01982923
09-21-2000
Randall D. Oakley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Randall D. Oakley v. United States Postal Service
01982923
September 21, 2000
.
Randall D. Oakley,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast/Southwest Region),
Agency.
Appeal No. 01982923
Agency No. 1-G-761-1051-95
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD
#3) concerning his complaint of unlawful employment discrimination on
the bases of sex (male), age (57) and physical disability (cervical
disc syndrome), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
Complainant alleges he was discriminated against and harassed when on
January 31, 1995, he received a permanent limited duty offer (PLDO).
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).<2> For the following reasons,
the Commission affirms the agency's finding of no discrimination.
The record reveals that during the relevant time, complainant was
employed as a Mail Processor at the agency's Amarillo, Texas facility.
Believing the agency discriminated against him, complainant filed a
formal EEO complaint on February 17, 1995.<3> In his formal complaint
and during counseling, complainant alleged, without explanation, that
the PLDO was not a reasonable accommodation; that the offer would have
changed his off days and assigned him to a different tour; and that it
was designed specifically so he would reject it.
The agency issued a final decision (FAD #2) on August 7, 1995, finding
that complainant was not adversely affected by the PLDO and thus failed
to state a claim. In the alternative, FAD #2 found that complainant
failed to prove that he was treated less favorably than similarly
situated employees outside of his protected classes or that the PLDO
was not a reasonable accommodation. On appeal, the Commission found
that the agency failed to develop a complete record and remanded the
claim for a supplemental investigation into whether the agency offered
complainant a reasonable accommodation.
FAD #3 found that by offering complainant the permanent limited duty
assignment, the agency had complied with its obligation under the
Rehabilitation Act to reasonably accommodate complainant. FAD #3 noted
that complainant refused to accept the PLDO which had been approved
by the Office of Workers' Compensation Programs as a position within
complainant's physical limitations. FAD #3 did not re-address the claims
of either sex or age based discrimination. Complainant did not submit
a statement in support of the instant appeal. The agency stands on its
decision.
The supplemented record does not support a finding that at the time
complainant filed his formal complaint, he was adversely affected by
the PLDO. He remained in the same temporary limited duty position he
had occupied before the PLDO, a position in the label room which the
record suggests he liked and wished to retain. However, in light of the
fact that complainant was subsequently terminated for failure to accept
the offer, we will assume arguendo that complainant has stated a claim,
and we will review its merit.
In order to establish a prima facie case of disability discrimination in
violation of the Rehabilitation Act, complainant must demonstrate that:
(1) he is a "qualified" individual with a disability as defined in 29
C.F.R. � 1630.2(m); and (2) the agency took an adverse action against
him as a result of his disability. See Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981).
EEOC Regulation 29 C.F.R. � 1630.2(g) defines an individual with a
disability as one who: (1) has a physical or mental impairment that
substantially limits one or more of that person's major life activities;
(2) has a history of such impairment; or (3) is regarded as having such an
impairment. In the Appendix to 29 C.F.R. Part 1630, Interpretive Guidance
on Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. �
12111, et seq. (Interpretive Guidance), a person is "substantially
limited" where he is unable to perform a major life activity or is
"significantly restricted as to the condition, manner, or duration under
which [he] can perform a particular major life activity" when compared
with persons in the general population. 29 C.F.R. �� 1630.2(j)(i)
and (ii). The Interpretative Guidance further provides that �major
life activities� are those basic activities that the average person
in the general population can perform with little or no difficulty.
Such 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(i).
The Commission concludes that complainant is not disabled within the
meaning of the Rehabilitation Act because he has failed to present
evidence that, although his medical restriction is permanent, he is
substantially limited in a major life activity. In reaching this
conclusion, we note that there is conflicting medical evidence in the
record as to the degree of complainant's impairment. Complainant's
physicians insist that complainant cannot perform repetitive movement
involving either his upper or lower extremities. However, the opinions
of a Board Certified Orthopedic Surgeon and a second physician indicate
that complainant's only restriction is to avoid using his elbows and
wrists in repetitive activity which exceeds �60x/hour.� They found a
twenty-five pound lifting restriction and no evidence that complainant
could not perform repetitive movement from the chest level down.
Complainant was also examined by an Occupational Therapist who found
�self-limiting� behavior and inconsistencies in his abilities. We note
that at the time complainant rejected the agency's PLDO, complainant was
willingly and competently performing a temporary limited duty assignment
in the label room where he printed, cut, and distributed collated tags
and colored labels, duties involving significant repetitive motion of
the upper extremities. Complainant's children submitted statements
concerning complainant's chronic pain, but prescription evidence of pain
medication in the record is scant, tending to support one physician's
observation of periodic pain. Since complainant has not named a major
life activity in which he is substantially impaired, and the weight of
the most probative physician opinion evidence does not suggest one, we
decline to find that complainant is disabled within the meaning of the
Rehabilitation Act. We also note that there is no evidence to support
a finding that complainant had a record of a substantially limiting
impairment or that the agency regarded him as having one. Rather, the
record indicates that the agency viewed complainant as an employee who,
because of a repetitive motion restriction resulting from an on the
job injury, needed a permanent limited duty assignment. Accordingly,
we find that the agency was not obligated to provide complainant with
a reasonable accommodation within the meaning of the Rehabilitation Act.
Turning to the merits of complainant's disparate treatment claim,
we find no evidence to support complainant's assertion that the PLDO
was specifically designed so that he would reject it. Complainant
consistently asserted that the PLDO was discriminatory in nature
because it would change his tour of duty and his off days, violate a
"Mailhandler's" contract, and force him to perform work outside of his
medical restrictions. However, the PLDO was specifically designed to
comply with the limitations posed by complainant's physician and was
approved by the Office of Workers' Compensation Programs. There is no
evidence indicating that the PLDO was irregular or in violation of a
union contract, and complainant fails to proffer evidence from which we
could conclude that there was something undesirable or suspicious about
the proposed schedule change. Accordingly, based on the standards set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Loeb
v. Textron, 600 F.2d 1003 (1st Cir. 1979) and Prewitt, supra, we agree
with the agency's finding from FAD #2 that the PLDO was not motivated
by discriminatory animus towards complainant's age, sex or disability.
Although none of the FADs acknowledged complainant's claim of harassment,
based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), we note that complainant has not presented sufficient
evidence to establish that the PLDO, standing alone, was sufficiently
severe or pervasive to create a hostile working environment. Moreover,
a prima facie case of harassment is precluded based on our finding that
the agency's action was not motivated by discriminatory animus towards
complainant's age, sex or disability. Therefore, after a careful review
of the record, including arguments and evidence not specifically addressed
in this decision, we affirm the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
September 21, 2000
_______________
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. 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.
2 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.
3 There is no record of an appeal of FAD #1 wherein the agency dismissed
complainant's claim of reprisal discrimination and accepted complainant's
claim that he was discriminated against on the bases of sex, age and
physical disability.