Thomas McGrady, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.

Equal Employment Opportunity CommissionJul 10, 2000
01976169 (E.E.O.C. Jul. 10, 2000)

01976169

07-10-2000

Thomas McGrady, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.


Thomas McGrady v. United States Postal Service

01976169

July 10, 2000

Thomas McGrady, )

Complainant, )

) Appeal No. 01976169

v. ) Agency No. 1C-443-1039-96

) Hearing No. 220-97-5043X

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Allegheny/Mid-Atlantic), )

Agency. )

)

DECISION

Thomas McGrady (complainant) timely initiated an appeal of a final

agency decision (FAD) concerning his complaint of unlawful employment

discrimination on the basis of physical disability (left knee injury),

in violation of � 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq.<1> The appeal is accepted in accordance with 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE

The issue on appeal is whether complainant has proven, by a preponderance

of the evidence, that he was subjected to unlawful employment

discrimination on the above-cited basis when he received an agency letter

on April 24, 1996, advising him that an administrative error, relative to

his veteran's preference, may have been made at the time of his initial

appointment to a career position. This letter caused complainant to

believe that the error led to the agency's failure to offer him other

Postal positions and to his not being hired in a fair and timely manner.

BACKGROUND

The record reveals that during the relevant time, complainant was

employed as a Clerk, PS-05, at the agency's Toledo, Ohio facility.

Believing he was the victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a formal complaint on May 21, 1996.

The agency accepted complainant's complaint, conducted an investigation

and provided complainant with a copy of the investigative report.

Thereafter, all administrative procedures were met for a hearing before an

EEOC administrative judge (AJ). A hearing was held, and the AJ issued

a recommended bench decision on May 8, 1997, finding no discrimination.

The agency subsequently adopted the AJ's decision in a FAD dated July 11,

1997.

In her recommended decision, the AJ found that complainant's complaint

constituted a claim of disparate treatment discrimination. As such,

the AJ concluded that complainant failed to establish a prima facie

case of discrimination on the basis of his physical disability because

he failed to submit evidence of a physical impairment which rose to the

level of a physical disability as provided by the Rehabilitation Act

and the Commission's regulations.

In support of her finding, the AJ noted that complainant received a 10%

disability rating in November 1981 from the Veterans Administration

(VA). This rating was discontinued in 1982 when the VA determined that

his disability was less than 10% disabling.<2> Additionally, the AJ

noted that complainant testified that his disability has not affected

him in performing the duties of his postal job. Based on the evidence

of record, the AJ concluded that the evidence presented by complainant

and included in the record failed to demonstrate that complainant's

knee condition substantially limited one or more major life activities.

More specifically, considering factors such as �the nature and severity

of the impairment, the duration of the impairment, and the permanent

or long term impact, or the expected permanent or long term impact of

or resulting from the impairment,� the AJ concluded that the evidence

did not show that complainant is unable to perform, or is significantly

limited in the ability to perform, a major life activity in comparison

to the average person in the general population.

Based on her finding that complainant failed to prove that he was disabled

within the meaning of the Rehabilitation Act, the AJ concluded that

complainant was not discriminated against on the basis of a disability.

CONTENTIONS ON APPEAL

On appeal, complainant contends that because he received a veteran's

preference from the agency when he was hired, he was perceived as

being disabled. He also reiterates arguments made during his hearing.

Specifically, complainant notes that he has difficulties in running,

walking and standing for prolonged periods. Complainant argues that

his testimony concerning these difficulties was undisputed and therefore

conclusive. Complainant argues that he is entitled to the protections of

the Rehabilitation Act because he has an impairment which substantially

limits a major life activity and because he was perceived as having such

an impairment by the agency.

The agency offers no contentions in response to complainant's appeal.

ANALYSIS AND FINDINGS

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 29

C.F.R. � 1614.405(a)), all post-hearing factual findings by an AJ 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).

As a threshold matter, complainant must establish that he is a

�qualified individual with disability� within the meaning of the

Rehabilitation Act.<3> 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. 29 C.F.R. � 1630.2(g).

Major life activities include, but are not limited to, caring for

oneself, performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working. 29 C.F.R. � 1630.2(i). A "qualified"

individual with a disability is one who satisfies the requirements for

the employment position he holds or desires and can perform the essential

functions of that position with or without reasonable accommodation.

29 C.F.R. � 1630.2(m).

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. We note that

complainant failed to present sufficient evidence to establish that he

is a disabled individual within the meaning of the Rehabilitation Act.

Although complainant relies on the fact that he has a veteran's disability

status, this does not necessarily establish that he is disabled under the

Rehabilitation Act. Wood v. United States Postal Service, EEOC Request

No. 05950624 (October 17, 1997). The only other evidence offered by

complainant to establish that he is substantially limited in a major

life activity was his own testimony regarding his physical limitations.

Complainant testified that as a consequence of a left knee injury, he is

not able to do a lot of running, walking, prolonged standing, jogging,

or jumping. This limited testimony, unsupported by medical records or

doctors' statements, is insufficient to establish that complainant's knee

injury substantially limited a major life activity. We therefore agree

with the AJ that complainant has not established that he is substantially

limited in a major life activity.

However, as noted above, complainant may prove he is disabled within the

meaning of the Rehabilitation Act, not only by establishing that he has

a physical impairment which substantially limits a major life activity,

but also by proving that he either has a record of such an impairment,

or is regarded as having such an impairment. Neither the AJ nor the

agency addressed whether complainant established that he is disabled

under one of these definitions.

After a careful review of the entire record, we find that complainant

failed to establish that he is disabled under either the �regarded as�

or the �record of� prong of the Rehabilitation Act.

An individual is disabled due to a record of an impairment that

substantially limits a major life activity if he has a history of a

substantially limiting impairment or has been misclassified as having a

substantially limiting impairment. 29 C.F.R. � 1630.2(k). While letters

in the record reveal that at one point complainant was classified as

being 10% disabled by the VA, this does not prove he has a record of a

substantially limiting impairment. As noted above, it is well-settled

that having a service-related disability does not automatically mean

that the individual is disabled for purposes of the Rehabilitation Act.

The impairment indicated in the record must be a substantially limiting

one. See Wood, supra; see also, Interpretive Guidance on Title I of

the Americans with Disabilities Act. Complainant has offered no other

evidence to establish that he has such a record.

An individual is regarded as having a substantially limiting impairment

if: (1) he has an impairment which is not substantially limiting but is

treated by the agency as if it is substantially limiting; (2) he has a

substantially limiting impairment only as a result of the attitudes of

others toward his impairment; or (3) has no impairment but is treated by

the agency as if he has a substantially limiting impairment. 29 C.F.R. �

1630.2(l). Complainant has offered no evidence that the agency regarded

him as having a substantially limiting impairment.

CONCLUSION

Accordingly, 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 discern no basis to

disturb the AJ's decision and therefore AFFIRM the agency's final

decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 10, 2000

Date Frances M. Hart

Executive Officer

Executive Secretariat

1 On 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.

2 The record indicates that this discontinuation occurred in 1983,

rather than 1982.

3The 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. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website at www.eeoc.gov.