2) the postal exam operated as a
selection criterion which screens out or tends to screen out individuals
with disabilities.