03990091
10-31-2001
Steve A. Jones v. United States Postal Service 03990091 10-31-01 . Steve A. Jones, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steve A. Jones v. United States Postal Service
03990091
10-31-01
.
Steve A. Jones,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03990091
MSPB No. SE-0752-98-0306-I-1
DECISION
INTRODUCTION
On June 1, 1999, Steve A. Jones (hereinafter referred to as petitioner)
filed a petition with the Equal Employment Opportunity Commission
(Commission) for review of the Merit Systems Protection Board's (MSPB
or the Board) final decision on his case. In that decision, the MSPB
found that petitioner was not subjected to disability (lumbosacral
strain and chronic back pain) and reprisal discrimination when he
was placed on indefinite enforced leave on August 8, 1998. See �501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The Commission accepts this petition in accordance with the Civil Service
Reform Act of 1978 and EEOC Regulations at 29 C.F.R. �1614.303 et seq.
ISSUE PRESENTED
The issue herein is whether the Board's determination that the agency
had not discriminated against petitioner on the basis of his disability
(lumbosacral strain and chronic back pain), and in reprisal for prior
EEO activity constitutes a correct interpretation of the applicable laws,
rules, regulations, and policy directives, and is supported by the record
as a whole.
BACKGROUND
Petitioner filed an appeal with the MSPB on August 29, 1998, alleging
that he had been subjected to disability (lumbosacral strain and
chronic back pain) and reprisal discrimination when he was placed on
indefinite enforced leave on August 8, 1998. Following a hearing, an
MSPB Administrative Judge (AJ) issued an initial decision, sustaining
the agency's action and finding no discrimination. The full Board
subsequently denied petitioner's petition for review. Petitioner timely
filed a petition for review with this Commission.
A review of the record reveals that petitioner had been working as a
level 4 Mailhandler since 1996. According to the record, Mailhandlers are
responsible for loading, unloading, and moving bulk mail. Specifically,
employees must be able to unload rolling containers of mail weighing from
1200 to 1500 pounds from trucks for up to one hour per day. Further,
the position required employees to lift up to 70 pounds intermittently,
bend, stoop, and twist for 6 to 8 hours per day. Testimony shows that
the facility at which petitioner worked was relatively small, employing
only 5 Part-time Flexible Mailhandlers.
Petitioner testified that on November 28, 1997, he was off-loading
carts from a truck when he experienced a sharp pain in his lower back.
The record shows that petitioner had previously sought treatment for
low back pain in 1984, and was diagnosed with a lumbosacral strain.
Petitioner's physician noted, in February 1998, that his condition made
him more likely to sustain an injury to his back. Petitioner's physician
further stated that his condition was likely aggravated by the November
1997 incident. Petitioner noted that, at the time of the injury,
there was no supervisor on duty, but that once a supervisor arrived he
indicated that his back was bothering him and that he needed to leave
early. Petitioner stated that he did not realize that he had injured
his back until he sought medical treatment and was advised that he had
exacerbated his condition. Petitioner stated that he then reported
the incident to management on December 1, 1997, but was given the wrong
forms to complete. Petitioner noted that he had a back condition with
restrictions at the time he began working for the agency and had been
successfully performing the duties of his position.
Petitioner's physician completed a Duty Status Report on December 3,
1997, indicating that petitioner was restricted to lifting no more
than 40 pounds for 5 hours per day. In addition, petitioner was to
stoop and twist for no more than 3 hours per day, and to push and pull
items weighing up to 1500 pounds for no more than 3 hours per day.
Petitioner stated that although he submitted the form to management,
his assignment was not changed. Petitioner noted that he continued to
perform his regular Mailhandler duties until May 1998, at which time, he
had unrelated surgery on his foot. While petitioner was on leave after
his surgery, he received a letter proposing to place him on enforced leave
due to his back condition. Petitioner was advised that he would remain
on enforced leave until he was able to provide medical documentation
demonstrating that he was able to perform the duties of his position.
The Acting Supervisor (Responsible Official 1; RO1) stated that while
petitioner indicated that he was having back pain on November 28, 1997,
he did not state that he had sustained an injury. Nevertheless, RO1 noted
that he believed petitioner experienced a recurrence of his condition.
He also noted that, after that time, petitioner used a substantial
amount of leave. RO1 stated that he advised petitioner not to violate
his physician's restrictions, and attempted to reasonably accommodate him.
