07A10042and01A12188
03-04-2003
Rosina Vacchiano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Rosina Vacchiano v. United States Postal Service
07A10042 and 01A12188
March 4, 2003
.
Rosina Vacchiano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal Nos. 07A10042 and 01A12188
Agency Nos. 1C-441-0015-99; 1C-151-0073-99; 1C-451-0074-99
Hearing Nos. 220-99-5352X; 220-A0-5189X
DECISION
Both parties initiated appeals concerning complainant's 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. In the underlying complaints,
filed on November 19, 1998, March 15, 1999, and March 18, 1999,
complainant, a Supervisor (EAS-16), Distribution Operations, at the
agency's Dayton, Ohio facility, alleged that she was discriminated
against as follows:
(1) based on disability (bilateral carpal tunnel, ulnar nerve entrapment,
right lateral entrapment, and right lateral epicondylitis) when in August,
1998, she learned from her physician that her hand and foot conditions
had been exacerbated due to July, 1998 work assignments allegedly outside
of her medical restrictions;
(2) based on disability (bilateral tarsal tunnel syndrome, neuromas,
shin splints, lateral dorsal superficial cutaneous nerve entrapment,
caushogia, heel spurs and consequential conditions, parosmia, ansomia,
dysguesia, bronchitis asthmatic, bilateral carpal tunnel, ulnar nerve
entrapment, right lateral epicondylitis, and Dequervain's tenosynovitis)
when on November 6, 1998, the agency enforced a job offer that was in
violation of her medical restrictions; and
(3) based on reprisal for prior EEO activity (contact with EEO counselor
regarding alleged Rehabilitation Act violations) when on November 6,
1998, she was harassed by agency management.
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 dated November 1, 2000, finding that although
complainant was an individual with a disability within the meaning of the
Rehabilitation Act, she had failed to prove the alleged discrimination
or reprisal.
On December 14, 2000, the agency issued a final order stating that it
would implement the Administrative Judge's finding of no discrimination,
but would appeal because it disagreed with the Administrative Judge's
predicate legal determination that complainant was an individual with
a disability under the Rehabilitation Act. The agency's appeal was
docketed as EEOC Appeal No. 07A10042. After receipt of the agency's
final order, complainant filed an appeal which was docketed as EEOC
Appeal No. 01A12188.
Appeal No. 07A10042
Pursuant to 29 C.F.R. � 1614.110(a), if the agency's final order "does
not fully implement the decision of the administrative judge, then the
agency shall simultaneously file an appeal in accordance with � 1614.403
and append a copy of the appeal to the final order." In the instant
case, we find that the agency did not have grounds for appeal under this
provision, since the agency's final order adopted the Administrative
Judge's finding of no discrimination. An appeal is properly taken by an
agency when it declines to implement the Administrative Judge's finding
or any portion of the order of relief. The agency has, in its appeal,
asked the Commission to review solely whether or not the Administrative
Judge was correct in determining that complainant was an individual with a
disability under the Rehabilitation Act, notwithstanding that the agency
has already decided to implement the Administrative Judge's finding of
no discrimination. Accordingly, the purpose of the appeal is not to
address the ultimate disposition of the complaint, but to establish
a record with respect to a particular predicate legal conclusion.
The Commission's regulations do not authorize such appeals by the agency.
Accordingly, the agency's appeal is dismissed.
Appeal No. 01A12188
Complainant's appeal from the agency's final order is timely and is hereby
accepted pursuant to 29 C.F.R. � 1614.405. On appeal, complainant asserts
the following errors by the Administrative Judge: (1) complainant's
motion to compel further answers to certain interrogatories was denied;
(2) testimony by four witnesses was disallowed; (3) she did not receive
the hearing transcript in timely fashion; (4) her statement that she could
perform the duties of External First Class (EXFC) referred to the duties
as described to her when assigned, not as they allegedly turned out to
be in actuality; (5) various affidavits in the record do not contain the
testimony attributed to them in the Administrative Judge's decision; (6)
she did not receive the agency investigative file; (7) the EXFC assignment
required repetitive hand motion in violation of her restrictions; (8)
the job offer made to her exceeded her restrictions, and was �enforced�
in that she had to take sick leave rather than accept it; and (9) the
Administrative Judge improperly excluded testimony by certain witnesses.
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.
An �individual with a disability� under the Rehabilitation Act, defined
as one who: (1) has a physical or mental impairment that substantially
limits one or more of the major life activities of such individual;
(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, "functions such as caring
for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working." EEOC Regulation 29 C.F.R. � 1630.2(i).
