01A31380
05-26-2004
William J. McIntyre, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
William J. McIntyre v. Department of Veterans Affairs
01A31380
May 26, 2004
.
William J. McIntyre,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A31380
Agency No. 200H-2024
Hearing No. 100-A2-7279X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission AFFIRMS the agency's final
order.
Background
The record reveals that complainant, a Maintenance Mechanic at the
agency's VA New York Healthcare System in Batavia, New York facility,
injured his left ankle in 1993 or 1994. On January 25, 2000, complainant
underwent surgery to fuse bones in the ankle. Complainant testified that
on February 1, 2000 his physician told him he could return to work by
March 6, 2000 with restrictions of no lifting and no climbing ladders.
ROI, Affidavit B1, pp. 4-5, 10. He maintains that when he informed his
supervisor (no disability) of his doctor's instructions, he was told he
would not be permitted back to work until he had received a full medical
clearance. Id., pp. 10-11. On September 11, 2000, having received a
full medical clearance, complainant returned to work.
Complainant filed a formal EEO complaint on October 23, 2000, alleging
that the agency had discriminated against him on the basis of disability
(ankle fusion) when he was denied a reasonable accommodation to return
to work on a light duty assignment with restrictions. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability discrimination. Specifically, the AJ found that complainant
failed to demonstrate that he has a disability under the applicable
regulations because his ankle disorder was a temporary condition.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when she found that
complainant did not have a disability under the applicable regulations.
Complainant argues that the AJ erroneously focused on the fact that
complainant's work restrictions were temporary, and failed to take into
account that complainant's ankle condition was a permanent condition
that had lasted for several years. Complainant further argues that the
AJ erred in finding that complainant's major life activities were not
substantially limited based solely on the tasks complainant was able
to perform at work. Complainant maintains that he is substantially
limited in numerous major life activities outside of the workplace,
such as standing, sitting, lifting, walking, running, hiking, working
on his house, skiing, dressing, and tying his shoes.
Findings and Analysis
We note that in order to establish a prima facie case of disability
discrimination, complainant must establish that he is a qualified
individual with a disability. See Sims v. United States Postal
Service, EEOC Petition No. 03A00033 (Feb. 25, 2000); 29 C.F.R. �
1630.4 (prohibiting discrimination against qualified individuals with
disabilities). A "qualified" individual with a disability satisfies the
requisite skills and experiences for the job, and is capable of performing
the essential functions of the position with or without reasonable
accommodation. See 29 C.F.R. � 1630.2(m). To prove a prima facie case,
complainant also must show that the agency took adverse action against
him or failed to provide a reasonable accommodation, and must demonstrate
that a causal relationship exists between the agency's reasons for its
actions, and complainant's disability. See Moore v. Department of the
Army, EEOC Request No. 05960093 (October 16, 1998).
An individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activity;
(2) has record of such impairment; or (3) is regarded as having
such an impairment. See 29 C.F.R. � 1630.2(g) (1)-(3). A physical
impairment includes any physiological disorder affecting, inter alia,
neurological, musculoskeletal, and/or endocrine systems. See 29 C.F.R. �
1630.2(h)(1). The impairment must substantially limit complainant,
or significantly restrict him as to the condition, manner, or duration
under which he performs a particular major life activity as compared
with the performance of the average person in the general population.
See 29 C.F.R. � 1630.2(j)(1)(ii).
Determinations regarding whether a complainant is an individual with a
disability must be made on a case-by-case basis. See Bragdon v. Abbott,
524 U.S. 624, 641-642 (1998). In determining
whether complainant suffers a substantial limitation to a major life
activity, the Commission must consider the nature and severity of the
impairment, the duration or expected duration of the impairment, and the
permanent or long-term impact resulting from the impairment. 29 C.F.R.
� 1630.2(j)(2)(i)-(iii). Additionally, the effects of any �[mitigating]
measures - both positive and negative - must be taken into account when
judging whether that person is �substantially limited.'� See Sutton
v. United Airlines, 527 U.S. 471, 482 (1999).