The Supervisor of Customer Service (Responsible Official 2; RO2) indicated
that he was aware petitioner had experienced some discomfort in his
back since coming to work at the facility. RO2 expressed surprise that
petitioner had been hired as a Mailhandler. He noted that petitioner's
back condition appeared to worsen in November 1997, with petitioner
seeming to be in constant pain and frequently using leave. RO2 stated
that he had concerns about petitioner's ability to perform his duties
beginning in December 1997, noting that petitioner's lifting restriction
was detrimental to the facility. RO2 indicated that Mailhandlers at the
facility needed to be able to perform many functions due to the small
number of such employees. He stated that while two Mailhandlers were
usually scheduled to work at one time, occasionally there may be only
one scheduled. RO2 further noted that while Clerks often performed
Mailhandler duties, Mailhandlers did not perform Clerk functions. RO2
stated that there were other jobs which petitioner could perform, but that
he would have to apply for them since the positions were at a higher pay
level. RO2 noted that he sent letters to nearby facilities looking for
light duty work which petitioner could perform, but was unsuccessful in
securing such a position. RO2 acknowledged that the negotiated agreement
provides that employees who sustain on the job injuries can work across
crafts, but does not require the agency to accommodate off duty injuries.
RO2 opined that there are only 3 hours of continuous Mailhandler work
available within petitioner's restrictions, noting that rewrap work is
being performed by an employee in a rehabilitation assignment.
The Facility Manager (Responsible Official 3; RO3) testified that he
identified 5 facilities for possible transfers, but that no positions
were available. RO3 stated that there would not be 8 hours of Mailhandler
work available at petitioner's facility given petitioner's restrictions.
RO3 indicated that petitioner could have written a letter requesting a
transfer to a position in Human Resources or to the Clerk craft, where
positions were available, but did not do so. RO3 noted that while
petitioner verbally requested light duty, he was told he needed to do
so in writing. RO3 stated that petitioner was not offered limited duty,
because his workers' compensation claim was denied. RO3 noted that the
Mailhandlers were primarily responsible for loading and unloading mail,
which involved pushing and pulling.
Petitioner asserted that there are 8 hours of continuous work within
his restrictions available at the facility. Petitioner indicated that
he could perform cutting and binding functions, do rewrap work, and work
with empty containers. Petitioner acknowledged that cutting and binding
were usually performed by Clerks, but stated that Mailhandlers perform
some of those tasks. Petitioner contended that the agency failed to
accommodate his condition, in part, because of his participation in
a sexual harassment investigation.<1> Petitioner further noted that,
during the period from November 1997 through May 1998, he was in pain
and using leave because of his foot condition, which was accepted by
the Office of Workers' Compensation Programs as being work-related.
The record includes a February 1998 report from petitioner's chiropractor
(Dr. F) which noted some soft tissue damage with no disc herniation or
protrusion. Dr. F stated that petitioner's prognosis was good for a full
recovery to pre-injury status. Dr. F completed an Office of Worker's
Compensation Programs (OWCP) CA-17 form in March 1998, indicating that
petitioner could lift up to 40 pounds intermittently; stand and walk
for 8 hours; climb and kneel for 4 to 5 hours; bend, stoop, push and
pull for 3 hours; and twist for 2 hours. Petitioner was examined by
an occupational medicine specialist (Dr. H) in October 1998. Dr. H
concluded that petitioner had chronic lumbar pain with sacralization.
Dr. H also completed a CA-17 form, noting essentially the same limitations
as those cited by Dr. F, but stating that petitioner could lift up to
40 pounds continuously.
As stated, the MSPB AJ issued a decision affirming the agency's action.
The MSPB AJ further determined that, while petitioner had a disability
which substantially limited his ability to bend, twist, lift, push, and
pull, he did not articulate a reasonable accommodation which would allow
him to perform the essential duties of his position or another position to
which he could be reassigned. The AJ noted that petitioner's suggested
accommodation would delete the most essential duties of the Mailhandler
position. Further, the AJ found that petitioner failed to prove his
claim of reprisal, as he did not establish a nexus between his role in
the informal sexual harassment investigation and his placement on leave.
ANALYSIS AND FINDINGS
The Commission must determine whether the MSPB's decision with respect
to petitioner's allegations of discrimination constitutes a correct
interpretation of the applicable laws, rules, regulations and policy
directives, and is supported by the evidence in the record as a whole.
See 29 C.F.R. �1614.305(c). The Commission finds that the Board's
decision concerning petitioner's allegation of reprisal constitutes a
correct interpretation of the law governing the matter at issue, and is
supported by the record as a whole. A review of the record shows that
petitioner presented no evidence of reprisal beyond that required to
establish a prima facie case. Therefore, the Commission concurs with
the Board, and finds that petitioner's placement on enforced leave was
not the result of reprisal discrimination.