The Interpretive Guidance to the regulations further notes that "other
major life activities include, but are not limited to, sitting, standing,
lifting, [and] reaching." 29 C.F.R. Part 1630 Appendix � 1630.2(i).
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, compared to the average person in the general
population. 29 C.F.R. � 1630.2(j).
In its opposition brief to complainant's appeal, the agency asserts
that the medical evidence established that complainant's impairments
were not �permanent.� We note, as a matter of law, that an impairment
need not be permanent in order to substantially limit a major life
activity and thus constitute a disability under the Rehabilitation Act.
"An impairment is substantially limiting if it lasts for more than
several months and significantly restricts the performance of one or
more major life activities during that time . . . . In addition, 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."
EEOC Enforcement Guidance on the Americans With Disabilities Act and
Psychiatric Disabilities (March 25, 1997) at question 7.
Further, the agency asserts that if complainant cannot demonstrate that
she has an actual substantially limiting impairment, she cannot in the
alternative establish that she was �regarded as� an individual with a
disability unless she can demonstrate that the agency regarded her as
�incapable of performing a class of jobs or a broad range of jobs because
of the impairment,� quoting DeVaughn v. United States Postal Service,
EEOC Appeal No. 01983352 (May 18, 2000). To the extent the DeVaughn
decision so stated, it was referring solely to whether the agency regarded
complainant as substantially limited in working, not in any other major
life activity. Further, our regulations provide that with respect to
the major life activity of working, �substantially limited� does not
mean �incapable� but rather �significantly restricted in the ability
to perform either a class of jobs or a broad range of jobs in various
classes.� 29 C.F.R. � 1630.2(j)(3)(i). Complainant may demonstrate
that she was �regarded as� an individual with a disability by showing
that the agency treated her as having an impairment which substantially
limited any major life activity. 29 C.F.R. � 1630.2(l).
Nevertheless, we do not reach the issue of whether or not the
Administrative Judge correctly concluded that complainant is an individual
with a disability under the Rehabilitation Act. Rather, we find that
even assuming arguendo complainant is an individual with a disability,
the Administrative Judge correctly concluded that complainant has not
established disability discrimination by a preponderance of the evidence.
Crediting testimony by agency managers and a labor relations specialist,
the Administrative Judge found that complainant was not assigned duties
outside her medical restrictions on file at the time. The labor relations
specialist testified that when complainant then submitted a doctor's
letter stating that the job offer was outside of her restrictions,
complainant was not cooperative in responding to their requests for
specific information about the ways in which the offer violated her
restrictions so that the offer could be revised accordingly. See Hearing
Transcript (July 25, 2000) at 38-41, 58-68. Once this information was
provided, the job offer was revised. The specific factual finding by
the Administrative Judge that the job offer did not exceed complainant's
medical restrictions on record at the time it was offered is supported
by substantial evidence. See Record of Investigation for agency case
no. 1C-451-0074-99 at Exhibit 3 (October 27, 1998 limited duty job offer)
and Exhibit 4 (May 1, 1997 Work Restriction Data Sheet).
Further, we concur with the Administrative Judge's conclusion
that complainant has not established retaliation. Complainant can
establish a prima facie case of retaliation by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6,
1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
Specifically, in a reprisal claim, and in accordance with the burdens
set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC
Request No. 05960473 (November 20, 1997), a complainant may establish a
prima facie case of reprisal by showing that: (1) he or she engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
In the instant case, the Administrative Judge made a factual finding that
the agency officials alleged to have retaliated against complainant were
not aware of her prior protected activity, and this finding is supported
by substantial evidence in the record, in that a reasonable fact finder
could have reached this conclusion based on the hearing testimony.
Accordingly, on this ground, we concur with the Administrative Judge's
conclusion that complainant failed to establish her claim of retaliation.
Finally, to the extent complainant contends that she was denied necessary
testimony by two witnesses whom the agency had requested but then decided
not to call to testify at the hearing, this was the agency's prerogative,
and since complainant did not request either of these witnesses herself,
the agency was within its rights not to call these witnesses where it
concluded that their testimony would be cumulative. Moreover, we do not
find reversible error based on the Administrative Judge's exclusion of an
EEO official as a witness, and an additional witness to whose exclusion
complainant did not object.
After a careful review of the record, the Commission finds that
the Administrative Judge's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
In light of the foregoing analysis, we discern no basis to disturb the
Administrative Judge's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal. the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final order.
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:
______________________________ March 4, 2003
Frances M. Hart Date
Executive Officer
Executive Secretariat