Randall D. Oakley, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.

Equal Employment Opportunity CommissionSep 21, 2000
01982923 (E.E.O.C. Sep. 21, 2000)

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.