01982479
12-17-1999
Steven D. Halling, Complainant, v. William J. Henderson, Jr., Postmaster General, United States Postal Service, Agency.
Steven D. Halling, )
Complainant, )
)
v. ) Appeal No. 01982479
) Agency No. 4-J-606-1015-94
William J. Henderson, Jr., ) Hearing No. 210-97-6719X
Postmaster General, )
United States Postal Service, )
Agency. )
________________________ )
DECISION
Complainant filed the instant appeal from the agency's final decision
dated December 29, 1997, finding that complainant was not discriminated
against on the basis of disability when on September 27, 1993 complainant
learned that he would not be hired as a part-time flexible city letter
carrier.<1>
On December 3, 1997 an EEOC Administrative Judge issued a decision,
after conducting a hearing, recommending a finding of no discrimination.
The administrative judge found that complainant did not meet any of the
definitions of an individual with a disability and was therefore not
protected by the Rehabilitation Act. The administrative judge found:
The record lacks evidence to establish that Complainant's impairment
substantially limited a major life activity. Complainant presented no
testimony or evidence that the arthritis in his neck affected a major
life activity. . . . Complainant contended . . . that his impairment
did not substantially restrict his ability to work. . . .
Secondly, I find that the Agency did not perceive Complainant as
possessing a disability which substantially limited a major life activity.
. . . [T]he evidence does not show, as it must, that the Agency believed
Complainant could not perform a wide range of jobs of similar character
because of his perceived disability and not simply a particular position.
. . . The evidence established that the Agency determined only that
Complainant was not medically capable of performing the position of
mail carrier.
Thirdly, I find that there is no persuasive evidence establishing that
Complainant had a record of a disability.
The agency concurred with the administrative judge's finding of no
unlawful employment discrimination.
An agency shall not discriminate against a qualified individual with
a physical disability. 29 C.F.R. � 1614.203(b). An individual with a
disability is defined as one who:
Has a physical or mental impairment which substantially limits one or
more of such person's major life activities;
Has a record of such an impairment; or
Is regarded as having such an impairment.
29 C.F.R. � 1614.203(a)(1).
The Commission agrees with the administrative judge that complainant was
not an individual with a disability as defined in the Rehabilitation Act.
The Commission agrees with the administrative judge that complainant
failed to show that: (i) his physical impairment substantially limited
one or more of his major life activities; (ii) he had a record of such
an impairment; or (iii) he was regarded by the agency as having such
an impairment.
After reviewing the entire record, including the hearing transcript and
investigative file, the Commission adopts the administrative judge's
finding that complainant failed to show that he was not hired for the
part time flexible city letter carrier position because of disability
discrimination. Therefore, the Commission finds that the agency properly
found that complainant was not discriminated against on the basis of
disability.
The agency's final agency decision finding no discrimination on the
basis of disability is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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 (Z1092)
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:
Dec. 17, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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 complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________
Date 1On 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.