01a33897
01-07-2005
Ricardo Rivera, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ricardo Rivera v. United States Postal Service
01A33897
January 7, 2005
.
Ricardo Rivera,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33897
Agency No. 1A-007-0008-02
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his formal 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. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the reasons that follow, the
Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Flat Sorter Machine Operator in the agency's Caribbean
District located in San Juan, Puerto Rico. Complainant sought EEO
counseling and subsequently filed a formal complaint on April 12, 2002,
alleging that he was discriminated against on the basis of disability
(back) and reprisal (union activity as a shop steward)<1> when his
request for advanced sick leave was denied on November 28, 2001; he
was involuntary removed from the workroom floor on November 30, 2001;
and management disseminated electronic mail messages questioning the
validity of his workplace injuries during October and November, 2001.
The agency accepted the complaint for investigation, and at the conclusion
thereof, informed complainant of his right to elect a hearing before an
EEOC Administrative Judge, or in the alternate, an immediate final agency
decision based on the record. When complainant failed to make an election
within the time period specified in 29 C.F.R. � 1614.108(f), the agency
issued a final decision, in which it found that complainant had not been
discriminated against as alleged. Complainant appealed without comment.
To establish a prima facie case of disability discrimination under
a disparate treatment and/or a failure to accommodate theory, the
complainant must demonstrate that: 1) he is an "individual with a
disability" as defined in 29 C.F.R. � 1630.2(g); 2) he is a "qualified
individual with a disability" as defined in 29 C.F.R. � 1630.2(m); and
(3) he was subjected to an adverse personnel action under circumstances
giving rise to an inference of disability discrimination and/or denied
an accommodation. See Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th
Cir. 2001).
An individual with a disability is defined 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 record of such impairment,
or 3) is regarded as having such an impairment. EEOC Regulation 29
C.F.R. �1630.2(g). Major life activities include, but are not limited
to, the functions of caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
EEOC Regulation 29 C.F.R. � 1630.2(h)(2)(i).
In the present case, complainant presented scant evidence that he was
substantially limited in a major life activity at the time of the events
in question. In his affidavit, he stated that in or about May 1995,
he injured his back on the job while lifting a mail tray. After being
examined by an agency doctor, it was determined that he had a herniated
disk and from that point on, he continued to experience problems with
his back. In May 2000, complainant injured himself at work when he
fell off a broken chair. As a result of these incidents, complainant
required back surgery, which he underwent on November 1, 2001. In order
to plan for and recover from the surgery, complainant requested 240
hours of advanced sick leave via a handwritten letter dated October
2001, in which he indicated he needed the extra leave in order to
undergo a back surgery, which would give him back his leg strength,
eliminate his back pain problem, and enable him to carry out 100% of
his assigned duties. The request was denied on November 28, 2001, due
to complainant's blotchy attendance history. Complainant's attendance
records show that complainant requested sick leave on about 20 occasions
in the leave year of 2000 and also in the leave year of 2001.
On November 30, 2001, complainant returned to work in a wheelchair, at
which time he was ordered off the workroom floor because management was
concerned that proper safety precautions had not been taken to ensure his
safety.<2> Complainant's September 24, 2002 affidavit incorporated by
reference his January 4, 2002 affidavit prepared in connection with
a matter before the National Labor Relations Board. The January
4, 2002 affidavit stated that he was still using the wheelchair.
After considering that in conjunction with complainant's statements
indicating that the surgery would �eliminate his back pain problem,�
the Commission is not convinced that complainant was in a wheelchair
for anything more than a short time period.
There are some other documents in the file as well that speak
to complainant's back impairment, but none of them indicate that
complainant's condition substantially limited him in a major life
activity. Moreover, there is no evidence in the file that complainant
had a record of such an impairment or was regarded as having such an
impairment. For that reason, we conclude that complainant has failed
to establish a prima facie case of disability discrimination.
Based on the foregoing and after a careful review of the record,
including the agency's response to complainant's appeal, and arguments
and evidence not specifically addressed in this decision, we affirm the
agency's final decision.
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
January 7, 2005
__________________
Date
1Union activity does not qualify as protected EEO activity where, as is
the case here, there is no evidence that the union activity involved an
EEO matter.
2During his time out from work, complainant was placed on paid
administrative leave.