01983461
07-17-2001
Ray N. Capil, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Ray N. Capil v. United States Postal Service
01983461
July 17, 2001
.
Ray N. Capil,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01983461
Agency No. 1F-941-0081-97
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his 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. Complainant alleged that he was
discriminated against on the basis of disability (Post Traumatic Stress
Disorder (PTSD)) when: (1) between February and April 1997 he was
denied three weekends off; (2) he was denied reasonable accommodation
and a reassignment to Tour 2; (3) he was denied four consecutive weeks
of vacation; and (5) on March 10, 1997 he was rated unacceptable in his
mid-year merit review. For the following reasons, we affirm the agency's
final decision.
The record reveals that during the relevant time, complainant was employed
as a Supervisor of Distribution Operations in the Automation Unit at the
agency's Processing and Distribution Center in San Francisco, California.
Complainant worked on Tour 1, commencing at 11:15 p.m. and ending at
8:00 a.m. Believing the agency discriminated against him as referenced
above, complainant sought EEO counseling and subsequently filed a formal
complaint on May 17, 1997. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. Complainant requested that the agency issue a final decision,
from which complainant now appeals.
As a threshold matter, complainant must establish that he 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).
The determination as to whether an individual has an impairment which
substantially limits a major life activity is made on a case by case
basis. Bragdon v. Abbott, 524 U.S. 624 (1998); Interpretive Guidance on
Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. �
1630.2(j). 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). The individual's
ability to perform the major life activity must be restricted as compared
to the ability of the average person in the general population to perform
the activity. Id. The Supreme Court has held that the determination
of whether a person is an "individual with a disability" must be based
on his or her condition at the time of the alleged discrimination.
The positive and negative effects of mitigating measures used by the
individual, such as medication or an assistive device, must be considered
when deciding if he or she has an impairment that substantially limits
a major life activity. Sutton v. United Airlines, Inc., 527 U.S. 471
(1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999).
Moreover, such limitations must be long-term or potentially long-term,
as opposed to temporary, in order to render one an individual with a
disability. See generally EEOC Enforcement Guidance on the Americans
With Disabilities Act and Psychiatric Disabilities (March 25, 1997) at
question 10. However, "some conditions may be long-term, or potentially
long-term, in that their duration is indefinite and unknowable or is
expected to be at least several months. Such conditions, if severe,
may constitute disabilities." Id. at question 7.
In his affidavit, complainant stated that he has nightmares, feelings
of hopelessness, problems remembering things, and social isolation.
He reiterated these statements on appeal by submitting a declaration
wherein he contends that his major depression and PTSD significantly
restrict his ability to sleep, concentrate, and interact with others.
In his declaration, complainant describes himself as "intensely sad and
socially withdrawn." He states that he has "serious insomnia" and "severe
problems concentrating." However, the medical evidence in the record does
not support complainant's contentions concerning his ability to sleep,
concentrate and interact with others. The record contains: (1) a note
from his doctor dated April 11, 1994 stating that complainant cannot work
in the Automation Unit "because of his emotional condition" and that he
needs "a relatively stress free placement on either Tour 1 or Tour 2";
(2) a May 14, 1996 letter from a staff psychiatrist at the Department of
Veterans Affairs stating that complainant is being treated for depression
and needs to "be placed in a less stressful work environment"; (3) a
letter dated July 16, 1996 from the same psychiatrist stating, without
elaboration, that complainant's "functional capacity is impaired due
to his service connected conditions" and referring complainant to the
Department of Veterans Affairs' Vocational Rehabilitation Department for
vocational rehabilitation and retraining because "his current occupation
and work situation have exacerbated his symptoms due to the stress of
the position"; (4) a September 10, 1996 note from another Department of
Veterans Affairs psychiatrist explaining that complainant was unable to
work for a week due to "high levels of stress related to work"; and (5) a
medical record from a clinic dated April 14, 1997 stating that complainant
had "hypertension, worsened by situational stress" and PTSD.<2>
The Commission finds that the evidence in the record is insufficient
to establish that complainant is substantially limited in the major
life activities of sleeping, concentrating and interacting with others.
In spite of complainant's assertions, none of his physicians reference
these problems. Moreover, there is no evidence: (1) that complainant
was chronically late for work or had trouble staying awake while he was
at work; (2) to what degree his memory failed him; or (3) that he was
socially isolated from his subordinate employees and fellow supervisors.
We note that complainant's performance was evaluated as unacceptable,
which he attributed in part to being unable to keep up with the fast pace
of the Automation Unit, but the neither his own testimony nor the medical
evidence establishes a nexus between his stress induced performance
problems and the major life activities of sleeping, concentrating and
interacting with others.
Since the opinions of complainant's treating physicians suggest that
complainant could not work in his position due to a high level of
emotional stress and since we find that he is not substantially limited
in any other major life activity, we will consider whether complainant
is substantially limited in the major life activity of working.
29 C.F.R. pt. 1630, app. � 1630.2(j). To be substantially limited in
the major life activity of working, one must be precluded from more than
one type of job, a specialized job or a particular job of choice. Sutton
v. United Airlines, Inc., 527 U.S. 471 (1999). The inability to perform
a single, particular job does not constitute a substantial limitation
in the major life activity of working. 29 C.F.R. � 1630.2(j)(3)(i).
Rather, an impairment must substantially limit complainant's ability
to perform either a class of jobs or a broad range of jobs in various
classes. Id. We find that the treating physicians' opinions do not
suggest that complainant is substantially limited from working in a
class of jobs or in a broad range of jobs in various classes, only that
complainant's impairment impeded his ability to perform his current job
on Tour 1. Nothing in the record shows that complainant is unable to
perform any job other than the one he is currently engaged. Accordingly,
complainant has failed to establish that his impairment substantially
limits his ability to work. See Webber v. Department of the Air Force,
EEOC Appeal No. 01980587 (March 2, 2001); Fernelius v United States
Postal Service, EEOC Request No. 05A00438 (June 29, 2000).
In addition, we find that the record fails to show that complainant
had a record of or was regarded by management as having a disability.
As a result, we find that the evidence of record is insufficient to
establish that complainant is an individual with a disability under the
Rehabilitation Act. Accordingly, we affirm the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
July 17, 2001
__________________
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 This is the only reference in the record to the condition of
hypertension.