After a careful review of the record, the Commission finds that the grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. Based on the above facts, we find that complainant's
ankle impairment did not rise to the level of a disability for purposes
of the Rehabilitation Act. The Commission has stated that temporary,
non-chronic impairments of short duration, with little or no long
term impact, are usually not disabilities. See EEOC Interpretive
Guidance on Title I of the Americans with Disabilities Act; see also 29
C.F.R. � 1630.2(j); Wendt v. Department of Veterans Affairs, EEOC Appeal
No. 01A4385 (August 15, 2002)(Ankle impairment lasting five months did
not constitute a disability). While complainant avers on appeal that
he is substantially limited in various major life activities such as
caring for himself, performing manual tasks, walking, working, standing,
lifting, and running, he testified during the investigation that he has
no disability, ROI Affidavit B1, p.4, and further denied he was limited
in a major life activity. Id., p. 6. In addition, he has not presented
any medical evidence that his ankle disorder substantially limits a major
life activity. Instead, the evidence indicates that any impairment was
of short duration, and furthermore, was steadily improving.
In Thompson v. Tennessee Valley Authority, EEOC Appeal No. 01A03637
(February 1, 2002), the Commission noted that an impairment lasting eight
months "arguably" constitutes a record of a disability.<1> That case,
however, is distinguishable from the instant matter. In Thompson, the
employee fractured his leg in September 1994 and although he was able
to return to work by November 1994 with his leg in a cast, in January
1995 he was under numerous medical restrictions, and in March 1995 his
physician said that these restrictions were indefinite. It was not until
April 1995, eight months after his injury, that his condition improved
enough to make his restrictions less onerous. In the present case,
complainant underwent ankle surgery on January 25, 2000 and testified
that he sought to return to work on or around March 6, 2000 with the
restrictions of no lifting and no ladder-climbing. ROI, Affidavit B1,
pp. 4-5, 10. Thus when he first sought to return to work, he had been
recovering for less than two months. Significantly, however, he gave
no indication of the length of time the restrictions would last, or even
that their duration was unknown. While there may be instances in which
it can be assumed, from the nature of a condition, that limitations
will be permanent or long-term, that is not the case here. In fact,
subsequent documentation, submitted in July (no lifting over 20 lbs.,
no ladder climbing), ROI, Exhibit C1, and September (no ladder climbing),
suggests that the condition was temporary in nature, improved steadily,
and in fewer than eight months had shown significant improvement.
Under the circumstances, complainant has presented insufficient
evidence to establish that he had a disability within the meaning of
the Rehabilitation Act when he sought to return to work in March.
The record indicates that complainant fractured the ankle in 1993 or 1994
and had to wear a cast on the ankle during part of 1999. Complainant,
however, presented no evidence of long term effects on a major life
activity that were substantially limiting. Complainant's testimony, in
fact, indicates that any restrictions on these occasions were short-lived,
ROI, Affidavit B1, pp.6-7, 12-13, 16, and furthermore, he has presented
no evidence indicating that such restrictions were substantially limiting
even during the periods they were in effect.
While a medical certificate dated September 5, 2000, stated "no climbing,
no ladders," we find that, unlike lifting, ladder-climbing is not a
major life activity. See EEOC Compliance Manual, Definition of Term
'Disability' � 902.4(d) (examples of major life activities include
caring for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, working, sitting, standing, and lifting,
as well as mental and emotional processes such as thinking, concentrating,
and interacting with others).
Nor does the evidence show that complainant had a record of an impairment
that was substantially limiting, or that he was viewed as having
such an impairment. As noted above, he had a record of intermittent
restrictions, and we note that the supervisor testified that he did not
consider complainant's ankle disorder to be a disability. ROI, Affidavit
B 2, p. 4. For these reasons, we find that complainant is not a person
with a disability under the Rehabilitation Act. Thus, we find that the
agency did not discriminate against him on the basis of disability.
In view of the above, we find that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected class.
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
May 26, 2004
__________________
Date
1We note that Thompson used a disparate treatment analysis, and did not
address reasonable accommodation. It found that even if the complainant
had a record of a disability, he did not show that he was discriminated
against when he was removed.