The Commission also concurs with the Board with regard to the issue of
disability discrimination, however for different reasons. In order to
establish a disability discrimination claim under the Rehabilitation
Act, a petitioner must demonstrate that: (1) he is an "individual with
a disability"; (2) he is "qualified" for the position held or desired,
i.e. can perform the essential functions with or without accommodation;
and (3) he was subjected to an adverse employment action because of
his disability. See Swanks v. WMATA, 179 F.3d 929, 934 (D.C.Cir. 1999);
Heyman v. Queens Village Committee for Mental Health for Jamaica Community
Adolescent Program, 198 F.3d 68 (2d Cir. 1999). A disabled individual
is one who: 1. has an impairment which substantially limits one or more
major life activities; 2. has a record of such an impairment; or 3. is
regarded as having such an impairment. 29 C.F.R. �1630.2(g).<2> Major
life activities include caring for one's self, performing manual tasks,
walking, seeing, breathing, learning, and working. 29 C.F.R. �1630.2(i).
In the case at hand, the Commission finds that petitioner has failed
to prove that he is disabled for purposes of the Rehabilitation Act.
Initially, petitioner has not shown that he has an impairment which
substantially limits a major life activity. Specifically, while
petitioner has been diagnosed with a back condition, we do not find the
stated restrictions with regard to lifting, bending, twisting, pushing,
and pulling to be substantially limiting as compared to the average person
in the general population.<3> See Marshall v. Department of the Navy,
EEOC Appeal No. 01970680 (June 29, 2000). Further, there is no evidence
that petitioner has a record of a substantially limiting impairment.
Petitioner also indicated that the agency regarded him as being
disabled from working due to his back condition. In order to be
considered substantially limited in the major activity of working,
an individual must be significantly restricted in the ability to
perform either a class of jobs or a broad range of jobs in various
classes as compared to others having comparable training, skills, and
abilities. 29 C.F.R. �1630.2(j)(3)(i). Further, several factors may
be considered when determining whether an individual is substantially
limited with regard to working, including the number and types of jobs
utilizing similar training, knowledge, skills, or abilities, within
the geographical area, from which the individual is also disqualified.
29 C.F.R. �1630.2(j)(3)(ii).
Based upon the record herein, we find that the agency did not regard
petitioner as being substantially limited with regard to working.
Clearly, RO2 and RO3 did not believe that petitioner was able to perform
the functions of his Mailhandler position. Nevertheless, both RO2 and
RO3 stated that there were jobs available in the Clerk craft, as well as
Mailhandler jobs at nearby facilities, which petitioner could perform.
Further, petitioner has not shown what class or broad range of jobs the
agency regards him as unable to perform. The Supreme Court recently
held that, to be substantially limited in the major life activity of
working, an individual 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); Murphy v. United Parcel Service,
Inc., 527 U.S. 516 (1999); see also 29 C.F.R. �1630.2(j)(3)(i). In this
case, the record shows that petitioner was at most regarded as being
unable to perform one particular job, and was not considered to be
substantially limited with regard to a class or broad range of jobs.
Finally, even assuming, arguendo, that petitioner had established that
he is a person with a disability, petitioner is essentially requesting
that the agency create a new position for him. The Commission notes
that job restructuring involves the reallocation or redistribution of
"nonessential, marginal job functions" or the alteration of when and/or
how an essential function is performed. Interpretive Guidance on Title
I of the Americans with Disabilities Act, Appendix to 29 C.F.R. Part
1630, Section 1630.2(o). An employer is not required to reallocate
essential functions of the position. See Harris v. Department of the
Navy, EEOC Petition No. 03930116 (December 16, 1993). Furthermore,
the Rehabilitation Act does not require that the agency create a new
position for a disabled individual. See Mitchell v. Department of
Defense, EEOC Petition No. 03930164 (January 21, 1994); Owens v. United
States Postal Service, EEOC Petition No. 03930129 (December 17, 1993).
The testimony of record, particularly that of RO2, shows that handling
containers and bundles of mail weighing in excess of 70 pounds, the
duty from which petitioner is effectively requesting to be excused,
is an essential function of the Mailhandler position. Thus, the
Commission concurs with the MSPB that petitioner failed to prove that
he was discriminated against on the basis of disability with regard to
his placement on indefinite suspension.
CONCLUSION
For the reasons as set forth above, the Commission CONCURS with the MSPB's
finding that petitioner failed to show that the agency discriminated
against him on the basis of his disability and in reprisal for prior
EEO activity when he was placed on indefinite suspension.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within thirty
(30) calendar days of 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.
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
_______10-31-01______________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1According to the record, petitioner advised a co-worker that RO3 made a
derogatory comment about her. The co-worker then reported the statement
to Human Resources, which investigated the matter. The co-worker did
not initiate an EEO complaint with regard to the incident.
2The 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.
3The record shows that while petitioner was restricted from walking
more than 10 minutes at a time and from lifting more than 20 pounds
following his May 1998 foot surgery, the restrictions were temporary.
Petitioner was released to return to full duty by his podiatrist in
November 1998. There is no evidence that the agency placed petitioner on
enforced leave as a result of the restrictions on his foot. The record
clearly shows that petitioner was placed on enforced leave solely due
to his back condition.